Meche v. Maintenance Dredging, Inc. et al

Filing 44

ORDER granting in part and denying in part 31 Motion to Compel, Motion for Sanctions. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (car, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

FRANK MECHE

CIVIL ACTION

VERSUS

NO. 10-3653

MAINTENANCE DREDGING, INC. ET AL.

SECTION “G” (2)

ORDER ON MOTION
APPEARANCES: None (on the briefs)
MOTION:

Defendants’ Motion to Compel Independent Medical Examination and
for Sanctions, Record Doc. No. 31

O R D E R E D:
XXX : GRANTED IN PART (subject to the order contained herein) and DENIED IN
PART. The portion of the motion seeking an order requiring plaintiff to appear for a
medical examination is governed by Fed. R. Civ. P. 35(a), which provides in pertinent part:
(1) The court where the action is pending may order a party whose
mental or physical condition . . . is in controversy to submit to a physical or
mental examination by a suitably licensed or certified examiner. . . .
(2) The order: (A) may be made only on motion for good cause . . . ;
and (B) must specify the time, place, manner, conditions, and scope of the
examination, as well as the person or persons who will perform it.
Fed. R. Civ. P. 35(a)(1), (2).
This is a personal injury case in which the nature, scope and circumstances of
plaintiff’s orthopedic condition are in dispute. Under these circumstances, good cause to
support a Rule 35 examination and order is established. In fact, plaintiff’s opposition
memorandum is clear that plaintiff does not dispute that good cause exists for a Rule 35
orthopedic examination. His only opposition to the motion is that it should not be
conducted by the doctor selected by defendant, Dr. Christopher Cenac, Sr. of Houma. As
plaintiff points out, Dr. Cenac’s impartiality has recently been questioned by the Fifth
Circuit in a separate case in which none of the present parties or counsel were involved.
Turner v. Pleasant, 663 F.3d 770, 773-77 (5th Cir. 2011). Although the findings cited by
plaintiff may provide grounds on which plaintiff may later argue for the exclusion of Dr.
Cenac’s testimony at trial or, alternatively, attack Dr. Cenac’s credibility and the weight,
if any, to be given to his opinions at trial, for discovery purposes Rule 35 requires only that
the examiner be “suitably licensed or certified.” At this time, Dr. Cenac remains a suitably

licensed examiner in the appropriate field of orthopedics. If defendant selects Dr. Cenac
as its Rule 35 examiner, despite the trial risks to defendant that his selection poses, Rule
35 poses no prohibition against defendant’s selection.
Accordingly, the motion is granted in part in that plaintiff must appear for a standard
non-invasive orthopedic examination, all reasonable expenses to be paid by defendant. IT
IS ORDERED that defense counsel must inform his client of the Fifth Circuit decision in
Turner, and advise the court in writing, no later than March 2, 2012 with a copy to
plaintiff’s counsel, whether defendant selects Dr. Cenac as the examiner or whether it has
selected some other suitably licensed orthopedist to conduct the examination. In either
event, counsel must also confer as soon as possible after defendant’s final decision as to
the examiner, either by telephone or in person, and arrive at a mutually convenient date and
time for the examination to be conducted, and provide the court no later than March 2,
2012 with all information necessary to issue an amended order pursuant to Fed. R. Civ. P.
35(a)(2)(B) concerning this examination.
The motion is DENIED insofar as it seeks an order that plaintiff pay sanctions of
any kind at this time. There is no factual or legal basis for such an award. Fed. R. Civ.
P. 37(a)(3)(B) and (5) authorizing awards of fees or other costs in connection with
motions to compel do not apply to motions under Fed. R. Civ. P. 35 for obvious reasons.
A party who seeks to invoke the court’s authority, including its sanction power,
concerning physical or mental examinations, unlike other discovery, must first obtain a
court order. Fed. R. Civ. P. 35(a), 37(a)(3)(B) and (b)(2) (A). Specifically, in connection
with Rule 35 examinations, sanctions may be awarded only if a party fails to appear for
the exam after the required court order for such exams has been violated. Fed. R. Civ.
P. 37(b)(2)(A). No court order for such an examination has previously been issued in
this case. Imposition of sanctions is unwarranted.
New Orleans, Louisiana, this

23rd

day of February, 2012.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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