1 2 3 4 5 6 7 10 11 MICHELLE HILL, an individual, and No. 2:17-cv-1604 WBS DB ARIEL EPSTEIN POLLACK, an 12 individual, 13 Plaintiffs, 14 v. 15 JETBLUE AIRWAYS CORPORATION, a Delaware corporation, 16 Defendant. 17
18 ERICKA BOHNEL, an individual, and No. 2:18-cv-0081 WBS DB ROSA MARTINEZ, an individual, 19 Plaintiffs, 21 v. 22 JETBLUE AIRWAYS CORPORATION, a Delaware corporation, 23 24 Defendant.
25 26 On July 23, 2021, this matter came before the undersigned pursuant to Local Rule 27 302(c)(1) for hearing of defendant’s motion for discovery. Attorneys Rachel Luke and Glenn 28 Guenard appeared via Zoom on behalf of the plaintiffs. Attorney Ashley Shively appeared via 1 Zoom on behalf of the defendant. Oral argument was heard and the motions were taken under 2 submission. The parties’ dispute concerns two issues: (1) plaintiffs’ Rule 35 examinations; and 3 (2) plaintiffs’ disclosures with respect to the calculation of damages. 4 I. Plaintiffs’ Rule 35 Examinations 5 The court may order a Rule 35 Independent Medical Examination “only on motion for 6 good cause” and that motion must “specify the time, place, manner, conditions, and scope of the 7 examination, as well as the person or persons who will perform it.” Fed. R. Civ. P. 35(a)(2)(A)- 8 (B). Here, the parties do not dispute the propriety of the Rule 35 examinations and each side has 9 submitted a proposed order with respect to those examinations. (ECF Nos. 80-2 & 80-3.1) 10 Plaintiff, however, has made three requests with respect to the examinations. 11 A. Third Party and Audio Recording 12 Plaintiffs request the presence of a third party—a licensed nurse—during the examinations 13 for emotional support as well as an audio recording of the examinations. Whether to “either 14 allow a tape recorder or a third person at the examination of plaintiff raises only a single issue” 15 and depends on the facts of each case. Hertenstein v. Kimberly Home Health Care, Inc., 189 16 F.R.D. 620, 628-30 (D. Kan. 1999). 17 “Three general reasons may argue the presence of a third person or recording device at a 18 Fed. R. Civ. P. 35(a) examination: (1) fear that the examiner, as a person retained by an opponent, 19 will improperly conduct the examination to obtain admissions or other damaging concessions 20 from the examinee; (2) fear that the examiner will utilize improper, unconventional, or harmful 21 examination techniques; and (3) a need for emotional support or comfort during the 22 examination.” Id. at 630. 23 Here, plaintiffs assert that they “have a demonstrated need for emotional support” because 24 “they will be describing past trauma associated with the JetBlue Flight 429 severe turbulence 25 event.” (JS (ECF No. 80-1) at 7.) “While federal courts in some instances have permitted an 26 observer in a Rule 35 examination, ‘[t]he majority rule adopted by the federal courts is that the
27 1 For purposes of clarity and simplicity, the citation here and throughout is to the docket in Hill, 28 No. 2:17-cv-1604 WBS DB. 1 court may, and often should, exclude third-party observers, including counsel, from medical or 2 psychiatric evaluations.’” Flack v. Nutribullet, L.L.C., 333 F.R.D. 508, 517 (C.D. Cal. 2019); see 3 also Hertenstein, 189 F.R.D. at 631 (finding “no right to the presence of any third person or 4 mechanical recording device at the examination” and that “the presence of a mechanical 5 recording device inappropriate under the facts of this case”); Shirsat v. Mutual Pharmaceutical 6 Co., Inc., 169 F.R.D. 68, 70 (E.D. Pa. 1996) (“This Court finds that an observer, court reporter, or 7 recording device, would constitute a distraction during the examination and work to diminish the 8 accuracy of the process.”); Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 609-10 (C.D. Cal. 9 1995) (“Third party observers may, regardless of their good intentions, contaminate a mental 10 examination.”). 