FIELLO v. DAIMLER TRUCKS NORTH AMERICA LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

THOMAS JEREMY FIELLO, )

)

Plaintiff, )

)

v. ) 1:20cv182

)

DAIMLER TRUCKS NORTH AMERICA LLC )

f/k/a FREIGHTLINER LLC, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This case comes before the Court on “Defendants’ Joint Motion

for Rule 35 Examination” (Docket Entry 36) (the “Motion”). For the

reasons that follow, the Court will grant the Motion in part.

BACKGROUND

Alleging negligence and gross negligence in connection with a

workplace injury, Thomas Jeremy Fiello (the “Plaintiff”) initiated

a lawsuit against Daimler Trucks North America LLC, formerly known

as Freightliner LLC (“Daimler”), in Rowan County Superior Court.

(Docket Entry 4 (the “Original Complaint”).) Daimler responded by

filing a notice of removal (Docket Entry 1), invoking this Court’s

diversity jurisdiction (id., ¶ 6). Daimler then answered the

Original Complaint (Docket Entry 7), and the parties submitted a

joint report pursuant to Federal Rule of Civil Procedure 26(f)

(Docket Entry 12; see also Text Order dated Apr. 14, 2020 (adopting

joint report with one clarification)).

Plaintiff thereafter moved to amend the Original Complaint by

adding a new party, Handling Services, Inc. (“HSI”), and asserting

claims against both Daimler and HSI (collectively, “Defendants”).

(See Docket Entries 14 (the “Motion to Amend”), 15 (supporting

memorandum), 15-1 (the “Proposed Amended Complaint”).) After

Daimler consented to that request (Docket Entry 16 at 1), the Court

granted the Motion to Amend and directed Plaintiff to file the

Proposed Amended Complaint (Text Order dated Aug. 3, 2020; see also

Docket Entry 17 (the “Amended Complaint”)). In particular, the

Amended Complaint alleges:

Plaintiff [] during pertinent times has worked as a

Quality Inspector and Onsite Representative for Molded

Fiber Glass, Co. (“MFG”), a contractor who provides

services on location at the Daimler manufacturing

facility located at 11550 Statesville Boulevard,

Cleveland, NC 27013 (the “Cleveland Facility”). MFG

supplies Daimler with molded fiberglass fairings that

Daimler installs on top of Daimler truck cabs.

On November 17, 2018, an overhead jib crane in the

Daimler Cab Line Area (i.e., the 400 Building, in the

vicinity of door 420) broke off its mounting hinge and

fell on [Plaintiff] as he was walking through a doorway,

causing [him] to suffer a traumatic brain injury and

other significant injuries (the “Incident”). The

overhead jib crane in the Cab Line Area that fell on and

injured [Plaintiff] was designated “P63-J1” (hereinafter

the “Crane”).

(Docket Entry 17, ¶¶ 1–3.)

The Amended Complaint further alleges that “[Plaintiff]

suffered significant physical personal injury due to the Incident,

and [has continued to] suffer[] from significant memory impairment

and headaches and from other physical, mental and neurological

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issues aS a proximate result of his injuries.” (Id., JF 4.) In

connection with those allegations, the Amended Complaint asserts

claims for negligence and gross negligence against Daimler, “the

sole owner and operator of the Cleveland Facility” (id., @ 8), and

HSI, which “perform[ed] periodic inspections of the Crane” for

Daimler (id., 7 9). (See id., II 50-66, 67-80, 81-85.)*

After the parties commenced discovery, Defendants moved,

pursuant to Federal Rule of Civil Procedure 35 (“Rule 35”) “for an

Order Compelling Plaintiff to attend a neuropsychological

evaluation performed by Dr. Shelley Leininger” (“Dr. Leininger”).

(Docket Entry 36 at 1; see also Docket Entry 37 (the

“Memorandum” .) The Memorandum explains that, before filing the

Motion, Defendants contacted Plaintiff, requesting that Plaintiff

consent to such an examination. (Docket Entry 37 at 2.) According

to the Memorandum, Plaintiff wrote back to Defendants, agreeing to

the examination but proposing certain terms and conditions. (Id.

at 2-3.) Defendants replied with their own offer. (Id. at 3.)

