Lestingi v. The New York and Presbyterian Hospital

Background

The defendants—the Hospital, Marc Greenbaum, and Tessa Jean—asked the court to order Lestingi to undergo a physical examination under Federal Rule of Civil Procedure 35. The defendants said they had served notice of an examination scheduled for March 9, 2022, but Lestingi objected to the in-person format, the timing and location, and the examination’s scope. The defendants later said their medical expert was willing to conduct the examination at Lestingi’s home, but that she still refused to agree to any examination.

Defendants’ arguments

The defendants argued that Lestingi’s physical condition was directly at issue because her claims involved asthma, allergies, vocal cord dysfunction, and the Hospital’s alleged failure to reasonably accommodate those conditions. They also argued that whether those conditions qualified as a disability was relevant to her claim under the Americans with Disabilities Act. The defendants further asserted that the examination could address the effect of any disability on Lestingi’s wage-earning capacity because she sought seven years of front pay. They identified Dr. Jonathan Field as a licensed medical doctor and proposed that the examination occur at his office on a Tuesday or Friday at 5:00 p.m. The defendants also asked for permission to seek reasonable costs and attorneys’ fees connected with the missed examination and their motion.

Court’s action

The court did not grant or deny the requests in this order. It stated that it would address the defendants’ requests at the case-management conference scheduled for May 24, 2022. Judge Paul A. Engelmayer also reiterated that the parties should resolve their disagreements in a collegial manner and in good faith. The order therefore resolved neither the requested physical examination nor the request concerning costs and attorneys’ fees.