Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Trainor v. Florida Dirt Source, LLC

United States District Court, S.D. Georgia, Savannah Division

November 7, 2019

GREGORY TRAINOR and KIMBERLY TRAINOR, Plaintiffs,
v.
FLORIDA DIRT SOURCE, LLC, et al., Defendant.

          ORDER

          Christopher L. Ray United States Magistrate Judge

         Before the Court is defendants' Motion to Compel Medical Examination of Plaintiff Gregory Trainor. For the following reasons, the motion, doc. 50, is GRANTED.

         ANALYSIS

         Fed. R. Civ. P. 35 allows a “court where the action is pending [to] order a physical or mental examination by a suitably licensed or certified examiner.” “A plaintiff in a negligence action who asserts mental of 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 v. Holder, 379 U.S. 104, 119 (1964). Here, plaintiff has alleged serious injuries relating to a car wreck including “permanent brain damage and other injuries.” Doc. 1-2 at 2. Considering this, the Court concludes that defendants have provided sufficient good cause to conduct an independent medical exam. (“IME”)

         Plaintiff, however, has requested that the Court impose certain restrictions on the IME. These restrictions include:

a) That the costs for examination, travel, lodging, and any other expenditure in relation to the examination be borne by Defendants, including the costs of Plaintiff Kimberly Trainor as caretaker of Plaintiff Gregory Trainor;
b) That the examination be attended by counsel for Plaintiffs'
c) That the examination be recorded;
d) That Defendants' expert be restricted from performing any test or exercise already conducted under the Schlagenhauf factor;
e) That Defendants' expert be required to fully disclose the tests intended to be performed in order to determine whether further protective measures are warranted by this Court;
f) That the examination take place no later than 2 weeks from the entry of any order authorizing the same; and
g) For all other relief this Court deems just.

         Doc. 51 at 14-15. While Rule 35 does not indicate the extent which conditions may be placed on an IME, courts have generally entered protective orders after a showing of good cause pursuant to Fed.R.Civ.P. 26. Calderon v. Reederei Claus-Peter Offen GMBH & Co., 258 F.R.D. 523, 524 (S.D. Fla. 2009). However, the party seeking the restrictions bears the burden of demonstrating that required good cause. Id. (citations omitted).

         Plaintiff argues that the Court should require defendant to disclose what examinations are to be performed and prohibit the performance of any testing which has already been conducted. Doc. 51 at 4. The Court must, at this time, note that plaintiff had a medical examination performed by a plaintiff-referred physician after he received defendants' first request from defendants for an IME. No. notice to defendants of this exam was given until after it was performed. Nevertheless, the Court agrees with plaintiffs, in part. Rule 35 requires the examining party to disclose the “scope of the examination.” Accordingly, defendants shall have ten days from the date of this order to detail the testing to be performed by their examining physician. However, the Court will not restrict the testing-even if duplicative of tests performed by plaintiff's own ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.