Stratford v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

PAIGE H. STRATFORD,

Plaintiff,

v. CIVIL ACTION NO. 2:17-cv-03963

KIM ROBINSON BROWN,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Kim Robinson Brown’s Motion for Modification of

Scheduling Order, (ECF No. 42), and Motion for Rule 35 Examination of Plaintiff Paige Stratford,

(ECF No. 52). For the reasons provided herein, the Court DENIES both motions.

I. BACKGROUND

This case arises out of injuries sustained by Plaintiff Paige H. Stratford in an automobile

accident on September 19, 2015. (ECF No. 1 at ¶¶ 6–7.) At the time of the accident, Plaintiff

was the passenger in a car that she alleges was driven negligently by Defendant Kim Robinson

Brown. (Id.)

Plaintiff filed this suit on September 11, 2017. (ECF No. 1.) The Court entered a

Scheduling Order on January 4, 2018, based on dates agreed to by the parties in their Federal Rule

of Civil Procedure 26(f) report. (ECF No. 14.) That Scheduling Order set the following relevant

deadlines: Plaintiff’s expert witness disclosures under Federal Rule of Civil Procedure 26(a)(2)(A)

and (B) were due May 24, 2018; Defendant’s expert witness disclosures pursuant to the same were

due June 25, 2018; and the discovery deadline was July 23, 2018. (Id. at 1.) Defendant now asks

the Court the amend these deadlines to allow him more time to conduct a Rule 35 examination of

Plaintiff and, subsequently, produce expert reports.

Defendant’s motion requesting the scheduling modification was filed on June 28, 2018.

(ECF No. 42.) Plaintiff filed her response on July 5, 2018, (ECF No. 45), and Defendant replied

on July 11, 2018, (ECF No. 51). Defendant’s second motion requesting a Rule 35 examination

of Plaintiff was filed on July 11, 2018, (ECF No. 52), and Plaintiff filed her response on July 24,

2018, (ECF No. 56).1 As such, the motions are briefed and ripe for adjudication.

II. LEGAL STANDARD

A. Rule 35 Examination

Federal Rule of Civil Procedure 35 provides that “[t]he court where the action is pending

may order a party whose mental or physical condition . . . is in controversy to submit to a physical

or mental examination by a suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1).

The rule further states that such an order “may be made only on motion for good cause . . . .” Fed.

R. Civ. P. 35(a)(2)(A). Therefore, the rule encompasses a two-part test. First, the physical or

mental state of the party must be in controversy. Second, the moving party must show good cause

for granting the motion. See Schlagenhauf v. Holder, 379 U.S. 104, 118–19 (1964); see also

Guilford Nat’l Bank of Greensboro v. S. Ry. Co., 297 F.2d 921, 924 (4th Cir. 1962) (noting that

the words “on motion for good cause shown” in Rule 35 “indicate that there must be greater

1 In keeping with the theme of these motions, Defendant filed an untimely reply on August 17, 2018, (ECF No. 60),

and followed it with a Motion for Extension of Time for Filing His Reply Memorandum in Support of Defendant’s

Motion for Rule 35 Examination on August 20, 2018, (ECF No. 61). Plaintiff filed a response to that motion the next

day, August 21, 2018, (ECF No. 62). As provided within this Memorandum Opinion and Order, the Court does not

find persuasive Defendant’s arguments in support of a Rule 35 examination of Plaintiff. Thus, the Court will not

consider Defendant’s untimely reply in support of his motion and DENIES his motion to file the reply out of time,

(ECF No. 61).

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showing of need . . . than under the other discovery rules”). As the Supreme Court noted in

Schlagenhauf, “there are situations where the pleadings alone are sufficient to meet these

requirements.” 379 U.S. at 119 (“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.”

(internal citation omitted)). Nevertheless, even when these conditions are met, the district court

retains the sound discretion in determining whether to order examination. See, e.g., Ahmadi v.

United Cont’l Holdings, Inc., No. 1:14–cv–00264–LJO–JLT, 2015 WL 3609319, at *2 (E.D. Cal.

