# FIELLO v. DAIMLER TRUCKS NORTH AMERICA LLC

> District Court, M.D. North Carolina · April 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10254004

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** April 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
2
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
4
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.)
5
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
6
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]

7
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”
8
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
9
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)
10
(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
11
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
12
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.
13

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.
14
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.

16
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
17
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
18
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).
19
“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
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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254004. Public record. Not legal advice.