United States District Court, E.D. Louisiana
NANNETTE JOLIVETTE BROWN JUDGE.
ORDER AND REASONS
VAN MEERVELD UNITED STATES MAGISTRATE JUDGE.
the Court is the Motion to Compel Independent Medical
Examination filed by defendant W&T Offshore, Inc.
(“W&T”). (Rec. Doc. 29). For the following
reasons, the Motion is GRANTED. Oral argument scheduled for
January 24, 2018, is hereby cancelled.
Torrey Thomas alleges that on or about August, 3, 2016, he
suffered personal injuries to his left knee and lumbar spine
as a result of an accident while he was employed as a galley
hand on the MATTERHORN SEASTAR. He says that he tripped and
fell when his boot became caught in a drainage hole because
its cap was improperly secured. He alleges the accident was
caused by the negligence of W&T, who was the owner and
operator of the MATTERHORN SEASTAR. Thomas filed this lawsuit
on September 14, 2016.
now seeks an order compelling Thomas to appear for an
independent medical examination (“IME”) with
orthopedist Dr. Christopher Cenac, on February 6, 2018 at
8:00 a.m. at 210 New Orleans Blvd., Houma, LA 70364. Thomas
does not dispute that W&T is entitled to an IME. However,
Thomas insists W&T has not shown good cause for an order
compelling him to travel 85 miles to Houma from his home in
Lacombe, rather than attend an IME at a more convenient
location. He notes that his own treating physician is only
seven miles from his home and says that he does not have a
vehicle to take him to the appointment. He adds that he is
dealing with a back injury, although he presents no evidence
to indicate the 85 miles of travel would aggravate the
injury. W&T, for its part, has offered to pay for or
provide transportation to Thomas. In reply, W&T presents
records from Dr. Dietze, who appears to be Thomas's
treating physician, indicating that Thomas was out of town on
April 6, 2017; that he traveled between Lacombe and Lafayette
in May 2017; that he sought a referral to ACE Pain Management
in Lafayette in July 2017; and that he reported he had moved
to Lafayette in November 2017. W&T also submits records
from the Louisiana Board of Pharmacy indicating that Thomas
has seen doctors and obtained prescriptions in Lacombe,
Hammond, Lafayette, and Slidell. For example, on March 15,
2017, he obtained a prescription from a doctor in Lacombe, on
March 27, 2017, he obtained a prescription from a doctor in
Lafayette, and on April 7, 2017, he obtained a prescription
from a doctor in Lacombe. The first two of these
prescriptions were filled in Lafayette, and the third was
filled in Mandeville.
good cause shown by the moving party, the court may order a
physical or mental examination of a party by a suitably
licensed or certified examiner when the party's physical
or mental condition is in controversy. Fed. R. Civ. Proc.
35(a)(1). While conclusory allegations in the pleadings are
not sufficient to meet the “good cause” and
“in controversy” requirements of Rule 35, the
Supreme Court has recognized that in some cases, the
pleadings alone will satisfy the Rule's requirements.
Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964).
Thus, “[a] plaintiff in a negligence action who asserts
mental or physical injury, places that mental or physical
injury clearly in controversy and provides the defendant with
good cause for an examination to determine the existence and
extent of such asserted injury.” Id. (citation
regards to the location of the examination, it has been
observed that courts typically require “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. This allows the examining physician to be
available conveniently for testimony.” Baird v.
Quality Foods, Inc., 47 F.R.D. 212, 213 (E.D. La. 1969);
see Ornelas v. S. Tire Mart, LLC, 292 F.R.D. 388,
399-400 (S.D. Tex. 2013) (“The general rule is that a
plaintiff who brings suit in a particular forum may not avoid
appearing for an examination in that forum.”). Some
courts have held that for an exception to be made to this
general rule, “the burden is not on the defendant to
demonstrate that a satisfactory examination cannot be had a
nearer locale to the plaintiff, but rather on the plaintiff
to show that traveling to the examination poses undue burden
or hardship.” Ornelas, 292 F.R.D. at 400
(quoting McDonald v. Southworth, No.
1:07-CV-217-JMS-DFH, 2008 WL 2705557, at *6 (S.D. Ind. July
Southern District of Texas in Ornelos ordered the
plaintiff to appear for an IME more than 100 miles from his
home because the examination location was within the Southern
District of Texas and plaintiff had not “provided . . .
any rationale for why travel to such locale would pose an
‘undue burden or hardship.'” Id. In
Baird, the court required a plaintiff who resided in
Oklahoma, but who had filed suit in the Eastern District of
Louisiana, to appear for an IME in New Orleans. Id.
The court noted that the plaintiff had not alleged that the
trip would be injurious to his health or that there was
“any other compelling reason for his reluctance.”
Id. The Western District of Louisiana in Gant v.
Helix Energy Sols. Group ordered a plaintiff to appear
for an IME with Dr. Cenac in Houma, although Houma is outside
of the Western District of Louisiana. No. CIV.A. 07-0618,
2007 WL 2316526, at *2 (W.D. La. Aug. 9, 2007). The court
found the travel would not be burdensome, noting that the
plaintiff's home was only about 45 miles from the
appointment in Houma and that the plaintiff traveled
approximately 60 miles to see his treating physician.
Id.; cf. Rainey v. Wal-Mart Stores, Inc.,
(citing Baird, the court refused to compel a
plaintiff to appear for an IME in New Orleans where his case
had been filed in the Western District of Louisiana and the
Plaintiff's home in Jena, Louisiana was about 270 miles
away from the proposed appointment. 139 F.R.D. 94, 94-95
(W.D. La. 1991)).
here does not dispute that good cause exists for an IME with
an orthopedist because he has put his physical condition at
issue. Instead he disputes whether good cause exists for an
IME with Dr. Cenac. He does not challenge Dr. Cenac's
licensing or certification, but merely the distance of Dr.
Cenac's office from Thomas's home. The location of
Dr. Cenac's office is within the Eastern District of
Louisiana. While the Court acknowledges that the distance of
85 miles might cause some inconvenience to Thomas, the Court
finds it would not be unduly burdensome. Although Thomas
suggests that he should not be required to travel due to this
back injury, the evidence submitted by W&T indicates that
Thomas is able to travel. Thomas has presented nothing to
rebut this proposition. Thomas merely states “There has
been no discussion as to whether the trip will aggravate the
Plaintiff's back condition and whether such an
aggravation will result in an altered examination findings
(sic).” Thomas has had at least two opportunities to
make this argument, if it is available to him. First, the
motion was accompanied by a Rule 37 certificate which
reflects that the matter was discussed; Thomas's counsel
did not appear to raise the issue of whether travel presented
a physical hardship to Thomas. Second, Thomas's
opposition brief was another missed opportunity to present
evidence and arguments regarding aggravation. While raising
the point that it had never been discussed, plaintiff
conspicuously failed to reference that travel would
aggravate plaintiff's back condition or whether such an
aggravation would result in altered examination
the lack of evidence indicating that 85 miles of travel would
aggravate Thomas's back or influence his examination
results, the evidence that plaintiff regularly travels
similar or greater distances, and the fact that W&T has
agreed to pay for Thomas's transportation, the Court
finds that an appointment with Dr. Cenac in ...