1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ANTHONY SPENCER, 

 

 Plaintiff, 

 Case No. 15-cv-12209 

v. 

 HON. MARK A. GOLDSMITH 

HURON COUNTY, et al., 

 Defendants. 

_________________________/ 

OPINION AND ORDER 

GRANTING DEFENDANTS’ JOINT MOTION TO COMPEL PLAINTIFF TO ATTEND 

AN INDEPENDENT MEDICAL EXAMINATION (Dkt. 35) 

In this civil rights case brought pursuant to 42 U.S.C. § 1983, Plaintiff Anthony Spencer 

challenges the lawfulness of his arrest by officers of the Huron County Sheriff’s Office. See 

generally Compl. (Dkt. 1). Defendants have filed a joint motion to compel Spencer to attend an 

independent medical examination (Dkt. 35). The issues have been fully briefed. Because oral 

argument will not aid the decisional process, the motion will be decided based on the parties’ 

briefing. See E.D. Mich. LR 7.1(f)(2). As discussed below, the Court grants the motion. 

I. STANDARD OF DECISION 

Pursuant to Federal Rule of Civil Procedure 35, the Court “may order a party whose 

mental or physical condition . . . is in controversy to submit to a physical or mental examination 

by a suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1). To secure such an order, 

the moving party has the burden of demonstrating that: (i) the opposing party’s physical or 

mental condition is in controversy, and (ii) there is good cause to require the opposing party to 

submit to the examination. Benchmaster, Inc. v. Kawaelde, 107 F.R.D. 752, 753 (E.D. Mich. 

1985); Fed. R. Civ. P. 35(a)(2)(A) (“The order [for examination] may be made only on motion 

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for good cause and on notice to all parties and the person to be examined.”). A plaintiff clearly 

places his or her “mental or physical injury . . . in controversy” when he or she seeks damages 

for a mental or physical injury, thereby providing “the defendant with good cause for an 

examination to determine the existence and extent of such asserted injury.” Schlagenhauf v. 

Holder, 379 U.S. 104, 119 (1964) (recognizing that, in such situations, the two requirements for 

an examination can be satisfied based on the pleadings alone). 

II. ANALYSIS 

In his complaint, Spencer states that, as a result of his allegedly unlawful arrest, he has 

suffered “mental and emotional distress[,] and loss of the ordinary pleasures of life.” Id. ¶ 51. 

According to Defendants, Spencer has placed his mental condition in controversy because he 

claims that he suffers from post-traumatic stress disorder, as well as severe depression and 

anxiety. Defs. Mot. at 1 (Dkt. 35); Spencer Dep. at 101-104 (Dkt. 35-2).1 Consequently, 

Defendants have requested that Spencer submit to independent medical examination. 

Defendants originally proposed that Dr. Krista Freece, Ph.D., in Canton, Michigan would 

perform the examination. Defs. Mot. at 1. However, after the issues were fully briefed, 

Defendants discovered that Dr. Freece had taken a position in California, requiring his departure 

from Michigan on or before September 15, 2016. Def. Supp. Br. at 1-2 (Dkt. 43). Therefore, 

Defendants now request that Dr. Renee Applebaum, Ph.D., perform the examination in Bingham 

Farms, Michigan. Id. at 2-3. 

Although Spencer does not generally contest Defendants’ request for an independent 

medical examination, he has sought to have a variety of conditions placed on the examination. 

See generally Pl. Resp. at 8-13 (Dkt. 39). The Court considers each of these conditions in turn. 

 

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 Spencer does not dispute that he suffers from various psychological problems following his 

arrest. Pl. Resp. at 7 (Dkt. 38). 

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A. Condition One — Require Defendants to Find a Medical Examiner Closer in 

Proximity to Plaintiff or Reimburse Plaintiff’s Travel Expenses 

Spencer claims that he lives in Bad Axe, Michigan, and Dr. Freece’s office is located in 

Canton, Michigan. Pl. Resp. at 8. According to Spencer, a roundtrip distance between the two 

locations is approximately 248 miles. Id.2

 Due to this distance, Spencer first argues, without 

citation to authority, that “Defendants should be required to find a medical examiner closer to 

Plaintiff’s home.” Id. Spencer then argues, again without citation to authority, that, if the 

examination is to be performed by Dr. Freece in Canton, “Defendants should be required to 

reimburse Plaintiff for his mileage at the current IRS rate.” Id. 

