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Callahan v. Unified Government of Wyandotte County

United States District Court, Tenth Circuit

August 28, 2013



KAREN M. HUMPHREYS United States Magistrate Judge

This matter is before the court on the following related motions:

1) defendants’ motions for an order compelling plaintiffs Scotty Hammons (Doc. 275) and Jeffrey Gardner (Doc. 276) to submit to medical examinations pursuant to Fed.R.Civ.P. 35;
2) defendants’ third motion to extend the deadline to conduct independent medical exams (Doc. 280); and
3) defendants’ motion for leave to supplement its reply memorandum (Doc. 298). Hammons and Gardner each oppose the respective motions for their exams and, alternatively, request that certain conditions be imposed if the examinations are ordered. Gardner opposes the motion for extension of exam deadlines. As explained in greater detail below, defendants’ motions shall be GRANTED.


The basis of this lawsuit is the arrest and detention of certain police officers employed by the Kansas City, Kansas Police Department (“KCKPD”). Highly summarized, plaintiffs allege various civil rights and state law violations related to their arrest and detention following an internal sting operation by the KCKPD. The sting was designed to catch members of a tactical police team in the act of stealing property while executing a search warrant on a residence.[2] Plaintiffs contend that they did not steal any property or engage in any illegal conduct and that their arrests were without probable cause. In addition to other civil rights and torts claims, plaintiffs allege they suffered extreme emotional distress and psychological trauma from their arrests. Defendants have filed motions regarding the psychological examinations of the plaintiffs and associated issues. The court considers these motions together and addresses each motion in turn.

Defendants’ Motion to Compel Rule 35 Examinations (Docs. 275 and 276)

Fed. R. Civ. P. 35(a)(1) grants the court discretionary authority to order a party to submit to a physical or mental examination by “a suitably licensed or certified examiner” if the party’s “mental or physical condition is in controversy.” The order may only be issued “on motion for good cause” and after notice to all parties and the person to be examined.[3]Additionally, the order must specify the time, place, manner, conditions, and scope of the examination, as well as the person who will perform the exam.[4] Defendants request an order compelling Gardner (Doc. 276) and Hammons (Doc. 275) to submit to separate Rule 35 examinations by psychologist Patrick Caffrey, Ph.D., at his offices, at times which may be mutually agreed upon by the parties and examining physician.

Hammons and Gardner do not dispute that their mental conditions are in controversy under Rule 35(a)(1). Instead, they oppose the motions, in nearly identical responses, by arguing that the requests are untimely and that the proposed exams are unreasonable in scope. Alternatively, they request that Dr. Caffrey should produce testing materials prior to the exams, that the exams should be recorded, and that the post-exam data must be disclosed to them. They also suggest that another psychiatrist examining one of the other plaintiffs should be employed in place of Dr. Caffrey. Plaintiffs’ objections are addressed in detail below.

I. Timeliness and Compliance with First Revised Scheduling Order and D. Kan. Rule 37.2

Plaintiffs[5] first assert that defendants’ requests for examinations are untimely for failure to comply with the court’s First Revised Scheduling Order (Doc. 237), and should be denied for failure to comply with local and federal rules requiring certification of pre-filing conference. Defendants contend that until the running of plaintiffs’ June 1, 2013 expert designation deadline their counsel were unable to make a fully informed decision regarding the necessity of Rule 35 exams.

Plaintiffs do not dispute that within days of their expert deadline defense counsel began conferring with plaintiffs’ counsel regarding the subject exams. Within approximately one week, defendants had located experts and scheduled all seven plaintiffs for examination in advance of the July 1, 2013 deadline set by the scheduling order. It is undisputed that five of the seven plaintiffs were successfully scheduled for examination.

The parties’ briefing establishes that they conferred on at least six occasions from June 7 through June 20, using multiple methods of communication to attempt resolution of this dispute. Though defendants did not file a separate certificate of compliance, defense counsel have described with particularity the efforts of counsel to resolve this dispute. Such efforts satisfy the ...

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