Opinion
Civil Action No: 02-0233 Section: "B" (4)
September 3, 2002
ORDER and REASONS
On July 9, 2002, the defendant, Kim Susan, Inc. ("KSI"), filed a Motion to Compel Functional Capacity Evaluation (doc. #10) seeking an order compelling the plaintiff, John P. Myers, to appear and submit to a Functional Capacity Evaluation before Richard Bunch, Ph.D., P.T., at the Industrial Safety Rehabilitation Institute in New Orleans, Louisiana. The plaintiff opposes the motion.
I. Background
The plaintiff filed this personal injury suit against Kim Susan, Inc. ("KSI") pursuant to the Jones Act and general maritime law. The plaintiff, who was employed by KSI as an oiler, worked aboard the M/V KRISTIN FAGAN. He alleges that on November 2, 2001, while aboard the vessel, he was hit by a rope and sustained permanent and disabling injuries to his body. He claims that the negligence of KSL and the unseaworthiness of its vessel and crew caused him to lose the abilities needed to perform his duties as a seaman.
As a result of his alleged injury, the plaintiff began treatment with an orthopedist, Dr. Charlton Barnes, who recommended that the plaintiff undergo a Functional Capacity Evaluation ("FCE"). Thereafter, KSI requested that the plaintiff voluntarily submit to a FCE before Dr. Richard Bunch on June 5, 2002. However, the plaintiff refused to comply.
KSI thereafter scheduled a second FCE before Dr. Bunch for July 2, 2002. One day prior to the scheduled FCE, the plaintiff informed KSI that he would not be appearing because he was opposed to submitting to an FCE by KSPs evaluator. The plaintiff contended, however, that he would submit to an FCE by Dr. John Egbert, a physician to which he was referred by Dr. Barnes and from whom he had received months of physical therapy.
KSI subsequently filed the instant motion pursuant to Rule 35(a) of the Federal Rules of Civil Procedure contending that the plaintiff should be compelled to submit to an FCE because by alleging that he is disabled, the plaintiff has placed his ability to perform seaman's work "in controversy." KSI also contends that because it is entitled to determine the nature and extent of the plaintiffs alleged disability and lack of function, "good cause" exists to compel the plaintiff to submit to an FCE.
The plaintiff opposes the motion contending that KSI has not satisfied the good cause requirement of Rule 35. He contends that he lives in Gautier, Mississippi and has undergone physical therapy in Mississippi with Dr. John Egbert. He claims that because he has undergone FCE's with Dr. Egbert in the past, he has confidence in Dr. Egbert. He also claims that he has a right to have an FCE performed by the office of his treating therapist. Thus, he contends that he will submit to an FCE with Dr. Egbert but should not be required to travel to New Orleans, Louisiana to satisfy the defendant's litigation needs.
II. Analysis
A. Rule 35
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).
The party seeking an examination has the burden to show that the examinee's condition is in controversy and that good cause exists for the examination. Schiagenhauf v. Holder, 379 U.S. 104, 118-19 (1964). "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. A plaintiff in a negligence action who asserts mental or physical injury places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury. Id. at 119.
Here, the Court finds that KSI has shown good cause for an order requiring the plaintiff to submit to an FCE. The plaintiff has clearly placed his physical condition in controversy by (1) alleging loss of function needed to perform the skills of a seaman, (2) alleging to have sustained serious permanent and disabling injuries due to the negligence of KSI, and (3) alleging damages consisting of excruciating, painful and disabling injuries; and past, present and future medical treatment.
In addition to meeting the good cause requirement of Schlagenhauf, there are other indicia of good cause present in this case. For instance, the plaintiff's treating physician, Dr. Charlton Barnes, indicated that an FCE is required to determine the plaintiff's capabilities. Also, Dr. Lee Moss, KSI's physician, noted that an FCE was indicated and found that the plaintiff has reached maximum medical benefit and surgery is not required. On the other hand, Dr. John McCloskey has indicated that the plaintiff is not at maximum medical improvement and recommended the plaintiff for surgery. Thus, there are disputes as to the plaintiff's functional capacity and whether the plaintiff has reached maximum medical improvement. Therefore, KSI has met the burden of showing that there is good cause for an FCE.
Dr. Barnes referred the plaintiff to Dr. McCloskey at the plaintiff's request. See Rec Doc. #16, KSI's Supplemental Memorandum, Exhibit 1, Depo. of Dr. Charlton Barnes, p. 24.
Counsel for the plaintiff indicates that it is his experience that FCE's are not performed until maximum medical improvement is obtained. This is not necessarily so. See Cooley v. Omega Protein, Inc., 2002 U.S. Dist. LEXIS 8326 (E.D.La. 2002) (FCE performed prior to plaintiff having reached maximum medical benefit); Williams v. American River Transportation Company, 1996 WL 537722 (E.D.La. 1996) (same).
The Court notes that the plaintiff has cited In the Matter of Falcon Workover Co., Inc., 186 F.R.D. 352 (E.D.La. 1999), for the proposition that KSI has not satisfied the "good cause" requirement. However, that opinion does not provide the Court with sufficient factual information to determine whether that case is analogous.