Although Defendants do not have an absolute right to compel an examination by a 

particular physician of their choosing, absent a showing of bias or prejudice, the Court will not 

disturb the Defendants’ choice of medical examiner. McKitis v. Defazio, 187 F.R.D. 225, 227 

(D. Md. 1999); Great W. Life Assur. Co. v. Levithan, 153 F.R.D. 74, 76 (E.D. Pa. 1994); Powell 

v. United States, 149 F.R.D. 122, 124 (E.D. Va. 1993); Liechty v. Terrill Trucking Co., 53 

F.R.D. 590, 591 (E.D. Tenn. 1971). The rationale for this approach is that, if a “plaintiff may 

select his own doctor to testify as to his physical [or mental] condition, fundamental fairness 

dictates that a defendant shall have the same right[.]” 8B Charles A. Wright, Arthur R. Miller, & 

Richard L. Marcus, Federal Practice and Procedure § 2234.2 at 274 (2010). 

Spencer did not challenge Dr. Freece’s qualifications or provided any evidence to suggest 

bias on the part of Dr. Freece. Nor has Spencer raised such concerns about Dr. Applebaum 

following Defendants’ supplemental brief. Therefore, the Court rejects a condition requiring 

 

2

 According to Defendants, Dr. Applebaum’s office is located in Bingham Farms, Michigan, see 

Defs. Supp. Br. at 3, which is approximately 26 miles closer to Spencer than Dr. Freece’s Canton 

office. 

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Defendants to choose a medical examiner closer to Spencer based purely on the ease of 

transportation for the examination. 

Spencer’s second argument about travel reimbursements also lacks merit. “The general 

rule is that the party being examined must pay his or her own travel expenses to an examination 

in the forum state.” McCloskey v. United Parcel Servs. Gen. Servs. Co., 171 F.R.D. 268, 270 

(D. Ore. 1997) (reasoning that the plaintiff chose the forum to bring suit and should be “expected 

to pay the costs of the litigation carried on in that forum”); Ornelas v. S. Tire Mart, LLC, 292 

F.R.D. 388, 399-400 (S.D. Tex. 2013); 8B Charles A. Wright, Arthur R. Miller, & Richard L. 

Marcus, Federal Practice and Procedure § 2234 at 258 (2010) (“The party being examined must 

pay his or her own expenses for coming to the examination and bear the loss of time thus 

caused.”). There is an exception to this rule if the party being examined demonstrates that he or 

she will suffer an undue financial hardship. McCloskey, 171 F.R.D. at 270; Ornelas, 292 F.R.D. 

at 400. 

Spencer does not argue that traveling to the examination would result in an undue 

financial hardship. Nor has Spencer provided any reason as to why he should not pay his own 

travel expenses for the examination, just as he will eventually be obliged to travel approximately 

the same distance to Detroit for his trial. See Dixon v Greyhound Lines, Inc., No. 13-179-JJBRLB, 2014 WL 37284, at *3 (M.D. La. Jan. 6, 2014). 

Nevertheless, the parties may agree to the imposition of certain conditions. In their reply, 

Defendants state that they have no objection to reimbursing Spencer for mileage at the IRS’s 

standard mileage reimbursement rate. Defs. Reply at 1 (Dkt. 40). 

Accordingly, the Court concludes that a condition requiring Defendants to find a medical 

examiner closer to Spencer is not warranted. However, the parties have agreed that Defendants 

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will reimburse Spencer’s travel expenses for the examination, and this condition shall be 

included in the proposed order requiring an independent medical examination. 

