This matter was before the court on December 3, 2008, for hearing on defendants' motion to compel discovery and this court's November 4, 2008 order to show cause. Attorney Michael Haddad appeared on behalf of plaintiffs. Laurence L. Angelo, Carrie Frederickson, and J. Scott Smith appeared on behalf of defendants. After hearing, the court ordered supplemental briefing which has been completed.
Defendants' motion, filed October 27, 2008, seeks reimbursement of costs associated with plaintiffs missing their initially-scheduled psychiatric examinations, and to compel plaintiffs' attendance at their rescheduled exams. It also seeks imposition of sanctions associated with the failure of Mahinda Crankson, husband of plaintiff Karena Crankson, to appear at his initially scheduled and rescheduled depositions.*fn1 Dckt. No. 90.
In an order filed November 4, 2008, this court reminded plaintiffs of their obligation to attend their respective psychiatric examinations; instructed defense counsel to obtain alternative examination dates for each plaintiff in the event such dates were needed by the court; and ordered plaintiffs to show cause why they should not be required to pay the costs associated with each missed appointment. Dckt. No. 104.
For the following reasons, the court orders plaintiffs to pay the reasonable costs associated with each missed appearance.
PLAINTIFFS' INDEPENDENT MEDICAL EXAMINATIONS
A party may be required to submit to an independent medical examination ("IME") if she has put her physical or mental condition in controversy. Fed. R. Civ. P. 35(a). In the present case, the parties agreed, and this court so ordered, that each plaintiff attend two IMEs conducted, respectively, by "a psychiatrist and psychologist retained by defendants." See "Stipulation and Protective Order," signed and filed by this court on August 18, 2008, Dckt. No. 36. That order provided in pertinent part:
At a mutually agreed time and date, or upon a date, time, and place set by the Court if the parties cannot mutually agree, each Plaintiff will be produced for an examination by a psychiatrist and psychologist retained by defendants. In the event the Plaintiffs cannot be produced for said examinations before the discovery cut-off date, Plaintiffs agree to submit to said examinations on a mutually agreed time and date thereafter, and if the parties cannot mutually agree, to a date, time and place set by the Court . . ."
Plaintiff Karene Beecham failed to appear for her psychiatric IME scheduled for October 8, 2008. Similarly, plaintiff Karena Crankson failed to appear for her psychiatric IME scheduled for October 13, 2008. The appointments had to be rescheduled, and on October 27, 2008, defendants filed a motion seeking, inter alia, to compel the attendance of Beecham and Crankson at their rescheduled IMEs. By order filed November 4, 2008, this court instructed plaintiffs that they remained subject to the court's August 29, 2008 order requiring their attendance at their respective psychiatric IMEs. Plaintiffs were cautioned that failure to abide by the court's August 18, 2008 order, or to appear at their respective IME, "may be cause for sanctions, including, but not limited to, the possible exclusion at trial of plaintiffs' emotional distress claims and claims for damages thereon." Id., at p. 4 (citation omitted). In addition, plaintiffs were ordered to show why they should not be required to pay the costs, inter alia, resulting from plaintiffs' failure to appear for their initially scheduled IMEs.*fn2
At the December 3, 2008 hearing, the parties stated that they had agreed to reschedule plaintiffs' IMEs for December 10 and 15, 2008. There has been no further communication with the court on this matter, and it thus appears that both plaintiffs appeared and completed their respective psychiatric IMEs on the rescheduled dates.
Remaining is defendants' motion for reimbursement of the IME's cancellation fees. If a party fails to obey a discovery order, including one pursuant to Fed. R. Civ. P. 35 (physical and mental examinations), the court is authorized to "order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(b)(2)(A), and (C). Thus, the question presented here is whether the failure of either plaintiff to appear at their IME was "substantially justified.".
Plaintiff Beecham's IME was scheduled October 8, 2008, at 3:00 p.m. She asserts that she had a prenatal appointment scheduled on the same day as, but prior to, the IME appointment. However, the prenatal appointment ran late. At approximately 3:30 to 3:40 p.m., her husband telephoned the office of the doctor who was to perform the IME to advise that Beecham was late, and to ask whether the IME could be conducted in the last hour. Beecham was told that the IME would need to be rescheduled. The missed IME resulted in defendants incurring a cancellation fee.
Plaintiffs' attorneys stated at the hearing that they were first informed of this problem "when plaintiff was already late." See also, Sherwin Decl. Dckt No. 148, ¶ 6. Counsel were unable to explain why Beecham's prenatal appointment had been scheduled so close in time to the IME. Nor did counsel assert that Beecham's prenatal appointment was other than routine. In other words, no evidence was presented that Beecham had been unable to anticipate a possible conflict between her prenatal appointment and IME examination, and to plan accordingly, e.g., by rescheduling the former. Nor was a satisfactory explanation provided as to why defense counsel was not previously informed that Beecham had an earlier appointment that same afternoon, nor why a call to the IME doctor was not placed immediately after it became apparent that the appointment time would be missed.
Plaintiff Crankson's IME was scheduled October 13, 2008, at 3:00 p.m. She states that she failed to show for this appointment due to her hospitalization for the period of October 13 through October 16, 2008. Defendants incurred a cancellation for this missed appointment as well. Again, there is no satisfactory explanation for why this information was not timely communicated to the IME doctor's office and to defense counsel. Plaintiffs' counsel state that they first learned of the missed appointment when called by the office of the IME doctor reporting that Crankson had failed to arrive. Counsel in turn telephoned Crankson on her cell phone and only then discovered that she was in the hospital. In his deposition taken November 26, 2008, Mr. Crankson testified that his wife informed him two days prior to her hospitalization that she would be admitted on October 13, 2008, for the purpose of monitoring her "headaches and ...