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Bryant v. Dillon Real Estate Co., Inc.

United States District Court, D. Colorado

August 20, 2019

KIM L. BRYANT, and KIMBERLY D. BRYANT, Plaintiffs,
v.
DILLON REAL ESTATE COMPANY, INC., MINI MART, INC., and THE KROGER COMPANY, INC., Defendants.

          ORDER

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Defendants' Motion for Rule 35 Exam [filed July 24, 2019; ECF 48]. The Court heard the motion on July 24, 2019 and ruled on all issues raised except two: first, whether the examiner must produce a copy of his complete file to the Plaintiffs, including notes and draft reports, at the time he issues his final report and, second, whether the examiner must provide copies of the last sixty reports he issued involving the same condition(s) as Plaintiff Kim Bryant (“Kim”). As to these last issues, the Court will grant in part and deny in part Defendants' motion.

         I. Background

         Plaintiffs initiated this action on November 23, 2017 in the District Court for the County of Boulder, Colorado, and Defendants answered at the same time they removed the action to this Court on February 26, 2018. In essence, Plaintiffs allege that Defendants owned and were responsible for the conditions at a “Loaf ‘N Jug” convenience store, at which Kim slipped on ice and sustained physical and mental injuries. See Compl. ¶¶ 8-17. In addition to other forms of relief, Plaintiffs seek recovery for injuries including “to [Kim's] head, neck, shoulder and back, along with mental and emotional stress, grief, inconvenience, loss damages for emotional distress, humiliation, loss of enjoyment of life, and other pain and suffering on all claims allowed by law.” Id. at ¶ 28.

         Through this motion, Defendants seek an independent psychiatric examination (“IPE”) of Kim, who suffers ongoing cognitive, psychological, and emotional problems from a traumatic brain injury he allegedly sustained from the slip and fall. Mot. 2. Defendants contend that Gary Gutterman, M.D. is “qualified to assess Plaintiff's alleged injuries, his current condition, and his need for future treatment.” Id. at 5-6. Plaintiffs counter that Dr. Gutterman “has a reputation as a biased physician that routinely provides retained medical examination reports to help Defendants and insurers attempt to reduce the value of claims asserted against them.” Pls. Br., ECF 52. In light of such “bias, ” Plaintiffs argue that certain conditions (identified above) should be imposed on the IPE to ensure as “independent” an exam as possible. Id. Defendants assert that Plaintiffs fail to demonstrate good cause for the requested conditions. The Court will address each condition in turn.

         II. Discussion

         Rule 35 of the Federal Rules of Civil Procedure permits the court to order a party to submit to an independent examination by a suitably licensed or certified examiner when the party's “mental or physical condition ... is in controversy” and where the moving party has shown “good cause” for the requested examination. The court “must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” See Fed. R. Civ. P. 35(a)(2)(B). While Rule 35 should be construed liberally in favor of granting discovery, its application is left to the sound discretion of the court. Simpson v. Univ. of Colo., 220 F.R.D. 354, 362 (D. Colo. 2004) (citing Eckman v. Univ. of R.I., 160 F.R.D. 431, 433 (D.R.I. 1995)).

         “A plaintiff in a negligence action who asserts mental or physical injury ... places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.” Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964). Where a plaintiff claims ongoing mental harm, the plaintiff has placed his or her mental state in controversy. Duncan v. Upjohn Co., 155 F.R.D. 23, 25 (D. Conn. 1994) (citing Tomlin v. Holecek, 150 F.R.D. 628, 630 (D. Minn. 1993) (the “in controversy” and “good cause” requirements of Rule 35 are merged when a plaintiff claims an ongoing mental injury in a negligence action)).

         Here, whether Defendants have shown good cause for the examination is not at issue since, at the hearing, the Court found good cause for Defendants to seek an IPE of Kim and for Plaintiffs to place certain conditions on the IPE. At issue here is whether the Plaintiffs can demonstrate good cause for the remaining conditions they seek to place on the examination.

         A. Whether Examiner Must Provide Complete File Including Notes and Draft Reports

         Plaintiffs assert that they “seek production of all reports, notes, drafts, and other materials from Dr. Gutterman's file in conjunction with his Fed.R.Civ.P. 35 examination of [Kim].” Br. 5, ECF 52. Defendants argue that Plaintiffs have failed to demonstrate good cause for this request because “allegations of bias and prejudice are not sufficient for the imposition of FRCP 35 conditions” and because draft expert reports are protected from disclosure by Fed.R.Civ.P. 26(b)(4)(B). Defendants assert they have retained Dr. Gutterman as a “rebuttal expert. Thus, he is a FRCP 26(a)(2)(B) expert whose reports and communications fall within the purview of FRCP 26(b(4)(B).” Br. 7, ECF 51. Citing the unpublished opinions of two courts outside the Tenth Circuit, Plaintiffs counter that they are entitled to Dr. Gutterman's draft reports pursuant to Rule 35(b). Under the plain language of the rules, and guided by the applicable advisory committee notes, the Court finds Plaintiffs are not entitled to production of Dr. Gutterman's notes and draft reports.

         First, to the extent that Plaintiffs rely on Dr. Gutterman's apparent “bias” as a retained expert for demonstrating good cause, such concern is insufficient to convince the Court to choose a different examiner. Simpson, 220 F.R.D. at 363 (citing Looney v. Nat'l R.R. Passenger Corp., 142 F.R.D. 264, 266 (D. Mass. 1992) (generally, objections based upon the potential bias or prejudice of the chosen physician will be left for trial and cross-examination))

         Also, the Court finds that the production of Dr. Gutterman's report is governed by rules other than, and in addition to, Fed.R.Civ.P. 35. Rule 35(b) provides that “[t]he party who moved for the examination must, on request, deliver to the requester a copy of the examiner's report.” Fed.R.Civ.P. 35(b)(1). “The examiner's report must be in writing and must set out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests.” Fed.R.Civ.P. 35(b)(2). Nothing in this rule, including the committee notes, specifies that the examiner must produce anything other than his final report in accordance with Rule 35(b)(2) and “like reports of all earlier examinations of the same condition.” Fed.R.Civ.P. 35(b)(1).

         If the examiner is retained as an expert pursuant to Rule 26(a)(2), the examiner is also subject to Rule 26(b)(4) governing “trial preparation [regarding] experts.” Rule 26(b)(4)(B) governs the “Trial-Preparation Protection for Draft Reports or Disclosures” and provides that “Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), ...


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