Ortiz v. Best Buy Stores, LP

Background

Adrian Ortiz sued Best Buy Stores, LP, for damages arising from a trip and fall on Best Buy’s premises. The case was removed from New York Supreme Court, New York County, to federal court. Discovery—the exchange of information and evidence before trial—was ongoing, and expert discovery was scheduled to close on March 1, 2024.

Best Buy moved under Federal Rule of Civil Procedure 37(a)(1) to compel Ortiz to attend a second medical examination with a new doctor and to pay the expenses associated with that examination. A motion to compel asks the court to order a party to provide discovery or participate in a discovery procedure.

The First Examination

Ortiz attended a scheduled examination on October 3, 2023, with Dr. Alexandra Carrer, an orthopedic surgeon retained by Best Buy to address Ortiz’s injuries. Best Buy reported that Ortiz refused to cooperate, acted aggressively, and verbally threatened Dr. Carrer with physical harm. According to Best Buy, Dr. Carrer could not make any determinations about Ortiz’s injuries and later refused to testify at trial. She also refused to provide a declaration or affidavit supporting Best Buy’s motion.

Ortiz gave a different account. He said he cooperated to the best of his physical ability, did not refuse Dr. Carrer’s instructions, and did not threaten her. He also said Dr. Carrer acted inappropriately during the examination. Brandon Torres, who accompanied Ortiz, submitted an affidavit supporting Ortiz’s account.

Court’s Analysis

The court explained that a second physical examination is permissible when the party seeking it shows that it is necessary. A second examination by a different physician may be appropriate when the first examination was incomplete or irregular and a new examination would allow testimony to focus on the plaintiff’s injuries.

The court found a second orthopedic examination warranted for three reasons. First, Dr. Carrer could not complete the initial examination or reach conclusions about Ortiz’s injuries. Second, the parties gave sharply different accounts of what happened, creating concern that testimony could focus on the disputed circumstances of the first examination rather than the nature and extent of Ortiz’s injuries. Third, because Dr. Carrer would not testify at trial, Best Buy would otherwise lack a doctor to testify on its behalf about Ortiz’s injuries.

The court separately considered Best Buy’s request that Ortiz pay the costs of the second examination. It declined to order payment because Dr. Carrer had not submitted a sworn statement supporting Best Buy’s version, while Ortiz and Torres had submitted affidavits supporting Ortiz’s version. The court could not determine with sufficient certainty that Ortiz was responsible for interrupting the first examination.

Disposition

The court granted in part and denied in part Best Buy’s motion to compel. Ortiz must appear for a second medical examination with a new doctor. The motion was denied insofar as it sought an order requiring Ortiz to pay the expenses associated with that examination. The Clerk of Court was directed to close the motion at ECF No. 30.