The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Thursday, 10 March, 2011 04:52:29 PM
Clerk, U.S. District Court, ILCD
This matter comes before the Court on Plaintiff Jane Doe's Motion for Sanctions. See d/e 79 (the "Motion"). For the reasons set forth below, the Motion is DENIED.
FACTS This is an unusually old case for this Court's docket. In an effort to aid the case's progression, the Court held a status conference on January 6, 2011. During that conference, the parties advised the Court that they were trying to schedule a mental examination for the Plaintiff. A mental examination was appropriate under Federal Rule of Civil Procedure 35 since Plaintiff's Complaint alleged harm to her "psyche". Due to the age of the case, the Court told the parties to expeditiously schedule the examination. Because so many delays in the case were caused by Plaintiff's failure to prosecute her claims, the Court advised her to be fully cooperative at the exam or risk dismissal of her entire case. See Minute Entry dated January 6, 2011.
Following the January 6, 2011, status conference, the parties agreed to hold Plaintiff's mental examination in St. Louis, Missouri on February 3 and 4, 2011. Defendant's expert, Dr. Duncan-Hively, was to examine Plaintiff at Dr. Duncan-Hively's office for an hour and a half session on each day.
As Plaintiff prepared to travel from her Florida residence to attend the examination, a severe winter storm was brewing. She was concerned about her safe travel. So, she contacted attorney and her attorney contacted Defense counsel to see about rescheduling the examination dates to sometime in March 2011. Defense counsel suggested that the examination dates be moved up to February 2-3 rather than moving them back to March. For reasons unknown, Plaintiff's counsel objected. Unable to agree to rescheduled dates, the mental examinations were remained set for February 3-4.
Plaintiff had intended to drive to Staunton, Illinois, stay with her family, and commute to nearby St. Louis on February 3-4 for the examinations. However, her weather-related concerns led her to change her lodging plans. She chose to stay in a Missouri hotel to ensure she would be able to attend the examinations regardless of the weather. Plaintiff arrived at her hotel on January 31, 2011.
On February 3, 2011, Plaintiff and an individual who accompanied her drove from the hotel to the address defense counsel had provided for Dr. Duncan-Hively's office address. Plaintiff arrived at the address to discover that Dr. Duncan-Hively office was not there. She was advised of the correct address and arrived at Dr. Duncan-Hively's office for the examination.
After Plaintiff arrived, Dr. Duncan-Hively stated that she wanted to interview the individual who accompanied Plaintiff. The request was refused. Thereafter, Dr. Duncan-Hively interviewed Plaintiff for an hour and a half. At the conclusion of that time period, Dr. Duncan-Hively asked Plaintiff to remain at the office to complete a written test (the Minnesota Multiphasic Personality Inventory ["MMPI"]). When Dr. Duncan-Hively made the request, she mistakenly believed that Plaintiff was supposed to be present for a 5-hour examination, not simply the hour and half examination agreed to by the attorneys. Dr. Duncan-Hively left the MMPI forms in a room with Plaintiff. When she returned, she found that Plaintiff had left the office and took the MMPI with her.
Plaintiff was upset so she contacted her attorney to tell her about the day's events. Plaintiff's counsel, who was on vacation, was not happy to hear Plaintiff's news. When Defense counsel contacted Plaintiff's counsel to discuss the day's events, Plaintiff's counsel erupted into a profanity-laced torrent. She repeatedly used the "F-word" and told opposing counsel that she should "beat the crap out of" him. After expressing herself fully, Plaintiff's counsel hung up on Defense counsel.
Defense counsel contacted Plaintiff's counsel sometime later on February 3 to inquire whether Plaintiff would be appearing for the February 4 examination. Plaintiff's counsel told him that her client would not complete any written tests on during the February 4 examination. Defense counsel objected to the that restriction because it would interfere with Dr. Duncan-Hively's examination. Defense counsel asked Plaintiff's counsel to withdraw the restriction. He also advised her that he would cancel the February 4 examination session and seek court intervention if the restriction was not withdrawn.
Plaintiff's counsel never responded to defense counsel. Thus, on the evening of February 3, Defense counsel informed Plaintiff's counsel via voicemail and e-mail that he was canceling the February 4 examination. Plaintiff's counsel never informed Plaintiff of the cancellation. Therefore, Plaintiff appeared at Dr. Duncan-Hively's office on February 4 at 8:40 a.m. for the examination. ...