United States District Court, M.D. Pennsylvania
F. SAPORITO JR. U.S. MAGISTRATE JUDGE
amended complaint, the plaintiff alleges violation of his
federal civil rights while being transported by defendant
Prisoner Transport Services of America ("PTS") from
Florida to Pike County, Pennsylvania, pursuant to a contract
between PTS and defendant Pike County. (Doc. 9).
defendants have requested the plaintiff to submit to an
independent medical examination with an unnamed defense
psychiatrist at an undisclosed location within the Middle
District of Pennsylvania. At the request of counsel for the
parties, we conducted a telephonic conference on May 1, 2017,
for the purpose of addressing a dispute with respect to the
location of the medical examination and who should pay for
the plaintiffs travel expenses from Florida to Pennsylvania
if we permit the examination to occur in Pennsylvania. The
plaintiff maintains that the defendants have not met the
threshold requirements for an order compelling the plaintiff
to attend a physical or mental examination. (Doc. 56, at 5).
Specifically, the plaintiff urges us to deny the request
because the defendants have failed to specify the time,
place, manner, conditions, and scope of the examination.
(Id.). Our reading of Rule 35 requires a motion for
good cause with notice to all parties and the person to be
examined. Fed.R.Civ.P. 35(a)(2)(A). Assuming those
requirements are met by the defendants, we are required to
specify the time, place, manner, conditions, and scope of the
examination, as well as the person or persons who will
perform it. Fed.R.Civ.P. 35 (a)(2)(B). At this point, it is
only apparent to the court that the defendants requested a
telephone conference with us for the purpose of discussing
"the location of plaintiffs independent medical
exam." (Doc. 51, at 1). It was not apparent to the court
during the conference that the plaintiff was questioning the
defendants' entitlement to a psychiatric examination.
Rather, the discussion focused on the location of the
examination and who shall pay the travel expenses if we
ordered the examination in this forum. The plaintiff did not
dispute that the defendants are entitled to the examination.
Now the plaintiff requests that the court order the
defendants to secure an expert in Florida where the plaintiff
resides, to arrange a psychiatric evaluation remotely by way
of video conference, or to pay the plaintiffs travel and
lodging expenses incurred for travelling from his home in
Florida to Pennsylvania to be examined.
for the parties timely submitted their position papers (Doc.
55; Doc. 56) and the matter is now ripe for disposition.
Civ. P. 35(a) permits the court to order a party, whose
mental or physical condition is in issue, to submit to a
physical or mental examination and to specify the time,
place, manner, conditions, and scope of the examination, as
well as the person or persons who will perform it. However,
the order may be made only on motion for good cause and on
notice to all parties and the person to be examined.
Fed.R.Civ.P. 35(a)(2)(A). Also, Fed.R.Civ.P. 26(c) provides
that upon motion by a party, the court may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense
including specifying terms including time and place or the
allocation of expenses for discovery. Fed.R.Civ.P.
general rule is that a plaintiff who brings suit in a
particular forum may not avoid appearing for an examination
in that forum. Sabo v. Fiskars Brands, Inc., No.
2:12-cv-00503, 2013 WL 6816683 (D. Idaho, Dec. 20, 2013);
Ornelas v. S. Tire Mart, LLC, 292 F.R.D. 388,
399-400 (S.D. Tex. 2013). A doctor's presence at trial is
more likely if the doctor is chosen within the jurisdiction
of the court. McCloskey v. United Parcel Ser. Gen. Servs.
Co., 171 F.R.D. 268, 270 (D. Or. 1997). In addition, the
party being examined, with limited exception, must pay his or
her own travel expenses to an examination in the forum state.
Id. An exception to the general rule is made if the
part being examined will suffer undue financial hardship by
fronting the travel expenses or if the travel expenses could
have been avoided by better planning. Id.; Eckmyre v.
Lambert, No. Civ. A. 87-2222, 1988 WL 573858, at * 1 (D.
Kan., Sept. 6, 1988). Under this exception, courts have
required the party requesting the examination to advance the
examinee's travel expenses, which may be deducted (or
offset) from any recovery the plaintiff should obtain.
Eckmyre, 1988 WL 573858, at * 1 (better planning of
the examination could have coincided with the plaintiffs
deposition, and thus defendant was required to make a travel
expense advance); Warren v. Weber & Heidenthaler,
Inc., 134 F.Supp. 524, 525 n.l (D. Mass. 1955) (where
plaintiff was destitute and unable to pay his travel expenses
to the forum for an examination, defendant ordered to advance
the expenses and deduct it from any recovery the plaintiff
a review of Rule 35 requires a motion by the moving party.
Based upon the current state of the record and the lack of a
formal motion, we are constrained to deny the request without
prejudice. However, we remind counsel for the parties that in
many instances these matters are resolved by way of a
stipulation of counsel. See generally, Fed. R. Civ.
P. 29. We encourage counsel to discuss the matter further and
reach an acceptable solution ...