The Motion followed after the parties failed to resolve their

disagreements concerning some aspects of the examination. (See

Docket Entry 37-2 at 1 (Defendants offering “to withdraw the

[M]otion” if the parties could “reach □ -eresolution on

1 The Amended Complaint also lodged a negligence per se claim

against Daimler and HSI. (See id., WII 86-96.) After HSI moved for

partial judgment on the pleadings as to that claim (Docket Entry 27

at 1), all parties stipulated to its dismissal (Docket Entry 29 at

1-2).

the[ disputed] issues”).) Defendant attached as exhibits to the

Memorandum copies of the foregoing correspondence (see Docket

Entries 37-1 (“Plaintiff’s Letter”), 37-2), as well as an affidavit

from Dr. Leininger (Docket Entry 37-3), Plaintiff’s supplemental

initial disclosures (Docket Entry 37-4), Plaintiff’s responses to

HSI’s interrogatories (Docket Entry 37-5), a transcript from a

hearing before the North Carolina Industrial Commission involving

Plaintiff and the Incident (Docket Entry 37-6), and an article from

an academic journal (Docket Entry 37-7).

Plaintiff responded in partial opposition to the Motion,

maintaining that such examination should occur “subject to certain

protections and protocols to allow for transparency and fairness.”

(Docket Entry 39 ( the “Response”) at 1.) The Response details the

terms on which Plaintiff voluntarily would submit to an examination

(see id. at 3–21) and includes, as an exhibit, a proposed order

permitting such examination on those terms (Docket Entry 39-4).

Defendants replied, accepting several of Plaintiff’s conditions but

indicating continued disagreement on other topics. (Docket Entry

41 (the “Reply”) at 1–2.) Defendants likewise attached a proposed

order. (See Docket Entry 41-1.)

DISCUSSION

I. Relevant Legal Standards

“The court where the action is pending may order a party whose

mental or physical condition . . . is in controversy to submit to

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a physical or mental examination by a suitably licensed or

certified examiner.” Fed. R. Civ. P. 35(a)(1).2 Such an order

“must specify the time, place, manner, conditions, and scope of the

examination, as well as the person or persons who will perform it.”

Fed. R. Civ. P. 35(a)(2)(B). “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) (internal citation omitted). More specifically, as

relevant here,

[m]ental or physical conditions have been found to be in

controversy where (1) the plaintiff has asserted a

specific cause of action for intentional or negligent

infliction of emotional distress; (2) the plaintiff has

claimed unusually severe emotional distress; (3) the

plaintiff has alleged a specific type of disorder or

other psychiatric injury; (4) the plaintiff has offered

her own expert testimony to supplement her claim of

emotional distress; or (5) the plaintiff concedes that

her medical condition is “in controversy” pursuant to

Rule 35.

EEOC v. Maha Prabhu, Inc., No. 3:07-cv-111, 2008 WL 2559417, at *3

(W.D.N.C. June 23, 2008) (unpublished).

2 The parties do not dispute that Dr. Leininger qualifies as

“a suitably licensed or certified examiner,” Fed. R. Civ. P.

35(a)(1). (See Docket Entry 37 at 3 (referencing Dr. Leininger’s

credentials); Docket Entry 39 at 1–21 (failing to question Dr.

Leininger’s qualifications).) In particular, Dr. Leininger averred

that she became a licensed psychologist in 2013 and obtained board

certification in clinical neuropsychology in 2015. (Docket Entry

37-3, ¶¶ 1–2.)

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Additionally, a Rule 35 examination requires a showing of good

cause. Fed. R. Civ. P. 35(a)(2)(A); see also M.D.N.C. LR 26.1(e)

(“For good cause appearing therefor, the physical or mental

examination of a party may be ordered at any time prior to

trial.”); Guilford Nat’l Bank v. Southern Ry. Co., 297 F.2d 921,

924 (4th Cir. 1962) (“Under Rule 35, the invasion of the

individual’s privacy by a physical or mental examination is so

serious that a strict standard of good cause, supervised by the

district courts, is manifestly appropriate.”). Good cause may

exist when “the average lay person would have difficulty evaluating

the nature, extent, and cause of the claimant’s injuries” Maha

Prabhu, Inc., 2008 WL 2559417, at *2, and when “the movant [cannot]

obtain the desired information by other means,” Schlagenhauf, 379

U.S. at 118. Courts also may order a Rule 35 mental examination

when a plaintiff intends to offer expert testimony as to his or her

mental condition and a defendant wishes “to obtain an expert

to . . . provide a counter-expert opinion in response . . . .”

