Rathgeber v. Kiowa District Hospital

D. Kansas

Rathgeber v. Kiowa District Hospital

131 F.R.D. 195, 17 Fed. R. Serv. 3d 677, 1990 U.S. Dist. LEXIS 7524, 1990 WL 84402

CourtDistrict Court, D. Kansas

DecidedMay 29, 1990

DocketCiv. A. No. 88-1393-T

StatusPublished

This text of 131 F.R.D. 195 (Rathgeber v. Kiowa District Hospital) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rathgeber v. Kiowa District Hospital, 131 F.R.D. 195, 17 Fed. R. Serv. 3d 677, 1990 U.S. Dist. LEXIS 7524, 1990 WL 84402 (D. Kan. 1990).

Pincite

Opinion

[196]*196MEMORANDUM AND ORDER

THEIS, District Judge.

This matter is before the court on the motion of defendants for extension of time in which to produce an expert report. Plaintiffs do not object, and the motion will be granted. Plaintiffs have filed a cross-motion, however, requesting that the court issue a protective order enjoining any further medical examination of the plaintiff by defendants’ medical expert. Plaintiffs request this protective order as a sanction for the alleged failure of defendants to disclose the painful and invasive nature of a “magnetic resonance imaging” (“MRI”) procedure to which Melissa Rathgeber was subjected as an earlier part of discovery. Apparently, the procedure involved injections of general anesthesia and dye, causing Melissa considerable pain. Plaintiffs contend that they agreed to the MRI with the understanding that it was a non-invasive, painless procedure, and that defendants were required to give notice under Fed.R. Civ.P. 35(a) of anything to the contrary.

Plaintiffs have presented no evidence that defendants had knowledge of the potentially painful nature of the MRI procedure and yet willfully failed to disclose such information. The court believes that a significantly more egregious allegation of bad faith, substantiated by evidence, would be necessary before a protective order of this nature could issue. Defendants are entitled to an independent examination of plaintiff by defendants’ own physician. If necessary, defendants should submit a proposed order to the court, specifying “the time, place, manner, conditions, and scope of the examination____” Fed.R. Civ.P. 35(a).

IT IS BY THE COURT THEREFORE ORDERED that defendants be granted an extension of time of 15 days from the date of the filing of this order in which to produce the expert report of Dr. James Bartley.

IT IS FURTHER ORDERED that plaintiffs’ motion for protective order be denied.

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[196]*196MEMORANDUM AND ORDER

THEIS, District Judge.

This matter is before the court on the motion of defendants for extension of time in which to produce an expert report. Plaintiffs do not object, and the motion will be granted. Plaintiffs have filed a cross-motion, however, requesting that the court issue a protective order enjoining any further medical examination of the plaintiff by defendants’ medical expert. Plaintiffs request this protective order as a sanction for the alleged failure of defendants to disclose the painful and invasive nature of a “magnetic resonance imaging” (“MRI”) procedure to which Melissa Rathgeber was subjected as an earlier part of discovery. Apparently, the procedure involved injections of general anesthesia and dye, causing Melissa considerable pain. Plaintiffs contend that they agreed to the MRI with the understanding that it was a non-invasive, painless procedure, and that defendants were required to give notice under Fed.R. Civ.P. 35(a) of anything to the contrary.

Plaintiffs have presented no evidence that defendants had knowledge of the potentially painful nature of the MRI procedure and yet willfully failed to disclose such information. The court believes that a significantly more egregious allegation of bad faith, substantiated by evidence, would be necessary before a protective order of this nature could issue. Defendants are entitled to an independent examination of plaintiff by defendants’ own physician. If necessary, defendants should submit a proposed order to the court, specifying “the time, place, manner, conditions, and scope of the examination____” Fed.R. Civ.P. 35(a).

IT IS BY THE COURT THEREFORE ORDERED that defendants be granted an extension of time of 15 days from the date of the filing of this order in which to produce the expert report of Dr. James Bartley.

IT IS FURTHER ORDERED that plaintiffs’ motion for protective order be denied.

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Bluebook (online)

131 F.R.D. 195, 17 Fed. R. Serv. 3d 677, 1990 U.S. Dist. LEXIS 7524, 1990 WL 84402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rathgeber-v-kiowa-district-hospital-ksd-1990.