Gorbani v. Gonzalez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MORTEZA GORBANI,
Plaintiff,
vs. 	Civ. No. 25-413 DHU/SCY
EDWARD E. GONZALEZ and
BLATTNER ENERGY, LLC,
Defendants.
ORDER GRANTING MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATION
Plaintiff Morteza Gorbani alleges he suffered injuries as a result of a car accident caused
by Defendant Gonzalez. Doc. 1-1. Because Plaintiff has place his physical condition at issue,
Defendants seek an Independent Medical Examination (“IME”) of Plaintiff and have one
scheduled for April 3, 2026 with Dr. Paul Saiz. Doc. 41 at 7. Although Plaintiff does not object
to the IME, he disagrees with several of the conditions Defendants propose. As such, Defendants
filed the present motion to compel IME. Doc. 41.1
DISCUSSION
Under Federal Rule of Civil Procedure 35,
The court where the action is pending 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. . . . The order may be made only on
motion for good cause and on notice to all parties and the person to be examined;
1 Defendants also request a hearing. Doc. 45. The Court denies this request for two reasons. First,
the parties completed briefing this issue on March 27, 2026, one week before the scheduled April
3 IME. Doc. 46. The Court’s schedule, primarily consisting of criminal matters, does not allow
for a hearing in the week between the completion of briefing and the scheduled IME. Second, the
Court does not consider a hearing necessary to resolve the present dispute.
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and must specify the time, place, manner, conditions, and scope of the
examination, as well as the person or persons who will perform it.
Fed. R. Civ. P. 35(a)(1), (2). Decisions pertaining to Rule 35 examinations are reviewed under
abuse of discretion. Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 688 (10th Cir. 2007).
Here, the parties dispute several conditions of Plaintiff’s IME, which the Court will
address in turn.
1. 	Examiner
Defendants propose that the IME be conducted by Dr. Paul Saiz, a Board-Certified
Orthopedics Surgery Specialist. Doc. 41 at 4. Plaintiff objects, arguing that Dr. Saiz “is widely
known for performing examinations on behalf of defendants and insurance carriers,” and as such,
“Dr. Saiz’s role as a frequent defense examiner raises questions regarding the neutrality and
objectivity of the proposed examination.” Doc. 43 at 5. Plaintiff, therefore, requests that the
Court appoint a “neutral examiner,” but he does not provide any specifics as to who he believes
would qualify for this role. Id.
In support of their position that they should be able to choose the independent medical
examiner, Defendants cite a decision from the District of New Mexico: O'Sullivan v. Rivera, 229
F.R.D. 184 (D.N.M. Sept. 17, 2004) (J. Browning). Doc. 41 at 4. In response, Plaintiff cites no
competing authority or law addressing whether potential bias is a basis to prohibit an IME and
does not address whether such evidence is merely a matter for cross-examination at trial.
Because Plaintiff has not proposed a different examiner and cites no authority to support the
disqualification of Defendants’ chosen examiner, Plaintiff’s argument is unpersuasive.
Further, the Court observes that whether Dr. Saiz may examine Plaintiff is a different
question than the admissibility of whatever evidence Defendants might seek to admit as a result
of Dr. Saiz’s examination. If Plaintiff believes evidence Dr. Saiz obtains from this examination
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should be excluded because Dr. Saiz is not truly an independent medical examiner, Plaintiff may
file a motion to exclude such evidence at the appropriate time. See, e.g., Lopez v. Singh, No. CV
22-36 JCH/SCY, 2023 WL 402024, at *2 (D.N.M. Jan. 25, 2023) (holding the same). If Dr. Saiz
testifies favorably to Defendants’ position, Plaintiff may also explore the issue of bias on cross-
examination. At this point, however, the Court only addresses the question before it: whether Dr.
Saiz may examine Plaintiff. The Court answers this question in the affirmative—Dr. Saiz may
conduct the IME.
2. 	Independent Observer & Exam Recording
Plaintiff requests that a silent observer, of his choosing, be present for the IME. Doc. 43
at 4. Indeed, Defendants agreed that the facility where the IME is to be conducted would provide
a silent observer (who is unaffiliated with both Defendants and Dr. Saiz), Doc. 41-4 at 2-5, but
Plaintiff rejected that offer, asserting that the silent observer “would be an individual employed
by [Plaintiff’s counsel’s] firm.” Id. at 6. Likewise, Plaintiff requests that the exam be recorded.
“Most courts analyze a request for a recording device the same way they evaluate whether to
permit the presence of an attorney during a Rule 35 examination.” Ornelas v. S. Tire Mart, LLC,
292 F.R.D. 388, 396–97 (S.D. Tex. 2013); see also Romero v. Bradford, No. CV 08-1055
MCA/LFG, 2009 WL 10708259, at *3 (D.N.M. Apr. 30, 2009) (“A request to videotape an IME
or to allow attendance by a third-party raises a single inquiry.”). The Court will therefore address
these requests together.
