Marcus Sewell, Jr. and Amber Sewell v. Wilderness Development Corporation a/k/a Wilderness at the Smokies a/k/a/ Soaky Mountain

Summary

The United States District Court for the Eastern District of Tennessee grants the defendant’s motion to compel Marcus Sewell, Jr. to undergo a neuropsychological examination under Federal Rule of Civil Procedure 35. The court finds that his neuropsychological condition is in controversy and that good cause supports a second examination because the prior examination was incomplete and the existing assessments may be stale before trial. The parties are ordered to meet and confer regarding the examination’s parameters and file a joint status report.

Holdings

1. Plaintiff placed his neuropsychological condition in controversy by alleging traumatic brain injury, cognitive deficits, emotional and psychological injuries, and continuing limitations supported by medical and expert evidence.
2. Defendant established good cause for a second Rule 35 examination because the prior examination and clinical assessments were inadequate or incomplete for comprehensive neuropsychological evaluation, and more than two years would pass between the earlier assessments and the scheduled trial.
3. The court was required to specify the time, place, manner, conditions, scope, and examiner for the Rule 35 examination, and therefore ordered the parties to meet and confer and submit a joint status report proposing those parameters.

Questions Presented

1. Whether Plaintiff's neuropsychological condition was in controversy under Federal Rule of Civil Procedure 35.
2. Whether Defendant established good cause to compel a second, targeted neuropsychological examination despite a prior independent medical examination.
3. What conditions and procedures the court was required to specify for the Rule 35 examination.

Disposition

other