United States District Court, D. South Dakota
KAREN E. SCHREIER, District Judge.
Defendant, Wendell John Kuipers, moves to compel an independent medical examination under Rule 35 and to extend the expert disclosure deadline. Plaintiff, Steven DeGroot, agrees to submit to an independent medical examination, but refuses to travel to Cedar Rapids, Iowa, for the examination. The motion to compel is granted.
DeGroot alleges that Kuipers was negligent in the operation of his motor vehicle while driving on Interstate 90 in rural Aurora County, South Dakota. DeGroot claims he suffered severe personal injuries as a result of Kuipers' negligence. DeGroot is seeking past, present, and future damages for physical impairment; pain and suffering; loss of enjoyment of the capacity of life; emotional distress; loss of earning capacity; and other general and special damages. Kuipers admits he was negligent, but denies his negligence was the cause of DeGroot's injuries. DeGroot lives in Orange City, Iowa, and filed his case in South Dakota. Kuipers resides in Platte, South Dakota.
DeGroot was treated by Dr. John Pracyk, a neurosurgeon with The Center for Neurosciences, Orthopaedics & Spine, located in Dakota Dunes, South Dakota. DeGroot underwent an anterior cervical discectomy and fusion at C5-6. Dr. Prayck has not provided any expert opinions attributing the accident to the need for neck surgery.
DeGroot designated Dr. Gonzalo M. Sanchez, a retired neurosurgeon, as an expert witness. Dr. Sanchez retired from private practice in Pierre, South Dakota and is now residing in Tucson, Arizona. Dr. Sanchez reviewed DeGroot's medical records and opines that DeGroot's neck surgery was related to the automobile accident. Additionally, Dr. Sanchez opines that future neck surgery is potentially required and that DeGroot suffered a 10 percent whole person impairment as a result of the accident.
Kuipers requested that DeGroot attend an IME to be conducted by Dr. Chad D. Abernathy, a neurosurgeon in Cedar Rapids, Iowa, at a date convenient for DeGroot. Kuipers has offered to compensate DeGroot for his travel expenses. Cedar Rapids, Iowa, is 279 miles from Orange City, Iowa, and both cities are in the same district-the Northern District of Iowa. DeGroot objected to the request because he would have to take two days out of his schedule to drive back and forth to Cedar Rapids including the time for the IME. DeGroot also stated that his physical condition did not allow him to travel that far. DeGroot asks that Dr. Abernathy be required to travel to Sioux Falls at Kuiper's expense.
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 ...