Opinion
Civil Action No. 06-cv-00053-EWN-MJW.
July 11, 2006
ORDER REGARDING DEFENDANT WAL-MART STORES, INC.'S MOTION FOR RULE 35 EXAMINATION AND REQUEST FOR IMMEDIATE ATTENTION AND RULING (DOCKET NO. 75)
This matter is before the court on Defendant Wal-Mart Stores, Inc.'s Motion for Rule 35 Examination and Request for Immediate Attention and Ruling (docket no. 75). The court has reviewed the motion and response (docket no. 81) thereto. In addition, the court has taken judicial notice of the court's file and has considered applicable Federal Rules of Civil Procedure and case law. The court now being fully informed makes the following findings of fact, conclusions of law and order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff alleges in his Complaint that he was standing at the threshold of the service bay overhead doors at the Wal-Mart Store located in Durango, Colorado on January 27, 2004, when he was struck on the head when the door rolled down. Plaintiff is claiming injuries to his neck and cervical spine as a result of this incident on January 27, 2004. Plaintiff is further claiming numbness and tingling into his upper extremities. Moreover, an expert opinion that Plaintiff "will probably have to have future surgery on his neck" was given by one of Plaintiff's treating physicians, Dr. Bohachevsky.
Here, I find that Defendant has established "good cause" for a Fed.R.Civ.P. 35 examination ("IME"). Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) (describing "good cause" as a determination that must be made on a case-by-case basis). In addition, I find that an IME is necessary to assess the extent, nature, and degree of Plaintiff's claimed injuries. Moreover, an IME is necessary in order to allow the Defendant to develop its defense to Plaintiff's claims.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law, the court ORDERS:
1. That Defendant Wal-Mart Stores, Inc.'s Motion for Rule 35 Examination and Request for Immediate Attention and Ruling (docket no. 75) is GRANTED;
2. That Plaintiff shall submit to an IME with Ranee Shenoi, M.D., who is a board certified doctor in physical medicine and rehabilitation on Tuesday, July 18, 2006, at 1:45 p.m., at the location of 255 Union Boulevard, Suite 380, Lakewood, Colorado 80228, (303) 989-0256. Dr. Shenoi will be permitted to conduct an IME examination pursuant to Fed.R.Civ.P. 35 upon Plaintiff. The manner of such examination will include orthopedic and neurological testing, using the necessary and appropriate orthopedic/neurologic tests to allow her to assess the extent, nature, and degree of Plaintiff's alleged injuries. The scope of such examination shall include Plaintiff's areas of complaint as a result of the January 27, 2004 incident; and,
3. That each party shall pay their own attorney fees and costs for this motion.