United States District Court, S.D. Georgia, Savannah Division
G.R. SMITH, Magistrate Judge.
Joan Carter brought this premises liability case against Belk, Inc. (Belk). Doc. 1-2. She was injured after "she tripped and fell over the bottom wheeled portion of a mobile clothes hanging rack" that was "obscured by the densely crowded stationary racks of hanging clothes" in the women's apparel section of Belk's store. Doc. 1-2 ¶¶ 5, 7. Belk unsuccessfully moved for summary judgment, doc. 28, which means "[t]his case will proceed to trial." Doc. 50 at 11. Citing her physical damages claim, Belk moves under Fed.R.Civ.P. 352 to compel an Independent Medical Examination (IME). Doc. 51. Belk's counsel represents that plaintiff's counsel has consistently "failed to respond to [Belk's] request for an examination." Id. at 3. Carter does not dispute that.
Nor is there any dispute that Carter's physical condition is at issue, that she is seeking to recover damages for the physical injury (her shoulder, etc.) allegedly caused by her in-store fall, and that an IME is justified. In fact, the only dispute here is over location. Belk wants her to be seen by an Atlanta area specialist of its choosing. Doc. 56 at 1-2. It is even willing to pay for her travel expenses to there from Savannah, where she lives. Id. at 2.
Plaintiff, who has been receiving treatment at two Savannah, Georgia neurology practices, doc. 51 at 5, insists on evaluation by one of her Savannah area specialists. Doc. 55. She claims undue hardship and that Belk's consulting physician "has already expressed bias against [her] by virtue of the adverse opinions that he has rendered without ever having seen the [p]laintiff." Id. at 2. "An unbiased Independent Medical Examination, " she insists, "can be reasonably acquired in Savannah, Georgia." Id. Belk disagrees, emphasizing that a fair and impartial medical expert cannot feasibly be located in Savannah. Doc. 56.
Discovery is supposed to be self-executing, Leaks v. Target Corp., 2015 WL 4092450 at *1 n. 1 (S.D. Ga. July 6, 2015), and litigants have "an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through Rule 37, and... each attorney [is obligated] to stop and think about the legitimacy of a discovery request, a response thereto, or an objection." Bottoms v. Liberty Life Assur. Co. of Boston, 2011 WL 6181423 at *4 (D. Cob. Dec. 13, 2011). In addition, the parties are supposed to cooperate - thus confer - before resorting to judicial intervention and consuming Court resources. Carter has not responded to, and thus does not dispute, Belk's complaint that it has repeatedly contacted her, yet she failed to confer. That duty means that the parties must talk to each other directly, and not wait to do so through briefs that this Court must also read. Even though Belk does not seek Fed.R.Civ.P. 37 fees, the Court GRANTS its IME motion (doc. 51) in no small part as a sanction for Carter's failure to confer.
For that matter, IME's are relatively routine in personal injury cases where plaintiffs are free to exaggerate their pain and suffering, and personal-physician bias is not unknown. See Romano v. Interstate Exp., Inc., 2009 WL 211142 at *2 (S.D. Ga. Jan. 28, 2009) ("Nothing in Rule 35 mentions a mutually chosen' examiner. Plus, plaintiff reaped the benefit of employing his own medical experts... to support his case, thus triggering a proverbial battle of the experts.' Hence, defendants are entitled to their own medical experts.") (footnote omitted), cited in Funez v. Wal-Mart Stores East, LP, 2013 WL 123566 at *7 (N.D.Ga. Jan. 9, 2013) ("An [IME] is particularly appropriate here because Defendant would be prejudiced in contesting the nature and extent of Plaintiffs injuries by having to rely exclusively on Plaintiffs medical records and testimony from her treating physicians."). And Carter does not specify exactly how her travel burden is "undue." Finally, it is simply too easy to label a proposed IME physician "biased" merely because he is being paid by an adversary - that's grist for the cross-examination mill.'
Accordingly, the Court GRANTS Belk's motion to compel (doc. 51). As promised (its last Order denied Belk's IME motion until after the summary judgment motion was reached, doc. 43), the Court will grant any ...