The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
ORDER GRANTING HERTZ'S MOTION TO COMPEL OR FOR SANCTIONS [Docket No. 42]
This matter is before the court pursuant to a complaint alleging negligence and strict liability by plaintiffs Gary and Lorie Page, husband and wife, against defendants arising out of an August 6, 2009, motor vehicle accident in South Dakota. See Docket No. 1. Pending before the court is a motion for sanctions or, in the alternative, to compel, and to extend expert disclosure deadlines [Docket No. 42] filed by Hertz Corporation and Hertz Rent A Car (collectively "Hertz") arising from a dispute between the parties regarding an independent medical examination ("IME") scheduled by Hertz in Colorado. The district court, the Honorable Jeffrey L. Viken, referred the motion to this magistrate judge for decision pursuant to 28 U.S.C. § 636(b)(1)(A). See Docket No. 57.
The facts pertinent to the motion pending before this court are as follows. Gary and Lorie Page reside in Hillsdale, Ontario, Canada. On August 6, 2009, Gary Page was operating a motorcycle on Interstate 90 near Piedmont, South Dakota, when he was involved in an accident with Karen Kipple, who was operating a motor vehicle owned by Hertz. See Docket No. 1 at ¶¶ 10-11. As a result of the accident, Mr. Page asserts that he suffered and sustained "catastrophic injuries" including a "occipital condyle fracture, soft tissue injuries to his cervical spine, multiple thoracic spinal fractures, a loss of consciousness due to a concussion, a rotator cuff tear to his left shoulder, multiple lower extremity injuries," including amputation of his left leg below the knee. See Docket Nos. 1, 53. Mr. Page also alleges that he "sustained a permanent traumatic brain injury and suffers from a chronic pain syndrome as a result of the motorcycle accident." See Docket No. 53 at pages 27-28.
Mr. Page's expert, Dr. Kurzman, has issued an opinion supporting this latter assertion of injury.
On April 26, 2011, Hertz, by way of e-mail, advised counsel for Mr. Page that arrangements had been made for Mr. Page to see Dr. Jeffrey Wunder for an IME in Denver, Colorado, on May 26, 2011, and Patrick Renfro for a vocational rehabilitation interview in Greeley, Colorado, on May 27, 2011. See Docket No. 55-1 at page 3. On April 27, 2011, counsel for Mr. Page replied by saying, "I assume [plaintiffs] would have to fly to Denver and drive to Greeley, is that correct?" Id. An e-mail that same day confirmed that "they'll need to fly into Denver and rent a car." Id. By way of additional e-mail communication it was established that Hertz would schedule a shuttle service or taxi to transport both Mr. and Mrs. Page from the airport in Denver to their hotel and then to Mr. Page's appointments in both Greeley and Denver, Colorado. Id. at pages 1-2.
On May 11, 2011, an e-mail was sent to counsel for Mr. Page indicating that in addition to the already scheduled appointments with Dr. Wunder and Mr. Renfro, Hertz had scheduled an independent neuropsychological evaluation with Dr. Gregory Thwaites. See Docket No. 53 at page 31. The e-mail listed the revised schedule as follows:
Thursday May 26 10:15 a.m. Dr. Wunder Thursday May 26 3:00 p.m. Patrick Renfro Friday May 27 8:00- 5:00 Dr. Thwaites Id. The e-mail also indicated that it was Hertz' intention "to book the above travel arrangements tomorrow afternoon at 3:00 Mountain Time. Please advise if there is any difficulty at all with the above." Id. There is nothing in the record indicating that Mr. Page objected to the proposed schedule. On May 23, 2011, an e-mail was again sent to counsel for Mr. Page informing them that travel arrangements had been made and providing Mr. Page with a copy of the flight itinerary, hotel confirmation, and the shuttle services from Greeley to Denver.*fn1 See Docket No. 47-1.
Mr. Page asserts that he had several issues with his travel arrangements. See Docket No. 53 at pages 5-6. Mr. Page encountered a problem with transportation from his hotel to Dr. Wunder's office on May 26, 2011. Id.
Mr. Page also encountered a problem with transportation from his appointment in Greeley, Colorado, to Denver, Colorado, to attend his appointment with Mr. Renfro. Id. Apparently the shuttle driver hired by Hertz to transport Mr. Page from Greeley to Denver, a ride of approximately one hour, got lost and had to ask for directions, adding additional time to the drive. Id. at page 4. However, Mr. Page was not late for his appointment with Mr. Renfro. See Docket No. 55-3. Additionally, after completion of the interview with Mr. Renfro, Mr. Page "had to endure a long return ride during rush hour from Denver back to Greeley." See Docket No. 53 at page 4.
The following day, May 27, 2011, Mr. Page awoke to attend the session with Dr. Thwaites and discovered that he had "no transportation from the hotel to Dr. Thwaites' office and ended up having to hire a taxi cab and pay for it out of his own pocket." Id. However, as indicated in an e-mail exchange between counsel for Mr. Page and Hertz, counsel for Mr. Page was aware that there was no shuttle from the hotel to Dr. Thwaites office so counsel for Mr. Page "advised [Mr. and Mrs. Page] to take a taxi to Dr. Thwaites office in the morning and keep the receipts." Id. Finally, Mr. Page asserts that he also "encountered difficulty sleeping both of the nights he was at the motel in Greeley in part because he was in extreme pain and in part because there was excessive noise in the motel do [sic] to some maintenance being carried out." Id.
According to Dr. Thwaites' progress notes regarding the examination, Mr. Page arrived at Dr. Thwaites' office for the IME on May 27, 2011, shortly before 8:00 a.m. See Docket No. 43-3. Upon arrival, Mr. Page filled out various disclosure forms and was told the purpose of the evaluation, Dr. Thwaites' background and training, and that Dr. Thwaites had been "hired by the defense to conduct an independent neuropsychological evaluation." Id.
