Shumaker v. West

196 F.R.D. 454, 48 Fed. R. Serv. 3d 301, 2000 U.S. Dist. LEXIS 19759, 2000 WL 1473877
CourtDistrict Court, S.D. West Virginia
DecidedSeptember 29, 2000
DocketNo. Civ.A. 1:99-1067
StatusPublished
Cited by13 cases

This text of 196 F.R.D. 454 (Shumaker v. West) is published on Counsel Stack Legal Research, covering District Court, S.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shumaker v. West, 196 F.R.D. 454, 48 Fed. R. Serv. 3d 301, 2000 U.S. Dist. LEXIS 19759, 2000 WL 1473877 (S.D.W. Va. 2000).

Opinion

ORDER

FEINBERG, United States Magistrate Judge.

Pending before the court is Defendant’s “Motion for Rule 35 Examination,” filed August 31, 2000. (Document #35.) On September 15, 2000, Plaintiff responded opposing Defendant’s Motion, and on September 25, 2000, Defendant replied. (Document ## 47, 53.) The court heard the arguments of counsel via telephonic hearing on September 27, 2000. The court has considered the arguments of the parties contained in their pleadings and oral argument.

In his Motion, Defendant seeks a court order requiring Plaintiff to submit to an independent examination by his psychologist/voeational expert, Kenneth J. Manges, Ph.D., pursuant to Rule 35 of the Federal Rules of Civil Procedure. Plaintiff brought this action pursuant to the Rehabilitation Act of 1973,29 U.S.C. § 701 et seq., alleging she suffers from Post Traumatic Stress Disorder (“PTSD”), and that Defendant discriminated against her in violation of the Rehabilitation Act because of this mental impairment. Defendant argues that pursuant to Rule 35, (1) Plaintiffs mental condition is in controversy; (2) Dr. Manges is a suitably licensed and certified examiner; and (3) good cause exists for requiring such an examination.

Plaintiff opposes the medical examination, arguing that Defendant’s Motion is an improper attempt to extend the Scheduling Order deadlines, as Defendant’s expert disclosures served September 6, 2000, did not include an expert report as required by Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. In addition, Plaintiff asserts that her PTSD is not in controversy because prior to her discharge, Defendant determined that Plaintiff had a 50 percent disability due to PTSD. Plaintiff also argues that a current evaluation will not determine whether she had PTSD at the time of her discharge. Finally, Plaintiff avers that good cause does not exist for an examination because, while her vocational ability is in controversy, Defendant has not demonstrated why his expert needs to personally evaluate Plaintiff when extensive medical records and other information relating to Plaintiffs mental condition have been made available to Defendant.

At the telephonic hearing, counsel for Defendant stated that a request for admission that Plaintiff suffered from PTSD had been denied, and that, in a supplemental answer to interrogatories served on or around July 17, 2000, Defendant contended that an independent medical examination was necessary to confirm PTSD. Defendant also responded in the supplemental answer to interrogatories, that if Plaintiff did not have PTSD, she was not an individual with a disability within the meaning of the Rehabilitation Act. Counsel for Defendant further represented at the hearing that Dr. Manges had not had an opportunity to review Plaintiffs medical records and other information as of July 17, 2000, as Dr. Manges had not yet been contacted about serving as an expert. Plaintiff represented that at this time and well before, Defendant had access to Plaintiffs medical records from the Veteran’s Administration dated November 1997. In addition, in her response, Plaintiff notes that it was not until [456]*456July 13, 2000, that Defendant first requested that Plaintiff execute a release to permit the Defendant to obtain medical records relating to Plaintiff. On or around August 22, 2000, Defendant requested that Plaintiff agree to an examination by Dr. Manges. When Plaintiff refused, Defendant filed the instant Motion on August 31, 2000. On or around September 6, 2000, Defendant served his expert disclosures pursuant to Rule 26(a)(2)(B), disclosing Dr. Manges as an expert, but did not attach a report.

Timeliness of Rule 35 Examination

Pursuant to the court’s Scheduling Order entered March 21, 2000, Defendant’s deadline for disclosing experts was September 5, 2000. (Document #9.) Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure explicitly outlines exactly what an expert disclosure must include:

Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

By its own language, the Rule undisputedly requires that with respect to a witness who is retained or specially employed to provide expert testimony, the disclosure of that expert must include a report. In addition, this court has provided guidance regarding the requisite content of expert reports under the Rule. See Smith v. State Farm Fire and Cas. Co., 164 F.R.D. 49 (S.D.W.Va.1995) (finding that contents of eleven of twelve expert reports provided by plaintiffs’ expert witnesses were insufficient).

By at least September 5, 2000, if he intended to use Dr. Manges as an expert, Defendant was required under Rule 26 to have Dr. Manges’ medical report in hand and ready to turn over to the Plaintiff. Nevertheless, Defendant failed to attach a report to his expert disclosures. To comply with the Rule, Defendant should have sought to obtain the medical examination, which he now seeks by motion filed August 31, 2000, well before the September 5, 2000, deadline. Instead, Defendant stated in his Motion that the medical examination, if the court were to grant this Motion, could have occurred on September 26 and 27, 2000. More importantly, Defendant represented at the hearing that as late as July 17, 2000, when he made his supplemental disclosures cited above, he had not contacted Dr. Manges. Indeed, it appears that Defendant denied the admission that Plaintiff had PTSD and responded to other discovery by July 17, 2000, with no good faith basis that his expert could in fact support such a denial, as Dr. Manges had not yet been contacted nor had Dr. Manges reviewed the existing medical evidence.

The deadlines relating to expert disclosures and the requisites provided in Rule 26 regarding the expert report are there for good reason. Both parties are entitled to knowledge relating to the other side’s experts. Without access to the identity of an expert witness and the expert’s -report, an opposing party cannot properly prepare its case or rebut the other party’s expert witness.

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Cite This Page — Counsel Stack

Bluebook (online)
196 F.R.D. 454, 48 Fed. R. Serv. 3d 301, 2000 U.S. Dist. LEXIS 19759, 2000 WL 1473877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shumaker-v-west-wvsd-2000.