279 F.R.D. 412
S.D. Tex.2012Background
- Diaz sues Con-Way Truckload, Inc. and driver Owusu in Texas state court for negligence, later removed to federal court; damages claimed include pain, suffering, medical expenses, loss of earnings, and future earning capacity; liability is stipulated, leaving damages as sole issue at trial.
- A scheduling order established multiple deadlines, including expert designations (Diaz July 7, 2011; Con-Way August 8, 2011), discovery cutoff (October 11, 2011), and a broader discovery plan.
- Con-Way moved to compel Diaz to undergo ophthalmology and neuropsychology examinations; Diaz responded to motions; Diaz sought leave to designate Dr. Neiman as an expert after the July 7, 2011 deadline.
- Motions were heard on October 7 and 26, 2011; Court granted Con-Way’s motions to compel the examinations and Diaz’s motion to designate Dr. Neiman; a memorandum opinion followed.
- Diaz claimed changes in his condition and ongoing medical needs, including potential future eye and brain injuries, which the Court considered in determining good cause for examinations.
- Arguments centered on whether Rule 26 and Rule 35 should be treated independently or in conjunction when scheduling exams; the Court ultimately found interplay between Rules 26 and 35 and extended deadlines accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 26 and Rule 35 deadlines are interdependent. | Diaz contends no interdependence; scheduling deadlines govern expert reports only. | Con-Way argues no deadline for Rule 35 and timing can be separate from Rule 26. | Read together; interdependent impact on timing of Rule 35 examinations. |
| Whether Rule 35 examinations were timely sought. | Examinations were timely given ongoing discovery and changes in condition. | Requests came after Rule 26 expert deadline. | Untimely under the scheduling order and interplay with Rule 26. |
| Whether supplementation of expert reports is permissible to accommodate Rule 35 examinations. | Excuses supplementation due to later Rule 35 findings. | Supplementation limited to 26(e) circumstances; not a basis to extend deadlines. | Supplementation not appropriate to extend deadlines for Rule 35 findings. |
| Whether the Court should amend the scheduling order to extend expert deadlines to accommodate Rule 35 examinations. | Extending deadlines is necessary to preserve fair issue presentation. | Good cause exists to modify deadlines due to potential Rule 35 findings. | Good cause found; scheduling order extended for expert designations. |
Key Cases Cited
- Schlagenhauf v. Holder, 379 U.S. 104 (U.S. Supreme Court 1964) (Rule 35 good cause and in-contestability requirements for medical exams)
- Duncan v. Upjohn Co., 155 F.R.D. 23 (D. Conn. 1994) (Rule 35 examination scope and purpose of expert discovery)
- Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 204 (N.D. Tex. 1996) (liberal view of Rule 35 and its place in discovery)