B. Condition Two — No Invasive Procedures Unless Ordered by Court 

Without citation to authority, Spencer argues that he “should not be required to undergo 

any type of invasive procedures by the examiner” during the psychological examination, “unless 

specifically ordered to do so by this Court.” Pl. Resp. at 9. 

At this point, nothing has been presented to suggest that the examination will involve any 

sort of physically invasive procedure, or that an unorthodox or potentially harmful technique will 

be used during the examination. See Defs. Mot. at 15 (cm/ecf page); In re Certain Asbestos 

Cases, 112 F.R.D. 427, 433 (N.D. Tex. 1986) (“Invasive procedures that are medically approved 

have been allowed upon living persons by authority of Rule 35.”); see also id. (the fact that the 

procedure is invasive “does not remove it from the ambit of a Rule 35(a) physical examination”); 

Calderon v. Reederei Claus-Peter Offen GmbH & Co., 258 F.R.D. 523, 529 (S.D. Fla. 2009) 

(“Courts often permit ‘routine procedures’ to be performed during a Rule 35 examination.”). 

Moreover, it is unclear what type of invasive procedures Spencer envisions occurring 

during the mental examination. Certainly there are procedures that could be characterized as 

physically invasive, such as blood tests (and unlikely to occur in this case). Procedures could 

also be considered to be mentally invasive. See Gattegno v. Pricewaterhousecoopers, LLP, 204 

F.R.D. 228, 233 (D. Conn. 2001) (“Although a mental examination is a potentially invasive 

procedure, the plaintiff’s right to avoid the invasion must be balanced against defendant’s right 

to a fair trial.”). Spencer does not seek to distinguish the two. 

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Nevertheless, Defendants do not object to this condition. Defs. Reply at 1. Therefore, a 

condition preventing invasive procedures shall be included in the proposed order requiring an 

independent medical examination. 

C. Condition Three — Recording the Examination 

Unless the opposing party demonstrates a special need or good cause, most federal courts 

have not permitted either a recording or an observer of an examination. Gohl v. Livonia Pub. 

Schs., Nos. 12-CV-15199, 13-CV-11687, 13-CV-12012, 2015 WL 1469749, at *5 (E.D. Mich. 

Mar. 30, 2015) (citing Lahar v. Oakland Cnty., No. 05-72920, 2006 WL 2269340, at *8 (E.D. 

Mich. Aug. 8, 2006)). The party seeking to allow a recording of an examination bears the 

burden of demonstrating either a special need or good cause for the request. Id. (citing Williams 

v. Serra Chevrolet Auto., LLC, No. 12-11756, 2013 WL 3467314, at *1 (E.D. Mich. July 10, 

2013)). A party may demonstrate good cause or a special need when bias exists or when a party 

is incompetent. Id. 

Spencer argues that recording the examination is necessary because Defendants’ expert 

“is performing the examination on behalf of the defense who will also be paying for the 

examination.” Pl. Resp. at 10. Because of this, Spencer contends that the expert is not “neutral” 

or “independent.” Id.; see also id. (“Quite simply, Dr. Freece has been hired for no other purpose 

other than to advance the interests of Defendants. Thus, she can by no means be 

‘independent.’”). The Court finds that Spencer’s justification is insufficient to demonstrate 

either good cause or a special need to have the examination recorded. 

While a defendant’s psychological expert may not be truly “neutral” or “independent,” 

given the adversarial nature of litigation, the mere fact that parties are in opposition and hire 

experts does not, in itself, constitute a sufficient bias attributable to the expert that would require 

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recording of the examinations. Gohl, 2015 WL 1469749, at *5 (citing Elder v. Harrison Twp., 

No. 10-cv-13144, 2014 WL 6668696, at *5 (E.D. Mich. Nov. 24, 2014)). As this Court has 

already noted, “[t]o hold otherwise would mean that virtually every examination could be 

recorded, a contradiction of the majority rule requiring a special need.” Id. 

In support of his argument that a recording is appropriate, Spencer also points to 

language in a Michigan Court Rule concerning the presence of an attorney during a medical 

examination. Pl. Resp. at 9 (citing Mich. Ct. R. 2.311(A)). This argument is unavailing. 

