Play Nice with Rule 35 Examinations

Changing discovery strategy in the middle of a case can create problems. Refusing or entirely failing to do what you stipulated to do as part of a discovery strategy can also create problems.

Esquivel v. Wal-Mart Stores, Inc., 2014 U.S. Dist. LEXIS 154729 (D. Nev. Oct. 30, 2014) concerned a slip and fall at a Wal-Mart. Ho-hum except Plaintiff alleged a “traumatic brain injury and cognitive impairments as a result of the incident.” The parties stipulated to a Rule 35 examination with a neuropsychologist in California. That part is not blog worthy.

Plaintiff traveled to the airport on the date scheduled for her travel to California, but failed to make the flight. Subsequently, Plaintiff’s counsel notified Defendant that Plaintiff was unable to attend the scheduled IME because she had become confused. Plaintiff’s counsel requested that Defendant make arrangements for Plaintiff’s travel, and that the arrangements require that she have an escort accompany her. Defense counsel agreed that same day to make the requested arrangements; however, Defendant was unable to finalize the arrangements because Plaintiff did not provide the identity of her travel escort.

On May 27, 2014, the parties entered into a stipulation to extend discovery so as to allow the IME to be conducted in California on July 21, 2014, the soonest date Defendant’s expert was available. The Court granted the parties’ stipulation and ordered Plaintiff’s attendance at the July 21, 2014 IME, which again, was to take place at Dr. O’Grady’s office in Walnut Creek, CA.

Still nothing blog worthy, but the next sentence changed that. “On July 10, 2014, Plaintiff’s counsel advised Defendant that Plaintiff would not travel for the IME that was scheduled to take place on July 21, 2014, but failed to provide for, or offer, any alternative arrangements to facilitate the IME.” It is unclear why this happened but Wal-Mart moved for sanctions but did not seek a discovery extension. It instead argued Plaintiff’s conduct had prevented it from gathering the evidence needed to address Plaintiff’s claims and that those claims should be struck from the complaint.

The court first noted “[t]wice, Plaintiff violated this Court’s Orders requiring her to submit to an FRCP 35 IME with Defendant’s retained expert, neuropsychologist Dr. O’Grady.” It then concluded Plaintiff showed no good faith basis to explain her conduct.

Here, Plaintiff agreed to participate in an IME scheduled to take place in California. After the first scheduled IME failed, a second IME was arranged and agreed to. Plaintiff agreed to the travel associated with the scheduled IME, but thereafter, she failed to make the necessary arrangements to procure her own appearance at the IME, despite her apparent knowledge that traveling could be problematic. In fact, based upon the record established from correspondence exchanged by counsel, Plaintiff made no effort to ensure that the second Court-ordered IME went forward. The Court finds Plaintiff’s failure to attend, or make arrangements to attend the second IME was a matter solely within Plaintiff’s control, and the Court finds Plaintiff made no efforts to work out any solution. As such, the Court finds no good faith reason for Plaintiff’s failure to attend the second IME, and in fact, Plaintiff’s failure to make any arrangements at all, despite the existence of an Order to do so, was not substantially justified and constitutes bad faith and a willful violation of this Court’s Orders.

Sanctions were appropriate, but what would they be?

Plaintiff’s conduct has rendered Defendant unable to conduct an IME or pursue expert discovery on Plaintiff’s alleged traumatic brain injury, cognitive impairment, and related neuropsychological claims. Therefore, Defendant has clearly been prejudiced in defending this claim as a result of Plaintiff’s conduct preventing Defendant from investigating it. The Court declines to cure the prejudice caused by Plaintiff’s conduct by simply modifying the Scheduling Order. Rather, because Plaintiff failed to provide evidence of good faith efforts to attend the IME, exclusion sanctions are appropriate pursuant to FRCP 37(b).

Based upon Plaintiff’s conduct, it is appropriate under the sanctions provisions of FRCP 37(b) that the Court exclude Plaintiff’s claims for damages arising out of her allegations of neuropsychological injury, traumatic brain injury, cognitive impairment, or related brain/head injury claims at trial, and prohibit Plaintiff from offering evidence, whether at hearing or at trial, in support of her claims of neuropsychological injury, traumatic brain injury, cognitive impairment, or related brain/head injury claims.

That ruling alone may have gutted most of the value from the case. But the court was not done and imposed sanctions against Plaintiff’s counsel, personally.

Additionally, this Court finds that it was Plaintiff’s counsel who failed to undertake good faith efforts at making alternate arrangements to facilitate the second IME. As such, Plaintiff’s counsel, not Plaintiff, will be responsible for reimbursing Defendant $12,212.00, the costs incurred in scheduling the failed IMEs, to be paid at the end of this case.