June 8, 2015); Stinchcomb v. United States, 132 F.R.D. 29, 30 (E.D. Pa. 1990); Hardy v. Riser,

309 F. Supp. 1234, 1241 (N.D. Miss. 1970).

B. Modification of Scheduling Order

Scheduling orders may be modified only for good cause and with the Court’s consent.

Fed. R. Civ. P. 16(b)(4); see also L.R. Civ. P. 16.1(f)(1). The Fourth Circuit has noted that the

good cause standard found in Rule 16(b) focuses on the moving party’s diligence. Montgomery

v. Anne Arundel Cty., 182 F. App’x 156, 162 (4th Cir. 2006) (per curiam) (unpublished opinion)

(citation omitted); see also 3 Moore’s Federal Practice § 15.14[1][b], at 16–72 (Matthew Bender

3d ed. 2010) (“[A]lthough undoubtedly there are differences of views among district judges about

how compelling a showing must be to justify extending the deadlines set in scheduling orders, it

seems clear that the fact on which courts are most likely to focus when making this determination

is the relative diligence of the lawyer or lawyers who seek the change.”). “To establish good

cause, the movant must show the deadlines cannot reasonably be met despite the movant’s

diligence; good cause is lacking if the movant has not acted diligently to comply with the

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schedule.” Jackson v. United States, No. 3:14-15086, 2016 WL 502056, at *2 (S.D. W. Va. Feb.

8, 2016) (citing Cook v. Howard, 484 F. App’x 805, 815 (4th Cir. 2012) (per curiam) (unpublished

opinion)). “District Courts have discretion to consider other factors before amending a scheduling

[order], which include: the danger of prejudice to the non-moving party, the length of delay and

its potential impact on the proceeding, the movant’s reason for the delay, and whether the movant

acted in good faith.” Id. (citing Hunt v. Brooks Run Min. Co., LLC, 51 F. Supp. 3d 627, 636 (S.D.

W. Va. 2014)).

Additionally, when a motion to modify a deadline is filed after the deadline’s passage, the

party also must establish “excusable neglect.” Fed. R. Civ. P. 6(b) (“When an act may or must

be done within a specified time, the court may, for good cause, extend the time . . . on motion made

after the time has expired if the party failed to act because of excusable neglect.”). As the Fourth

Circuit has provided, “‘excusable neglect’ is not easily demonstrated, nor was it intended to be.”

Thompson v. E.I. DuPont Nemours & Co., Inc., 76 F.3d 530, 534 (4th Cir. 1996). This inquiry

“is at bottom an equitable one, taking into account of all relevant circumstances surrounding the

party’s omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’Ship, 507 U.S. 380, 395

(1993); see also Thompson, 76 F.3d at 534 (quoting Pioneer Inv. Servs. Co., 507 U.S. at 395)

(noting that of all relevant factors to consider, “the reason for the delay, including whether it was

within the reasonable control of the movant” carries the most significance).

III. DISCUSSION

Defendant’s Rule 35 motion requests an order requiring Plaintiff to submit to examination

by a neurosurgeon “for the purpose of obtaining expert opinions as to whether or not, to a

reasonable degree of medical certainty, Plaintiff will need future medical treatment . . . .” (ECF

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No. 52 at 1.) While it is undisputed that Plaintiff’s physical condition is at issue in this action,

Defendant avers that Plaintiff has been examined by two physicians since the accident who have

rendered radically different opinions. First, Defendant states that Plaintiff was examined by Dr.

Brian Dalton, who noted on December 2, 2016, that Plaintiff “was asymptomatic and could follow

up on an as-needed basis.” (Id. at 2.) Notwithstanding that opinion, Defendant provides that

Plaintiff’s identified expert physician examined her on March 1, 2018, and concluded that

“Plaintiff will require extensive future medical treatment, and substantial home support services.”