M.M. v. Burke Cnty. Pub. Sch. Bd. of Educ., No. 1:13cv204, 2014 WL

2812536, at *2 (W.D.N.C. June 23, 2014) (unpublished).

II. Analysis

According to the Memorandum, Plaintiff’s mental condition

qualifies as “in controversy” because (i) the Amended Complaint

alleges “severe physical and mental impairments as a result of [the

Incident],” including “a traumatic brain injury” (Docket Entry 37

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at 4 (quoting Docket Entry 17, ¶ 2)), (ii) “Plaintiff’s initial

disclosures and discovery responses also discuss . . . his mental

condition and impairments, . . . including specific types of

disorders [he] suffered as a result of th[e Incident]” (id.), and

(iii) “Plaintiff sought treatment from Dr. [Jeffrey] Ewert [(“Dr.

Ewert”)], a board certified neuropsychologist . . . [who] performed

neuropsychological testing on Plaintiff and continues to treat

[him] for his alleged cognitive impairments” (id. at 5). As

concerns good cause, the Memorandum references Dr. Ewert’s

evaluation of Plaintiff (id. at 6), as well as “testing performed

by another physician” (id.) and states that Defendants have sought

an “independent medical-psychological evaluation . . . to rebut

Plaintiff’s evidence” (id. at 7). To that end, Defendants have

“request[ed] that Plaintiff . . . undergo a neuropsychological

evaluation, involving cognitive testing of thinking

abilities . . . [to] include a clinical interview.” (Id.)

The Response does not challenge the propriety of such

examination (Docket Entry 39 at 1); instead, it focuses on 13

conditions that Plaintiff has requested but that Defendants have

“contested . . . in full or part” (id. at 3). (See id. at 3–21.)

The Reply narrows such conditions to three main topics:

“Plaintiff’s continued request for audio and/or video recording of

the examination[,] . . . production of raw test data, [and]

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information required to be produced under Rule 35” (Docket Entry 41

at 2).

As far as the “in controversy” and “good cause” requirements,

Defendant has demonstrated that the circumstances warrant a Rule 35

mental examination. With respect to the former requirement,

Plaintiff’s mental condition qualifies as “in controversy” because

he (i) “has alleged a specific type of disorder or other

psychiatric injury,” Maha Prabhu, Inc., 2008 WL 2559417, at *3, and

(ii) has “concede[d] that h[is] medical condition is ‘in

controversy’ pursuant to Rule 35,” id. In particular, the Amended

Complaint alleges that Plaintiff sustained “a traumatic brain

injury due to the Incident[, . . . which] has caused him

significant symptoms, issues and ongoing effects” (Docket Entry 17,

¶ 23), to include “dizziness and headaches” (id.) as well as

“significant memory impairment [and] other physical, mental and

neurological issues” (id., ¶ 4). During discovery, Plaintiff’s

initial disclosures and responses to HSI’s interrogatories likewise

referenced such injuries. (See Docket Entry 37-4 at 4; Docket

Entry 37-5 at 4–9.) Finally, Plaintiff has not disputed that his

mental condition remains in controversy. (See Docket Entry 39 at

1–21.)

Turning to the “good cause” requirement, the circumstances

here satisfy that standard because expert testimony may inform “the

nature, extent, and cause of [Plaintiff’s alleged mental] injuries”

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Maha Prabhu, Inc., 2008 WL 2559417, at *2, and because Plaintiff

has sought treatment from individuals who may provide such

testimony on his behalf (see, e.g., Docket Entry 37-6 at 40–43

(Plaintiff testifying during a hearing before the North Carolina

Industrial Commission that Dr. Ewert performed a neuropsychological

evaluation on him)). As Defendants have argued, their inability

“to obtain an expert to question Plaintiff and prepare

a[ competing] expert report” would prejudice their defense against

the claims in this action (Docket Entry 37 at 6 (quoting M.M., 2014

WL 2812536, at *2)). Accordingly, Defendants have demonstrated

that good cause exists to require Plaintiff to submit to a Rule 35

mental examination.

The Court below considers the conditions that should govern

such examination.

A. Recording the Examination

In Plaintiff’s Letter, Plaintiff proposed bringing “a

videographer [to] record the entire [examination]” (Docket Entry

37-1, ¶ 6). In the Memorandum, Defendants objected to that

proposal, contending that the presence of a videographer “would

violate[] Dr. Leininger’s ethical obligations and . . . impact the

validity and reliability of her testing.” (Docket Entry 37 at 11.)

