Opinion
Civil Action No. 01-3899, Section "L"(1)
June 17, 2002
ORDER REASONS
Before the Court is the motion of the defendant, Trent Kohnert, to review and vacate Magistrate Judge Shushan's Order dated March 6, 2002 compelling the defendant to submit to a myelogram prior to undergoing lumbar surgery. For reasons set forth below, the motion is DENIED.
I. Background
This declaratory judgment action arises from an alleged accident involving the defendant, Trent Kohnert, a Jones Act seaman, employed by, and working on a rig owned and operated by RB Falcon Drilling USA, Inc. ("Falcon"). Plaintiff Kohnert alleges that he sustained an injury to his lower back on November 6, 2000. On December 28, 2001, Falcon filed a motion before Magistrate Judge Shushan seeking to compel the defendant to undergo a myelogram and a CT-scan prior to undergoing any type of surgical procedure to his spine. In support of its motion, plaintiff argued that the radiographic tests performed thus far on the defendant (MRI and x-rays) failed to demonstrate any injuries to the defendant's lumbar area which might have resulted from a traumatic event. Defendant Kohnert opposed the motion to compel on the grounds that the myelogram was a high-risk, invasive procedure which could not be ordered under Federal Rule of Civil Procedure 35. Plaintiff argued, however, that because a discogram and lumbar fusion surgery — all of which had been recommended by defendant's physicians — carried at least as much risk as the myelogram, there would be no harm in ordering the myelogram.
In her January 22, 2002 Order, after reviewing the relevant legal standards, Magistrate Shushan denied the plaintiffs motion to compel finding that although Kohnert's physicians recommended that he undergo a discogram and as well as a lumbar fusion, Kohnert had not definitively decided whether he would accept their recommendations and undergo these procedures. Thus, according to Magistrate Shushan, Falcon had not shown good cause for the myelogram. However, Magistrate Shushan qualified her ruling as follows:
If Kohnert undergoes or has undergone a discogram and it is as invasive and carries as much risk as a myelogram, the undersigned will be inclined to order that Kohnert submit to a myelogram. Kohnert must advise Falcon within five (5) days that he has had a discogram. If Kohnert . . . agrees to undergo a lumbar fusion, the undersigned will order that Kohnert submit to a myelogram prior to such surgery.
Subsequent to the January 22, 2002 Order, defendant Kohnert accepted his physicians' recommendations and submitted to a discogram. Kohnert also notified Falcon of his intention to undergo the lumbar fusion. In light of these developments, and based on the Magistrate's January 22, 2002 Order, Falcon re-urged its motion to compel.
Finding that the risks associated with the lumbar surgery were at least as great if not substantially greater than those associated with the myelogram, Magistrate Shushan, in an Order dated March 6, 2002, granted the plaintiffs motion to compel the defendant to submit to a myelogram and a CT-scan prior to undergoing a lumbar fusion
II. Analysis
The standard by which a district court reviews discovery rulings by a magistrate judge is established by 28 U.S.C. § 636, which states that "[a] judge of the court may reconsider any pretrial matter . . . where it has been shown that the magistrate's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). The Fifth Circuit has stated that the statute specifically requires the district court to apply a "clearly erroneous" standard when reviewing a magistrate judge's ruling on a non-dispositive, pretrial motion such as a discovery motion. See Castillo v. Frank, 70 F.3d 382, 385-86 (5th Cir. 1995).
Rule 35(a) vests wide discretion in the trial court to determine whether to require a physical or mental examination of a party. Examinations under Rule 35 may be ordered "only on motion for good cause shown," and use of the rule to compel such examinations is not unfettered. "An order for the physical or mental examination of a party is not granted as of right. When the matter is contested it is addressed to the sound discretion of the trial court. Moreover, the requirements in the rule that the moving party show `good cause' and that the condition to be examined is `in controversy' . . . are plainly expressed limitations on the use of the rule rather than `a mere formality.'" 8A C. Wright, A. Miller R. Marcus, Federal Practice and Procedure § 2234.1 at 478-79 (citing Schlagenhauf v. Holder, 85 S.Ct. 234 (1964)). Invasive procedures that are medically approved have been allowed upon living persons by authority of Rule 35. See In re Certain Asbestos Cases, 112 F.R.D. 427 (N.D.Tex. 1986) (citing Klein v. Yellow Cab Co., 7 F.R.D. 169 (N.D.Ohio 1944) (cystoscopy and pylegrams) and Cardinal v. University of Rochester, 71 N.Y.S.2d 614 (App.N.Y. 1946) (Sup.Ct.Monroe Co. 1946), aff'd as mod., 271 A.D. 1048, 69 N.Y.S.2d 352 (4th Dept. 1947), followed at Special Term at 71 N.Y.S.2d 617 (Sup.Ct.Monroe Co. 1947) (bone marrow biopsy)).
The Court is not persuaded that the Magistrate Judge's decision to grant the motion to compel is clearly erroneous. It is clear from both the Order dated January 22, 2002 as well as the Order dated March 6, 2002, that the Magistrate Judge considered the appropriate legal standards and carefully balanced the interests of the parties against the risks and degree of physical invasion associated with the requested tests.
III. Conclusion
For the forgoing reasons, the Court will not disturb the March 6, 2002 order issued by Magistrate Judge Shushan in the present case.