11 While the undersigned is cognizant of the challenges inherent in a Rule 35 examination, 12 plaintiffs have failed to make a showing as to why any plaintiff—let alone all plaintiffs—require 13 emotional support during these examinations or why these examinations should be recorded. 14 Moreover, “[e]ven where legitimate concerns exist, many courts have emphasized that there are 15 ‘other, less drastic means of addressing them,’ including the provision of a Rule 35 examination 16 report to the plaintiff for review; the opportunity for plaintiff to depose the physician, cross- 17 examine the physician at trial, and introduce contrary expert evidence; and the opportunity to seek 18 exclusion of evidence improperly obtained during the examination from trial.’” Flack, 333 19 F.R.D. at 518 (quoting Smoloko v. Unimark Lowby Trans., LLC. 327 F.R.D. 59, 63 (M.D. Penn. 20 2018)). 21 Accordingly, plaintiffs’ request will not be granted. 22 B. Duration of Plaintiffs’ Examinations 23 The parties disagree as how much time should be allowed for each examination. (See 24 ECF No. 80-1 at 9; ECF No. 80-2 at 3; ECF No. 80-3 at 3, 7, 11.) The undersigned is cautious of 25 the fact that “imposing arbitrary time limits on the examinations would create more problems 26 than it would alleviate.” Nazar v. Harbor Freight Tools USA Inc., No 2:18-cv-0348 SMJ, 2020 27 WL 4730973, at *4 (E.D. Wash. Mar. 13, 2020); see also Lahr v. Fulbright & Jaworski, L.L.P., 28 164 F.R.D. 196, 202 (N.D. Tex. 1995) (“For the court to intervene and limit the type of 1 examination an expert has indicated is necessary in order to analyze plaintiff’s claims would 2 subvert the truth finding function inherent in Rule 35 examinations.”). 3 That said, as acknowledged at the July 23, 2021 hearing, defendant is requesting up to 14 4 hours of examination for each plaintiff. In order to guard against fatigue, the undersigned will 5 order that each plaintiff be examined over a two-day period, with each day allowing for 2, four- 6 hour examinations (e.g., Monday 8 am to 12pm, & 1 pm to 5 pm, Tuesday 8 am to 12 pm & 1 pm 7 to 5 pm), with no less than a one-hour break between examination periods. The parties, however, 8 are free to amend this schedule pursuant to their agreement. See Halliday v. Spjute, No. 1:07-cv- 9 0620 AWI GSA, 2015 WL 3988903, at *3 (E.D. Cal. June 30, 2015) (“Given Plaintiffs’ concerns 10 about mental and emotional fatigue, however, the Court will permit each examination to occur 11 over a two day period. Each examination will consist of two, four hour testing sessions. This 12 schedule adequately protects Defendants’ need for discovery and Plaintiffs’ concerns of mental 13 fatigue.”). 14 C. Location of Plaintiff Ariel Pollack’s Examination 15 After the events at issue in this action plaintiff Ariel Pollack moved from California to 16 Tennessee. (JS (ECF No. 80-1) at 12.) Due to her “extreme fear of flying” plaintiff Pollack 17 requests that the defendant reimburse plaintiff for the travel expenses of both plaintiff “and her 18 mother to accompany her to provide comfort.” (Id.) 19 “The general rule with respect to the location of depositions is that the plaintiff must 20 produce its witnesses in the district in which the plaintiff instituted the action, unless the plaintiff 21 has shown financial hardship or inability to attend the deposition in that district.” Aerocrine AB 22 v. Apieron Inc., 267 F.R.D. 105, 108 (D. Del. 2010) (quotation omitted); see also In re 23 Outsidewall Tire Litigation, 267 F.R.D. 466, 471 (E.D. Va. 2010) (“courts ordinarily presume 24 that a plaintiff may be deposed in the judicial district where the action was brought, inasmuch as 25 the plaintiff, in selecting the forum, has effectively consented to participation in legal proceedings 26 there”); South Seas Catamaran, Inc. v. Motor Vessel Leeway, 120 F.R.D.
