United States District Court, E.D. Louisiana
WELLS ROBY UNITED STATES MAGISTRATE JUDGE.
the Court is Motion to Compel Physical Examination
(R. Doc. 18) filed by filed by the Defendants, Miss
Carla, LLC and Jeremiah Pierron seeking an order compelling
the independent medical examination of Frank Williams by Dr.
Christopher Cenac, Sr., a board certified orthopedic surgeon.
The motion is opposed. R. Doc. 28. The motion will be heard
on March 29, 2017 and submitted that same day.
action was filed in the District Court on August 19, 2016. R.
Doc. 1. Frank Williams, III (“Plaintiff”) alleges
that at all relevant times he was employed by the Defendants
Tim Nguyen, C9, Inc., Nghia Nguyen, and/or Nghia, Inc.and
assigned to the C9, a vessel. R. Doc. 15, p. 23. On May 25,
2016, the C9 was lashed to Brothers, another vessel.
Id. at p. 3. While so lashed, the C9 was struck by
the Miss Carla, a third vessel owned and operated by Jeremiah
Pierron and/or Miss Carla, LLC. Id. The force of the
impact allegedly threw the Plaintiff from his bunk where he
was resting. Id. at p. 4. As a result, the Plaintiff
suffered severe temporary and permanently disabling injuries
to his cervical spine, lumbar spine, connective tissue,
muscles, joints, and nerves. Id. The Plaintiff has
alleged two causes of actions under the Jones Act against his
employers as well as the owners of the Miss Carla.
time, the Defendant has filed a Motion to Compel Physical
Examination (R. Doc. 18) seeking to compel an independent
medical examination (“IME”) with Dr. Christopher
Cenac, Sr., a board certified orthopedic surgeon located in
Houma, Louisiana. However, the Plaintiff has only objected to
the IME as well as the only opposed the motion for the sole
reason that the IME is scheduled in Houma, which would
require over 120 miles of travel from the Plaintiff's
location in Algiers. R. Doc. 28. During oral argument, the
Plaintiff also stated that traveling to Houma might require
his missing work. In response, the Defendants have offered to
pay for his transportation there. R. Doc. 18-1, p. 3.
Standard of Review
Physical and mental examinations are governed by Federal Rule
of Civil Procedure 35.Rule 35 allows the Court to order
“a party whose mental or physical condition…is
in controversy to submit to a physical or mental
examination” when there has been a “motion for
good cause and on notice to all parties and the person to be
examined.” Fed.R.Civ.P. 35(a)(1)-(2); see
also, Acosta v. Tenneco Oil Co., 913 F.2d 205,
208 (5th Cir. 1990) (“Under Rule 35, three requirements
are necessary to enable a court to order a Rule 35 exam: (1)
the party's physical or mental condition must be in
controversy; (2) the expert must be either a physician or a
psychologist; and (3) good cause must be shown.”). Rule
35's “in controversy” and “good
cause” requirements “are not satisfied by showing
‘mere relevance to the case.'” In re Oil
Spill by Oil Rig DEEPWATER HORIZON, MDL No.
2179, 2012 WL 607971, at *3 (E.D. La. Feb. 24, 2012) (quoting
Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964)).
As the court in In Re Oil Spill by Oil Rig
DEEPWATER HORIZON explained:
Rather, what is required is “an affirmative showing by
the movant that each condition as to which the examination is
sought is really and genuinely in controversy and that good
cause exists for ordering each particular examination.”
Whether these requirements are met necessarily depends on the
particular facts of the case and the scope of the examination
2012 WL 607971, at *3 (citations omitted) (quoting
Schlagenhauf, 379 U.S. at 118). Finally, “Rule
35(a) should be liberally construed in favor of
discovery.” Lahr v. Fulbright & Jaworski,
L.L.P., 164 F.R.D. 204, 207 (N.D. Tex. 1996).
selecting the independent expert to conduct the examination,
“the usual attitude is that although the moving party
has no absolute right to the choice of the physician, when no
serious objection arises, it is probably best for the court
to appoint the doctor of the moving party's
choice.” Lahr v. Fulbright & Jaworski,
L.L.P., 164 F.R.D. 196, 202 (N.D. Tex. 1995) (citing 8A
Charles A. Wright, Arthur R. Miller & Richard L. Marcus,
Federal Practice &Procedure, §2234.2
the Defendants have filed a motion for the Plaintiff to
submit to an Independent Medical Examination with Dr. Cenac
in Houma. R. Doc. 18. At this time, the Plaintiff does not
argue that his physical health is not “in
controversy” or that there is not “good
cause” for an IME. R. Doc. 28. Rather, the
Plaintiff's only objection is to the location of the IME.
judges have, in the usual case, ordered the plaintiff to
appear for examination at the place where the trial would be
held-that is, at the venue selected initially by the
plaintiff.” Baird v. Quality Foods, Inc., 47
F.R.D. 212, 212-13 (E.D. La. 1969); see also 8B C.
Wright, A. Miller & R. Marcus, Federal Practice and
Procedure § 2234 (3d ed. 2016) (“Usually
plaintiff will be required to come to the place where he or
she filed suit for the examination, in the absence of facts
showing substantial reasons for insisting upon examination at
his or her residence.”). However, the usual case may
give way where the plaintiff can demonstrate that “the
trip would be injurious to his health, or that there is any
other compelling reason for his ...