The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WAYNE PERKINS CIVIL ACTION
VERSUS No. 23-3375
DAVID SWOPE ET AL. SECTION I
ORDER & REASONS
Before the Court is a motion1 to amend the Court’s scheduling order to add an
expert witness and to compel plaintiff Wayne Perkins (“Perkins”) to undergo an
independent medical examination (“IME”). The motion was filed by defendants David
Swope (“Swope”), Advance Transportation Systems, Inc., and Chubb Indemnity
Insurance Company (collectively, “defendants”). Perkins opposes2 the motion. For the
reasons that follow, the Court grants the motion in part and denies it in part. The
motion is denied to the extent it seeks to amend the Court’s scheduling order to add
a medical billing expert. However, the motion is granted to the extent it seeks to
compel an IME.
I. BACKGROUND
On June 17, 2022, Swope’s tractor trailer collided with and scraped Perkins’s
parked tractor trailer in the parking lot of a truck stop in Robert, Louisiana.3 Perkins
filed the instant lawsuit in the 21st Judicial District Court for Tangipahoa Parish on
March 6, 2023.4 In his petition for damages, Perkins alleges that he sustained injuries
1 R. Doc. No. 20.
2 R. Doc. No. 23.
3 R. Doc. No. 1-2 (state-court petition for damages).
4 See generally id.; R. Doc. No. 20-1, at 1.
and other damages as a result of this incident.5 Defendants removed the lawsuit to
this Court on August 13, 2023, invoking diversity jurisdiction.6
On December 23, 2022, before the lawsuit was filed, Dr. Vinaya K. Puppala
(“Puppala”) performed a percutaneous discectomy procedure on Perkins.7 The next
year, on December 8, 2023, Puppala performed a lumbar hydrodiscectomy on
Perkins.8 Defendants contend that they were not given appropriate advance notice of
either procedure.9 According to defendants, they were advised of the second procedure
on the morning of December 8, 2023 and were not told the procedure would be
performed on the same day.10 Defendants assert that they requested that Perkins
submit to an IME before undergoing the procedure, but Perkins underwent the
procedure before such an examination could be performed.11 According to Perkins,
defendants were given notice that a hydrodiscectomy was recommended through
medical records produced on July 23, 2023.12
On December 21, 2023, defendants filed an ex parte motion to extend the
discovery deadline from December 22, 2023 to January 31, 2024 to permit defendants
5 R. Doc. No. 1-2, ¶ VIII.
6 R. Doc. No. 1.
7 See R. Doc. No. 23-5, at 26–30.
8 R. Doc. No. 20-1, at 1.
9 Id.
10 Id. at 1–2.
11 Id. at 2.
12 R. Doc. No. 23, at 2–4.
to depose Puppala and any other doctor who has treated Perkins.13 The Court granted
this motion.14
On January 19, 2024, defendants filed the instant motion to amend the
scheduling order to permit them to add a medical billing expert and to compel Swope
to undergo an IME.15 Defendants argue that they should be permitted to add a
medical billing expert because, on January 11, 2024 and January 15, 2024, they
learned that Puppala was disciplined by the Georgia Composite Medical Board and
that a verified complaint filed in Colorado accuses him of overbilling.16 “Defendants
seek to have a medical billing expert review Dr. Puppala’s billing and opine whether
what allegedly occurred in the Colorado case has occurred in this case (i.e. that Dr.
Puppala has billed at rates far beyond what is reasonable and customary).”17
Defendants also argue that the Court should compel Perkins to undergo an IME
because, on January 11, 2024, defendants obtained updated records showing that a
doctor has recommended an “L3-4/4-5 Endoscopic DiscFX” for Perkins.18
In response, Perkins argues that defendants’ request for leave to include an
additional expert should be denied because “the sole reason for this requested
extension to add additional experts is the complete lack of diligence on the part of
[d]efendants” since Perkins produced medical records providing notice of a potential
13 R. Doc. No. 17.
14 R. Doc. No. 18. According to Perkins, Puppala was deposed on January 22, 2024.
See R. Doc. No. 23, at 4.