The Memorandum asserts that recording the examination would deviate

from standard testing conditions, such that the results may not

lend themselves to comparison, and further states that most courts

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have not allowed the recording of Rule 35 examinations. (See

Docket Entry 37 at 11–13; see also Docket Entry 37-3, ¶ 7 (Dr.

Leininger averring that attendance of “interested third part[y]”

during examination would “violat[e ]American Psychological

Association (APA) Ethical Standard 9.11 Maintaining Test Security,

among other ethical standards”).)

The Response maintains that the Court should allow audio

and/or video recording throughout all or part of Plaintiff’s

examination in light of the fact that Defendants selected Dr.

Leininger (such that she may not qualify as impartial) (Docket

Entry 39 at 8) and because Plaintiff “has suffered a traumatic

brain injury [as well as] diagnosed memory loss and concentration

problems” (id. at 9). The Response highlights the existence of

non-intrusive methods of recording and insists that such methods

involve fewer disruptions and distractions than a live observer.

(See id. at 10–18.)

“Most courts analyze a request for a recording device the same

way they evaluate whether to permit the presence of an attorney

during a Rule 35 examination.” Ornelas v. Southern Tire Mart, LLC,

292 F.R.D. 388, 396–97 (S.D. Tex. 2013). “Unless the [party

requesting such relief] demonstrates a special need or good cause,

most federal courts have not permitted either a recording or an

observer of an examination.” Spencer v. Huron Cnty., No.

15-cv-12209, 2016 WL 4578102, at *3 (E.D. Mich. Sept. 2, 2016)

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(unpublished). On the one hand, “[m]ere concern that a doctor

might not be completely objective, without any supporting evidence,

[cannot] justify the intrusion and deviation from normal medical

examination procedures that the presence of a third party or

recording device would create.” Rael v. Chavez, Civ. Action No.

13-249, 2014 WL 12791239, at *2 (D.N.M. May 20, 2014)

(unpublished). On the other hand, courts may allow the parties to

record an examination when an examinee’s mental issues, including

memory problems and limited cognitive abilities, raise doubts about

“whether [the examinee would] be capable of providing any

assistance to his attorney in understanding what took place during

the examination,” Schaeffer v. Sequoyah Trading & Transp., 273

F.R.D. 662, 664 (D. Kan. 2011). In considering requests to record

examinations (or to allow an observer to attend), courts also have

recognized that such procedures may

(1) . . . invalidate the examination results; (2) impede

the conversation between the physician and the patient;

(3) inject an adversarial partisan atmosphere into what

should be otherwise a wholly objective inquiry; and

(4) subvert the purpose of Rule 35 which is to put both

plaintiff and defendant on an equal footing in evaluating

the plaintiff’s mental status.

Herkalo v. National Liberty Ins. Corp., Civ. Action No. 94–7660,

1995 WL 739694, at *1 (E.D. Pa. Dec. 8, 1995) (unpublished).

Here, Plaintiff has failed to demonstrate “a special need or

good cause,” Spencer, 2016 WL 4578102, at *3, for recording the

examination. Although the Response asserts that “[t]he possible

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adversary status of [Dr. Leininger]” (Docket Entry 39 at 8) weighs

in favor of allowing a recording, the potential for bias exists in

virtually every case, and courts have declined to permit recordings

on that basis alone. See, e.g., Rael, 2014 WL 12791239, at *2

(“This fear [of a partisan examiner] exists to an equal degree with

regard to any doctor [the p]laintiff has retained.”); see also

Greenhorn v. Marriott Int’l, 216 F.R.D. 649, 654 (D. Kan. 2003)

(“[T]he court will require [the examiner] to tape-record his

sessions with [the] plaintiff in light of [the] plaintiff’s

concerns (and, more specifically, in light of evidence in the

record suggesting that plaintiff’s concerns are legitimate) about

[the examiner’s] conduct during such examinations.”).

The Response otherwise relies on Plaintiff’s allegations about

his mental condition to argue that recording remains appropriate

(see Docket Entry 39 at 9–11; see also Docket Entry 37-5 at 7–8

(Plaintiff’s response to interrogatories describing his “reported

and/or . . . diagnosed” cognitive difficulties)) but cites no

evidence to support that conclusion (see Docket Entry 39 at 1–21).