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1 2 3 4 5 6 7 10 11 MICHELLE HILL, an individual, and No. 2:17-cv-1604 WBS DB ARIEL EPSTEIN POLLACK, an 12 individual, 13 Plaintiffs, 14 v. 15 JETBLUE AIRWAYS CORPORATION, a Delaware corporation, 16 Defendant. 17
18 ERICKA BOHNEL, an individual, and No. 2:18-cv-0081 WBS DB ROSA MARTINEZ, an individual, 19 Plaintiffs, 21 v. 22 JETBLUE AIRWAYS CORPORATION, a Delaware corporation, 23 24 Defendant.
25 26 On July 23, 2021, this matter came before the undersigned pursuant to Local Rule 27 302(c)(1) for hearing of defendant’s motion for discovery. Attorneys Rachel Luke and Glenn 28 Guenard appeared via Zoom on behalf of the plaintiffs. Attorney Ashley Shively appeared via 1 Zoom on behalf of the defendant. Oral argument was heard and the motions were taken under 2 submission. The parties’ dispute concerns two issues: (1) plaintiffs’ Rule 35 examinations; and 3 (2) plaintiffs’ disclosures with respect to the calculation of damages. 4 I. Plaintiffs’ Rule 35 Examinations 5 The court may order a Rule 35 Independent Medical Examination “only on motion for 6 good cause” and that motion must “specify the time, place, manner, conditions, and scope of the 7 examination, as well as the person or persons who will perform it.” Fed. R. Civ. P. 35(a)(2)(A)- 8 (B). Here, the parties do not dispute the propriety of the Rule 35 examinations and each side has 9 submitted a proposed order with respect to those examinations. (ECF Nos. 80-2 & 80-3.1) 10 Plaintiff, however, has made three requests with respect to the examinations. 11 A. Third Party and Audio Recording 12 Plaintiffs request the presence of a third party—a licensed nurse—during the examinations 13 for emotional support as well as an audio recording of the examinations. Whether to “either 14 allow a tape recorder or a third person at the examination of plaintiff raises only a single issue” 15 and depends on the facts of each case. Hertenstein v. Kimberly Home Health Care, Inc., 189 16 F.R.D. 620, 628-30 (D. Kan. 1999). 17 “Three general reasons may argue the presence of a third person or recording device at a 18 Fed. R. Civ. P. 35(a) examination: (1) fear that the examiner, as a person retained by an opponent, 19 will improperly conduct the examination to obtain admissions or other damaging concessions 20 from the examinee; (2) fear that the examiner will utilize improper, unconventional, or harmful 21 examination techniques; and (3) a need for emotional support or comfort during the 22 examination.” Id. at 630. 23 Here, plaintiffs assert that they “have a demonstrated need for emotional support” because 24 “they will be describing past trauma associated with the JetBlue Flight 429 severe turbulence 25 event.” (JS (ECF No. 80-1) at 7.) “While federal courts in some instances have permitted an 26 observer in a Rule 35 examination, ‘[t]he majority rule adopted by the federal courts is that the
27 1 For purposes of clarity and simplicity, the citation here and throughout is to the docket in Hill, 28 No. 2:17-cv-1604 WBS DB. 1 court may, and often should, exclude third-party observers, including counsel, from medical or 2 psychiatric evaluations.’” Flack v. Nutribullet, L.L.C., 333 F.R.D. 508, 517 (C.D. Cal. 2019); see 3 also Hertenstein, 189 F.R.D. at 631 (finding “no right to the presence of any third person or 4 mechanical recording device at the examination” and that “the presence of a mechanical 5 recording device inappropriate under the facts of this case”); Shirsat v. Mutual Pharmaceutical 6 Co., Inc., 169 F.R.D. 68, 70 (E.D. Pa. 1996) (“This Court finds that an observer, court reporter, or 7 recording device, would constitute a distraction during the examination and work to diminish the 8 accuracy of the process.”); Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 609-10 (C.D. Cal. 9 1995) (“Third party observers may, regardless of their good intentions, contaminate a mental 10 examination.”). 