United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER DENYING MOTION TO COMPEL
AN INDEPENDENT PSYCHOLOGICAL EXAMINATION
A. Eifert United Stated Magistrate Judge.
is Defendant's Motion to Compel an Independent
Psychological Examination. (ECF No. 55). Plaintiff has filed
a Response in Opposition to the Motion, (ECF No. 64), and
Defendant has filed a reply memorandum. (ECF No. 72).
Plaintiff argues that the motion should be denied, because it
is untimely and is not supported by good cause. Having
considered the record and the arguments of counsel, the
undersigned agrees that the motion is untimely. Furthermore,
Defendant has failed to demonstrate reasonable diligence that
would justify its delay in pursuing the independent
psychological examination. Therefore, the motion is
Civ. P. 35 allows the court where an action is pending to
order a party “whose mental or physical condition
… is in controversy to submit to a physical or mental
examination by a suitably licensed or certified
examiner.” The order may only issue on a motion for
good cause and on adequate notice to all parties. While Rule
35 is included in the section of the civil rules pertaining
to disclosures and discovery, the Rule itself does not
include any guidance as to when in the discovery process an
examination must be completed, or an examiner's report
courts have not agreed on whether Rule 26 and Rule 35 are
intended to be read independently or in conjunction with each
other. See Manni v. City of San Diego, No.
11-cv-0435-W (DHB), 2012 WL 6025783, at *3 (S.D. Cal. Dec. 4,
2012) (collecting cases). If read together, reports issued
under Rule 35 are subject to Rule 26(a)(2)'s disclosure
requirements. This position has been taken on more than one
occasion by courts in this district; most recently, in
Stratford v. Brown, No. 2:17-CV-03963, 2018 WL
4623656, at *3 (S.D. W.Va. Sept. 26, 2018) (“As a
preliminary matter, the Court is persuaded that Rules 26 and
35 act in tandem when determining whether to permit a Rule 35
examination requiring subsequent disclosure of the related
report.”); see also Zumstein v. Boston Scientific
Corp, No. 2:13-cv-02344, 2014 WL 7236406, at *3 (S.D.
W.Va. Dec. 17, 2014); Shumaker v. West, 196 F.R.D.
454, 456 (S.D. W.Va. 2000). However, even when courts have
found a clear distinction between Rule 26 and Rule 35, such
that “a Rule 35 exam does not necessarily have to be
requested prior to expiration of the expert disclosure and
discovery deadline ... the distinction evaporates when the
moving party attempts to use the Rule 35 examiner and Rule 35
report in the place of a Rule 26(a)(2) expert and expert
report.” Perez v. Viens, No. 4:09-cv-3206,
2011 WL 855673, at *3 (D. Neb. Mar. 8, 2011) (citations
omitted); Gibson v. Jensen, No. 8:16CV296, 2017 WL
2982952, at *2-3 (D. Neb. July 12, 2017) (“[W]hen a
Rule 35 examination is used to supplement or inform an
expert's opinions for use at trial, the difference
between the reports disappears, or begins to, and the court
becomes more reluctant to allow a Rule 35 examination for the
purpose of bolstering an expert's opinions out of
time.”). In other words, when the independent medical
examination is performed for the purpose of providing,
developing, or supplementing expert opinions, then courts
tend to agree that the witness and report are subject to the
Rule 26(a)(2) deadlines.
case, a scheduling order was entered on April 18, 2018, which
allowed Defendant through and including December 3, 2018 in
which to make expert disclosures under Fed.R.Civ.P.
26(a)(2)(A). (ECF No. 10). The parties were given until
December 14, 2018 to complete discovery requests, and until
February 1, 2019 to conduct depositions. February 1, 2019 was
also the discovery deadline. (Id.). The scheduling
order was modified, in part, on December 26, 2018, extending
the deadline for conducting depositions to April 15, 2019.
(ECF No. 37). Notably, the deadlines for submitting expert
disclosures and for serving discovery requests were
not extended at that time.
December 3, 2018, Defendant filed a Rule 26(a)(2)(A)
disclosure, identifying David Clayman, a psychologist, as an
expert witness on the subject of Plaintiff's emotional
health. (ECF No. 26). The disclosure included a report
prepared by Dr. Clayman on November 29, 2018. (ECF No. 64-1).
In the report, Dr. Clayman advised that he required
additional materials to complete his opinions. He also
requested the opportunity to conduct an independent
psychological examination. (Id. at 2).
December 18, 2018, Defendant's counsel requested
Plaintiff's agreement to participate in an independent
psychological examination. (ECF No. 55-2). Plaintiff's
counsel refused the following day, but indicated that she
might reconsider if provided with additional information.