In one case when a court allowed a party to record a Rule 35

examination, “counsel for both sides agree[d] that [the] plaintiff

ha[d] a lengthy history of serious mental issues that kept him

institutionalized for a significant portion of his life.”

Schaeffer, 273 F.R.D. at 664. In another case, “there was a

sufficient evidentiary basis to support [the] conclusion that the

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examination should be recorded” Maldonado _v. Union Pac. R.R. Co.,

Case No. 09-1187, 2011 WL 841432, at *3 (D. Kan. Mar. 8, 2011)

(unpublished) (emphasis added), based on the showing that “the

pllaintiff ha[d] a third-grade education and [wa]s a non-English

speaker, id., and “based on Plaintiff’s experts’ reports and the

fact that Plaintiff was a patient at the Neurological

Rehabilitation Living Center, [which] support[ed] a finding that

[the pllaintiff’s memory and other cognitive abilities [we]re

impaired,” id.; see also id. (“[Blased on the evidence just

described, . . . [the p]Jlaintiff’s current condition warranted

recording the examination.”). In this case, Plaintiff’s

allegations, standing alone, fail to justify recording the

examination, particularly in light of the problems that such

practice may invite. See Herkalo, 1995 WL 739694, at *1.°

Accordingly, the Court rejects Plaintiff’s request to allow an

audio and/or video recording of the examination.

B. Production of Raw Test Data

Although Plaintiff’s Letter asks that Dr. Leininger supply Dr.

Ewert with “all raw test data and scoring sheets . . . within 10

days of completion of [Plaintiff’s] examination and testing”

(Docket Entry 37-1, 9 10), Plaintiff thereafter submitted a

3 Because the Response focuses on the mechanics of obtaining

audio and video recordings, particularly unobtrusive means of doing

so (see Docket Entry 39 at 14-17), the Court notes that recording

a Rule 35 examination raises concerns unrelated to disruptive

recording equipment. See Herkalo, 1995 WL 739694, at *1.

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proposed order that contemplates the provision of such material to

Plaintiff’s counsel (see Docket Entry 39-4, ¶ 20). Defendants have

agreed to share such material with Dr. Ewert but opposed the latter

request, contending that “only a qualified psychologist, with

access to the material to interpret the test data, may receive such

data” (Docket Entry 41 at 3). (See also id. at 2–3 (citing APA

Ethical Principals and Code of Conduct).) Notwithstanding that

refusal, Defendants have agreed that Dr. Leininger will “prepare a

written report consistent with and similar to reports she prepares

after performing other neuropsychological evaluations and

consistent with Rule 35” (Docket Entry 41-1, ¶ 16).

Under Rule 35, an examiner’s written report “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). Under

Federal Rule of Civil Procedure 26 (“Rule 26”), an expert witness’s

written report must provide “the facts or data considered by the

witness in forming [the expert witness’s opinions].” Fed. R. Civ.

P. 26(a)(2)(B)(ii). “[R]eports generated pursuant to Rule 35 are

not identical to the contents of an expert report as required by

Rule 26(a)(2).” Garayoa v. Miami-Dade Cnty., No. 16-Civ-20213,

2017 WL 2880094, at *4 (S.D. Fla. July 6, 2017) (unpublished).

In light of the foregoing, the Court declines, at this stage,

to order that, as a condition under Rule 35, Dr. Leininger share

with Plaintiff’s counsel the raw data from Plaintiff’s examination.

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By agreement, Dr. Leininger will provide such data to Dr. Ewert.

If Defendants designate Dr. Leininger as an expert who will prepare

a written report, to the extent such data forms the basis of her

opinions, the Court trusts that Defendants will comply with their

Rule 26 disclosure obligations. See, e.g., Hirschheimer v.

Associated Metals & Minerals Corp., No. 94CIV6155, 1995 WL 736901,

at *5 (S.D.N.Y. Dec. 12, 1995) (unpublished) (noting that Rule 26

required disclosure of raw data that formed basis of expert

opinions, if party intended to call such witnesses at trial).

C. Materials from Dr. Leininger

Plaintiff’s Letter proposes that, before the examination, Dr.

