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Sabo v. Fiskars Brands, Inc.

United States District Court, Ninth Circuit

December 20, 2013

ZELJKO SABO, AN INDIVIDUAL, Plaintiff,
v.
FISKARS BRANDS, INC., dba GERBER LEGENDARY BLADES, and DOES 1 through 50, inclusive, Defendant.

ORDER

CANDY W. DALE, District Judge.

INTRODUCTION

Presently before the Court is Defendant Fiskars Brands, Inc.'s Motion to Compel a medical exam of Plaintiff, Zeljko Sabo, filed November 22, 2013. (Dkt. 53.) The Court conducted a telephonic status conference with the parties on November 27, 2013, in an effort to facilitate resolution. The parties reached agreement on some, but not all, of the issues presented in the motion. The Court specifically requested briefing on the location of the medical exam, and production of the pharmacy records requested by Fiskars in discovery.

Important to the resolution of the instant dispute are the following deadlines:

Discovery completion deadline: August 30, 2013;
All expert witness discovery completed by February 28, 2014;[1] and
Dispositive motions filed by February 3, 2014.[2]

On November 6, 2013, Fiskars requested that Sabo submit to a medical exam and a vocational rehabilitation examination and assessment with Fiskars' chosen experts. Fiskars offered to pay for Sabo's travel expenses to Boise and Salt Lake City, Utah, where its experts are located. On November 18, 2013, Sabo indicated he would comply, but requested that the examinations take place either in North Idaho or Spokane prior to December 6, 2013, or after that date, in Los Angeles, California. Sabo refused to travel to where Fiskars' experts are located. An impasse was reached.

Although the Court specifically requested condensed briefing on two discrete issues, the Court waded through over 200 pages of material, including letters of which Santa Claus would not approve during this holiday season. Discovery is not a sport, and the Court does not encourage tit-for-tat discovery concessions.[3]

Now, after agreeing to the medical exams, Sabo objects to them as untimely, citing the August 30, 2013 discovery cut-off date. However, the parties appeared to be working together to resolve outstanding discovery issues, and Fiskars represented that it wanted to review Sabo's expert witness disclosures before having Sabo examined by its experts as part of its rebuttal expert reports. Fiskars' timing appears reasonable. The parties agreed to extend their expert discovery disclosures until after the discovery cut off, and waited until this late date to schedule depositions. They both are now suffering the consequences of scheduling difficulties.

Second, Sabo contends the medical examinations should have occurred in the forum where the action is pending, which is the Northern Division of the District of Idaho. Now that Sabo has moved to California, he contends that the burden of traveling due to his eye condition constitutes good cause to order the medical examinations to occur in Los Angeles. Fiskars contends that the burden upon it-to transport its three medical experts to California to unfamiliar offices-is greater than the burden on Sabo, especially considering it offered to pay for Sabo's travel expenses.

Federal Rule of Civil Procedure 26(c) provides that a court may, for good cause, issue an order protecting a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including specifying terms including time and place for discovery. Rule 35 permits the Court to specify the time, place, manner, conditions, and scope of a medical examination. Fed.R.Civ.P. 35(a)(2)(B).

The general rule is that a plaintiff who brings suit in a particular forum may not avoid appearing for an examination in that forum. Ornelas v. S. Tire Mart, LLC, 292 F.R.D. 388, 399-400 (S.D. Tex. 2013). Although Sabo did not choose Idaho as the forum state, and there were several rounds of motions initiated by Fiskars to transfer the case to the District of Idaho, the District of Idaho is now the forum. The doctor's presence at trial is more likely if the doctor is chosen within the jurisdiction of the Court. McCloskey v. United Parcel Serv. Gen. Servs. Co., 171 F.R.D. 268, 270 (D. Or. 1997). Fiskars' offer to pay for Sabo's travel is an appropriate concession given Sabo did not initially choose Idaho as the forum for this lawsuit, and he was planning to return to California at the time this issue arose. See McCloskey, 171 F.R.D. at 270 ("The general rule is that the party being examined must pay his or her own travel expenses to an examination in the forum state.").

In the instant case, Idaho has but one district-the district of Idaho is further divided into four divisions. Dist. Idaho L. Rule 3.1. Because travel within Idaho is difficult, and also because of its small population, Boise often is a more convenient travel destination and has a greater pool of experts to choose from. Therefore, the Court finds Sabo's argument that the examinations should have been, or should be in the future, conducted in North Idaho, to be ...


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