United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN, UNITED STATES DISTRICT JUDGE
the Court is the defendants' motion for review of the
Magistrate Judge's order denying their motion to compel
the plaintiff's functional capacity evaluation. For the
following reasons, the motion is DENIED.
Guidry was employed as a field service representative by VAM
USA, LLC, a subcontractor of Shell. VAM performed casing
operations aboard the Noble Bully 1, a drill ship located in
the Gulf of Mexico, which was owned by Noble Drilling
Services. The drilling operation involved lowering a casing,
a large-diameter pipe, into the ocean floor. The casing is
made up of casing joints, or long steel pipes, which are
attached with threads on each end that join them
together. Guidry would walk from his computer to the
drill floor where he would wipe off the threads of the casing
joint and inspect the joint for abnormalities before the crew
assembled it. As the driller operator ran the casing pipe
down into the ocean floor, oily mud would overflow from the
casing and accumulate at the base of the drilling floor.
early morning of May 11, 2015, Guidry was inspecting the
joint casing while standing upon the drilling floor, which
was covered in mud. Guidry slipped and allegedly sustained
injuries to his back, ligaments, muscles, and nervous system.
On May 4, 2016, he sued Noble Drilling Services, Inc, Noble
Drilling Exploration Company, and Noble Drilling (U.S.), LLC,
claiming that he was injured as a result of their negligence
and seeking relief under general maritime law and the
Longshoremen's and Harbor Workers' Compensation Act.
It is undisputed that Guidry is not a Jones Act seaman.
underwent a six level thoracic fusion on February 22, 2017.
The defendants' physician, Dr. Brennan, conducted an
independent medical exam on July 27, 2012. Believing that the
IME was insufficient to determine the plaintiff's current
physical capabilities, the defendants moved to compel the
plaintiff to submit to a functional capacity evaluation on
April 2, 2018. However, Guidry's physician, Dr. Williams,
refused to release Guidry for an FCE because he is not
physically capable of participating in the evaluation.
Magistrate Judge Roby denied the motion on May 17, 2018, but
noted in the order that the plaintiff agreed to a second IME
by Dr. Brennan. The defendants seek reconsideration of
Magistrate Judge Roby's order.
to Federal Rule of Civil Procedure 72(a), a party may appeal
the ruling of the Magistrate Judge to the District Judge. A
Magistrate Judge is afforded broad discretion in the
resolution of non-dispositive motions. See
Fed.R.Civ.P. 72(a); see also 28 U.S.C. §
363(b)(1)(A). If a party objects to a Magistrate Judge's
ruling on a non-dispositive matter, the Court will disturb a
Magistrate's ruling only when the ruling is
“clearly erroneous or is contrary to law.”
See Fed.R.Civ.P. 72(a); see also Castillo v.
Frank, 70 F.3d 382, 385 (5th Cir. 1995). A finding is
"clearly erroneous" when the reviewing Court is
"left with the definite and firm conviction that a
mistake has been committed." United States v.
Stevens, 487 F.3d 232, 240 (5th Cir. 2008)(quoting
United States. v. U.S. Gypsum Co., 333 U.S. 364, 395
Rule of Civil Procedure 35 provides that a court may order a
party “to submit to a physical or mental examination by
a suitably licensed or certified examiner” if (1) the
party's mental or physical condition is in controversy
and (2) the movant shows “good cause.” Fed. R.
Civ. Pro. 35(a). Rule 35 is not satisfied by “mere
conclusory allegations of the pleadings . . . but require[s]
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.” Schlagenhauf v.
Holder, 379 U.S. 104, 118 (1964). When determining if a
party has shown good cause, courts consider whether “a
plaintiff plans to prove his claims through the testimony of
expert witnesses, ” if an examination would preserve
the “equal footing of the parties, ” and whether
the movant has “exhausted alternative discovery
procedures.” Lahr v. Fulbright & Jaworski,
L.L.P., 164 F.R.D. 169, 200 (N.D. Tex. 1995)(internal
citations omitted); Diaz v. Con-Way Truckload, Inc.,
279 F.R.D. 412, 419 (S.D. Tex. 2012).
does not limit the number of independent medical examinations
that may be ordered. Fed. R. Civ. Pro. 35; Moore v.
Calavar Corp., 142 F.R.D. 134, 135 (W.D. La. 1992).
However, some courts are concerned about protecting a
party's privacy from additional examinations. See
Moore, 142 F.R.D. at 135. Courts have found that a
second examination is justified when: (1) “separate
injuries call for examination by distinct medical
specialties”; (2) “a physician requires
assistance of other consultants before he can render a
diagnosis”; (3) the first examination was inadequate or
incomplete; or (4) there has been a “substantial time
lag . . . between the initial examination and the
trial.” Id.; Mathias v. Omega Protein,
Inc., No. 10-2835, 2011 WL 1204000, *3 (E.D. La. 2011).
Judge Roby held that Guidry's physical condition is in
controversy, but that there is no good cause for an FCE
because there are several other sources of information for
the defendants to evaluate Guidry's functional
capabilities. Specifically, the defendants' IME physician
could effectively assess any physical limitations because he
evaluated Guidry five months after the surgery, enough time
to determine if Guidry had made positive progress and was
manufacturing complaints. Magistrate Judge Roby also pointed
to reports completed by Guidry's physical therapist that
address his physical functional capacity as a source for
information. She noted the reports indicate that his
functional ability is greater than what his physician has
represented. But she also held “that the FCE would
subject the Plaintiff to a battery of tests that would not
provide insight different from that of the physical
therapists.” Magistrate Judge Roby did not clearly err.
The first IME was completed less than a year ago, and the
plaintiff agrees to undergo a second one. Guidry's
physician claims that Guidry is not physically capable of
participating in another FCE, but the defendants disagree,
pointing to the physician's recommendations that he
increase his physical activity, reports by Guidry's
physical therapist that indicate that he is physically
capable, and that the evaluation can be modified to better
fit Guidry's physical limitations. But evidence that
Guidry may be capable of completing a FCE does not establish
good cause. The defendants also contend that Guidry reported
that his back pain was mild to his physical therapist, but
reported that he was experiencing severe pain to his pain