Leininger provide “[a] current copy of [her] curriculum

vitae[,] . . . billing schedule[,] . . . [and a] list of any and

all testimony [she] has given at depositions, hearings or trials

within the last three years to include the name of the case; case

number; name of the patient examined; name, address, and phone

number of the attorneys involved; and the amount of compensation

she was paid, and by whom.” (Docket Entry 37-1, ¶ 5.) Plaintiff’s

Letter further asks that, after the examination, Dr. Leininger

supply “a detailed written report summarizing the results of the

examination and any opinions [she] intends to offer in this case.”

(Id., ¶ 11.) The Memorandum challenges only certain aspects of

those requests. In particular, the Memorandum asserts that

Defendants “have provided those materials required to be disclosed

15

pursuant to Rule 26(a)(2)(B).” (Docket Entry 37 at 9.) Such

materials include Dr. Leininger’s CV, billing schedule, and “a list

of all other cases in which, during the previous 4 years, [Dr.

Leininger] testified as an expert at trial or by deposition” (id.

(quoting Fed. R. Civ. P. 26(a)(2)(B)(v))). However, Defendants

have refused to “provide the ‘name of [the] patient examined; name,

address, and phone number of the attorneys involved; and the amount

of compensation she was paid, and by whom’” (id. (quoting Docket

Entry 37-1, ¶ 5)), arguing that such disclosure would

“violat[e ]Dr. Leininger’s ethical obligations under the Health

Insurance Portability and Accountability Act and [APA] Ethical

Standard 4.01” (id.). Additionally, Defendants have maintained

that Dr. Leininger’s Rule 35 report need not “contain ‘any opinions

[she] intends to offer in this case’” (id. at 11 (quoting Docket

Entry 37-1, ¶ 11)) because such opinions remain the subject of a

Rule 26 expert report, not yet due under the amended scheduling

order (id. (citing Docket Entry 34)).

As with Plaintiff’s request that Dr. Leininger provide raw

data directly to Plaintiff’s counsel, the broader disclosures that

Plaintiff has requested relate more closely to Rule 26 than Rule

35. As noted by Defendants, “Plaintiff will have an opportunity to

seek the information he requests” (Docket Entry 41 at 4) if

Defendants designate Dr. Leininger as a testifying expert.

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Therefore, the Court rejects Plaintiff’s effort to condition the

Rule 35 examination on such disclosures.

D. Other Issues

The proposed orders that Plaintiff and Defendants have

tendered conflict on other, seemingly less substantial issues. The

Court resolves those conflicts as follows.

1. Scope of Examination

Plaintiff has proposed limiting the examination to “the issues

of [his] claimed injuries and physical, cognitive, and mental

health conditions but as to no other matters.” (Docket Entry 39-4,

¶ 8.) In contrast, Defendants have sought to restrict Dr.

Leininger’s inquiry “to [Plaintiff’s] claimed injuries and past and

present physical, cognitive, and mental health conditions.”

(Docket Entry 41-1, ¶ 12 (emphasis added).)

“For the court to intervene and limit the type of examination

an expert has indicated is necessary in order to analyze [a]

plaintiff’s claims would subvert the truth finding function

inherent in Rule 35 examinations. Accordingly, courts refrain from

limiting the manner in which an examination is conducted or the

questions asked absent good cause for a protective order.” Gade v.

State Farm Mut. Auto. Ins. Co., No. 5:14–cv–48, 2015 WL 12964613,

at *4 (D. Vt. Jan. 2, 2015) (unpublished) (internal citation,

brackets, and quotation marks omitted). To the extent Plaintiff

has suggested narrower limitations than Defendants, the Court

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adopts Defendants’ proposal because, “[i]n establishing Plaintiff’s

overall health and the degree to which Plaintiff’s alleged

conditions impact h[is] life, it is permissible for Dr. [Leininger]

to ask about Plaintiff’s general health and h[is] condition prior

[to], during, and after the [Incident],” id. at *5.

2. Duration of Examination

In Plaintiff’s view, the examination should last “no more than

approximately eight hours, including a lunch break.” (Docket Entry

39-4, ¶ 7.) According to Defendants, “Dr. Leininger’s

neuropsychological evaluations ordinarily take eight hours,

including a lunch break; however, neuropsychological testing varies

based on the examinee and his or her performance at the testing and

the complexity of the case.” (Docket Entry 41-1, ¶ 14.)

“Courts generally do not limit the amount of time an examining

physician will have to conduct the examination.” Gade, 2015 WL

12964613, at *6. As a result, the Court declines to impose a time

limit and expects that all involved will exercise courtesy and

reasonableness in attending and conducting the examination.

