Name of Assigned Judge Blanche M. Manning Sitting Judge if Other or Magistrate Judge than Assigned Judge
The plaintiff's objections [126-1] to Magistrate Judge Brown's August 31, 2011, order are overruled. Walti shall appear for his examination at the offices of Dr. Rom-Rymer at a mutually convenient time within 30 days of the date this order is entered.
O [ For further details see text below.] Docketing to mail notices.
Although plaintiff John Walti suffers from a significant developmental delay, he obtained a job with defendant Toys R Us. Mr. Walti alleges that he was frequently teased at work because of his delay and, on one occasion, was assaulted by a co-worker. He alleges that Toys R Us did not adequately address the harassment and, when he complained, fired him. He has sued Toys R Us raising various claims including disability discrimination and retaliation.
Toys R Us brought a motion before Magistrate Judge Brown under Federal Rule of Civil Procedure 35 in order to conduct peer-reviewed psychological testing of Mr. Walti. Mr. Walti objected asserting that the motion was filed after the close of fact discovery and was therefore untimely, and that the wide-ranging scope of testing that Toys R Us sought would traumatize and further victimize him.
Magistrate Judge Brown granted the motion. On the timeliness issue, she held that no bright line rule requires that Rule 35 motions be filed during fact discovery, and it was only during the depositions of Mr. Walti's treating physicians, who by agreement were deposed during the time for expert discovery, that Toys R Us learned that Mr. Walti's physicians never conducted peer-reviewed psychological testing. As for the scope of the proposed testing, she held that "Walti has not presented facts to show that his discomfort is severe enough to warrant denying a Rule 35 examination." Order dated August 31, 2011 [123-1] at 15.
Mr. Walti timely objected to the magistrate judge's order. In his objection he contends that the magistrate judge incorrectly concluded that Toys R Us' motion was timely and gave "short shrift" to the concerns of Mr. Walti's physicians about subjecting him to the psychological tests.
Under Federal Rule of Civil Procedure 72(a), a district judge may set aside a magistrate judge's ruling on a non-dispositive motion if the ruling is clearly erroneous or contrary to law. See Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 760 (7th Cir. 2009). "The clear error standard means that the district court can overturn the magistrate judge's ruling only if the district court is left with the definite and firm ...