Dr. Thwaites noted that Mr. Page appeared to be "quite angry with his body language" and "did not say a word when [Dr. Thwaites] introduced [himself] and gave him the disclosure information." Id. As the interview was beginning, Dr. Thwaites began asking questions of Mr. Page regarding his developmental history, however, Mr. Page "responded with many 'I don't know' responses and was very abrupt in his responses." Id. Dr. Thwaites then began into the neurobehavioral status examination, which Mr. Page recorded. Id.
However, Dr. Thwaites reported that "within five minutes of starting the neurobehavioral status examination, Mr. Page stated that he 'didn't feel good' about this examination, again queried the basis for the evaluation and told [Dr. Thwaites] that he had 'one of these just two weeks ago' with his own expert, Dr. Kurzman, and that he did not understand why he had to be there for the examination with Dr. Thwaites. Id. Dr. Thwaites reiterated to Mr. Page the reason for the examination-that he had been hired by the defense to conduct and independent examination to understand his current level of functioning nueropsychologically. Id. However, Mr. Page continued to indicate that he did not feel good about the examination. Id.
As a result of Mr. Page's comments, Dr. Thwaites told Mr. Page that he could take a break at any point and further indicated to Mr. Page that "it was his choice to either participate in the examination or not, and whether he stay for the examination or not." Id. Dr. Thwaites did indicate to Mr. Page that "if he did stay for the examination," Dr. Thwaites' "consultation would only be helpful if he participate[d] fully in the examination, including both the interview and the testing process." Id. Mr. Page reiterated to Dr. Thwaites that he "did not like the idea of being [at the exam] and stated, 'I can't even breathe in here,' referring to the [exam] room." Id.
After this conversation with Mr. Page, Dr. Thwaites asked Mr. Page if he wanted to take a break and Mr. Page indicated that he would. Id. Dr. Thwaites encouraged Mr. Page to "contact his attorney or any other individual that he would like to discuss the case with" and "urged him to consider whether or not he would like to stay for the examination" and that "he should talk to his lawyer about that issue." Id. After the break, Mr. Page told the office manager that "this just isn't going to happen," that "this should have been the first examination that I did," and that Mr. Page had "seen too many doctors [that] week." Id. Mr. Page indicated to the officer manager that he did not wish to continue the examination and left Dr. Thwaites' office shortly after 9:00 a.m.
Id. Dr. Thwaites indicated in his summary report that the "neurobehavioral status examination really never got started, and no testing was completed." Id.
On July 13, 2011, Hertz sent an e-mail to Mr. Page's counsel regarding whether Mr. Page would be able to return to Colorado to participate in the IME with Dr. Thwaites at his own expense and regarding recovering the costs associated with the failed IME originally scheduled with Dr. Thwaites.*fn2 See Docket No. 47-5 at page 2. Counsel for Mr. Page replied on July 14, 2011, indicating that it was Mr. Page's position that "he is not willing to return to Greeley for an IME with Dr. Thwaites," but that Mr. Page would only make himself available for a neuropsychological IME, should Hertz "choose to do one, at a more convenient location such as in Toronto or upper New York." Id. Counsel for Mr. Page also indicated that "due to the circumstances, we are also not willing to pay for the cost of his travel to such an IME nor will we reimburse for the failed attempt to get the one done in Colorado," and that "if that means a motion, so be it." Id.
On August 2, 2011, Hertz filed a motion for sanctions or, in the alternative, to compel, and to extend expert disclosure deadlines arising from the dispute between the parties regarding the failed IME in Colorado. See Docket No. 42. Hertz, in their motion, moved this court to dismiss this action with prejudice, or in the alternative to bar Mr. Page from presenting neuropsychological evidence in support of his claim at trial. See Docket Nos. 43, 54. Hertz also asks, in the alternative, that this court enter an order compelling Mr. Page travel to Colorado to complete an IME with Dr. Thwaites at his own expense and to reimburse Hertz for the cost of the failed IME and partial travel expenses, to extend the deadline for Hertz to designate a neuropsychologist as an expert, and to compel Dr. Kurzman, Mr. Page's physician, to provide Hertz with the raw data Dr. Kurzman used in his nueropsychological evaluation of Mr. Page . See Docket Nos. 43, 54.
A. Meet-and-Confer Requirement
Hertz asserts that it contacted counsel for Mr. Page prior to filing the instant motion and attempted, unsuccessfully, to arrive at a mutually-agreeable solution. See Docket No. 44. Mr. Page does not take issue with this assertion. Accordingly, the court finds that Hertz has satisfied the meet-and-confer prerequisite to filing the instant discovery motion. See Fed. R. Civ. P. 37(a)(1); D.S.D. LR 37.1.
Hertz argues that they are entitled to conduct an IME on Mr. Page because he has placed his nueropsychological condition in issue in this lawsuit. See Docket No. 43 at page 14. Mr. Page resists the IME, arguing that because Mr. Page has been seen by his own neuropsychologist, Dr. Kurzman, and because Hertz has had the opportunity to cross examine Dr. Kurzman in a deposition, that "Hertz can hardly argue that Plaintiff does not suffer from a serious brain injury." See Docket No. 53 at page 13. Additionally, Mr. Page argues that it is not reasonable to require Mr. Page to travel to Colorado to undergo the IME, but suggests that Hertz should schedule the IME in Toronto or upper New York. Id.
1. Standard Applicable to Rule 35 Motions Rule 35 of the Federal Rules of Civil Procedure provides in pertinent part as follows:
(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 custody or under its legal control.
(2) Motion and Notice; Contest of the Order. The order:
(A) may be made only on motion for good cause and on notice to all parties and the ...