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Evans v. Dart Transit Co.

United States District Court, N.D. Indiana, Hammond Division

June 9, 2015



PAUL R. CHERRY, Magistrate Judge.

This matter is before the Court on Defendants' Motion for Physical Examination of Michael Evans [DE 94], filed on June 1, 2015. Plaintiffs filed a response on June 3, 2015, and Defendants filed a reply on June 5, 2015.

This case has been pending for over three years. Discovery closed on December 31, 2013. Throughout discovery, Defendants chose not to depose any of Mr. Evans' treating physicians or any of Plaintiffs' experts. Defendants did not obtain Mr. Evans' medical records through subpoena or authorizations executed and provided to Defendants by Plaintiffs. However, on March 18, 2015, shortly after new counsel appeared for Defendants, Defendants filed a motion to modify scheduling order to allow them to disclose both medical and liability experts. On March 23, 2015, Defendants attempted to disclose a medical expert without first being granted leave of Court. On April 13, 2015, Defendants filed a motion requesting leave to redepose Mr. Evans on all issues. On May 14, 2015, the Court issued an order denying Defendants' request to disclose a liability expert and to disclose medical experts generally but granting them the limited opportunity to disclose medical experts only on the issue of Mr. Evans' recent CRPS diagnosis as well as the impact of the diagnosis on Mr. Evans' ability to work. The Court further permitted Defendants to redepose Mr. Evans but only on the limited issue of his CRPS diagnosis and inability to work.

As a result of that order, the deadline for Defendant to disclose the limited medical expert was extended to May 27, 2015. The deadline for Plaintiffs to disclose rebuttal experts was set for June 24, 2015, and the deadline to complete expert discovery was extended to July 8, 2015. The discovery deadline was extended to June 10, 2015, for the sole purpose of Defendants redeposing Mr. Evans. Daubert motions must be filed by July 22, 2015. The final pretrial conference is set for August 6, 2015, and the jury trial is set for September 9, 2015.

On May 27, 2015, Defendants timely disclosed two medical experts, one of whom is Joshua Prager, M.D., providing an expert report for each.

In the instant motion, Defendants ask the Court for an order requiring that Mr. Evans submit to a physical examination by Dr. Prager related to the recent diagnosis of CRPS. Pursuant to Rule 35(a)(2)(B), Defendants describe the scope of the examination identified by Dr. Prager as a "routine history and physical examination including focused aspects of neurological examination with special attention to the signs and symptoms" of CRPS. Defendants also propose a time and place for the examination. In support, Defendants attach an unsworn declaration of Dr. Prager dated May 27, 2015, [1] which does not comply with the requirements of 28 U.S.C. § 1746. Although the declaration provides that it was "declared under penalty of perjury, " there is no statement that "the foregoing is true and correct" as required by the statute. See 28 U.S.C. § 1746.

Federal Rule of Civil Procedure 35 permits a physical examination and provides in relevant part:

(a) Order for an Examination.

(1) In General. The court where the action is pending may order a party whose mental or physical condition-including blood group-is in controversy to submit to
a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.

Fed. R. Civ. P. 35(a)(1), (2). Thus, Defendants must show that Mr. Evans' physical condition is in controversy and that there is good cause for the physical examination. See Schlagenhauf v. Holder, 379 U.S. 104 (1964). Plaintiffs do not dispute that Mr. Evans' physical condition is in controversy, but they argue that Defendants have not shown good ...

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