Plaintiff argues that “Courts routinely recognize that the presence of a silent observer or
the use of recording mechanisms may be appropriate where necessary to prevent disputes
regarding what occurred during the examination.” Doc. 43 at 4. Plaintiff, however, cites no cases
to support this proposition. To the contrary, “[t]he ‘presence of recording devices’ during IMEs
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is ‘disfavored’ because it ‘changes the nature of the proceeding.’” Armijo v. Cardinal Logistics
Management Corp., No. 23-cv-00573-DHU-LF, 2025 WL 48598, at *4 (D.N.M. Jan 2025)
(quoting Ornelas, 292 F.R.D. at 397); see also Romero, 2009 WL 10708259, at *3 (“[T]he
presence of a third person or recording equipment would inject a degree of the adversarial
process into one that was intended to be neutral.”) (citing Tomlin v. Holecek, 150 F.R.D. 628 (D.
Minn. 1993)). As such, “[m]ost federal courts do not allow the presence of counsel or video
recording at an IME absent special circumstances.” Pepe v. Casa Blanca Inn & Suites, LLC, No.
18-CV-476 JCH/JFR, 2019 WL 10960399, at *2 (D.N.M. July 11, 2019) (collecting cases); see
also Armijo, 2025 WL 48598, at * 4 (“special circumstances for the request to record an IME
must be shown, as fairness and medical integrity considerations underlie the determination”)
(internal quotation marks and citation omitted).
Here, Plaintiff presents no special circumstances to justify the presence of a third-party
observer or a recording of the IME. Instead, Plaintiff argues that an observer and a recording is
necessary to avoid creating a “one-sided evidentiary advantage.” Doc. 43 at 4. But as discussed
above, Plaintiff can address any concerns about bias through a motion to exclude or cross-
examination. Indeed, Plaintiff himself will be present for the examination and can testify
regarding the process. Accordingly, the Court rejects Plaintiff’s request for an observer of his
choosing and that the IME be recorded.
3. 	Scope and Date of Examination
Plaintiff requests that the Court establish “clear parameters governing the scope and
conduct of the examination to prevent improper inquiry or conduct.” Doc. 43 at 2. Plaintiff
provides no further explanation for this request. However, he does list some additional
conditions that he believes the Court should impose: “[t]he examination be non-invasive”; and
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“[t]he examiner be prohibited from asking liability-related questions.” Doc. 43 at 6. As listed in
Defendants’ motion, the IME is limited in scope to “a thorough evaluation of the cervical,
thoracic and lumbar spines of Plaintiff.” Doc. 41 at 7. Plaintiff provides no other argument to
support limiting the scope any further.
Next, Plaintiff requests a “[m]utually agreeable scheduling of examination.” Doc. 43 at 6.
Defendants scheduled the IME for April 3, 2026 after Plaintiff’s counsel confirmed that “the last
week of March will likely work.” Doc. 41-1 at 6. Plaintiff provides no other argument as to the
April 3 setting or whether he would like a different date. Accordingly, the IME shall go forward
as scheduled on April 3.
Lastly, Plaintiff requests that a written report of the examination be provided to him
within 30 days. Doc. 43 at 6. Defendants do not oppose this request, Doc. 44 at 5, and so the
Court will adopt it. See Fed. R. Civ. P. 35(b)(1) (“The party who moved for the examination
must, on request, deliver to the requester a copy of the examiner’s report, together with like
reports of all earlier examinations of the same condition.”).
4. 	Deadline Extensions
In their motion, Defendants argue that the IME should take place on April 3, but that if it
takes place later, “the remaining discovery deadlines be extended by thirty days.” Doc. 41 at 7.
In their reply, Defendants argue for the first time that discovery deadlines should be extended by
60 days even if the IME goes forward on April 3. Currently, discovery closes on April 20, 2026,
discovery motions are due by May 8, 2026, and pretrial motions are due by May 15, 2026. Doc.
30. Trial in this matter is set to begin on November 2, 2026. Doc. 31.
Defendants argue that the April 20 discovery deadline “does not leave adequate time for
Dr. Saiz to produce his report, be deposed or Plaintiff to be deposed after receipt of the report.”
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Doc. 44 at 6. The Court agrees and so extends the current deadlines by 30 days. If Defendants
seek a further extension, they must obtain Plaintiff’s position and then file a motion.2
CONCLUSION
For these reasons, the Court GRANTS Defendants’ Motion to Compel Order for
Plaintiff’s Independent Medical Examination (Doc. 41). The details of the examination doctor,
place, manner, conditions, scope, and report shall be those listed in Defendants’ motion. Doc. 41
at 7. Defendants shall provide Plaintiff a written report of the examination within 30 days of the
examination.
Additionally, the case management deadlines are extended as follows:
 	Termination date for discovery: May 20, 2026
 	Motions relating to discovery due by: June 8, 2026
 	Pretrial motions other than discovery motions due by: June 15, 2026
_____________________________________
STEVEN C. YARBROUGH
UNITED STATES MAGISTRATE JUDGE
2 In their motion Defendants did not request an extension if the Court ordered the IME to go
forward on April 3, 2026, and as such Plaintiff had no reason to address the issue of a discovery
deadline extension should an April 3, 2026 IME take place.
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