United States District Court, D. Nebraska
GARY GIBSON JR., and SHAWNA GIBSON, husband and wife; Plaintiffs,
BRIESON JENSEN, and FARMERS CO-OPERATIVE, Defendants.
MEMORANDUM AND ORDER
R. ZWART, UNITED STATES MAGISTRATE JUDGE
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.
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).
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).
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.
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).
35 and the Final Progression Order
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.
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.