15 R. Doc. No. 20.
16 R. Doc. No. 20-1, at 4.
17 Id. at 4–5.
18 Id. at 2.
second procedure on July 23, 2023.19 Further, Perkins asserts that the proposed
medical billing expert is unnecessary because, in Louisiana, tortfeasors are liable for
the full costs of the tort victim’s medical treatment, even in cases of overtreatment
and over-billed treatment, as long as the tort victim acted in good faith in pursuing
the treatment.20 Perkins also contends that permitting defendants to add a medical
billing expert five weeks before trial would prejudice plaintiff absent a continuance
of various pretrial deadlines and of the trial itself.21 Specifically, Perkins asserts that
compelling an IME would prejudice him—including if the IME is conducted by
defendants’ existing medical expert—because Perkins’s counsel would need to depose
the medical expert to cross-examine him on any new opinions.22
II. STANDARD OF LAW
a. Motion to Amend the Scheduling Order
Federal Rule of Civil Procedure 16(b)(4) governs requests to modify a court’s
scheduling order. Pursuant to that rule, a court’s scheduling order “may be modified
only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). In this
context, to show good cause, the party seeking to modify the scheduling order must
show “that the deadlines cannot reasonably be met despite the diligence of the party
needing the extension.” S&W Enters., L.L.C. v. SouthTrust Bank of Ala., N.A., 315
19 R. Doc. No. 23, at 4–5; see also R. Doc. No. 23-3 (plaintiff’s answers to defendants’
first set of interrogatories and requests for production dated July 23, 2023), at 4–5;
R. Doc. No. 23-5 (medical records produced by plaintiff with discovery responses).
20 R. Doc. No. 23, at 6–8.
21 Id. at 5–6.
22 Id. at 6.
F.3d 533, 535 (5th Cir. 2003) (quoting 6A Charles Alan Wright et al., Federal Practice
and Procedure § 1522.1 (2d ed. 1990)).
In considering such requests, courts in the Fifth Circuit examine four factors:
“(1) the explanation for the failure to timely comply with the scheduling order; (2) the
importance of the modification; (3) potential prejudice in allowing the modification;
and (4) the availability of a continuance to cure such prejudice.” Squyres v. Heico Cos.,
782 F.3d 224, 237 (5th Cir. 2015) (brackets omitted). A district court’s discretion to
modify a scheduling order “is exceedingly wide” and the “court must consider not only
the facts of the particular case but also all of the demands on counsel’s time and the
court’s.” Streber v. Hunter, 221 F.3d 701, 736 (5th Cir. 2000) (citation and quotation
marks omitted).
b. Motion to Compel an IME
Pursuant to Rule 35(a)(1) of the Federal Rules of Civil Procedure, a court may
order a party whose physical condition is in controversy to submit to an IME. A court
may issue an IME order “only on motion for good cause and on notice to all parties
and the person to be examined.” Fed. R. Civ. P. 35(a)(2)(A). An IME order “must
specify the time, place, manner, conditions, and scope of the examination, as well as
the person or persons who will perform it.” Id. 35(a)(2)(B).
“Rule 35(a) is generally construed liberally in favor of granting discovery.” Y &
S Marine, Inc. v. Maza, No.11-1425, 2011 WL 5825715, at *1 (E.D. La. Nov. 17, 2011)
(Zainey, J.). “The decision as to whether or not to order an IME under [Rule] 35(a)
rests in the Court’s sound discretion.” Crumedy v. XYZ Ins. Co., No. 22-4570, 2023
WL 6293867 at *2 (E.D. La. Sept. 27, 2023) (Currault, J.) (citing Glaze v. Bud’s Boat
Rental, Inc., No. 93-1334, 1993 WL 441890, at *1 (E.D. La. Oct. 21, 1993) (McNamara,
J.)).
III. ANALYSIS
a. Medical Billing Expert
The Court first addresses defendants’ request to modify the scheduling order
to permit them to identify and retain a medical billing expert. As noted, defendants
state that such an expert would “review Dr. Puppala’s billing and opine whether . . .
Dr. Puppala has billed at rates far beyond what is reasonable and customary[.]”23
Having considered the relevant factors, the Court finds that defendants have not
shown good cause to amend the scheduling order on this basis.
