United States District Court, S.D. Georgia, Savannah Division
Christopher L. Ray United States Magistrate Judge
the Court is defendants' Motion to Compel Medical
Examination of Plaintiff Gregory Trainor. For the following
reasons, the motion, doc. 50, is GRANTED.
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.
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
c) That the examination be recorded;
d) That Defendants' expert be restricted from performing
any test or exercise already conducted under the
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
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.
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).
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 ...