Opinion
CIVIL ACTION NO: 02-0711 SECTION: "I" (4)
April 22, 2004
MINUTE ENTRY
On March 24, 2004, defendant, The Meridian Resource Exploration Company, L.L.C. ("Meridian"), filed a Motion to Order Independent Medical Examination of Plaintiff (doc. #121), seeking an order compelling the plaintiff, Burton Gaubert ("Gaubert") to undergo an examination with Dr. Frank Divincenti, a burn specialist. The plaintiffs oppose the motion, contending that the defendant has not shown good cause for the examination. A hearing on the motion was held on April 21, 2004.
During the hearing, Meridian argued that that it is entitled to the examination because Gaubert has been released from his primary treating physician, but contends he is unable to return to work. Further, Meridian contends that it seeks the examination so that Gaubert's current medical condition can be evaluated. Finally, Meridian urges that it has been actively searching for a burn specialist but was unable to locate one until they found Dr. DiVencenti.
Gaubert argued that Meridian filed no expert report by any physician nor requested a medical examination prior to the deadline for submitting expert reports. Gaubert further contended that Meridian has fails to show good cause for the evaluation because Gaubert's condition is relatively clear cut and there is no question about the extent and degree of the burns and disabilities that they place upon Gaubert's future activities.
I. Background
This suit arises out of a claim filed by the plaintiff for injuries he sustained as a result of a fire that took place at Southwest Lake Boeuf ("SWLB"), a natural gas facility, on September 10, 2001. At the time of the fire, Gaubert was working for Claude Seago Associates at the SWLB. Gaubert sustained severe burns over approximately 31% of his body in the fire. Allegedly, the cause of the explosion and resulting fire was severe corrosion of a gas processing line which had been put in the ground in 1995 by Meridian. The line was put in the ground with no coating or tape to prevent corrosion, and Gaubert contends that there is supporting evidence that the line was the improper grade of pipe.
Subsequent to the fire, Gaubert underwent medical treatment and thereafter was cleared by his primary treating physician. Gaubert, however, contends that due to his injuries, he is unable to go back to work. Meridian requested that the plaintiff undergo a medical examination with burn specialist Dr. DiVencenti on April 1, 2004. On March 16, 2004, Gaubert informed Meridian that he would not consent to a medical examination. Thereafter, Meridian filed this motion seeking to compel Gaubert to submit to the examination.
See Rec. Doc. No. 121, Motion to Order Independent Medical Examination of Plaintiff, Exhibit 2, Letter dated March 16, 2004.
II. Legal Analysis and Recommendation
Rule 35(a) of the Federal Rules of Civil Procedure provides: [w]hen the mental or physical condition . . . 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. . . . The order may be made only on motion for good cause shown. . . . Fed.R.Civ.P. 35(a). Thus, there is a two-part test for determining whether the motion will be granted. First, the physical or mental state of the party must be in controversy. Second, the moving party must show good cause as to why the motion should be granted. Schlagenhauf v. Holder, 379 U.S. 104 (1964).
In the instant case, there is no dispute as to whether the "in controversy" requirement has been met. The issue here is whether "good cause" exists. "Good cause" requires a showing of specific facts that demonstrate the need for the information sought and lack of means for obtaining it elsewhere. Id at 118. The party seeking an examination has the burden to show that the examinee's condition is in controversy and that good cause exists for each particular examination. Id at 118-19. However, Rule 35 does not limit the number of examinations. Jackson v. Entergy Operations, Inc., 1998 WL 28272 (E.D.La. 1998); Moore v. Calavar Corp., 142 F.R.D. 134, 135 (W.D.La.1992).
Although Rule 35 permits more than one examination, its use should not give rise to an appearance that any party is being permitted by the Court to shop for examiners in the same field of expertise until the most favorable one is located. Thus, where "the moving party has already made an examination in the past, . . the court will require a stronger showing of necessity before it will order repeated examinations. Case v. JFP Offshore, Inc., 1996 WL 210720 (E.D.La. 1996). However, if permanent injuries are claimed, most courts will, on request, allow an additional examination before the trial." Id. (citing 8A C. Wright, A. Miller R. Marcus, Federal Practice and Procedure § 2234 at 475). In addition, while deference is generally given to the moving party's choice of a proposed examiner, "certainly the power of ultimate choice must be in the court." Id.
In the instant case, Meridian submits that it is entitled to the examination essentially because it has not had one, and it wishes to assess Gaubert's current medical condition. Further, Meridian contends that because Gaubert's treating physician, Dr. Patin, testified in deposition that Gaubert's injuries were disabling, Meridian should be able to test that opinion. However, the deposition of Dr. Patin took place in December of 2003 and Meridian did not request the independent examination until March of 2004.
When questioned by the Court as to how Meridian went about securing a physician to conduct a medical examination, Meridian indicated that it had sought out one doctor at a time and did not realize there would be trouble locating an available doctor. The Court finds that there is no excuse for this delay, as Meridian should have been put on notice of the need for an independent medical examination upon the filing of Gaubert's complaint. If not then, Meridian was certainly put on notice during the December 2003 deposition of Dr. Patin. Therefore, Meridian fails to demonstrate good cause for this Court to order the examination where the deadline for submitting expert reports has expired and trial in this matter is scheduled to go forward in June.
Accordingly,
IT IS ORDERED that the Motion to Order Independent Medical Examination of Plaintiff (doc. #121) is DENIED.
To obtain a transcript of the proceedings for the Court's findings, the parties should contact Gaynell Banta, Court Recorder Supervisor, at 589-7720.