While there may be a difference between federal and state law on this issue, this Court is 

addressing a procedural question under federal law, which is controlling. Durmishi v. Nat’l Cas. 

Co., 720 F. Supp. 2d 862, 874 (E.D. Mich. 2010); accord Stefan v. Trinity Trucking, LLC, 275 

F.R.D. 248, 250 (N.D. Ohio 2011). And under federal law, federal courts do not allow the 

recording of a medical examination absent good cause or a special need, which Spencer has 

failed to demonstrate in this case. 

Accordingly, the Court concludes that a condition allowing the examination to be 

recorded is not warranted. Spencer will still have the opportunity to challenge any inaccuracies 

in the expert’s findings through Spencer’s own testimony, the testimony of his witnesses, and 

cross-examination of the expert. 

D. Condition Four — Access to Examiner Notes, Dictation Tapes, and Related 

Documents 

Without citation to any authority, Spencer argues that his counsel “should be entitled to 

obtain copies of the examiner’s notes, dictation tapes, or any other documents used and/or 

referenced in generating the examiner’s report.” Pl. Resp. at 11. 

The Court finds that Spencer is entitled to these documents. See Castillo v. W. Beef, 

Inc., No. CV 04-4967 NGG ETB, 2005 WL 3113422, at *3, *5 (E.D.N.Y. Nov. 21, 2005) 

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(ordering the defendant to provide the plaintiff with the “doctor’s notes, test data, and any other 

documents generated in connection with the examination”); Hirschheimer v. Associated Metals 

& Minerals Corp., 1995 WL 736901, at *5 (S.D.N.Y. Dec. 12, 1995) (ordering the defendant to 

disclose raw data that formed part of the basis for the expert testimony). Defendants do not 

object to this condition. Defs. Reply at 3. 

Therefore, the proposed order shall include a condition requiring Defendants to provide 

copies of the examiner’s notes, dictation tapes, or any other documents used and/or referenced in 

generating the expert’s report. 

E. Condition Five — Taking Deposition of the Examiner at a Reasonable Rate 

Spencer notes that, if the examination goes forward, it will occur after the close of 

discovery, which was August 1, 2016. Pl. Resp. at 11; see also 11/5/2015 Order at (Dkt. 18). 

Without citation to any authority, Spencer then argues that his counsel should “be permitted to 

take the discovery deposition of the examiner after the close of discovery and before any trial 

deposition may be taken of the examiner.” Pl. Resp. at 11-12. Spencer also requests that there 

be a condition that he “only pay a reasonable rate for the time the examiner spends in 

deposition,” because, according to Spencer, some examiners “charge exorbitant and 

unreasonable deposition fees.” Id. at 12. 

Rule 35 states that it “does not preclude . . . deposing an examiner under other rules.” 

Fed. R. Civ. 35(b)(6). Such a deposition can be taken under two circumstances: (i) “when the 

party which requested the examination intends to use the examiner as a witness at trial,” Brown 

v. Ringstad, 142 F.R.D. 461, 463 (S.D. Ia. 1992); Fed. R. Civ. P. 26(b)(4)(A), or (ii) “upon a 

showing of exceptional circumstances under which it is impractical for the party seeking 

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discovery to obtain facts and opinions on the same subject by other means,” Fed. R. Civ. P. 

26(b)(4)(B). 

If Defendants intend on using Dr. Applebaum as a witness at trial, the Court concludes 

that Spencer may depose the examining physician following receipt of Dr. Applebaum’s report. 

Ren v. Phoenix Satellite Television (US), Inc., 309 F.R.D. 34, 36 (D.D.C. 2015) (after receiving 

the Rule 35 examination report, the plaintiff will “then have the opportunity to depose the 

physician”); Castillo, 2005 WL 3113422, at *2 (E.D.N.Y. Nov. 21, 2005). Dr. Applebaum’s 

charged rate for time spent at the deposition shall be reasonable. See Williams, 2013 WL 

3467314, at *3. 

