Opinion
CIVIL ACTION No: 03-2679 SECTION: "J"(1).
September 21, 2004
HEARING ON MOTION
Submitted on briefs.
DEFENDANT'S MOTION FOR EXAMINATION ACCORDING TO FEDERAL RULE OF CIVIL PROCEDURE 35 (Rec. doc. 15)
GRANTED
Before the undersigned is the motion of the defendant, Blessey Marine Services, Inc. ("Blessey Marine"), for an order requiring the plaintiff, Dimas Escobar ("Escobar"), to undergo a functional capacity examination by Dr. Richard Bunch, a licensed physical therapist.
Escobar was injured on July 19, 2003, when he fell about ten feet from one barge to another barge. Rec. doc. 1. He was treated at a hospital in Joliet, Illinois. On August 27, 2003, Escobar was seen by Dr. Daniel Seltzer, an orthopedic surgeon, who recommended that he see other doctors. He found Escobar unfit for duty and told him not to return to work. Exhibit A to Escobar Opposition. On October 23, 2003, Dr. Bradley Bartholomew, a neurological surgeon, rendered a report. Exhibit B to Escobar Opposition. He recommended that Escobar undergo a course of physical therapy and that he return in six weeks. He reported that if Escobar's condition did not improve in six weeks, he might be a candidate for a two level anterior cervical fusion.Id. On December 28, 2003, Dr. Bartholomew recommended the fusion. Id.
On February 5, 2004, Dr. John Steck, a neurological surgeon, rendered a report at the request of Blessey Marine. Exhibit D to Escobar Opposition. He described Escobar's primary complaint as related to his neck. He concluded that Escobar would not benefit from an anterior cervical diskectomy and fusion. He recommended that Escobar be treated conservatively and opined that a neurosurgeon's care was not required. Id.
On July 6, 2004, Escobar was seen by Dr. Bartholomew in preparation for the surgery. Escobar reported that he continued to experience neck pain but that it was not constant. He was not taking any medication but he had restricted his activities. Escobar reported he did not want to proceed with surgery. Dr. Bartholomew agreed with this decision. He asked him to return in two months and told him to gradually increase his activities. Exhibit C to Blessey Marine reply. On July 21, 2004, he reported that Escobar could perform sedentary to light duty work. Exhibit C to Escobar Opposition.
On August 4, 2004, Dr. Bartholomew completed a functional limitations form, which described limitations on what Escobar could do during an eight hour work day. For example, Dr. Bartholomew reported he could stand for no more than four hours and he could occasionally lift up to twenty pounds. Exhibit B to Blessey Marine reply. There is no indication that Escobar was seen by Dr. Bartholomew after July 6, 2004. On August 5, 2004, Dr. Seltzer completed an identical form. In addition to other limitations, he reported Escobar could stand for no more than two hours and he could occasionally lift up to twenty pounds. Id. The completed forms were transmitted to Blessey Marine on August 9, 2004. Id.
On August 26, 2004, Dr. Steck stated that he believed any recommendations on Escobar's ability to return to work should be based on a functional capacity examination. Exhibit E to Escobar Opposition. On August 31, 2004, he prescribed such an examination. Exhibit F to Escobar Opposition. On September 13, 2004, Dr. Seltzer reported that while he was not opposed to the performance of such an examination, he did not think the timing was ideal. He reported that Escobar was not at maximum medical improvement and there was some risk of additional injury from the examination. Exhibit H to Escobar Opposition. There is no indication that Dr. Seltzer saw Escobar after August 27, 2003.
Blessey Marine contends that good cause for the functional capacity examination is present because it is entitled to investigate Escobar's ability to return to work in his previous capacity. Escobar replies that he has not undergone a functional capacity examination. The only experts he has identified are Drs. Bartholomew and Seltzer and a vocational rehabilitation counselor. He urges that he should not be required to undergo such an evaluation when Dr. Seltzer states it is potentially harmful.
Pursuant to Fed.R.Civ.P. 35, whenever the physical condition of a party is controversy the court may require the party to submit to a physical examination. 8A Wright, Miller and Marcus, Federal Practice and Procedure § 2231 (2d ed. 1994). Although the party moving for such an order must show good cause, a plaintiff in a negligence action who asserts physical injuries places the extent of the injuries in controversy and provides the defendant with good cause for an examination. Id. at § 2234.1.
Escobar contends that Fuller v. United States, 2002 WL 2877729 (E.D.La.) (Vance, J.), and Magee v. Pride Offshore, Inc., 2004 WL 224561 (E.D.La.) (Knowles, M.J.), require that Blessey Marine's motion be denied. In Fuller, the District Judge affirmed Magistrate Judge Wilkinson's finding that the government's motion to compel was incomplete, untimely and unnecessary. The government did not identify the person who was to conduct the exam. The motion was untimely because the discovery deadline would expire before the expert report could be completed and the plaintiff would have insufficient time to hire his own functional capacity expert. The motion was unnecessary because the plaintiff had not identified a functional capacity expert for the trial and the government's physician expert could rebut any evidence from the plaintiff's expert. In Magee, Magistrate Judge Knowles denied the motion and found the situation was substantially similar to that present in Fuller.
The instant action is factually dissimilar from Fuller andMagee. Until July 6, 2004, when Escobar declined to proceed with the surgery, the parties, based on Dr. Bartholomew's reports and recommendations, were proceeding on the assumption that he would undergo a two level anterior cervical fusion before the trial. After July 6, 2004, the complexion of the case changed markedly. Escobar belatedly supplemented his physicians' reports with the functional limitations reports. In order to respond to these new developments Blessey Marine is entitled to have its expert, Dr. Steck, opine on Escobar's work capabilities. Dr. Steck reports that a functional capacity examination is required before he can make that determination. Part of the purpose of Rule 35 is to place the parties on a level playing field when the physical or mental condition of a party is at issue. This can only be accomplished by allowing Blessey Marine to respond to the changed circumstances of the case. Notwithstanding the fact that Escobar has not identified a functional capacity expert, Blessey Marine has demonstrated good cause for a functional capacity examination.
Escobar did not transmit the completed functional limitations forms until August 9, 2004. Exhibit B to Blessey Marine reply. The pretrial order scheduling order required that the plaintiff deliver reports of experts by July 21, 2004. Rec. doc. 7.
Blessey Marine reports that the examination will be altered as needed to avoid any risk of injury to Escobar. By proceeding with the examination it bears any risk that Escobar will allege that his injuries were aggravated by the examination.
IT IS ORDERED that: (1) Blessey Marine's motion for an order requiring Escobar to appear for a functional capacity examination before Dr. Richard Bunch (Rec. doc. 15) is GRANTED; and (2) the examination will be conducted in sufficient time to permit Dr. Steck to render his final report before the settlement conference scheduled for October 13, 2004.