11 While the undersigned is cognizant of the challenges inherent in a Rule 35 examination, 12 plaintiffs have failed to make a showing as to why any plaintiff—let alone all plaintiffs—require 13 emotional support during these examinations or why these examinations should be recorded. 14 Moreover, “[e]ven where legitimate concerns exist, many courts have emphasized that there are 15 ‘other, less drastic means of addressing them,’ including the provision of a Rule 35 examination 16 report to the plaintiff for review; the opportunity for plaintiff to depose the physician, cross- 17 examine the physician at trial, and introduce contrary expert evidence; and the opportunity to seek 18 exclusion of evidence improperly obtained during the examination from trial.’” Flack, 333 19 F.R.D. at 518 (quoting Smoloko v. Unimark Lowby Trans., LLC. 327 F.R.D. 59, 63 (M.D. Penn. 20 2018)). 21 Accordingly, plaintiffs’ request will not be granted. 22 B. Duration of Plaintiffs’ Examinations 23 The parties disagree as how much time should be allowed for each examination. (See 24 ECF No. 80-1 at 9; ECF No. 80-2 at 3; ECF No. 80-3 at 3, 7, 11.) The undersigned is cautious of 25 the fact that “imposing arbitrary time limits on the examinations would create more problems 26 than it would alleviate.” Nazar v. Harbor Freight Tools USA Inc., No 2:18-cv-0348 SMJ, 2020 27 WL 4730973, at *4 (E.D. Wash. Mar. 13, 2020); see also Lahr v. Fulbright & Jaworski, L.L.P., 28 164 F.R.D. 196, 202 (N.D. Tex. 1995) (“For the court to intervene and limit the type of 1 examination an expert has indicated is necessary in order to analyze plaintiff’s claims would 2 subvert the truth finding function inherent in Rule 35 examinations.”). 3 That said, as acknowledged at the July 23, 2021 hearing, defendant is requesting up to 14 4 hours of examination for each plaintiff. In order to guard against fatigue, the undersigned will 5 order that each plaintiff be examined over a two-day period, with each day allowing for 2, four- 6 hour examinations (e.g., Monday 8 am to 12pm, & 1 pm to 5 pm, Tuesday 8 am to 12 pm & 1 pm 7 to 5 pm), with no less than a one-hour break between examination periods. The parties, however, 8 are free to amend this schedule pursuant to their agreement. See Halliday v. Spjute, No. 1:07-cv- 9 0620 AWI GSA, 2015 WL 3988903, at *3 (E.D. Cal. June 30, 2015) (“Given Plaintiffs’ concerns 10 about mental and emotional fatigue, however, the Court will permit each examination to occur 11 over a two day period. Each examination will consist of two, four hour testing sessions. This 12 schedule adequately protects Defendants’ need for discovery and Plaintiffs’ concerns of mental 13 fatigue.”). 14 C. Location of Plaintiff Ariel Pollack’s Examination 15 After the events at issue in this action plaintiff Ariel Pollack moved from California to 16 Tennessee. (JS (ECF No. 80-1) at 12.) Due to her “extreme fear of flying” plaintiff Pollack 17 requests that the defendant reimburse plaintiff for the travel expenses of both plaintiff “and her 18 mother to accompany her to provide comfort.” (Id.) 19 “The general rule with respect to the location of depositions is that the plaintiff must 20 produce its witnesses in the district in which the plaintiff instituted the action, unless the plaintiff 21 has shown financial hardship or inability to attend the deposition in that district.” Aerocrine AB 22 v. Apieron Inc., 267 F.R.D. 105, 108 (D. Del. 2010) (quotation omitted); see also In re 23 Outsidewall Tire Litigation, 267 F.R.D. 466, 471 (E.D. Va. 2010) (“courts ordinarily presume 24 that a plaintiff may be deposed in the judicial district where the action was brought, inasmuch as 25 the plaintiff, in selecting the forum, has effectively consented to participation in legal proceedings 26 there”); South Seas Catamaran, Inc. v. Motor Vessel Leeway, 120 F.R.D. 17, 21 (D. N.J. 1988) 27 (“the general rule requiring plaintiff or its agents to appear for the taking of depositions in the 28 district in which the suit is brought”). 