Opinion
Plaintiffs moved for protective order enjoining any further medical examination of plaintiff by defendants' medical expert as sanction for defendants' alleged bad faith at earlier stage of discovery. The District Court, Theis, J., held that protective order would not issue to enjoin any further medical examination of plaintiff as sanction for defendants' alleged bad faith in failing to disclose painful and invasive nature of magnetic resonance imaging to which plaintiff had been subjected at earlier stage of discovery.
So ordered. MEMORANDUM 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.