United States District Court, D. Arizona
S. WILLETT UNITED STATES DISTRICT JUDGE
before the Court are several motions, which the Court has
reviewed and rules on as set forth below.
September 10, 2015, the Court issued a Scheduling Order (Doc.
30). On March 14, 2016, while acting pro se, Plaintiff filed
a “Motion to Propose New Scheduling Order” (Doc.
45) requesting the Court to extend certain disclosure and
discovery deadlines. The Court granted Plaintiff's Motion
and extended (i) the initial disclosure deadline to July 2,
2016; (ii) Plaintiff's expert witness disclosure deadline
to August 2, 2016; (iii) Defendants' expert witness
disclosure deadline to August 16, 2016; (iv) the discovery
deadline to August 31, 2016; and (v) the dispositive motion
deadline to September 30, 2016. (Doc. 46 at 2).
21, 2016, Plaintiff's counsel filed a Notice of
Appearance (Doc. 50). On July 28, 2016, Plaintiff, through
counsel, filed a Notice of Expert Witness (Doc. 51)
indicating that Dr. Jason Datta, MD has been retained as an
expert witness for Plaintiff. In their “Motion to
Strike Plaintiff's Expert Witness Disclosure . . .
.” (Doc. 52), Defendants request that the Court strike
the Notice (Doc. 51) on the ground that Plaintiff failed to
disclose the expert's written report as required by
Federal Rule of Civil Procedure 26(a)(2)(A).
August 23, 2016, approximately one week after Defendants
filed their Motion to Strike (Doc. 52), Plaintiff filed a
“Motion to Transport Inmate for an IME” (Doc.
The Motion indicates that Plaintiff's expert witness, Dr.
Datta,  is to conduct the IME. (Id. at
1). On August 24, 2016, Plaintiff filed her “Response
to Defendant's Motion to Strike Plaintiff's Expert
Witness” (Doc. 54). Plaintiff's Response explains
that Plaintiff has not disclosed the expert witness'
report “because none yet exists.” (Id.
at 2). Plaintiff further states:
As counsel for the Defendant knows, Plaintiff is currently
seeking a Court Order allowing the Plaintiff to be
transported from Arizona State Prison (Perryville) to Dr.
Datta's office for an independent medical examination
(IME). Until Dr. Datta examines the Plaintiff, he is unable
to prepare a meaningful report of his findings, conclusions,
and opinion in regard to her medical condition.
(Id.). Plaintiff, however, neglects to address the
fact that the Court has not ordered Plaintiff to submit to an
IME. See Fed. R. Civ. P. 35(a)(2) (an order for a
physical or mental examination may be made only on motion for
good cause shown and with notice to the person examined and
all other parties). The Court will deem Plaintiff's
“Motion to Transport Inmate for an IME” (Doc. 53)
as a de facto motion for an IME.
a motion for an IME may be granted, the Court must find that
a party's medical condition is in controversy and good
cause exists. Schlagenhauf v. Holder, 379 U.S. 104,
119-20 (1964). The Motion to Transport Inmate does not
present any basis on which the Court could find good cause to
order an IME. Further, “Rule 35 does not allow for
a physical examination of oneself . . . .” Berg v.
Prison Health Services, 376 F. App'x 723, 724 (9th
Cir. 2010); see also Smith v. Carroll, 602 F.Supp.2d
521, 526 (D. Del. 2009) (stating that Rule 35 “does not
vest the court with authority to appoint an expert to examine
a party wishing an examination of himself”).
