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Gibson v. Jensen

United States District Court, D. Nebraska

July 12, 2017

GARY GIBSON JR., and SHAWNA GIBSON, husband and wife; Plaintiffs,



         This matter is before the court on Defendants' (Brieson Jensen and Farmers Co-Operative) motion to compel a mental evaluation of Plaintiff Gary Gibson, Jr. (Filing No. 47). For the reason set forth below the motion is granted, subject to the restrictions in this order.


         This suit arises out of injuries Plaintiff Gary Gibson, Jr. (“Gibson”) sustained in a June 26, 2013 motor vehicle accident. Gibson is seeking damages for the injuries he sustained from the accident. He has been diagnosed with a “mild traumatic brain injury, . . . major depressive disorder, and related difficulties in the areas of memory, attention, concentration, organization, and problem solving.” (Filing No. 49 at CM/ECF p. 3).

         In compliance with the Final Progression Order (Filing No. 15), Plaintiffs disclosed their expert witnesses and reports on February 1, 2017. Included in the disclosures was the expert report of Dr. Thomas Haley. Dr. Haley opined Gibson is suffering from the above-mentioned mental and emotional conditions. The deadline for disclosing Defendants' expert witness reports was originally April 3, 2017. Defendants sought, and received, an extension until May 3, 2017. By agreement, the parties further extended Defendants' disclosure deadline until May 10, 2017. On that date, Defendants provided Plaintiffs with their expert reports and disclosures, including those of neurophychiatrist Dr. Terry Davis and neuropsychologist Dr. Deborah Hoffnung. Dr. Hoffnung's recommended that Gibson undergo a more thorough psychiatric evaluation “as well as a comprehensive evaluation of cognitive functions, mood, and behavior with a neuropsychological evaluation that includes measures of performance validity, conducted by a board-certified neuropsychologist.” (Filing No. 48-1 at CM/ECF p. 29).

         The parties communicated during the month of May and participated in an unsuccessful mediation on May 15, 2017. On May 23, 2017, the parties participated in a telephonic status conference with the undersigned Magistrate Judge. Defendants requested that Plaintiff Gibson be made available in Omaha for mental examinations by Drs. Davis and Hoffnung, pursuant to Fed. R. Civ. P. 35. Defendants filed the pending motion to compel under Rule 35 on June 1, 2017.


         Under Rule 35, a court may order a mental or physical examination of a party if that party's mental or physical condition is placed at issue. Fed. R. Civ. P. 35(a)(1). Once a party makes specific allegations of a specific mental or psychiatric injury or disorder, or offers expert testimony to support a claim of mental illness, the plaintiff's mental condition has been placed “at issue” for the purposes of Rule 35 and the moving party has shown good cause for the examination. See Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964); Auer v. City of Minot, 178 F.Supp.3d 835, 842 (D. Minn. 2016)(collecting cases). The decision to allow a Rule 35 examination, together with the proper scope and procedures applicable to the examination, are within the sound discretion of the court. Sanden v. Mayo Clinic, 495 F.2d 221, 225 (8th Cir.1974).

         Rule 35 and the Final Progression Order

         Plaintiffs argue Defendants have filed their motion out of time because the deadline set for filing motions to compel was February 15, 2017 and Defendants full expert disclosures and reports were due May 10, 2017. Thus, Plaintiffs assert any attempt to supplement the expert disclosures with the results of a Rule 35 examination is untimely.

         Plaintiff asserts Defendants were required to file their motion to compel the Rule 35 mental examination by the motion to compel deadline set forth in paragraph 6 of the Final Progression Order. (Filing No. 15). Paragraph 6 provides:

The deadline for completing written discovery under Rules 33 through 36 of the Federal Rules of Civil Procedure is February 1, 2017. Motions to compel Rule 33 through 36 discovery must be filed by February 15, 2017 Note: Motions to compel shall not be filed without first contacting the chambers of the undersigned magistrate judge to set a conference for discussing the parties' dispute.

(Filing No. 15, ¶6). Plaintiffs argue the deadline for filing a motion for a Rule 35 examination was February. The question is whether paragraph 6 applies to Rule 35 examinations and, quite frankly, the issue has never been raised before. The court intended paragraph 6 to apply solely to written discovery: It does not consider a Rule 35 examination a part of “written discovery” for the purposes of paragraph 6. And the parties have not presented any evidence that prior to their dispute arising, they formed any agreement on whether a motion for a Rule 35 examination should be included in the deadline established in paragraph 6. Because the language in the court's Final Progression Order is not the model of clarity, the court finds even if it can be interpreted as creating a deadline for motions for Rule 35 examinations, Defendants should not be bound by the February 15, 2017 motion to compel deadline in paragraph 6 of the Final Progression Order.[1]

         Timing of ...

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