Most significantly, the Court finds that defendants’ proposed testimony from a
medical billing expert would be inadmissible, so the second Squyres factor—the
importance of the modification—weighs heavily in Perkins’s favor. As Perkins
notes,24 “Louisiana law is clear that ‘[e]ven if a tort victim has been overcharged for
medical treatment, the tortfeasor is liable for the expenses unless they were incurred
by the victim in bad faith.’” Rodrigue v. Nat’l Ins. Co., No. 20-2267, 2021 WL 3284254,
at *4 (E.D. La. July 2, 2021) (Fallon, J.) (quoting Alexander v. Ford, 866 So. 2d 890,
899 (La. App. 5 Cir. 2004)). “[W]hether a treating physician overcharged a plaintiff
for medical service is not within the jury’s province to decide.” Id. Testimony by such
23 R. Doc. No. 20-1, at 4–5.
24 R. Doc. No. 23, at 6–8.
an expert “for the purpose of contesting the reasonableness of plaintiff’s medical bills
would invite the jury to do something it cannot do” and is therefore irrelevant
pursuant to Rule 401 of the Federal Rules of Evidence. Id.; see also Thomas v.
Chambers, No. 18-4373, 2019 WL 8888169, at *13 (E.D. La. Apr. 26, 2019) (Vance, J.)
(“[N]o evidence is admissible if it is used solely to suggest to the jury that [a plaintiff’s]
award of past medical expenses should be reduced because the charges are
unreasonably high for the treatment [the plaintiff] received.”).
Accordingly, the Court in its discretion declines to amend its scheduling order
to permit defendants to retain a medical billing expert for inadmissible testimony
about whether Puppala’s billing rates for past medical treatment are “beyond what
is reasonable and customary.”25 However, the Court notes that any attorney-
negotiated write-offs or discounts for medical expenses obtained as a product of the
litigation process are not recoverable. Thomas, 2019 WL 8888169, at *2 (citing
Hoffman v. 21st Century N. Am. Ins. Co., 209 So. 3d 702, 706 (La. 2015)).
b. IME
Next, the Court considers defendants’ motion to compel an IME of Perkins.
Defendants argue that, since another medical procedure has been recommended but
not yet performed, an IME is appropriate.26 As noted, Perkins previously underwent
25 R. Doc. No. 20-1, at 5. Defendants’ motion does not suggest that a medical billing
expert would opine about future medical expenses or offer any other admissible
testimony. Further, because the Court denies defendants’ motion as set forth above,
the Court need not address Perkins’s argument that defendants’ “lack of due diligence
is not a valid cause for modifying a scheduling order under [Rule] 16(b)(4).” R. Doc.
No. 23, at 1.
26 R. Doc. No. 20-1, at 2.
a medical procedure without providing adequate notice to defendants.27 Accordingly,
the Court agrees with defendants that an IME of Perkins is appropriate.
Defendants request that such an IME be performed by defendants’ previously
retained medical expert, Dr. Everett Robert (“Robert”), in New Orleans, Louisiana.28
According to defendants, it would be more efficient to have Robert—who is already
an expert in this case—perform the IME rather than having a new expert perform
the IME in Atlanta, Georgia, where Perkins resides.29 Robert has advised defendants
that he can produce a report within a few days of conducting the IME.30
In light of the uncertainty surrounding the proposed IME, defendants’ motion
does not specify the “time, place, manner, conditions, and scope” of the IME as
required by Rule 35(a). Accordingly, the Court will grant defendants’ motion to
compel an IME of Perkins by Robert subject to the parties’ determination of the time,
place, manner, conditions, and scope of the IME.
The Court acknowledges Perkins’s argument that compelling an IME and by
extension permitting Robert to supplement his report would prejudice Perkins given
that the trial date is only five weeks away.31 At this time, however, there is no motion
to continue before the Court.
27 Id.
28 Id. at 3.
29 Id. at 3–4.
30 R. Doc. No. 20, at 1.
31 See R. Doc. No. 23, at 1.
IV. CONCLUSION
For the reasons stated herein,
IT IS ORDERED that defendants’ motion is GRANTED IN PART and
DENIED IN PART. The motion is DENIED to the extent it seeks to amend the
scheduling order to permit defendants to add a medical billing expert. The motion is
GRANTED to the extent it seeks to compel an IME of plaintiff by Dr. Everett Robert,
subject to the parties’ determination of the time, place, manner, conditions, and scope
of the IME.
New Orleans, Louisiana, January 26, 2024.
Si
—_
UNITED STATES DISTRICT JUDGE