(ECF No. 55-3). Apparently, defense counsel made no further
efforts to communicate with Plaintiff's counsel regarding
the proposed examination; instead, more than three months
later, Defendant filed the instant motion seeking an order to
compel the examination. (ECF No. 64 at 2).
undisputed that Defendant's motion comes well past the
deadlines for filing expert reports and for serving discovery
requests, both of which expired in December 2018. Indeed, the
motion was filed only twenty days before the close of all
discovery and right on the heels of the deadline for filing
dispositive motions. Moreover, Defendant provides absolutely
no explanation for its delay in pursuing an independent
psychological examination despite its expert's written
request for one, which was made nearly four months before the
motion was filed.
order to grant Defendant's motion, deadlines in the
scheduling order that have already passed, or that will pass
in a matter of days, will have to be extended. To justify the
extension of a past deadline, Defendant must show
“excusable neglect” and, to extend a future
deadline, Defendant must demonstrate “good
cause.” Stratford, 2018 WL 4623656, at *3
(holding that Rule 16(b) requires good cause to amend a
scheduling order; “[a]dditonally, when a motion to
modify a deadline is filed after the deadline's passage,
the party also must establish “excusable
neglect.”). “To establish good cause, [Defendant]
must show the deadlines cannot reasonably be met despite the
[Defendant's] diligence; good cause is lacking if the
movant has not acted diligently to comply with the
schedule.” Jackson v. United States, No.
3:14-15086, 2016 WL 502056, at *2 (S.D. W.Va. Feb. 8, 2016)
(citing Cook v. Howard, 484 Fed.Appx. 805, 815 (4th
Cir. 2012)). Excusable neglect is more difficult to
establish, depending upon a review of all relevant factors,
with “the reason for the delay, including whether it
was within the reasonable control of the movant”
carrying the most significance. Stratford, 2018 WL
4623656, at *2 (quoting Thompson v. E.I. DuPont Nemours
& Co., Inc., 76 F.3d 530, 534 (4th Cir. 1996)).
conducting the requisite analysis, the undersigned finds that
Defendant fails to demonstrate either excusable neglect or
good cause. First, as stated, Defendant supplies no rationale
whatsoever for allowing the matter to sit, gathering dust,
for more than three months. Plaintiff's counsel invited a
discussion on the subject, but for reasons again unknown,
defendant's counsel simply let the conversation lapse.
December 20, 2018, one day after Plaintiff's refusal to
submit to an independent examination, Defendant moved to
modify the scheduling order and continue the trial date, but
did not raise the issue of an independent
medical examination or seek an extension of the expert
disclosure or discovery request deadlines. (ECF No. 34).
Instead, Defendant asked only that the deposition deadline be
extended, which consequently forced a continuance of the
deadlines for dispositive motions, settlement and pretrial
conferences, the pretrial order, and the trial date. (ECF
Nos. 34, 37). Defendant's motion was granted, extending
the deposition deadline and moving back the remaining dates,
including the trial date, by approximately two and half
months. Had Defendant brought the issue of the examination to
the Court's attention at that time, the dispute could
have been resolved and the time frames for the independent
examination incorporated into the amended scheduling order.
addition, by disregarding, or overlooking, the examination
for an additional three months, Defendant lost good
opportunities to have the examination conducted at times that
would have been most convenient for Plaintiff, who is a
fulltime student at a college in Pennsylvania. If Defendant
had resolved the dispute in mid-December, the examination
might have taken place during Plaintiff's Winter or
Spring break. However, Defendant's inexplicable delay now
leaves Plaintiff in the position of having to leave school
while classes are ongoing, a few weeks before final
examinations, to submit to a lengthy psychological
examination that should have been performed months ago. The
only other alternative is to wait until mid-May when
Plaintiff is no longer in school, which would further delay
the resolution of this case.
the discovery sought by Defendant, as Plaintiff points out,
is likely to lead to additional discovery.
Stratford, 2018 WL 4623656, at *3 (noting that
“there is a ripple effect necessarily caused by a Rule
35 examination ordered after Rule 26 disclosure
deadlines.”). At the very least, Plaintiff will want an
opportunity to respond to or refute the outcome of the
examination, which may result in further extensions of
pretrial deadlines. Taking into account all of the
circumstances, the Court concludes that Defendant has not
been diligent in pursuing an independent medical examination
and thus has failed to provide reasonable grounds to
accommodate such a request at this late date.
relies upon Zumstein, 2014 WL 7236406, in support of
its motion. Zumstein is readily distinguishable from
the instant matter. In Zumstein, a multidistrict
litigation in which counsel were developing waves of 100
cases at a time, defense counsel waited approximately one
month after being notified by Plaintiffs' counsel that
all of the plaintiffs were being examined before asking for
an independent medical examination of one of the plaintiffs.
When Plaintiff objected that the defense examination would
not take place before Defendant's expert report was due,
defense counsel argued that they were unable to determine the
need for defense examinations until Plaintiffs' expert
reports were produced. Upon receiving the reports and
identifying the one plaintiff that should be examined,
defense counsel diligently began scheduling the examination.
However, the earliest date that could be secured for the
examination was one month after Defendant's expert