3. Scheduling of Examination

The parties have agreed that “[t]he date and time of the

examination shall be determined and scheduled by agreement of the

parties and shall occur within 30 days of the date of this Order”

(Docket Entry 41-1, ¶ 3). (See also Docket Entry 39-4, ¶ 3.)

However, Defendants have proposed allowing for a Saturday

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examination, to accommodate both [Plaintiff]’s and Dr. Leininger’s

full-time jobs” (Docket Entry 41-1, ¶ 4). Plaintiff’s proposed

order expresses no view on that issue. (See Docket Entry 39-4,

¶¶ 1–22.) Additionally, Plaintiff has requested two weeks’ notice

of the examination (id., ¶ 4), a condition to which Defendants

initially agreed (see Docket Entry 37 at 7 (agreeing to

“condition[] . . . two” in Plaintiff’s Letter); Docket Entry 37-1,

¶ 2 (Plaintiff’s Letter requesting two weeks’ notice)). In

contrast, Defendants’ proposed order allows for “as much advance

notice of the examination as possible, with a minimum of five days’

notice required” (Docket Entry 41-1, ¶ 5).

Because a Saturday examination appears reasonable under the

circumstances, the Court directs the parties to consider that

option in finding a mutually agreeable time. Also, Defendants

shall give Plaintiff two weeks’ notice of the examination date and

time, as previously agreed, to allow Plaintiff “to provide adequate

notice to his employer” (Docket Entry 39-4, ¶ 4).

4. Reimbursement of Travel Expenses

Plaintiff’s proposed order provides that “Defendants will

reimburse Plaintiff for reasonable travel expenses, including gas,

related to the examination” (Docket Entry 39-4, ¶ 9). Defendants

have offered “a mileage reimbursement at the current IRS rate for

[Plaintiff]’s roundtrip travel from his home to Dr. Leininger’s

office” (Docket Entry 41-1, ¶ 7).

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“The general rule is that ‘the party being examined must pay

her own expenses for coming to the examination and must also bear

the loss of time and earnings.’” Clancy v. Shanahan, No. 18-4106,

2019 WL 1406281, at *5 (D. Kan. Mar. 28, 2019) (unpublished)

(quoting 8B Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2234 (3d ed.)). To the extent Plaintiff

has sought reimbursement beyond what Defendants have offered to

provide, the Court denies that request.

5. Pre-Examination Disclosures

The parties have agreed that

[Plaintiff] shall not be required to bring any of his

medical records or diagnostic films to the exam, but will

supplement his discovery responses and initial

disclosures, pursuant to Rule 26 . . . to provide all

updated medical records and bills as they become

available and no later than one week prior to the

scheduled evaluation.

(Docket Entry 39-4, ¶ 11; see also Docket Entry 41-1, ¶ 9.)

Separately, Defendants have requested that

“[Plaintiff] . . . provide a list (including: name, date, and type

of treatment) of any and all care received and/or provided in the

week prior to the examination to Dr. Leininger on the date of his

evaluation” (Docket Entry 41-1, ¶ 10.) Plaintiff’s proposed order

does not address that topic. (See Docket Entry 39-4, ¶¶ 1–22.)

Consistent with Rule 26(e), and to ensure that Dr. Leininger

possesses updated information before conducting Plaintiff’s

20

examination, the Court directs Plaintiff to supplement as requested

by Defendants.

CONCLUSION

Defendants have demonstrated that Plaintiff’s mental condition

remains in controversy and that good cause exists to order a Rule

35 mental examination. As far as the conditions for such

examination, Plaintiff has failed to show that the circumstances

warrant an audio or video recording. Additionally, the Court

declines to condition the examination on disclosures from Dr.

Leininger beyond what Rule 35 requires. In particular, Dr.

Leininger need not produce raw data from Plaintiff’s mental

examination directly to Plaintiff’s counsel but must comply with

Rule 26, as applicable and at the appropriate time. Finally, the

Court (i) declines to limit the scope or length of Dr. Leininger’s

examination, (ii) directs the parties to consider scheduling the

examination on a Saturday, (iii) requires that Defendants give

Plaintiff two weeks’ notice of the examination, (iv) rejects

Plaintiff’s request for travel reimbursement beyond what Defendants

have offered, and (v) orders Plaintiff to update Dr. Leininger with

any treatment or care he receives in the week preceding the

examination.

