United States District Court, W.D. Kentucky, Paducah Division
OPINION AND ORDER
LANNY KING, Magistrate Judge.
This matter comes before the Court on Defendants, Kenny Vincent and Livingston County, Kentucky's Motion to Compel Plaintiff to Submit to Independent Medical Examination (the "Motion") (Docket # 23). The Court must determine if Defendants can compel Plaintiff, Gary Parks ("Parks"), to travel to Lexington, Kentucky, and submit to one physical and one mental-health examination over the course of two consecutive days. The Court determines that good cause exists and grants Defendants' Motion. Furthermore, the Court finds the presence of a passive observer at the examinations inappropriate under the circumstances and denies Parks' request for one.
The Good Cause Requirement
When a party's mental or physical condition comes into controversy, the Court may order that party to submit to an examination. Fed.R.Civ.P. 35(a)(1). The Court may only order an examination on a motion for good cause on notice to all parties and the examinee. Fed.R.Civ.P. 35(a)(2)(A). This Court must only order the examinations "upon a discriminating application... of the limitations prescribed by the Rule." Schlagenhauf v. Holder, 379 U.S. 104, 121 (1964). Parks does not dispute the controversy or notice requirements, which this Court also finds satisfied. Parks does dispute the existence of good cause. Good cause presents a higher bar to clear than relevance and must be demonstrated affirmatively by the movant. Id. at 118.
Parks does not cite any law to support his position that good cause does not exist. He does argue that good cause requires that Defendants demonstrate their experts reviewed the medical records and then "articulat[ed] the necessity for another exam[, ] if any exists." (Docket # 25, p. 2). The very existence of triable issues of fact as to Parks' condition provides the good cause for those experts to examine Parks. "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, 379 U.S. at 119 (internal citation omitted). Parks sued Defendants on theories of negligence and intentional tort and asserted mental and physical injuries. Defendants not having any medical expert perform any prior examination, the pleadings alone satisfy both the "in controversy" and "good cause" requirements of Rule 35. By showing that potential battle of the experts exists as to Parks' condition, Defendants demonstrated their need rises above base relevance to the level of good cause.
Parks also argues that his prior treatment should defeat the Motion because Defendants caused his that treatment and the proposed examiners lack independence as "defense hired guns." (Docket # 25, p. 2). Financial ties speak to the credibility of a witness, not to admissibility. See Duncan v. Upjohn Co., 155 F.R.D. 23, 26 (D. Conn. 1994). Parks may impeach Defendants' experts, but, absent a valid objection, this Court will not second guess Defendants' expert selection. See id. Compensation alone does not create a valid objection. The argument regarding prior treatment lacks merit because Rule 35 provides a means for an opposing party to secure expert testimony without relying another party's examinations. This "preserves the equal footing of the parties to evaluate the [p]laintiff's mental [and physical] state and to present their evaluations to a [j]ury." Tomlin v. Holecek, 150 F.R.D. 628, 633 (D. Minn. 1993) (quoted in 155 F.R.D. at 25).
Only in instances when the moving party cannot gain any additional, relevant information from the examination, as compared to a review of the existing medical records, will good cause not exist. See 155 F.R.D. at 25 (citing Schlagenhauf, 379 U.S. at 118). The instant matter involves psychic and soft-tissue injuries. Defendants' experts would face a disadvantage if attempting to form their opinions from medical records alone. To provide competent, admissible testimony, they must have the opportunity to examine Parks. See Fed.R.Evid. 702(a) (requiring "sufficient facts or data" exist as the basis for expert testimony).
The Burden of the Examination
Parks argues that submitting to two examinations, on consecutive days in Lexington, Kentucky, unreasonably burdens to him. This Court has said before that Rule 35 "consigns to the sound discretion of the Court the terms and conditions of the physical or mental examination, " including the time, place, manner, conditions, scope, and examiner. Ford v. Am. River. Transp. Co., No. 5:11-CV-00094, 2012 WL 4049467, at *4 (W.D. Ky. Sept. 13, 2012) (mem.); see also Fed.R.Civ.P. 35(a). The Court finds the location and time, specifically duration, of the proposed examinations reasonable, especially in light of Defendants paying for Parks' expenses and the amount in controversy.
Parks argues that Defendants can find an expert closer to Paducah. Parks' ease of locating treating physicians ignores the practical differences between patient care and expert testimony. Defendants' counsel states that she could not locate an expert who will conduct the type of examination Defendants seek in the Paducah area. (Docket # 27, p. 5). The Court cannot adopt Parks' argument, which would grant him veto power over Defendants' expert selection.
Defendants selected experts in Lexington and this Court need only decide if compelling Parks to travel to Lexington presents an unreasonable burden. The distance from Parks' residence in Grand Rivers, Kentucky, to Lexington amounts to approximately 235 miles. The Court does not find this distance negligible, but also does not find it unreasonable. Defendants have taken steps to minimize the inconvenience of the examinations on Parks, including paying the costs of travel and scheduling the examinations as to prevent two trips for Parks. This Court previously compelled plaintiffs bringing suit in the Paducah Division to travel to Lexington for Rule 35 examinations. E.g., Ford, 2012 WL 4049467, at *4. In Ford, this Court ordered a Plaintiff to travel from Hickman, Kentucky, to Lexington. Id. A drive from Hickman to Lexington exceeds that of Grand Rivers to Lexington by approximately 80 miles. The shorter trip in the instant case does not present an unreasonable burden because of the distance to travel.
The Court does not agree with Parks' suggestion that Defendants' experts travel to him. Medical experts must avoid traveling to examinees for a number of reasons, including the need to remain available to other patients, the need to see the examinee in the expert's own office with staff, equipment, and other resources close by, the practical reality that the price associated with the expert's time often exceeds that of the examinee, and the fact that forcing an expert to travel would serve as a disincentive for experts to offer ...