United States District Court, W.D. Washington, Tacoma
CECILIA WILSON, as guardian for R.W., a minor, KEVIN and CECILIA WILSON, individually and as husband and wife, CANDACE DAWSON, a guardian for J.D., and CANDACE DAWSON, individually; CANDI LANDIS, as guardian for A.L., a minor, BRANDON BASTIN, as guardian for J.M.B., a minor, TESSA GREEN, as guardian for W.L., a minor, JANE DOES 1-10 and JOHN DOES 1-10, Plaintiffs,
LONGVIEW SCHOOL DISTRICT, a municipal corporation; MINT VALLEY ELEMENTARY SCHOOL, a municipal corporation, JERRY STEIN, in his individual and official capacity, PATRICK KELLEY, in his individual and official capacity, SUZANNE CUSICK, in her individual and official capacity, NANCY BEAN, in her individual and official capacity; JANE DOES 1-10, and JOHN DOES 1-10, Defendants.
ORDER ON DEFENDANTS' MOTION FOR FED. R. CIV. P.
J. BRYAN, United States District Judge
matter comes before the Court on Defendants' Motion for
Fed.R.Civ.P. 35 Exam. Dkt. 33. The Court has considered the
pleadings filed regarding the motion and the file herein.
case arises from Defendants' alleged use of an isolation
room to discipline children attending Mint Valley Elementary
School in Longview, Washington. Dkt. 22. In their Amended
Complaint, filed June 29, 2016, Plaintiffs make claims for
violations of their federal constitutional rights under the
Fourth and Fourteenth Amendments, pursuant to 42 U.S.C.
§ 1983, and for violations of their Washington state
constitutional rights “to equal access to their
education without unreasonable restraint and isolation,
” and for negligence, outrage and loss of consortium.
Id. Plaintiffs assert that each of the children have
suffered mental damage as a result. Id. The parties
have exchanged discovery, including the children's mental
January 9, 2017, the Second Amended Minute Order Resetting
Trial and Pretrial Dates was entered. Dkt. 28. This order set
the expert witness disclosure deadline for June 7, 2017, the
discovery deadline for August 6, 2017, the dispositive
motions deadline for September 5, 2017, and trial was set to
begin on December 4, 2017. Id.
2, 2017, the Defendants' counsel notified the
Plaintiffs' counsel that they intended to conduct
Fed.R.Civ.P. 35 medical examinations of the children in an
email which discussed several other discovery related issues.
Dkt. 37, at 73. On June 6, 2017, Plaintiffs' counsel
responded by email and made several inquires, including the
nature of the Rule 35 examination, scope, and possible tests;
counsel also discussed other discovery. Dkt. 37, at 71.
next day, June 7, 2017, (which was also the expert witness
disclosure deadline) the Defendants' counsel replied,
indicating that their medical expert, Dr. Hower Kwon, was
still reviewing the medical files and that they couldn't
offer specifics regarding the Rule 35 exams at that time.
Dkt. 37, at 70. (Defendants also sent Defendants' Expert
Disclosure to Plaintiffs and disclosed that Dr. Kwon would be
conducting Rule 35 examinations of the children, would
produce a report, and would testify. Dkt. 37, at 87). On June
8, 2017, Plaintiffs' counsel wrote Defendants'
counsel and asserted that the Plaintiffs' expert witness
disclosures were inadequate. Dkt. 37, at 74.
12, 2017, Defendants' counsel responded, and asserted
that Dr. Kwon's “reports are not dependent on [Rule
35 medical examinations], ” noted that Dr. Kwon's
report indicates that he will supplement it, and estimated
that the final supplement will be produced by the week of
July 3, 2017. Dkt. 37, at 76. On July 5, 5017,
Defendants' counsel emailed Plaintiffs' counsel and
notified him that Dr. Kwon will be producing his report that
week, and there should be no prejudice because expert witness
depositions were scheduled two months later. Dkt. 37, at 78.
He indicates further, that “Defendants will also
disclose Dr. Kwon . . . as a rebuttal expert on July
7.” Id. Defendants' counsel further writes
“[r]egarding the Rule 35 examinations, we will have to
set a conference to discuss this issue in-depth.”
5, 2017, Plaintiffs' counsel responded, and stated that a
month has lapsed and they still have not received any of the
material required for Dr. Kwon. Dkt. 37, at 78. He asserted
that they object to the use of Dr. Kwon as a witness.
Id. Further, Plaintiffs' counsel maintained that
any “Rule 35 request for a medical examination of the
children at this time is not timely as its only relevance
would derive from the testimony of Dr. Kwon.”
Id. Plaintiffs' counsel indicated that they will
“be objecting to your [Rule 35 examination]
25, 2017, the Court granted another stipulation to extend the
discovery deadline to September 22, 2017 and the dispositive
motions deadline to September 21, 2017. Dkt. 32.
August 29, 2017, Defendants' counsel emailed
Plaintiffs' counsel and stated:
On the subject of Dr. Kwon, we would like to request that the
five student plaintiffs be made available for brief
interviews with Dr. Kwon. These would probably last 45
minutes or so, and could take place during non-school hours
or weekends in Longview and in Seattle for the Dawsons. This
follows up on my requests from earlier in this case. I'm
aware that [Plaintiffs' counsel] has objections based on
the timing of Dr. Kwon's disclosure. I suggest we take up
this topic during our meet and confer so we can raise the
issue with the Court through a LCR 37 submission.
Dkt. 37, at 84. Plaintiffs' counsel responded on August
30, 2017 and objected to the Rule 35 examinations. Dkt. 37,
at 82. He writes, “[w]hile you disclosed a
‘rebuttal' report from Dr. Kwon on July 7, 2017,
you still have not filed the required motion for a FRCP 35
examination with the court.” Id. The
Plaintiffs' counsel states that they believed that any
such motion was untimely. Id. He further writes,
“[t]here is no outstanding order from the court
authorizing a FRCP 35 exam and there is not outstanding
discovery request by you that would warrant such a
next day, Defendants' counsel wrote Plaintiffs'
counsel and stated that he would not insist they discuss the
Rule 35 examinations anymore ...