IT IS THEREFORE ORDERED that the Motion (Docket Entry 36) is

GRANTED IN PART as follows:

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1. Plaintiff shall submit to a neuropsychological examination

conducted by Shelley Leininger, Ph.D.

2. The examination shall occur at the office of Dr. Leininger

at Carolinas Neuropsychology PLLC, 501 South Sharon Amity Road,

Suite 500, Charlotte, North Carolina 28211, with telephone number

of (704) 325-9412 (or at such other location as the parties

mutually agree).

3. The date and time of the examination shall be determined

and scheduled by agreement of the parties and shall occur within 30

days of the date of this Order.

4. The examination may occur on a Saturday in order to

accommodate both Plaintiff’s and Dr. Leininger’s full-time jobs.

5. Defendants shall provide Plaintiff with at least two weeks’

notice of the examination date and time in order to allow him to

provide adequate notice to his employer.

6. Dr. Leininger shall perform a neuropsychological

examination involving cognitive testing of thinking abilities, as

well as an assessment of mood and symptoms. The examination and

testing of Plaintiff shall relate to his claimed injuries, as well

as his past and present physical, cognitive, and mental health

conditions.

7. Dr. Leininger shall perform the examination of Plaintiff

based on ethical guidelines governing forensic and clinical

evaluations.

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8. Dr. Leininger shall perform the examination as efficiently

as possible.

9. Defendants shall pay for the full cost of the examination

and report summarizing the results of the examination.

10. Defendants shall provide a mileage reimbursement at the

current IRS rate for Plaintiff’s roundtrip travel from his home to

Dr. Leininger’s office.

11. Defendants will provide Plaintiff’s counsel with Dr.

Leininger’s current CV, billing or fee schedule, and a list of

cases as required under Rule 26(a)(2)(v), which will indicate

whether a Rule 35 examination and/or independent medical

examination occurred. Dr. Leininger need not provide testimony as

to her testing or specific results of any prior Rule 35 and/or

independent examinations.

12. Dr. Leininger shall not require or request Plaintiff to

fill out forms or questionnaires except neuropsychological testing

materials on the day of the examination. An informed consent form

shall be provided in advance to Plaintiff’s counsel for Plaintiff

to complete.

13. Plaintiff shall not be required to bring any of his

medical records or diagnostic films to the examination but will

supplement his discovery responses and initial disclosures,

pursuant to Rule 26 of the Federal Rules of Civil Procedure, to

provide all updated medical records and bills as they become

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available and no later than one week prior to the scheduled

examination.

14. Plaintiff shall provide a list (including: name, date, and

type of treatment) of any and all care received and/or provided in

the week prior to the examination to Dr. Leininger on the date of

the examination.

15. Dr. Leininger’s questions shall be reasonably related to

Plaintiff’s medical, psychological, and cognitive conditions. For

the purpose of taking a clinical history, Dr. Leininger may

question Plaintiff about what happened regarding the Incident.

16. Dr. Leininger shall prepare a written report consistent

with and similar to reports she prepares after performing other

neuropsychological examinations and consistent with Rule 35 of the

Federal Rules of Civil Procedure.

17. Dr. Leininger’s report shall include the (a) identity of

every test administered and (b) the standard, scaled, and

percentile scores (to the extent they exist) for each test.

18. Dr. Leininger shall, by no later than 30 days following

the examination, furnish Plaintiff’s counsel with a copy of Dr.

Leininger’s report.

19. Dr. Leininger shall provide her raw data, including

scoring sheets, directly to Dr. Jeffrey Ewert, or any other

similarly suited professional upon notification and/or request by

Plaintiff, Plaintiff’s counsel, or Defendants’ counsel.

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20. Dr. Leininger, Defendants, Defendants’ counsel, and

Defendants’ witnesses shall not represent to the jury that Dr.

Leininger was appointed by the Court, or that the examination was

requested or required by the Court.

21. This Order does not include any determinations as to

admissibility of examination questions, responses, or other

content. Any such determination as to the admissibility of

evidence related to the examination shall be determined at the time

said evidence is offered to this Court.

22. The entry of this Order shall not be deemed or construed

or argued to be a finding or an admission that Dr. Leininger, Dr.

Ewert, or any other designated psychological expert or provider is

a qualified expert in any field or is qualified or allowed to

testify as to any opinions.

April 12, 2021

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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