The plaintiff contends, however, that there should be a heightened "good cause" requirement in cases where the defendant seeks to compel the plaintiff to submit to a FCE. The Court, however, disagrees. The plaintiff cites no authority, and the Court is not aware of any authority, that would support this proposition. Rule 35 provides that upon a showing of good cause, the Court may order a plaintiff to submit to an examination by physicians, psychologists, vocational rehabilitation experts, and "other certified or licensed professionals, such as dentists or occupational therapists, who are not physicians or clinical psychologists, but who may be well-qualified to give valuable testimony about the physical or mental condition that is the subject of dispute." Olcott v. LaFiandra, 793 F. Supp. 487, 492 (D.Vt. 1992) (citing Fed.R.Civ.P. 35 advisory committee's notes).
The Court in Olcott ultimately held that a suitably licensed or certified examiner under Rule 35 includes a vocational expert. Olcott v. LaFiandra, 793 F. Supp. 487, 492 (D.Vt. 1992). The plaintiff here contends that the standard for good cause is higher for an FCE than that of a vocational rehabilitation examination. The Court does not agree, particularly where, as here, the plaintiff places functional capacity in issue and the plaintiff's treating physician has requested that a FCE be performed.
Here, there is no dispute as to whether Dr. Bunch qualifies as a "certified or licensed professional." Further, as the plaintiff has alleged that he has lost the function needed to perform his duties as a seaman and the plaintiff's treating doctor has indicated that an FCE is needed to determine the plaintiff's capabilities, Dr. Bunch's FCE will certainly provide "valuable testimony" about the physical condition that is the subject of dispute. Thus, the Court finds that KSI has met the burden of showing that the plaintiff has placed his mental state in controversy and, furthermore, that there is good cause for an FCE.
Although the plaintiff has not objected to the number of examinations conducted by KSI, the Court notes that Rule 35 does not limit the number of examinations and the number of examinations to which a party may be subjected depends solely upon the circumstances underlying the request. Jackson v. Entergy Operations, Inc., 1998 WL 28272 (E.D.La. 1998).
C. Inconvenience
The plaintiff contends that he should be allowed to undergo an FCE by a doctor of his choosing. He contends that because he has been treating with Dr. John Egbert in Mississippi, he would prefer to undergo an FCE by Dr. Egbert. He contends further that he should not be required to travel to New Orleans to undergo an FCE by Dr. Bunch, the doctor of the defendant's choosing.
Although it is indeed true that the defendant does not have an absolute right to choose the doctor who will perform the Rule 35 examination, cases have held that absent a "valid objection" to the physician the defendant chooses, the defendant's choice is to be respected. Powell v. United States, 149 F.R.D. 122, 124 (E.D.Va. 1993); Looney v. National Railroad Passenger Corp., 142 F.R.D. 264, 265 (D.Mass. 1992). The "valid objection" requirement provides defendants with the same opportunity as plaintiff's in choosing an expert witness. Defendants have absolutely no say in determining which physician a plaintiff chooses as a treating physician or an expert witness; likewise, a plaintiff should be limited in his ability to object to the selection of the defendant's treating physician's and expert witnesses. Powell, 149 F.R.D. at 124.
Objections, however, are often determined to be valid where the defendant's choice requires the plaintiff to travel a great distance to be examined by the defendant's doctor. Rainey v. Wal-Mart Stores, Inc., 139 F.R.D. 94 (W.D.La. 1991) (holding no basis shown for requiring the plaintiff to travel 270 miles from Jena, Louisiana to New Orleans, Louisiana for physical examination); See Looney, 142 F.R.D. at 265-66.
Nonetheless, most Courts have ordered a plaintiff to appear for examination at the place where the trial would be held, that is, at the venue initially selected by the plaintiff, even if the plaintiff resides in another district. This rule makes it more likely that the examining physician will not be inconvenienced and will be available to provide testimony. Bennett v. White Laboratories, 841 F. Supp. 1155, 1159 (M.D.Fla. 1993) (stating that a plaintiff may be required to submit to an examination within the district where the action is pending, even if he or she resides in another district); Costanza v. Monty, 50 F.R.D. 75 (E.D.Wis. 1970) (ordering plaintiff who filed suit in the Eastern District of Wisconsin, but subsequently moved to Nevada, to return to Nevada for physical examination despite claim that he was physically and financially unable to do so); Baird v. Quality, 47 F.R.D. 212, 213 (E.D.La. 1969) (ordering Oklahoma resident who filed suit in New Orleans, Louisiana to appear in New Orleans for examination); Pierce v. Brovig, 16 F.R.D. 569, 570 (S.D.N.Y. 1954) (ordering plaintiff who filed suit in New York but was resident of Georgia, to return to New York for physical examination).
Therefore, the plaintiff is to submit to an FCE by Dr. Richard Bunch in New Orleans, Louisiana no later than September 20, 2002 at a time mutually agreed upon by the parties.
The Court notes that KSI has scheduled the plaintiff's examination with Dr. Bunch for September 4, 2002, however, given that this Order is being rendered less than one week prior to that date, the plaintiff will not have sufficient notice of the September 4, 2002 examination date.
Accordingly,
IT IS THEREFORE ORDERED that the Motion to Compel Functional Capacity Evaluation (doc. #10) is GRANTED.