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Magnolia Fleet, LLC v. Grey

United States District Court, E.D. Louisiana

October 30, 2018

MAGNOLIA FLEET, LLC
v.
RICK GREY

         SECTION: “B” (1)

          IVAN L. R. LEMELLE JUDGE

          ORDER AND REASONS

          JANIS VAN MEERVELD MAGISTRATE JUDGE

         Magnolia 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.

         Background

         Magnolia 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.

         On June 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.

         Magnolia 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.

         Grey 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.

         On 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.

         Grey 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.

         Law and Analysis

         1. Timing of Discovery

         The 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 for ...


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