1 Again, the undersigned is cognizant of the difficulties plaintiff Pollack may encounter in 2 appearing for the Rule 35 examinations. However, plaintiff chose to bring this action knowing it 3 would be in this district. Moreover, even after the events at issue plaintiff Pollack has flown “on 4 occasion,” including to visit family in Maine and in Portland. (JS (ECF No. 80-1) at 12.) While 5 plaintiff Pollack is free to take any steps necessary to arrive safely and timely for the 6 examinations as seen fit the undersigned finds that plaintiffs have not justified an order requiring 7 defendant to reimburse plaintiff Pollack for such costs. 8 Plaintiffs’ request, therefore, will not be granted. 9 II. Plaintiffs’ Computation of Damages 10 According to defendant plaintiffs have not provided “even so much as an estimate of 11 general damages for each Plaintiff,” but “merely state that the ‘exact amount and categories of 12 general damages are currently unknown but will be proven at the time of trial.’” (JS (ECF No. 13 80-1) at 13.) Counsel for plaintiffs acknowledged at the July 23, 2021 hearing that plaintiffs are 14 seeking general and special damages. 15 “The initial disclosure requirement does contemplate ‘some analysis’ and requires more 16 than merely setting forth the amount demanded.” Ritchie v. Sempra Energy, CASE NO. 17 10cv1513 CAB(KSC), 2014 WL 12637955, at *6 (S.D. Cal. Aug. 4, 2014). Plaintiffs counsel 18 asserted at the July 23, 2021 hearing that it is difficult to calculate plaintiffs’ general damages at 19 this stage of the action. While that may be true, plaintiffs “should provide [an] assessment of 20 damages in light of the information currently available . . . so as to enable [defendant] to 21 understand the contours of its potential exposure and make informed decisions as to settlement 22 and discovery.” City and County of San Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 221 23 (N.D. Cal. 2003). 24 Nonetheless, as stated by plaintiffs’ counsel at the July 23, 2021 hearing, it does not 25 appear that either side provided a copy of plaintiffs’ disclosure with respect to damages. Thus, 26 the undersigned cannot say with certainty whether plaintiffs’ disclosure was insufficient. 27 Accordingly, the plaintiffs shall reconsider their disclosure in light of this analysis and determine 28 whether a supplemental disclosure is warranted. See Design Strategy, Inc. v. Davis, 469 F.3d 1 284, 295 (2nd Cir. 2006) (“by its very terms Rule 26(a) requires more than providing—without 2 any explanation—undifferentiated financial statements; it requires a ‘computation,’ supported by 3 documents”); Agence France Presse v. Morel, 293 F.R.D. 682, 685 (S.D. N.Y. 2013) (“Put 4 simply, damages computations and the documents supporting those computations are two 5 different things, and Rule 26 obliges parties to disclose and update the former as well as the 6 latter.”); Frontline Medical Associates, Inc. v. Coventry Health Care, 263 F.R.D. 567, 569 (C.D. 7 Cal. 2009) (“Plaintiff’s initial disclosure, therefore, should disclose a computation of each 8 category of damages attributable to each cause of action.”); Burrell v. Crown Cent. Petroleum, 9 Inc., 177 F.R.D. 376, 386 (E.D. Tex. 1997) (“Any further compensatory damages not related to 10 the issue of mental anguish must be reasonably calculated and disclosed to Crown, however.”). 