Summary
upholding Magistrate Judge's decision denying a motion to compel an FCE where the government had already had the plaintiff physically examined by its expert
Summary of this case from Cook v. Bayou Tugs, Inc.Opinion
Civil Action No. 00-2791, Section: "R" (2)
February 26, 2002
ORDER AND REASONS
Before the Court is the Government's motion to review Magistrate Judge Wilkinson's February 6, 2002 order denying the Government's motions to compel a physical examination and to extend discovery deadline. The Government also moves to continue the March 11, 2002 trial date. For the following reasons, the Court denies the Government's motions.
I. Background
On January 24, 2002, pursuant to Rule 35 of the Federal Rules of Civil Procedure, the Government filed a motion to compel plaintiff to appear for an independent medical examination to determine his functional capacity at Alton Ochsner Medical Foundation on February 2002 and on February 7, 2002. On January 28, 2002, the Government filed a motion to extend the discovery deadline date of January 29, 2002. Trial is set for March 11, 2002. On February 7, 2002, Magistrate Judge Wilkinson denied the Government's motions. He found that the Government's motion to compel was "incomplete, untimely and unnecessary." (Rec. Doc. 91.) Accordingly, the Magistrate Judge also denied defendant's motion to extend the discovery deadline. The Government now moves the Court to review and reverse the Magistrate Judge's orders.
II Analysis
A. Standard of Review
A magistrate judge may hear and determine any pretrial matter pending before a district court. 28 U.S.C. § 636(b)(1)(A). In a non-dispositive matter, a district court will reverse a magistrate judge's ruling only if the party challenging the decision can demonstrate that the determination was clearly erroneous or contrary to the law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). This standard requires the court to affirm the decision of the magistrate judge unless based on the entire evidence, the reviewing court is left "with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525 (1948).
Rule 35 of the Federal Rules of Civil Procedure 35 authorizes the court to order a party to submit to a physical or mental examination when the party's mental or physical examination is in controversy and good cause is shown. Here, the Magistrate Judge found that the Government's motion failed to satisfy the requirements of Rule 35 because the motion was "incomplete, untimely and unnecessary." Specifically, the Government did not specify who would conduct the examination and stated merely that the examiner was the "Department of Rehabilitation services, Alton Ochsner Medical Foundation." Fed.R.Civ.P. 35 ("[T]he court in which the action is pending may order the party to submit to a physical examination by a suitably licensed or certified examiner. . . .") He also found that the motion was untimely because the discovery deadline would expire before the expert report could be completed and that the plaintiff would have insufficient time to hire his own functional capacity expert to evaluate or rebut the report before the trial. The Magistrate Judge pointed out the Government had been on notice since June 8, 2001 that plaintiff's functional capacity was an issue in the case, citing Rule 26(b)(2) (ii) and (iii) Finally, the Magistrate Judge found that the evaluation was unnecessary because plaintiff identified a physician expert, not a functional capacity expert, for trial. (Rec. Doc. 91.) The Magistrate Judge noted that the Government already had plaintiff physically examined by its own physician expert who could rebut any evidence presented by plaintiff's expert.
Having reviewed the record and the applicable law, the Court holds that Magistrate Judge Wilkinson did not err in ruling that the Government was not entitled to conduct a functional capacity evaluation of the plaintiff and was therefore not entitled to an extension in the discovery deadline. The Government does not dispute the Magistrate Judge's finding that it did not identify who the examiner or the possible examiners would be in its motion to compel. (Mot. to Review, at 4.)
The Court upholds the Magistrate Judge's finding that the Government should have been aware that plaintiff's functional capacity was an issue in this case in June 2001. The Government argues that "[p]rior to January 9, 2002, plaintiff had not provided defendant any report from any physician stating that he could not lift, stoop, bend, kneel, climb, use left or right upper extremity, and use left of right lower extremity." The Court disagrees. On June 8, 2001, the Government received a report from Dr. Carey, its own physician expert, who specifically noted that if Mr. Fuller could no longer work as a manager and instead had to "go out in the field and perform as a field safety inspector climbing 160 foot towers, he would not be able to do that." (Pl's Opp'n. Mot. to Review, Ex. L.) In his evaluation, Dr. Carey took into account the possibility that plaintiff's job duties could change and placed the Government on notice that they should also take that factor into account. Further, the Government received plaintiff's physical therapy records on August 10, 2000. ( Id., Ex. A.) In a report dated February 5, 1999, the physical therapist states that plaintiff had a "[d]ecreased range of motion for left and right side bending" and that a goal of physical therapy was to restore "work duties such as climbing ladders and driving." ( Id., Ex. C.) In February 22, 1999 report, she states that "Mr. Fuller continues to have decreased tolerance for ADL's including "sitting" and "standing." ( Id., Ex. D.) In plaintiff's deposition, he stated that after the accident was unable to "climb," "walk for long periods of time," and that he was "physically incapable of doing a lot of things I used to do." ( Id., Ex. G, at 26.) On September 11, 2001, the Government received the expert report of Dr. Reisse, in which he states that "Mr. Fuller will continue to have pain and his ability to perform his present job is very limited." ( Id., Ex. J, Ex. K.) In addition, the Court finds that the Magistrate Judge's finding that defendant will not be prejudiced by not performing a functional capacity evaluation is not clearly erroneous.
Accordingly, based on the record, the Court finds that the Magistrate Judge did not clearly err in denying the Government's motion for a functional capacity evaluation and in denying an extension in the discovery deadline. Since the Court upholds the Magistrate Judge's determinations, the Court finds no reason to continue the March 11, 2002 trial date. The Court notes that the trial has already been continued once in this case.
III. Conclusion
For the foregoing reasons, the Court denies the Government's motions to review the Magistrate Judge's order and the motion to continue trial.