*1 Before the Court is a Motion to Compel Discovery (R. Doc. 26) filed by the Defendant, Union Pacific Railroad Company (“UP”) seeking an Order from this Court compelling Plaintiff, Elmer Kellar (“Kellar” or “Plaintiff”), to (1) produce his social media content to UP and his cellphone to the parties’ jointly retained digital forensics expert pursuant to FED. R. CIV. P. 37; and (2) to attend an examination by UP's neuropsychologist free of the conditions that Plaintiff wants to impose, such as witnessing or recording the examination pursuant to FED. R. CIV. P. 35. The motion is opposed. R. Doc. 28. Defendant filed a reply. R. Doc. 34. After the motion was heard on June 28, 2023, Plaintiff filed a Supplemental Brief (R. Doc. 36) and Supplemental Brief with Additional Information (R. Doc. 41).

I. Background

This matter is before the Court pursuant to the Federal Employer's Liability Act (FELA), 45 U.S.C. §§ 51–60, which provides a cause of action to railway workers employed by a common carrier, and the Hours-of-Service Law (HOS), 49 U.S.C. § 21103. The HOS, in relevant part, prohibits railroad carriers, its officer and agents, from requiring train employees to be on-duty or serve in any other mandatory service for the carrier for more than 276 hours per month, or more than 12 consecutive hours per shift. 49 U.S.C. § 21103(a)(1)-(2). Plaintiff Keller alleges that UP's violations of the HOS during his employment directly caused, in whole or in part, his fatigue, incapacity, and unconsciousness leading Keller to experience significant injuries in January 2021. R. Doc. 1 ¶ 11.

This matter arises from a single-vehicle collision that occurred on January 17, 2021, after Keller completed his shift as an Hours-of-Service Carman Utility-Employee for UP. R. Doc. 1. On the day of the incident, Kellar alleges that after working sixteen (16) consecutive hours at UP's Livonia, Louisiana railyard. He alleges that UP failed to allow him a minimum of ten (10) hours consecutive hours off duty before he had to report to work. He thereafter clocked out and departed the railyard in his car to begin the one-hour drive to his home in Baton Rouge. R. Doc. 28 at 2.

Keller asserts that he had been working continuously since 10:00 p.m. the preceding night. Id. He further alleges that because of his long shifts and lack of off-duty time in the days prior, he experienced fatigue, incapacity, and unconsciousness after leaving UP's property. R. Doc. 1 ¶ 11. Kellar alleges that his fatigue caused his vehicle to leave the roadway of Louisiana Highway 77 and violently collide with large roadside farm equipment. Id. ¶ 12.

As a result of the collision, Kellar suffered multiple injuries, including open fractures to his face, orbital area, and nose which required facial reconstructive surgery in order to stabilize. Id. ¶13. Kellar specifically pleads that the events giving rise to his claim and Defendant's negligence and statutory violations have resulted in a traumatic brain injury and cognitive deficits, the severity of which are not fully known at this time. Id.

*2 Kellar further alleges these injuries directly caused economic loss for lost wages past and future, fringe benefits, and unpaid past and future medical expenses. Id. Kellar claims that past and future medical expenses and treatment have and will be incurred for additional IV antibiotic therapies and surgical procedures to treat a bacterial infection in his left arm. Id.

At this time, UP seeks to compel Kellar to submit to a Rule 35 examination by UP's neuropsychologist, Dr. Michael Chafetz, free of the conditions Kellar wishes to impose. R. Doc. 26.[1] Keller initially agreed to submit to the examination upon three conditions, two of which have been resolved. R. Doc. 41 at 1.[2] The final condition contested here is Kellar's request that the neuropsychological exam performed by Dr. Chafetz be videotaped or witnessed by someone of Kellar's choosing. See R. Doc. 26-1 at 8; R. Doc. 28 at 3. UP challenges Kellar's request on the basis that no good cause exists to have the examination witnessed or recorded. Id. at 10.

II. Standard of Review

Federal Rule of Civil Procedure 35 permits the “court where the action is pending to 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.” FED. R. CIV. P. 35(a)(1). Such an order “may be made only on motion for good cause” and “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)(2). Rule 35 thus requires that the party requesting a mental or physical examination must affirmatively establish both that the condition is “in controversy” and “good cause” exists for the examination, two requirements which are “necessarily related.” See Schlagenhauf v. Holder, 379 U.S. 104, 117 (1964). A “plaintiff in a negligence action who asserts mental or physical injury places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.” Id. at 119.

*3 Though Rule 35(a) generally has been construed liberally in favor of granting discovery, id. at 121, Rule 35 examinations, like all other forms of discovery, are subject to the general provisions of Federal Rule of Civil Procedure 26. Ornelas v. S. Tire Mart, LLC, 292 F.R.D. 388, 395 (S.D. Tex. 2013). Rule 26(c) grants a court discretionary authority to place appropriate conditions on discovery. FED. R. CIV. P. 26(c)(1). Upon a showing of good cause, a court may “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Id.

Mental examinations can implicate sensitive matters. Ornelas, 292 F.R.D. at 395 (citation omitted). Nonetheless, the party seeking the presence of a third party at a Rule 35 examination still sustains the burden of convincing the court that good cause for a protective order exists. Id. In this context, “broad allegations of harm unsubstantiated by specific examples” does not suffice to meet the Rule 26(c) test. Id. (quoting Calderon v. Reederei Claus-Peter Offen GmbH & Co., 258 F.R.D. 523, 526 (S.D. Fla. 2009)). Rather, the inquiry concerns whether special circumstances justify the recording of an examination in light of the fairness and medical integrity associated with such examinations. Id.

