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A. H., A Minor, By and Through His Next Friends and Natural Parents v. Knowledge Learning Corp.

April 18, 2011

A. H., A MINOR, BY AND THROUGH HIS NEXT FRIENDS AND NATURAL PARENTS STEVEN HOHE AND VELVET HOHE, ET AL., PLAINTIFFS,
v.
KNOWLEDGE LEARNING CORP., D/B/A CHILDREN'S WORLD LEARNING CENTER, ALSO D/B/A KINDERCARE LEARNING CENTER, DEFENDANT.



The opinion of the court was delivered by: David J. Waxse U.S. Magistrate Judge

DJW/1

MEMORANDUM AND ORDER

This matter is before the Court on Defendant's Motion for Leave to File Defendant's Motion to Reconsider and Memorandum of Law Concerning Expert Testing of Dr. Warren Sibilla (ECF No. 208) ("Motion for Leave to File Motion to Reconsider Out of Time"). Defendant desires to seek reconsideration of the Court's September 7, 2010 Memorandum and Order denying Defendant's Motion to Compel (ECF No. 33) and denying in part and granting in part Defendant's Motion to Compel (ECF No. 56). The first of these Motions to Compel sought an order requiring the minor child's father, Steven Hohe, to submit to a mental examination pursuant to Federal Rule of Civil Procedure 35. The second of the Motions to Compel sought an order requiring the minor child to submit to a Rule 35 medical examination and the minor's parents and maternal grandparents to submit to testing and/or interviews.

Defendant recognizes that it must seek leave to file the motion to reconsider, because, as is discussed below, a motion to reconsider a non-dispositive order must be filed within fourteen days of the date the order is filed. Here, Defendant waited almost five months before seeking leave to file its motion to reconsider.

For the reasons set forth below, the Court will deny Defendant's motion.

I. Background Information

A. Nature of the Case

This is a negligence action brought by a minor child, A. H., by and through his father and mother and "next friends" Steven and Velvet Hohe.*fn1 The action is also brought by Steven Hohe and Velvet Hohe, individually. Plaintiffs' First Amended Complaint alleges that A. H. was subjected to abuse by an employee of Defendant while at a childcare facility owned and operated by Defendant. A. H., by and through his parents, and Steven and Velvet Hohe, individually, sue Defendant for negligent hiring and supervision (Count I) and for negligence per se based on claimed violations of K.S.A. 65-516 (Count II). The First Amended Complaint alleges that as a result of Defendant's alleged negligence, A. H. suffered injuries, including physical and psychiatric injuries, and "will continue to suffer physical and psychiatric harm into the future."*fn2

In addition, Steven Hohe and Velvet Hohe each individually sue Defendant to recover the medical expenses and loss of services they claim they each suffered as a result of the alleged injuries to A. H. (Count III).*fn3 They claim they "have sustained and will in the future sustain expenses for medical care for minor Plaintiff A. H." and that they "have been deprived of the services of their son" because of the injuries he has allegedly suffered.*fn4

B. The Motions to Compel and the Court's Memorandum and Order of Which Defendant Seeks Reconsideration

The Memorandum and Order of which Defendant seeks reconsideration was filed on September 7, 2010 (ECF No. 177).It ruled on two motions to compel filed by Defendant relating to Rule 35 examinations of Plaintiffs. In the first Motion to Compel (ECF No. 33), Defendant sought to compel the mental examination of Steven Hohe. In the second Motion to Compel (ECF No. 56), Defendant sought to compel the medical examination of A. H. In that second motion, Defendant also moved for an order requiring Steven and Velvet Hohe, along with A. H.'s maternal grandparents, to submit themselves to interviews and testing conducted by a licensed psychologist.

Defendant stated in its motions that it had retained Dr. Warren Sibilla, a licensed psychologist to perform the testing and interviews. Defendant requested that the testing and interviews take place over two days.In the alternative, and at a minimum, Defendant stated that it could conduct the testing and interviews in one day in ten hours. Defendant submitted the affidavit of Dr. Sibilla, in which he requested "the following stipulations to perform an independent medical examination of [A. H.]." Those stipulations, as set forth in his affidavit, were as follows

1. An interview of the child, A. H., to take between 30 and 45 minutes.

2. [A]n interview and paper and pencil testing of [A. H.'s] mother, father, ...


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