(Id. at 2–3.) Thus, Defendant argues that “[d]ue to the large disparity between the opinions of the

two physicians who have had an opportunity to examine Plaintiff Paige Stratford, . . . it would be

inequitable to deny the Defendant an opportunity to obtain an independent medical examination

(“IME”) of Plaintiff in an effort to reconcile the other physicians’ opinions.” (Id. at 3–4.)

Plaintiff’s opposition to the motion is premised on two theories. First, Plaintiff argues that

the motion is untimely as it was filed after the Court’s Scheduling Order, (see ECF No. 14),

required Defendant to serve his discovery requests and file his expert witness disclosures. (ECF

No. 56 at 1.) Arguing that Federal Rules of Civil Procedure 26 and 35 should be read in

conjunction, Plaintiff avers that an examination pursuant to Rule 35 is no different than other

discovery tools used by a party that are subject to the abovementioned deadlines. (Id. at 1–2

(noting that the motion was filed sixteen days after Defendant’s expert reports were due and thirty-

four days after Defendant was required to serve all discovery requests).) Second, Plaintiff argues

that notwithstanding the motion’s untimeliness, Defendant has not established good cause under

Rule 35. Plaintiff disputes the rationality of relying on the notation by Dr. Dalton on December

2, 2016, that Plaintiff was asymptomatic to conclude that Plaintiff would not need to undergo an

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IME by an expert of Defendant’s choosing. (Id. at 9–10.) Plaintiff also contests Defendant’s

characterization of a “large disparity” between the opinions of Dr. Dalton and Dr. Richard

Bowman, Plaintiff’s identified expert. (See id. at 10–11 (“[I]f [Defendant] had only been diligent

in taking Dr. Dalton’s deposition at an early date . . . he would have found out . . . that a

deterioration of the Plaintiff’s condition could be expected requiring future medical care.”).)

As a preliminary matter, the Court is persuaded that Rules 26 and 35 act in tandem when

determining whether to permit a Rule 35 examination requiring subsequent disclosure of the

related report. While the rules are distinct in terms of the content required in the generated reports,

the purpose behind the rules, and the witnesses to whom the rules apply, see Diaz v. Con-Way

Truckload, Inc., 279 F.R.D. 412, 419 n.2 (S.D. Tex. 2012), there is a ripple effect necessarily

caused by a Rule 35 examination ordered after Rule 26 disclosure deadlines. The Court adopts

the following rationale for this reading of the two rules from the Diaz Court:

[T]he Rule 35 examination is a discovery tool not unlike depositions under Rules

30 and 31, Rule 33 interrogatories, or Rule 34 requests for production. Similar to

Rule 35, Rules 30, 31, 33, and 34 do not provide a specific deadline by which to

submit these discovery requests because it is understood that all discovery tools are

generally subject to the overall discovery deadline. However, when a party relies

on the discovery tools described in Rules 30, 31, 33, and 34 to obtain “the facts or

data [that will be] considered by the [expert] witness in forming [the expert’s

opinion],” see Fed. R. Civ. P. 26(a)(2)(B), the party is usually cognizant of the need

to complete this discovery sufficiently in advance of the Rule 26 expert report

deadline. A Rule 35 examination should be no different than any other discovery

tool that a party would use to obtain evidence to be considered by its testifying

experts in forming their opinions and creating the related reports.

279 F.R.D. at 418 (emphasis in original) (first alteration added) (internal citations omitted).

First, the Court finds that Defendant’s Rule 35 motion is untimely. According to the

Scheduling Order entered in this case, Defendant was required to “serve all discovery requests by

June 7, 2018,” and to file all expert disclosures by June 25, 2018. (ECF No. 14 at 1–2.) Despite

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these deadlines, Defendant did not file his discovery motion until July 11, 2018. (ECF No. 52.)

Given the relationship between Rule 26 and Rule 35 as explained above, Defendant’s motion was

filed outside the relevant time frame by which he must have notified Plaintiff of the intention to

conduct such an examination. (See Bellew v. Ethicon, Inc., Civil Action No. 2:13-cv-22473, ECF

No. 97 at 3 (“[W]hen the independent medical examination is performed for the purpose of

providing, developing, or supplementing expert opinions (for instance, on topics such as the

causation or extent of alleged injuries), then courts tend to agree that the witness and report are

subject to the Rule 26(a)(2) deadlines.”).)

