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Smolko v. Unimark Lowboy Transportation, LLC

United States District Court, M.D. Pennsylvania

May 30, 2018

MICHAEL SMOLKO, Plaintiff,
v.
UNIMARK LOWBOY TRANS., LLC., et al., Defendants

          Conner Chief Judge

          MEMORANDUM OPINION

          Martin C. Carlson United States Magistrate Judge

         I. Introduction

         In this 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 examination.

         II. Statement of Facts and of The Case

         The 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.

         The 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 examination.

         III. Discussion

         Rule 35 (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.

         (1) 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).

         By 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 this regard:

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 novo ...

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