although Rule 35 does not provide a deadline for conducting
an IME, a number courts have held that if a Rule 35 examining
physician is intended to be called as an expert witness at
trial, the physician's report must be disclosed by the
deadline for disclosing expert witness reports pursuant to
Rule 26(a)(2). See, e.g., Diaz v. Con-Way Truckload,
Inc., 279 F.R.D. 412, 419 (S.D. Tex. 2012)
(“[A]fter considering the language, purpose, and
relevant use of Rules 26 and 35, the Court is of the opinion
that Rules 26 and 35 should be read in conjunction with each
other when determining the proper timing for a Rule 35
examination and report.”); Rowland v. Paris Las
Vegas, No. 13cv2630-GPC (DHB), 2015 WL 4662032, at *4
(S.D. Cal. 2015) (“[T]he timing of a motion for an IME
is dictated by the terms of the scheduling order regarding
expert witness discovery . . . .”) (citation omitted);
Minnard v. Rotech Healthcare Inc., No. S-06-1460 GEB
GGH, 2008 WL 150513, at *2 (E.D. Cal. Jan. 15, 2008)
(“The purpose of the retained expert is to advocate
within reasonable grounds on behalf of the person for whom
retained. The expert will not simply be parroting the facts
of an examination. . . . The Rule 35 exam and the retained
expert's opinions are inextricably intertwined.”);
Shumaker v. West, 196 F.R.D. 454, 456 (S.D.W.Va.
2000) (“Defendant's belated attempt to seek a Rule
35 examination days before his expert disclosures were due
fails to comply with Rule 26 of the Federal Rules of Civil
Procedure.”); but see Waggoner v. Ohio Cent. R.R.,
Inc., 242 F.R.D. 413, (S.D. Ohio 2007) (“Rule
35 examinations, and the issuance of reports following
those examinations, proceed independently of Rule
26(a)(2).”) (citing Furlong v. Circle Line
Statue of Liberty Ferry, Inc., 902 F.Supp. 65 (S.D.N.Y.
because an IME is a discovery tool, a Rule 35 motion
“should be brought in time to conduct the examination
before the discovery cut-off date.” Jay E. Grenig,
Jeffrey S. Kinsler, Handbk. Fed. Civ. Disc. & Disclosure
§ 10:8 (3d ed.); see also Schlagenhauf, 379
U.S. at 117 (“The discovery devices sanctioned by Part
V of the Federal Rules include . . . physical and mental
examinations of parties (Rule 35).”); Bush
v. Pioneer Human Services, No. C09-0518 RSM 2010 WL
324432, at *5 (W.D. Wash. 2010) (“the [Rule 35]
examination must be conducted sufficiently before the
discovery cutoff to give the examined party time to review
the report (if requested), and depose the examiner if
necessary”); Diaz, 279 F.R.D. at 418
(“Similar to Rule 35, Rules 30, 31,
33, and 34 do not provide a specific
deadline by which to submit these discovery requests because
it is understood that all discovery tools are
generally subject to the overall discovery deadline.”)
(emphasis in original).
Plaintiff filed the Motion to Transport (Doc. 53) on August
23, 2016- twenty-one days after the expert witness disclosure
deadline (August 2, 2016) and only eight days before the
discovery deadline (August 31, 2016). The Court finds that,
if deemed a Rule 35 motion for an IME, Plaintiff's Motion
to Transport (Doc. 53) is untimely as Plaintiff has shown a
lack of diligence. See Diaz, 279 F.R.D. at 420
(denying request for IME as untimely where Defendant
“showed a lack of diligence by seeking a Rule 35
examination after the Rule 26 deadline to designate experts
and produce reports”).
above reasons, the Court denies Plaintiff's “Motion
to Transport Inmate for an IME” (Doc. 53).
Consequently, this denial precludes Plaintiff's
compliance with Federal Rule of Civil Procedure 26(a)(2)(B)
as Plaintiff has stated that the preparation and disclosure
of Dr. Datta's report was dependent on the IME. (Doc. 54
at 2). Accordingly, the Court will grant Defendants'
request (Doc. 52) to strike Plaintiff's Notice of Expert
Witness (Doc. 51).
request an extension of the August 16, 2016 deadline in which
to disclose Defendants' expert witnesses. (Doc. 52). In
explaining the reason for the request, Defendants state that
they “are unable to make a rational determination as to
whether or not the expense of procuring an expert witness is
worth the cost, as they are left entirely in the dark by
Plaintiff's improper disclosure.” (Doc. 52 at 7).
Because the Court has stricken Plaintiff's Notice of
Expert Witness (Doc. 51) and denied Plaintiff's