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Mager v. Wisconsin Central Ltd.

United States Court of Appeals, Sixth Circuit

May 15, 2019

Peter J. Mager, Plaintiff-Appellant,
v.
Wisconsin Central Ltd., Defendant-Appellee.

          Argued: April 30, 2019

          Appeal from the United States District Court for the Western District of Michigan at Marquette. No. 2:16-cv-00145-Gordon J. Quist, District Judge.

         ARGUED:

          Michael B. Gunzburg, RIDGE & DOWNES, Chicago, Illinois, for Appellant.

          Mary C. O'Donnell, GALLAGHER SHARP LLP, Detroit, Michigan, for Appellee.

         ON BRIEF:

          Michael B. Gunzburg, James T. Foley, RIDGE & DOWNES, Chicago, Illinois, for Appellant.

          Mary C. O'Donnell, GALLAGHER SHARP LLP, Detroit, Michigan, for Appellee.

          Before: GUY, SUTTON, and NALBANDIAN, Circuit Judges.

          OPINION

          RALPH B. GUY, JR., Circuit Judge.

         Peter Mager sought to recover damages under the Federal Employer's Liability Act (FELA), 45 U.S.C. § 51, et seq., for injuries he allegedly sustained while employed by Wisconsin Central Ltd. (WCL) as a trackman at a railway yard near Marquette, Michigan. Mager appeals the dismissal of his complaint with prejudice, which was ordered as a sanction primarily for his and his attorney's conduct at a court-ordered independent medical examination. Reviewing the dismissal for abuse of discretion, we affirm.

         I.

         Mager alleged that he was seriously and permanently injured on July 29, 2013, when he slipped on hydraulic oil that had leaked onto the rear deck of a truck where he was working. Mager filed suit in June 2016, was deposed in June 2017, and was sent notice that defendant had scheduled an independent medical examination (IME) in early August 2017. Plaintiff's counsel, James T. Foley, objected to the IME because the examiner's office was in Appleton, Wisconsin-a substantial drive from where Mager lived in the Upper Peninsula of Michigan. That prompted WCL, through its counsel Mary O'Donnell, to move both for an order compelling the IME pursuant to Rule 35(a) of the Federal Rules of Civil Procedure and to delay the third-party mediation scheduled for late August 2017. At a hearing on the motion on September 27, counsel reached an agreement at the magistrate judge's urging. Namely, it was agreed that Mager would submit to the IME, that WCL would pay his mileage, and that a settlement conference would be scheduled with the court in lieu of mediation. A new Case Management Order was promptly entered on September 28, 2017.

         Once the IME was rescheduled, Mager was asked to complete a five-page written questionnaire prior to the appointment. That questionnaire-which is in the record-inquired into Mager's complaints, medical history, medications, prior evaluations, and how and where his injury occurred. When Foley objected to the questionnaire as unnecessary in light of plaintiff's recent deposition, O'Donnell brought the matter before the magistrate judge by way of a conference call. O'Donnell asked that Mager be required to either complete the questionnaire or be interviewed by a doctor's assistant. The magistrate judge "determined that background information was necessary for the IME." Accordingly, a Rule 35 Order was entered the next day expressly directing Mager to "appear at the IME on October 20, 2017 at 10:00 a.m. C.S.T., for an interview by a physician assistant and for Dr. Revord to conduct an IME. The interview and exam shall not exceed three (3) hours." (Emphasis added.) No other conditions were specified.

         Mager appeared for the IME as directed and was joined there by his attorney James Foley, who not only remained present throughout the appointment but also surreptitiously made an audio recording of the visit. Later, Foley conceded that he did so without prior notice to defense counsel; stated that he regularly attended IMEs with other clients; and explained that he had determined ahead of time that one-party-consent recording is legal in Wisconsin. As a result of that recording, however, there can be no dispute that Mager himself repeatedly declined to answer relevant questions about his condition, his medications, and how the injury occurred.

         An unofficial transcript of the recording[1] reflects that although Mager provided some identifying information to the receptionist upon arrival, he and Foley did not allow his driver's license to be copied. An assistant then escorted Mager and Foley to an exam room, where she attempted to conduct an interview. Mager was asked what problems or concerns he wanted to have addressed-one of the questions highlighted on the questionnaire-but Mager would not do so and said he had already answered questions about his problems during his deposition. Foley interjected that Mager was there to be evaluated at defendant's request and not to have any problems addressed. The assistant explained that the doctor still wanted some of the questions answered, but Mager replied that he was sure that they had all of his medical records. Finally, Mager declined to list the medications he was taking, again referring the assistant to the deposition transcript that he had brought with him. That concluded the assistant's attempt to interview Mager.

         Forewarned, Dr. Revord introduced himself to Mager and Foley; confirmed that Mager did not want to answer any questions; indicated that he had reviewed Mager's records; and took the copy of Mager's deposition when it was offered. During that exchange, Foley also stated that Mager was "not trying to be an obstructionist" but did not want to "rehash" his deposition testimony. Dr. Revord explained that he was there to see Mager, listen to his story, and write a report evaluating his condition and what had caused it. Dr. Revord tried to ask about how the injury occurred and about Mager's physical problems, but Mager referred him to the deposition for those answers. The full exchange was as follows:

[Dr. Revord]: . . . Now I was a little confused. You're talking in the summons of oil and slipping in the back of a truck but on your, when you filled out the injury report that day, you were saying you were walking to the front door of the truck and your legs gave way.
[Peter Mager]: Everything is in the deposition there.
DR: Got it.
PM: We went over all the, all the stuff.
DR: Got it.
PM: I'm not trying to give you a ...

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