Silbernagel v. Westfield Insurance Company, 0:22-cv-01979

Plaintiff Nathan Silbernagel sued Westfield for underinsured motorist benefits arising from a September 2018 auto accident, claiming serious and permanent physical injuries and related damages.
The Pretrial Scheduling Order allowed one Rule 35 physical examination to be completed by December 26, 2022; Westfield noticed the exam and selected the examiner.
Silbernagel agreed to attend and had no objection to the examiner, but he insisted on recording the physical examination; Westfield sought to compel an unrecorded exam and to extend scheduling deadlines.
The parties disputed whether a examinee may record a Rule 35 physical exam; the notice did not prohibit recording and the examiner had previously allowed recordings.
The Magistrate Judge held a hearing, concluded the exam was warranted, allowed recording (subject to conditions), and extended the deadline to complete the exam to May 1, 2023.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Silbernagel must submit to a Rule 35 physical exam	Agreed to attend; no dispute that physical condition is in controversy	Needed exam to evaluate plaintiff's claimed injuries	Granted — Rule 35 exam compelled (good cause exists)
Whether plaintiff may record the Rule 35 physical exam	Recording preserves an accurate record, guards against bias, and does not impede a physical exam	Recording is untimely, could give plaintiff strategic advantage, and might disrupt the exam	Granted — plaintiff may record; recording allowed so long as plaintiff pays costs and provides recording to Westfield immediately
Whether to amend the Pretrial Scheduling Order (extend deadline)	Delay resulted from unresolved dispute over recording; parties brought issue to court	Westfield sought extension because the dispute prevented timely completion	Granted — good cause shown; deadline extended to May 1, 2023

Schlagenhauf v. Holder, 379 U.S. 104 (1964) (Rule 35 requires good cause and that each condition be genuinely in controversy)
Hofer v. Mack Trucks, Inc., 981 F.2d 377 (8th Cir. 1992) (movant bears threshold burden to show relevance for Rule 35 purposes)
United States v. Procter & Gamble Co., 356 U.S. 677 (1958) (discovery aims to disclose facts fully to make trial a fair contest)
Tomlin v. Holecek, 150 F.R.D. 628 (D. Minn. 1993) (analysis of recording Rule 35 examinations; concerns about psychological exams)
Stewart v. Burlington N. R.R., 162 F.R.D. 349 (D. Minn. 1995) (Rule 35 levels the playing field by allowing independent evaluation)
Saint Paul Reinsurance Co. v. Commercial Financial Corp., 198 F.R.D. 508 (N.D. Iowa 2000) (resisting party bears burden to show discovery is unduly burdensome)
Sherman v. Winco Fireworks, Inc., 532 F.3d 709 (8th Cir. 2008) (good-cause standard for modifying scheduling orders)
Sherman v. Sheffield Financial, LLC, 338 F.R.D. 247 (D. Minn. 2021) (movant must make threshold showing of relevance for discovery)