United States District Court, S.D. Mississippi, Eastern Division
MARVIN MCCRANEY, JR. PLAINTIFF
MURPHY OIL USA, INC. DEFENDANT
MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendant's Motion to
Compel Plaintiff to Pay Fee for Failure to Attend IME .
Having considered the parties' submissions and the
applicable law, the Court finds that the Motion  should
be granted in part and denied in part.
may be required to submit to an independent medical
examination (“IME”) if he has put his physical or
mental condition in controversy. Fed.R.Civ.P. 35(a). In the
Case Management Order , the Court imposed the following
discovery provision: “Defendant may have a Fed.R.Civ.P.
35 (L.U.Civ.R. 35) medical examination of the plaintiff
(within subpoena range of the court) by a physician who has
not examined the plaintiff.” The parties agreed that
Dr. Howard Kats would perform Plaintiff's IME on December
27, 2016, at 1:00 p.m.
however, called his counsel “just before noon” on
the day of the IME to say that he would not be able to attend
the IME. At 1:01 p.m. on December 27, 2016, Plaintiff's
counsel informed Defendant that Plaintiff was unable to
attend to IME “due to a family emergency involving Ms.
Watt's brother . . . .” [34-4]. The cancelled IME
resulted in a $700.00 cancellation fee by Dr. Katz. [34-5].
On January 24, 2017, the Court conducted a telephonic
conference with the parties regarding their dispute over who
should be responsible for the cancellation fee. The parties
were unable to resolve their dispute, and on February 14,
2017, Defendant filed the instant Motion , requesting an
order from the Court requiring Plaintiff to pay the
party fails to obey a discovery order, including one pursuant
to Fed.R.Civ.P. 35, the Court is authorized to “order
the disobedient party, the attorney advising that party, or
both to pay the reasonable expenses, including attorney's
fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award
of expenses unjust.” Fed.R.Civ.P. 37(b)(2).
Response , Plaintiff did not provide additional
information regarding the nature of the “family
emergency” or when he received notice of the
“family emergency.” During the telephone
conference, Plaintiff indicated that the “family
emergency” required that someone else use the vehicle
he planned to use to attend the IME. Prior to scheduling the
IME, however, the parties anticipated that lack of
transportation could be an issue for Plaintiff.
Plaintiff's counsel informed Defendant's counsel that
securing transportation could be a problem for Plaintiff.
[34-1]. Thus, Defendant provided Plaintiff a mileage check in
advance of the IME, with the stated purpose of allowing him
to rent a vehicle to attend the IME. [34-2] [34-3]. Plaintiff
does not provide a satisfactory explanation for why he did
not rent a vehicle, as contemplated by the parties.
Plaintiff argues that he did not receive notice of Dr.
Katz's cancellation policy, including the fee amount.
Considering that Plaintiff cancelled within an hour of his
scheduled appointment and the cancellation was not
communicated to defense counsel until the time of the
appointment, the Court finds that it was foreseeable that
expenses would be incurred, including a cancellation fee.
Lack of express notice of Dr. Katz's cancellation policy
does not justify Plaintiff's failure to attend his IME.
it does not appear that Plaintiff necessarily acted in bad
faith, but simply made the choice to tend to another matter.
This decision caused Plaintiff to miss his IME and caused
unnecessary expense. The Court finds that Plaintiff should be
responsible for, at least, part of that unnecessary expense.
award of monetary sanctions must be reasonable. Fed. R Civ.
P. 37(b)(2)(C). As the Court finds that Plaintiff's
failure to attend his IME was not fully justified, the Court
will order Plaintiff to pay half of Dr. Katz's
THEREFORE, ORDERED that:
Defendant's Motion to Compel Plaintiff to Pay Fee for
Failure to Attend IME  is GRANTED in part and DENIED in
or before April 14, 2017, Plaintiff shall to pay $350.00 to
Defendant as a reasonable, partial reimbursement for costs
associated with Plaintiff's failure to attend his
independent medical examination scheduled for December 27,
other relief requested in Defendant's ...