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Lopez v. City of Imperial

United States District Court, Ninth Circuit

January 21, 2014

JESUS LOPEZ, Plaintiff,
v.
CITY OF IMPERIAL, et al., Defendants.

ORDER GRANTING DEFENDANTS' EX PARTE MOTION COMPELLING INDEPENDENT MEDICAL EXAMINATIONS OF PLAINTIFF (DOC. NO. 19)

WILLIAM V. GALLO, Magistrate Judge.

Defendants have filed an Ex Parte Motion Compelling Independent Medical Examinations ("IMEs") of Plaintiff ("Motion"). Plaintiff has filed an Opposition to Defendants' Motion. Defendants have filed a Reply to Plaintiff's Opposition and a Supplemental Brief. The Court, having reviewed the moving, opposition, reply and supple-mental papers of counsel, and the record in this case, HEREBY GRANTS Defendants' Motion.

A. BACKGROUND

On December 12, 2012, Plaintiff filed his Complaint in the Imperial County Superior Court. On March 14, 2013, Defendants removed the case to this Court. The Complaint contains, inter alia, allegations regarding the damages suffered by Plaintiff as a result of the incident described in the Complaint. The damages alleged in the Complaint stem from (a) a severe concussion; (b) torn ligaments in Plaintiff's knees and forearm; (c) severe burns from mace or pepper spray; and (d) Plaintiff may need surgery on his knee and removal of a testicle. (Complaint at 4, para. XII).

On July 1, 2013, the Court issued a Case Management Conference Order Regulating Discovery ("CMC Order"). The CMC Order states, in pertinent part, that (a) on or before December 20, 2013, all fact discovery shall be completed; (b) on or before January 24, 2014, the parties shall exchange a list of all expert witnesses to be called at trial; (c) any party may supplement its expert designation by February 7, 2014; (d) designated expert witnesses shall provide to all other parties their expert witness reports by March 7, 2014; and (e) designated expert witnesses may supplement their expert reports to contradict or rebut evidence on the same subject matter identified in an expert report submitted by another party, by April 4, 2014.

On June 14, 2013, Defendants received Plaintiff's medical records which presumably supported[1] Plaintiff's allegations regarding the injuries Plaintiff sustained as a result of the incident described in the Complaint.

On December 3, 2013, Defendants took Plaintiff's deposition. At the deposition, Plaintiff testified regarding his injuries. His testimony included that he suffers from (a) neck, back and leg pain; (b) testicle pain; (c) memory loss; (d) headaches; and (e) jaw pain.

On December 13, 2013, Plaintiffs and Defendants filed a Joint Motion For Continuance of Discovery Dates. On December 17, 2013, the Court issued an Order Granting In Part And Denying In Part the Joint Motion. In the Order, the Court quoted from paragraph 5 of the CMC Order issued in this case, which clearly states:

... all discovery under Rules 30-36 of the Federal Rules of Civil Procedure must be initiated a sufficient period of time in advance of the (discovery) cut-off date, so that it may be completed by the cut-off date, taking into account the times for services, notice and response as set forth in the Federal Rules of Civil Procedure. (emphasis added).

The Order also allowed further discovery to be conducted, but limited that discovery "to only that reasonably raised by Plaintiff's deposition." ("December 17, 2013 Order, " at 3). The Order extended the discovery cut-off date to January 20, 2014 for the above-noted discovery.

Defendants now seek the IMEs of Plaintiff by a neurosurgeon, orthopedist, dentist/oral surgeon[2], and urologist. Defendants argue that at Plaintiff's December 3, 2013 deposition, they became aware of Plaintiff's continuing complaints of (a) neck, back and leg pain; (b) testicle pain; (c) memory loss; (d) headaches; and (e) jaw pain. Plaintiff opposes the IMEs as requested by Defendants because the sought IMEs are not follow-up to discovery on issues raised in Plaintiff's deposition.

B. FEDERAL RULE OF CIVIL PROCEDURE 35

Federal Rule of Civil Procedure 35 authorizes a court to "order a party whose... physical condition... is in controversy to submit to a physical... examination by a suitably licensed or certified examiner." Fed.R.Civ.P. 35(a)(1). However, the order "may be made only on a motion for good cause." Fed.R. Civ. P. 35(a)(2)(A). These requirements necessitate "an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examina-tion." Juarez v. Autozone Stores, Inc., 2011 WL 1532070 at *1 (S.D. Cal. 2011), citing Schlagenhauf v. Holder , 379 U.S. 104, 118 (1964).

Factors that courts have considered in assessing whether "good cause" exists include, but are not limited to, "the possibility of obtaining the desired information by other means, whether Plaintiff plans to prove (his) claim through the testimony of expert witnesses, whether Plaintiff is claiming ongoing (injury)." Juarez, supra at *1, citing Impey v. Office Depot, Inc., 2010 WL ...


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