United States District Court, M.D. Pennsylvania
C. Carlson United States Magistrate Judge
diversity lawsuit we are asked to address the question of
whether the plaintiff is entitled to compel the presence of a
third-party observer in a physical examination conducted
pursuant to Rule 35 of the Federal Rules of Civil Procedure.
In accordance with the greater weight of authority which has
considered this question, we conclude that the plaintiff has
not made the requisite showing that would entitle the
plaintiff to insist upon the presence of a third-party
observer in this physical examination. Therefore, for the
reasons set forth below, we will decline the invitation to
direct the presence of a third party at this physical
Statement of Facts and of The Case
pertinent facts in this case can be simply stated: This is a
diversity jurisdiction personal injury lawsuit which arose
out of what is alleged to have been a July 30, 2016
automobile accident between the plaintiff's vehicle and a
tractor trailer owned and operated by the defendants.
(Doc.1.) This case is now proceeding to discovery, with a
physical examination of Smolko scheduled by the defendants.
According to the parties, the orthopedist conducting this
examination, Dr. Charles Harvey, has a policy of not
permitting third-party observers to attend such examinations.
Plaintiff's counsel, therefore, seeks intervention by the
court in the form of an order authorizing a nurse observer
retained by the plaintiff to attend and passively observe
this orthopedic examination. The Defendants object to the
compelled presence of a third party observer at this
examination, arguing that case law construing Rule 35 of the
Federal Rules of Civil Procedure, which governs examinations
of this type, disfavors this practice.
parties have skillfully and deftly presented this issue to
the court in a telephonic oral argument conducted on May 24,
2018. Mindful of the fact that this examination is scheduled
for June, 2018, for the reasons set forth below, we will deny
this request for a third-party observer at this medical
(a) of the Federal Rules of Civil Procedure governs medical
examinations of parties in federal civil litigation, and
provides in pertinent part as follows:
(a) Order for an Examination.
In General. The court where the action is
pending may order a party whose mental or physical
condition . . . is in controversy to submit to a physical
or mental examination by a suitably licensed or certified
examiner. The court has the same authority to order a party
to produce for examination a person who is in its custody
or under its legal control.
(2) Motion and Notice; Contents of the
Order. The order: (A) may be
made only on motion for good cause and on notice to all
parties and the person to be examined; and
(B) must 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).
specifying that the court may determine “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), Rule 35 consigns the
procedures to be used in conducting these examinations to the
sound discretion of the court, an approach that is consistent
with the general guidance of the rules which provide that
issues relating to the scope of discovery rest in the sound
discretion of the Court. Wisniewski v. Johns-Manville
Corp., 812 F.2d 81, 90 (3d Cir. 1987). A court's
decisions regarding the conduct of discovery, therefore, will
be disturbed only upon a showing of an abuse of discretion.
Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d
Cir. 1983). This far-reaching discretion extends to rulings
by United States Magistrate Judges on discovery matters. In
District courts provide magistrate judges with particularly
broad discretion in resolving discovery disputes. See
Farmers & Merchs. Nat'l Bank v. San Clemente Fin.
Group Sec., Inc.,174 F.R.D. 572, 585 (D.N.J.1997). When
a magistrate judge's decision involves a discretionary
[discovery] matter . . ., “courts in this district have
determined that the clearly erroneous standard implicitly
becomes an abuse of discretion standard.” Saldi v.
Paul Revere Life Ins. Co.,224 F.R.D. 169, 174 (E.D.
Pa.2004) (citing Scott Paper Co. v. United States,943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a
magistrate judge's discovery ruling “is entitled to
great deference and is reversible only for abuse of
discretion.” Kresefky v. Panasonic Commc'ns and
Sys. Co.,169 F.R.D. 54, 64 (D.N.J.1996); see also
Hasbrouck v. Bank America Hous. Servs.,190 F.R.D. 42,
44-45 (N.D.N.Y.1999) (holding that discovery rulings are
reviewed under abuse of discretion standard rather than de