United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
Burns Landrum initiated this action against defendant United
States seeking recovery under the Federal Tort Claims Act
(“FTCA”). (Docket 51). On May 7, 2013, plaintiff
was a passenger in a Disabled American Veterans van that
collided with another vehicle. Id. at p. 1. The
collision caused the van to roll. Id. Plaintiff
alleges he suffered injuries and has been diagnosed with
post-traumatic stress disorder, a traumatic brain injury and
adjustment disorder. Id. at pp. 1-2. The parties are
in the discovery phase of the case.
government filed a motion for an order requiring plaintiff to
submit to an independent psychological examination. (Docket
56). The government wants Jennifer Geiger, a clinical
psychologist and board-certified neuropsychologist, to
conduct the examination at her office in Louisville,
Colorado. (Dockets 57 & 58). Plaintiff, who lives in
Rapid City, South Dakota, opposes the motion because his own
psychologist, Dewey Ertz, determined traveling outside of
Rapid City would “place [plaintiff] at severe emotional
risk and negatively impact his current symptom
patterns.” (Docket 61-2 at p. 1); (Docket 60). Dr. Ertz
explains, “[p]lacing increased stress on [plaintiff] by
requiring that he travel out of Rapid City is also expected
to result in reliability and validity concerns for further
assessment purposes.” (Docket 61-2 at p. 1). The
government argues that without a finding of bias or
prejudice, the court should permit its own neuropsychologist,
Dr. Geiger, to conduct the examination at her office. (Docket
62). Based on Dr. Geiger's clinical schedule, daily
business management and supervision of a practicum student,
Dr. Geiger asserts she “cannot travel to Rapid City,
South Dakota, to conduct an independent psychological
examination of Mr. Landrum.” (Docket 58 at p. 1).
35(a) is the applicable Federal Rule of Civil Procedure and
(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.
Civ. P. 35(a). “A party seeking an order for a Rule 35
[examination] must show two things: (1) that the plaintiff
has put his physical or mental condition ‘in
controversy' and (2) that there is ‘good cause'
for the [exam].” Degroot v. Kuipers, No. CIV.
13-4089, 2014 WL 4198376, at *2 (D.S.D. Aug. 22, 2014)
(quoting Schlagenhauf v. Holder, 379 U.S. 104,
agrees with the government that his physical or mental
condition is in controversy. (Docket 60 at p. 1). Plaintiff
is willing to undergo an independent psychological
examination with the government's choice of psychologist;
he objects only to the process occurring anywhere beyond
Rapid City. Id. The court finds plaintiff's
physical or mental condition are in controversy and good
cause exists for the examination. Fed.R.Civ.P. 35(a)(1) &
government highlights, “generally, the movant is
permitted to select the [person] to conduct the examination,
absent a finding of bias or prejudice.”
Degroot, 2014 WL 4198376, at *2. But the issue here
is more the exam's location than the examiner's
identity. The core of this dispute is plaintiff will not
travel to Colorado and Dr. Geiger claims she cannot come to
South Dakota. The government's reply brief and Dr.
Geiger's declaration set forth several points of
disagreement with Dr. Ertz's opinion. (Dockets 58 at pp.
2-3 & 62 at ¶ 5-9). If this case proceeds to a court
trial, the court will be required to analyze all expert
opinions entered into evidence. But at this stage of the
case, in the context of a discovery dispute, the court will
not harshly scrutinize and discredit an expert opinion. The
court appreciates Dr. Ertz and Dr. Geiger's opinions on
this matter and they factor into the balance of equities.
court finds the proper and equitable decision is to grant in
part and deny in part the government's motion. Plaintiff
shall undergo an independent psychological examination
conducted by Dr. Geiger or a different qualified person of
the government's choosing. The examination shall take
place in Rapid City, South Dakota. As a party to this lawsuit
whose physical and mental wellbeing are critical to a just