Opinion
Civil Action 20-668-JWD-RLB
08-17-2021
STEVEN GAUTHIER AND AND MELISSA GAUTHIER v. ALLSTATE INSURANCE COMPANY AND AMIR RAHIM KHALILI
ORDER
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendants' Unopposed Motion to Set Physical Examination of Plaintiffs filed on August 12, 2021. (R. Doc. 8).
This is a personal injury action arising out of a motor vehicle accident that occurred on June 20, 2019. (R. Doc. 1-1). Plaintiffs agree to submit to a physical examination with Dr. Thomas Najeeb, a neurosurgeon located in Metairie, Louisiana, as detailed in Defendants' motion.
Federal Rule of Civil Procedure 35 provides that the “court where the action is pending may order a party whose mental or physical condition-including blood group-is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.” Fed.R.Civ.P. 35(a)(1). Such an order may be issued “only on motion for good cause and on notice to all parties and the person to be examined” and “must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” Fed.R.Civ.P. 35(a)(2). A plaintiff places his or her physical or mental condition “in controversy” by pleading he or she has sustained a physical injury through the negligence of the defendant. See Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964). “The decision as to whether or not to order an independent medical examination under Rule 35(a) rests in the court's sound discretion.” Glaze v Bud's Boat Rental, Inc., No. 93-1334, 1993 WL 441890, *1 (E.D. La. Oct. 21, 1993). Furthermore, “[a]lthough Rule 35 examinations may be ordered ‘only on motion for good cause shown,' and use of the rule to compel such examinations is not unfettered, Rule 35(a) generally has been construed liberally in favor of granting discovery.” Grossie v. Fla. Marine Transporters, Inc., No. 04-0699, 2006 WL 2547047, at *2 (W.D. La. Aug. 31, 2006).
Having considered the foregoing motion, the Court finds good cause to order the plaintiffs - Steven Gauthier and Melissa Gauthier - to submit to neurosurgical examinations by Dr. Najeeb Thomas as detailed below, and as agreed upon by the parties.
IT IS ORDERED that Defendants' Unopposed Motion to Set Physical Examination of Plaintiffs (R. Doc. 8) is GRANTED.
IT IS FURTHER ORDERED that the Rule 35 examinations of Plaintiffs shall proceed in accordance with the following:
(1) Plaintiffs, Melissa Gauthier and Steven Gauthier, shall submit to a neurosurgical examination by Dr. Najeeb Thomas, at Southern Brain & Spine, 3798 Veterans Memorial Blvd., Suite 200, Metairie, LA 70002, on September 1, 2021, at 2:00 p.m. and 2:30 p.m., respectively. Such examinations shall include any physical examination deemed necessary by Dr. Thomas and consistent with the routine procedures of a neurosurgeon to assess Plaintiffs' respective medical conditions and any alleged injuries related to the accident at issue and the nature and extent of past and future treatment, if any, is needed.
(2) At the time of said examination, Plaintiffs shall answer all proper questions submitted to them, whether in writing or orally, including but not limited to, questions regarding occupational history, medical and family history, pain, prior surgeries, daily activities, any prior accidents, falls, injuries or diseases, all for the purpose of making a proper diagnosis of Plaintiffs' respective conditions.
(3) No individuals other than the respective Plaintiff, plaintiff's spouse, Dr. Thomas, and Dr. Thomas's staff will be permitted to be present during each Plaintiff's examination. No. audio or video recording of the examination will be permitted.
(4) All paperwork required by Dr. Thomas shall be completed by Plaintiffs prior to the September 1, 2021 appointment and returned to Dr. Thomas at the time of said appointment. All required paperwork to be completed by Plaintiffs will be provided to their counsel of record for completion prior to the September 1, 2021, appointment.