Further, even if the motion was timely filed, the Court does not find that good cause exists

to require a Rule 35 examination at this stage of the litigation. Defendant relies on a patient note

written by Dr. Dalton on December 2, 2016, (see ECF No. 42-1 at 2), in arguing he was unaware

that Plaintiff would require any future medical treatment and, thus, that an IME was necessary

until after Dr. Bowman’s March 1, 2018 evaluation of Plaintiff. (See ECF No. 52 at 2.) The

Court finds that Defendant’s claim he was hindered from realizing the necessity of an IME until

earlier this year is unreasonable and contradicted by the facts. Cf. Miksis v. Howard, 106 F.3d

754, 758–59 (7th Cir. 1997).

Defendant placed on the record two patient notes written by Dr. Dalton—one from June

28, 2016, and another from December 2, 2016. (ECF No. 42-1.) Those notes indicate that the

visits were follow-up appointments from Plaintiff’s “post cervical fusion for hangman’s fracture.”

(Id. at 1.) As Defendant points out in his motion, those notes state that Plaintiff’s “cervical fusions

appear to be well-healed and [that] she [was] currently asymptomatic” as of December 2, 2016.

(Id. at 2.) Plaintiff, however, put on the record a third patient note written by Dr. Dalton on April

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21, 2016, that was provided to Defendant during discovery. (ECF No. 56-1 at 1; see also ECF

No. 56 at 11 n.5 (“Brown was provided this record in Plaintiff’s Rule 26(a)(1) Disclosures filed

on January 18, 2018.”).) That document, which also resulted from a follow-up appointment,

provides the following observation by Dr. Dalton: “X-rays with flexion-extension show a beautiful

fusion although she does have swan-neck deformity centered around the 4-5 disc space. More

than likely she damaged ligaments posteriorly here.” (ECF No. 56-3.) As Dr. Dalton elaborated

in his deposition, swan neck deformity is a condition that is permanent in nature and can get worse

over time. (ECF No. 56-2 at 3.)

Disregarding Dr. Dalton’s note about swan neck deformity, the Court finds that Defendant

was put on notice as to the possible need for future medical care at multiple times during this suit’s

pendency. As such, any claim that Defendant was unaware of Plaintiff’s possible need for future

medical expenses until May 25, 2018, appears disingenuous. First, the Complaint itself, filed on

September 11, 2017, explicitly states that Plaintiff would be seeking future medical expenses in

this litigation. (ECF No. 1 at ¶ 12.) Even if the Complaint itself never used phrases such as

“[f]uture medical expenses,” “[f]uture pain and suffering,” “permanent impairment,” or

“[d]iminished capacity to enjoy life,” which it does, the nature of Plaintiff’s alleged injuries

suggests even to medical nonprofessionals the potential need for future treatment and care. (See

id. at ¶¶ 9–12; see also ECF No. 45 at 5 & n.2.) A couple months after the Complaint’s filing, on

November 29, 2017, Plaintiff sent a demand letter to Defendant’s insurance company that

explained in more detail the seriousness and permanent nature of Plaintiff’s injuries. (See ECF

No. 45-2 at 2; ECF No. 45 at 6–7.) Even in light of Dr. Dalton’s note that Plaintiff was

asymptomatic on December 2, 2016, prudent litigators would most likely have conducted an

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independent evaluation earlier in the life of this action.

Similar to the Complaint, Plaintiff’s Rule 26(a)(1) disclosures clearly informed Defendant

that Plaintiff would be seeking damages in the forms of “[f]uture medical, life care and household

service costs;” “future loss of earnings and/or loss of earning capacity;” and “future pain and

suffering, . . . future mental anguish, permanent disfigurement and scarring, permanent disability,

and . . . future loss of enjoyment of life.” (ECF No. 45-3 at 2; see also ECF No. 45 at 7–8.)

