United States District Court, E.D. Louisiana
L. R. LEMELLE JUDGE
ORDER AND REASONS
VAN MEERVELD MAGISTRATE JUDGE
Fleet, LLC (“Magnolia Fleet”), the plaintiff in
this declaratory action, has filed a Motion to Compel
defendant Rick Grey to submit to independent medical
examinations with neurologist Dr. Archie Melcher, and
neurosurgeon Dr. Gabriel Tender, and to produce executed
blank medical and employment record authorization forms.
(Rec. Doc. 8). Because discovery has not yet started and
Magnolia Fleet has not demonstrated sufficient urgency, the
Motion is denied.
Fleet owns the M/V LYNN. Rick Grey, an employee of Magnolia
Fleet, contends that on April 3, 2018, he slipped and fell in
the shower stall of the M/V LYNN where he was working as a
deckhand. He asserts that he sustained lower back injuries.
Magnolia Fleet alleges that following Grey's report of
injury, it immediately provided him with medical care from
Dr. Michael Zeringue, at which time Grey was diagnosed with
cervicalgia, pain in the thoracic spine, and given a
“no work” status. Grey later began treating with
Dr. James M. Dyess and continued to complain of neck pain
radiating into his left arm, left elbow, and left hand into
the left third and fourth fingers with pain, numbness, and
weakness. Grey also complained of bowel incontinence, ringing
in the ears, blurred vision, mild back pain, bilateral upper
shoulder pain, chest pain, low back pain radiating into the
right lateral leg, right ankle pain with numbness and
weakness, short-term memory loss, and headaches. Dr. Dyess
recommended Grey continue physiotherapy and consult a
neurosurgeon for his cervical and lumbar spine, an ENT for
the ringing in his ears, and a neurologist for memory loss
and blurred vision. An MRI with diagnostic imaging was
performed, and Dr. Dyess opined that it revealed a positive
L5-S1 disc herniation and a positive L4-5 disc bulge.
6, 2018, Grey underwent a “surgical consult” with
Dr. Donald Dietze in connection with neck and thoracic pain.
Dr. Dietze assessed Grey as suffering clinically isolated
syndrome of brainstem, post-concussion syndrome, concussion
without loss of consciousness, meningismus, pain in the
thoracic spine, acute bilateral low back pain with
right-sided sciatica, and thyroid mass. Dr. Dietze reported
that he was concerned Grey could have an intracranial
vascular malformation causing the alleged high-pitched sound
in his head with brainstem syndrome causing the alleged left
arm weakness and right leg weakness associated with abnormal
reflexes. Dr. Dietze recommended an MRI scan of the brain
with MR angiography.
Fleet asserts that it has acted reasonably and prudently in
providing Grey with maintenance and cure benefits under
protest. Following Dr. Dyess' recommendation that Grey
consult a neurosurgeon, neurologist, and an ENT, and his
opinion regarding the MRI, Magnolia Fleet requested that Grey
submit to an independent medical examination
(“IME”) with each neurologist Dr. Archie Melcher
and neurosurgeon Dr. Gabriel Tender. However, Grey refused to
undergo an IME. Grey has also refused to execute blank
medical and employment records authorizations. Thus, on
September 4, 2018, Magnolia Fleet filed the present lawsuit
“so that the necessary investigation/discovery can be
conducted, and the rights, obligations and liabilities of
Grey and Magnolia Fleet may be determined.” Magnolia
Fleet asserts it is entitled to declaratory relief to resolve
the controversy regarding Grey's right to maintenance and
cure benefits and whether it is entitled to an IME.
has not filed an answer to the complaint, but instead filed a
motion to dismiss on October 8, 2018. No. scheduling
conference has been set, nor has a trial date been selected.
October 9, 2018, Magnolia Fleet filed the present motion to
compel Grey to submit to the IMEs with Dr. Melcher and Dr.
Tender and to produce executed, blank medical and employment
authorization forms. It insists that an IME must occur prior
to any surgery to avoid the spoliation of evidence.
opposes. He insists that the motion is premature because no
scheduling conference has been set and no conference under
Federal Rule of Civil Procedure 26(f) has been held. Grey has
filed a motion to dismiss Magnolia Fleet's lawsuit as a
preemptive declaratory judgment action in this maritime
personal injury case. He points out that he has now filed
suit in Louisiana state court and notes that Magnolia Fleet
can raise the present issues there. He argues that the motion
to compel should not be decided until the motion to dismiss
is resolved to avoid having the same issues pending in
different courts with the associated risk of inconsistent and
conflicting rulings. At oral argument, counsel for Grey
represented that to his knowledge, no recommendation of
surgery has been made and Grey has not treated with a
neurologist or an ENT.
Timing of Discovery
Federal Rules of Civil Procedure contemplate that discovery
begin once the conference mandated by Rule 26(f) has been
conducted and that discovery proceed in any sequence. Fed. R.
Civ. Proc. 26(d) (“A party may not seek discovery from
any source before the parties have conferred as required by
Rule 26(f), except in a proceeding exempted from initial
disclosure under Rule 26(a)(1)(B), or when authorized by
these rules, by stipulation, or by court order.”).
Courts in this circuit typically use a “good
cause” standard when addressing the question of whether
to expedite discovery. See BKGTH Prods., LLC v. Does
1-20, No. CIV.A. 13-5310, 2013 WL 5507297, at *4 (E.D.
La. Sept. 30, 2013); St. Louis Grp., Inc. v. Metals &
Additives Corp., 275 F.R.D. 236, 240 (S.D. Tex. 2011).
“The good cause analysis takes into consideration such
factors as the breadth of the discovery requests, the purpose