11 If a dispute remains, the parties shall meet and confer over the issue. 13 Upon consideration of the arguments on file and those made at the hearing, and for the 14 reasons set forth on the record at that hearing and above, IT IS HEREBY ORDERED that: 15 1. Defendant’s motions for discovery (Hill ECF No. 80 & Bohnel ECF No. 76) are 16 granted in part and denied in part as stated above; and 17 2. Defendant JetBlue’s examinations of plaintiffs pursuant to Rule 35 of the Federal 18 Rules of Civil Procedure shall be conducted as follows: 19 The examining providers will be Dr. Peter Sfakianos (an orthopedist) and Dr. Steven 20 Mcintire (a neurologist), a neuropsychologist to be determined, and any other physicians reasonably 21 disclosed by JetBlue in accordance with the expert discovery schedule. The exams will take place 22 as noticed, with reasonable accommodations as to date and time based on plaintiffs’ availability. 23 If plaintiffs fail to appear at the exam, as noticed and as agreed, or if plaintiffs or their agents or 24 representatives interfere in the exam in any way, plaintiffs will be invoiced for the full amount of 25 the exam, and will be subject to any other penalty or sanction as ordered by the court. 26 The exams for each plaintiff may take place over a two-day period, with each day allowing 27 for 2, four-hour examinations (e.g., Monday 8 am to 12pm, & 1 pm to 5 pm, Tuesday 8 am to 12 28 pm & 1 pm to 5 pm), with no less than a one-hour break between examination periods. The parties, 1 | however, are free to amend this schedule pursuant to their agreement. The estimated length of time 2 | for the exams is at the discretion of the physician. The orthopedic and neurology exams are not 3 | expected to last more than three hours each and neuropsychological exams no more than eight 4 | hours. 5 The providers shall conduct exams in the areas of orthopedics, neurology (as to plaintiff 6 | Pollack only), and neuropsychology. The providers will not inquire into privileged attorney-client 7 || communications, and any inadvertent disclosure of such communications by plaintiffs will not be 8 || admissible and will not constitute waiver of the attorney-client privilege. 9 The providers will be entitled to ask reasonable questions to facilitate the exam and as 10 || necessary to complete their reports, including, but not limited to, as it relates to the underlying 11 | incident, and plaintiffs’ medical history, treatment, and underlying/pre-existing conditions. 12 | The physicians disclosed by JetBlue will adhere to applicable professional and ethical principles 13 | and code of conduct. 14 Neither plaintiffs nor JetBlue will have an observer present during the exam. Neither 15 | plaintiffs nor JetBlue will interfere, impede or delay the exam in any way. In the event that any 16 || problems arise during the exam, the providers will contact counsel in an effort to promptly resolve 17 || any disputes. Reports of the examinations will be dealt with in accordance with the provisions of 18 || Rule 35 of the Federal Rules of Civil Procedure or as ordered by the court. 19 If plaintiffs’ take the deposition of the providers, the depositions will be conducted remotely 20 | pursuant to the parties’ agreed-upon protocol, and plaintiffs will be invoiced at the hourly rate, or 21 || deposition-flat fee rate, as the case may be, of each provider in accordance with his/her respective 22 || fee schedules. Plaintiffs and their counsel only should contact the providers through counsel for 23 || JetBlue. Counsel for JetBlue will inform the providers of the terms of this order. 24 | Dated: July 27, 2021 25 26 27 | DLB:6 ONETED STATS ag JUDGE 28 DB/orders/orders.civil/hill1604.0ah.072321