In their reply, Defendants state that they have no objection to Spencer deposing their 

expert after the discovery cut-off date. Defs. Reply at 3-4. They also claim that Dr. Applebaum 

charges $750 for the first hour of deposition and $250 for each additional hour thereafter. Defs. 

Supp. Br. at 2. The Court finds this rate reasonable. 

Therefore, to accommodate both the examination and the subsequent deposition of Dr. 

Applebaum, the Court allows this discovery only beyond the now-expired discovery cut-off. 

The examination shall be completed by September 30, 2016, and the Dr. Applebaum’s 

deposition shall be completed by October 28, 2016. 

F. Condition Six — Cancellation Fees 

Spencer takes issue with language found in Defendants’ proposed order regarding a fee 

for the cancellation of the examination. Pl. Resp. at 12. Spencer states that the proposed order 

does not identify the amount of the cancellation fee. Id. Nor does the order account for 

emergency situations that would prevent a timely attendance. Id. Therefore, Spencer argues that 

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the cancellation requirement is unreasonable and should not be included in an ordering requiring 

the independent medical examination. Id. at 12-13. 

 In their reply, Defendants state that, because the examination will be set for a mutually 

convenient date and time, there is “no reason that [Spencer] would be unavailable to appear for 

the exam and avoid any cancellation fees.” Defs. Reply at 4. Defendants originally clarified that 

Dr. Freece charges $750 for appointments that are cancelled with less than 72 hours’ notice. Id. 

For Dr. Applebaum, her cancellation fee is $1000 if her office is not notified of the cancellation 

48 hours of more before the examination time. Defs. Supp. Br. at 2. 

 As Spencer’s attendance at the examination will be mandated by an order from this 

Court, his failure to attend would not only cause an inconvenience to Dr. Applebaum, but it 

would also be in violation of the order. If Spencer fails to attend the examination without proper 

notice, he will bear the costs associated with the cancellation. See Rachel-Smith v. FTData, Inc., 

247 F. Supp. 2d 734, 739-740 (D. Md. 2003) (ordering the plaintiff to pay the doctor’s 

cancellation fee where, after the plaintiff sent the defendant a letter declaring that she would not 

appear for the examination, the defendant notified the plaintiff that the doctor would charge a 

$500 cancellation fee if the plaintiff failed to appear); see also id. at 739 (“According to the plain 

language of Rule 37(b)(2), the court shall require the disobedient party to pay reasonable 

expenses caused by the failure” to appear for the independent medical examination). 

Therefore, the proposed order shall include a condition that Spencer shall bear the cost of 

cancelling the examination if he does not provide Dr. Applebaum’s office with 48 hours’ notice. 

IV. CONCLUSION 

For the reasons stated above, the Court finds that Spencer has placed his mental condition 

in controversy and there is good cause for an independent medical examination. Therefore, the 

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Court grants Defendants’ motion to compel Spencer to attend an independent medical 

examination (Dkt. 35). 

The parties shall submit a proposed stipulated order specifying the time, place, manner, 

and scope of the examination on or before September 9, 2016. See Fed. R. Civ. P. 35(a)(2)(B). 

The proposed order shall also include the following conditions: (i) Defendants shall reimburse 

Spencer’s transportation expenses relating to the examination; (ii) Dr. Applebaum shall not 

perform any invasive procedures during the psychological examination unless specifically 

permitted to do so by this Court; (iii) Defendants shall provide copies of the examiner’s notes, 

dictation tapes, or any other documents used and/or referenced in generating Dr. Applebaum’s 

report; (iv) Spencer shall be provided the opportunity to depose Dr. Applebaum after receiving 

her report; and (v) Spencer shall bear the cost of cancelling the examination if he does not 

provide Dr. Applebaum’s office with 48 hours’ notice. 

SO ORDERED. 

Dated: September 2, 2016 s/Mark A. Goldsmith 

 Detroit, Michigan MARK A. GOLDSMITH 

 United States District Judge 

 

 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and 

any unrepresented parties via the Court's ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on September 2, 2016. 

 s/Karri Sandusky 

 Case Manager 

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