Those disclosures were made on January 18, 2018, (see ECF No. 16)—over five months before

Plaintiff’s Rule 26(a)(2) disclosures. This contradicts Defendant’s daring claim that “[n]othing

in the records produced by Plaintiffs in January of [2018] indicated any need for medical treatment

beyond December 2016.” (ECF No. 42 at 2.) Despite all the early promptings that Plaintiff

would seek damages for future care, Defendant still waited until May 21, 2018, to send to Plaintiff

written discovery requests related to her injuries. (See ECF No. 28.) At that time, Defendant

had not even noticed depositions of Plaintiff’s medical experts. (See ECF Nos. 36, 37 (filed on

June 12, 2018).)

All this information serves to paint a vivid picture of Defendant’s failure to remain attentive

to this litigation. At this belated point in the Scheduling Order, allowing an extension of the

deadlines due to Defendant’s neglect would only serve to prejudice Plaintiff. Cf. Hunt, 51 F.

Supp. 3d. at 637. Based on the record in this case, the deadlines in the Scheduling Order could

have been met had Defendant acted diligently. See Jackson, 2016 WL 502056, at *2. Defendant

implies that the requested continuance could affect future dates related to dispositive motions,

(ECF No. 42 at 4), which would negatively impact these proceedings, even if only slightly. The

reason for the delay is unjustified, and the Court finds that good cause is lacking. See Fed. R.

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Civ. P. 16(b)(4). Therefore, the Court finds that Defendant has shown a lack of diligence by

seeking a Rule 35 examination after the Rule 26 deadline to designate experts and produce reports

and DENIES Defendant’s Motion for Rule 35 Examination. (ECF No. 52.)

In Defendant’s other pending motion, he requests an additional sixty days to produce expert

reports and an extension of the discovery deadline. (ECF No. 42 at 3.) Defendant notes the

disclosures that have taken place thus far in this litigation and opines that he was unaware that

Plaintiff would need future medical treatment until Plaintiff’s medical expert provided as such in

a report. (Id. at 2.) Based on that knowledge, supposedly revealed to Defendant on May 25,

2018, Defendant attempted to find a medical expert of his own to review the report and conduct

an IME, if necessary, in support of his defense. (See id.) Defendant located an expert, but an

examination of Plaintiff has never been arranged. Further, Defendant has retained a vocational

expert, but that expert “is also unable to complete her report in this matter until she has had the

opportunity to review the findings and opinions of Defendant’s medical expert.” (Id. at 3.)

The Court notes that Defendant himself was instrumental in setting the deadlines with

which he has failed to comply and now seeks to change. The Court prepares its scheduling orders

with significant input from the parties via their Rule 26(f) report, and this case is unexceptional in

that respect. (See ECF No. 13.) Because Defendant had ample opportunity to realize that

Plaintiff was seeking damages for future treatment, Defendant could have moved to extend the

deadlines at any point prior to the June 25, 2018, deadline for Defendant’s expert witness

disclosures. However, Defendant chose not to do so and, instead, filed inadequate disclosures

before moving for an extension three days after that deadline. Everything was in reasonable

control of Defendant, which leads the Court to conclude that no excusable neglect exists to modify

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the scheduling order now. See Thompson, 76 F.3d at 534; Fed. R. Civ. P. 6(b). Further, the Court

rejected Defendant’s request to conduct a Rule 35 examination after discovery closed. There

similarly is no good cause to modify the current Scheduling Order. Accordingly, the Court

DENIES the Motion for Modification of Scheduling Order, (ECF No. 42), and will proceed toward

resolving Plaintiff's Motion for Partial Summary Judgment. (ECF No. 58.)

IV. CONCLUSION

For the reasons above, the Court DENIES Defendant’s Motion for Modification of

Scheduling Order, (ECF No. 42), and Motion for Rule 35 Examination, (ECF No. 52).

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented party.

ENTER: September 26, 2018

Z, fy

THOMAS E. JOHNSTON, CHIEF JUDGE

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