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Fred Ward v. Union Pacific Railroad Company

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


August 4, 2011

FRED WARD,
PLAINTIFF,
v.
UNION PACIFIC RAILROAD COMPANY, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER REGARDING DEFENDANTS' REQUEST FOR ORTHOPEDIC INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF

In this action, Plaintiff claims that he was injured by falling into a hole at Defendants' 18 premises. The parties had scheduled Plaintiff's independent medical examination (IME) for June 7, 2011. However, due to a scheduling mishap, the IME did not take place. Defendants sought to 20 re-schedule the IME, but have been unable to obtain an agreed-upon date from Plaintiff's counsel.

Defendants now request an Order from the Court requiring Plaintiff's IME by a date certain.

Plaintiff opposes on the ground that Defendants' request is untimely.

Federal Rule of Civil Procedure provides:

35. Physical and Mental Examinations

(a) Order for an

(1) In General.

The court where the action is pending may order a party whose mental or physical condition - including blood group - is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.

(2) Motion and Notice; Contents of the Order.

The order:

(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and

(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.

See Fed. R. Civ. P. 35. Plaintiff has clearly placed his physical condition "in controversy" by seeking damages for pain and suffering, emotional distress, present and future medical expenses, and loss of earnings due to inability to return to work. The Court is disappointed in the parties' 13 inability to meet and confer and to resolve this issue without unnecessary briefing, merely detailing alleged missed phone calls and lack of communication among counsel.

Accordingly, Plaintiff must submit to an IME with Martha Singer, M.D. in either the Oakland or Emeryville office, by Monday, August 15, 2011. As the parties are aware, the 17 dispositive motion filing deadline is August 25, 2011. Thus, the parties should schedule the IME 18 as soon as practicable. The examination shall be limited to a complete medical history, an 19 evaluation of Plaintiff's range of motion, standard orthopedic tests, and, if necessary, X-rays. The 20 examination shall not include any test or procedure that is painful, protracted, or intrusive. Failure 21 to comply with this Order risks sanctions, including dismissal of Plaintiff's case without prejudice. 22

IT IS SO ORDERED.

20110804

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