United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
claims raise issues regarding her emotional state. Based on
those claims, in November 2018, Defendant moved for an order
requiring Plaintiff attend an independent psychological
examination pursuant to Federal Rule of Civil Procedure 35.
(Doc. 51). Plaintiff did not respond to that motion. Thus, on
December 21, 2018, the Court granted the motion and ordered
Plaintiff to attend an examination on January 9, 2019. (Doc.
53). Shortly after that Order, the Court stayed this case
because of the federal government shutdown. (Doc. 55).
Because of the stay, Plaintiff was under the impression that
the January 9 examination would not proceed. Thus, Plaintiff
did not attend the January 9 examination.
February 2019, the Court lifted the stay and rescheduled
Plaintiff's examination for March 29, 2019. (Doc. 58).
Plaintiff did not appear at that examination because,
according to her counsel, he had given her an incorrect
location. Plaintiff's counsel agreed to pay
Defendant's examiner for the time spent on March 29. The
parties also agreed to reschedule the examination. On April
22, 2019, the Court ordered Plaintiff's counsel to pay
Defendant's examiner for the costs incurred when
Plaintiff failed to appear on March 29. (Doc. 63 at 1).
The Court also ordered Plaintiff to appear at the rescheduled
examination on July 1, 2019. The Court imposed a specific
starting time of 9:30 a.m. but it did not impose a stopping
time nor did the Court indicate the amount or length of
breaks Plaintiff was entitled to take.
appeared on July 1 for the exam but the parties disagree
about what occurred on that date. According to the examiner,
Plaintiff appeared at 9:30 a.m. but took a “30-minute
‘smoke break' from 11:08 a.m. to 11:37 a.m., a
hour-and-a-half ‘lunch break' from 1:32 p.m. to
2:50 p.m., and another fifteen-minute ‘smoke break'
from 4:08 p.m. to 4:21 p.m.” (Doc. 74-1 at 2).
According to Plaintiff, her morning “smoke break”
was actually 23 minutes, her lunch was 34 minutes, and her
afternoon “smoke break” was only 10 minutes. It
is undisputed, however, that the examiner had not yet
completed all the planned testing when, at 5:00 p.m.,
Plaintiff stated she would not stay any later.
now requests the Court order Plaintiff to continue the
examination and require Plaintiff bear “all the costs
involved in the continued examination.” Alternatively,
Defendant requests Plaintiff “be prohibited from
introducing evidence regarding her alleged emotional
injuries.” (Doc. 74 at 1). Plaintiff responds that her
behavior during the examination was “reasonable,
” she complied with the exact terms of the Court's
Order, and it would be improper to sanction her in any form.
Court is not in a position to determine whether Plaintiff or
the examiner is presenting an accurate version of what
occurred during the examination. But even under
Plaintiff's version of events, her behavior during the
examination merits a limited amount of sanctions. According
to Defendant's original motion, the examination was
expected to last “approximately eight uninterrupted
hours.” (Doc. 51 at 5). Thus, there is no dispute that
Plaintiff either knew or should have known how long the
examination would take. Importantly, Plaintiff did not object
to that length. Despite her knowledge of the expected length,
Plaintiff admits she participated in approximately six hours
on Plaintiff's failure to attend the full eight hours of
the examination, she will be required to reimburse Defendant
for the costs associated with rescheduling the examination.
Those costs are limited to the examiner's travel costs
and two hours of time. It is possible the examiner will need
more than two additional hours. If so, Defendant must bear
the costs associated with any time in excess of two hours. To
prevent any future disputes, the parties will be required to
confer and file a proposed order containing the exact terms
(start time, end time, length of breaks, etc.) the Court
should impose for the continued examination.
IT IS ORDERED the Motion for Continuation of
Rule 35 Examination, Sanctions, and Extension of Discovery
Deadline (Doc. 74) is GRANTED IN PART.
Plaintiff will be required to attend another examination.
Plaintiff must reimburse Defendant for the examiner's
travel time and two hours of testing. Defendant must bear the
cost of any testing beyond two hours.
IS FURTHER ORDERED the parties shall confer and no
later than August 27, 2019, file a proposed
order containing all terms necessary to ensure completion of
the Rule 35 examination.
IS FURTHER ORDERED Defendant's deadlines to
complete all discovery and to finally supplement all
discovery is reset to October 24, 2019, and
November 7, 2019, respectively.
IS FURTHER ORDERED the status conference set for
October 11, 2019 is VACATED and
RESET for November 12, 2019 at 11:00
a.m. One week prior to that date the parties shall
file a status report indicating whether dispositive motions
are planned. If a party plans on filing a dispositive motion,
the status report shall provide a brief overview of the basis
of the planned motion. The opposing party shall provide a
IS FURTHER ORDERED dispositive motions shall be
filed no later than December 6, 2019.