Opinion
CIVIL ACTION NO: 03-2886 SECTION: "E"(1)
March 10, 2004
HEARING ON MOTION
MOTION: DEFENDANTS' MOTION TO COMPEL PLAINTIFF TO SUBMIT TO PHYSICAL EXAMINATION (Rec. doc. 11)
GRANTED IN PART AND DENIED IN PART
Before the undersigned is the motion of the defendants, Venture Transport, Inc., ASCO USA, L.L.C., Lincoln General Insurance Company, Barbara M. Faulk and James W. Whitmire, to compel one of the plaintiffs, Matthew Chaney ("Chancy"), to submit to a medical examination by Dr. J. Monroe Laborde on February 17, 2004. For the reasons described below Chaney is ordered to submit to a medical examination by Dr. Laborde at a time that is mutually convenient to the parties and Dr. Laborde. The defendants' description of the scope of the examination was sufficient. The parties' requests for sanctions are denied.
Chaney alleges that he sustained injuries, when his vehicle was rear-ended. Rec. doc. 1. He contends that these injuries include herniated cervical and lumbar discs. He obtained treatment from Dr. Morteza Shamsnia, a neurologist, and Dr. Bradley Bartholomew, a neurosurgeon. Chaney contends that because of his injuries he is unable to return to work as a construction laborer. Fed.R.Civ.P. 35(a) states:
Order for Examination. When the mental or physical condition (including the blood group) of a party or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.Id. Although the party moving for such an order must show good cause, a plaintiff in a negligence action who asserts physical injuries places the physical injuries in controversy and provides the defendant with good cause for an examination. 8A Wright, Miller and Marcus, Federal Practice and Procedure § 2234.1 (2d ed. 1994).
Chaney does not dispute the defendants' right to have him submit to a medical examination. Instead he contends that he should not be required to submit to an examination by Dr. Laborde, because he is biased. Chaney argues that Dr. Laborde's bias is sufficient to render his testimony inadmissible under Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 941 (1993). The usual approach is that the moving party has no absolute right to the choice of the physician, but that when no serious objection arises, it is probably best to appoint the doctor of the moving party's choice. 8A Wright, Miller and Marcus, Federal Practice and Procedure § 2234.2 (2d ed. 1994).
Chaney's evidence of bias on the part of Doctor Laborde has been carefully reviewed. The undersigned finds that it is not sufficient to warrant denying the defendants' request that Chaney be examined by Dr. Laborde. This finding is predicated on the fact that the defendants should be accorded some deference in the choice of their physician; just as Chaney was free to select his own physician. The finding is not intended to pre-judge Chaney's arguments under Daubert or determine what Chaney may demonstrate through cross-examination of Dr. Laborde at trial.
IT IS ORDERED that defendants' motion to compel plaintiff to submit to physical examination (Rec. doc. 11) is GRANTED in PART and DENIED in PART in accord with the terms of this minute entry.