The Fifth Circuit has made clear that third parties are generally disallowed from Rule 35 examinations. Acosta v. Tenneco Oil Co., 913 F.2d 205, 210 (5th Cir. 1990); Terry v. Promise Hosp. of Ascension, No. 13-128-SDD, 2014 WL 1239397, at *3 (M.D. La. Mar. 25, 2014). Most courts analyze a request to record an examination the same way they evaluate whether to permit the presence of an attorney at a Rule 35 examination. Terry, 2014 WL 1239397, at *3; In re Falcon Workover, No. 97-2628, 1999 WL 721945, at *1 (E.D. La. Sept. 15, 1999) (“[T]aping the psychiatric examination would be tantamount to allowing counsel for the claimant to be present in the room.”). As such, the requesting party bears the same burden to show that a factual basis amounting to good cause justifies recording the examination. See Ornelas, 292 F.R.D. at 397; Jackson v. Harris Cnty., Texas, No. 17-3885, 2019 WL 2544058, at *2 (S.D. Tex. June 20, 2019).

III. Analysis

UP argues that no good cause exists to have the neuropsychological examination witnessed or recorded. UP contends (1) the proposed restrictions are unacceptable; (2) Plaintiff participated in an unrestricted evaluation by Dr. Bell; (3) a third-party observer or videographer is disfavored in this Circuit that Kellar has failed to establish good cause for institution of the proposed limitations. Therefore, UP contends that neuropsychological examination should be ordered without restriction.

Kellar asserts that due to his condition, either the presence of a third-party observer or videotaping the examination, is warranted to ensure that the examination met the standards of forensic accuracy and transparency. R. Doc. 28 at 3. Kellar also argues the absence of a typical doctor-patient relationship with the examiner renders the examination neither neutral nor impartial. Kellar suggests that good cause or special circumstances exists because the examiner's opinion would be based on his personal observations and interpretation of Kellar's nuanced behavior. Kellar also relies on an unreported Ohio state court case for the proposition that where the litigant would not be able to adequately explain the procedures of the IME to their attorney, videorecording should be permitted.[3] Finally, Kellar contends that because of the likelihood of examiner bias, the Court should issue an order as to the manner and conditions under which the neurophysiological examination is to be conducted.

*4 It is widely recognized that third parties, including counsel, should be prohibited from attending medical or psychological exams. While there are a limited number of cases where that has been allowed, see, e.g., Abdulwali v. Washington Metro Area Transit Auth., 193 F.R.D. 10, 13 (D.D.C. 2000) (listing examples), the federal cases excluding the plaintiff's attorney from IMEs absent special circumstances are legion.

Courts have favored exclusion of attorneys and other third parties in IMEs in the following circumstances:

In contrast, the sort of special circumstances or good cause that courts have found sufficient to justify recording an examination or allowing an observer include:

In this case, Kellar suggests that because the expert is not truly neutral nor independent, this fact alone constitutes good cause for limiting the neuropsychological examination. This argument, however, overlooks the fact that Kellar's had an unincumbered examination by his neuropsychologist as well as Rule 35’s overarching goal of fairness. See Schaeffer, 273 F.R.D. at 664.

*5 Further, in Spencer v. Huron County, No. 15-CV-12209, 2016 WL 4578102, at *4 (E.D. Mich. Sept. 2, 2016) the court found that while a defendant's psychological expert may not be truly “neutral” or “independent,” given the adversarial nature of litigation, the mere fact that parties are in opposition and hire experts does not, in itself, constitute a sufficient bias attributable to the expert that would require recording of the examinations. This Court agrees that the lack of pure neutrality alone is an insufficient basis and does not constitute good cause to impose the limitations as suggested by Kellar.

Kellar further points to the neurological and neurobehavioral consultation documents from NOLA Brain and Behavior as proof of his need for the proposed limitations. See R. Doc. 36-8. While the documents indicate Kellar's behavioral deficiencies, see id. at 32-33, they do not provide any evidence of long-term cognitive issues that cause serious doubt as to his ability to aid in the examination. See Schaeffer, 273 F.R.D. at 664.

Moreover, the witness testimony provided by Kellar's family members and friends who have observed his limitations do not indicate that his ability to communicate is compromised. See Maldonado, 2011 WL 841432, at *3. Therefore, Kellar has not shown good cause to require either a witness or a videographer to be present in the room during the examination.

The Court also observes that consistent with the caselaw, the American Academy of Clinical Neuropsychology on Test Security forbids an observer or recording of an examination except in the instance of a minor or when a person needs an interpreter; neither are present in this case. See R. Doc. 34-1 at 3. Therefore, Kellar is compelled to submit to a neuropsychological examination without any limitation.

IV. Conclusion

Accordingly,

IT IS ORDERED that Defendant's Motion to Compel Discovery (R. Doc. 26) be GRANTED in PART and DENIED in PART.

IT IS ORDERED that the Motion to Compel a Rule 35 Examination is GRANTED without any restriction and no videographer or witness may be present during the examination.

IT IS FURTHER ORDERED that the subject motion is seeking the production of social media and cell phone content is DENIED as MOOT.