Decena v. American International Companies AIG et al

Filing 125

ORDERED that Plaintiff's 124 Motion for Leave to Appeal is DENIED. Signed by Judge Carl Barbier. (gec, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

RAFEAL DECENA

CIVIL ACTION

VERSUS

NO: 11-1574

AMERICAN INTERNATIONAL
COMPANIES (AIG), ET AL

SECTION: J(5)

ORDER
Before the Court is Plaintiff Rafael Decena’s Motion for
Leave to Appeal (Rec. Doc. 124).

In the motion, Plaintiff seeks

leave to take an interlocutory appeal of this Court’s order
denying his motion for review of the magistrate judge’s ruling,
which, in turn, denied his motion to compel the deposition of Dr.
Avanelle Jack (Rec. Doc. 106).

Upon review of the record, the

motion, and the applicable law, the Court now concludes that the
Plaintiff’s motion should be DENIED.
BACKGROUND FACTS
This civil action arises out of the denial of a claim for
benefits under a truckers occupational accident insurance policy,
through which Plaintiff Rafael Decena maintained accident and
health insurance.

Plaintiff’s Complaint alleges that Defendants

American International Companies AIG, Chartis Specialty Insurance
Company, and National Union Fire Insurance Company of Pittsburgh,
PA (collectively, “Defendants”) were the insurers under the

policy, and that they improperly and in bad faith denied his
claim.
While the case was pending, the Court ordered Plaintiff to
submit to an independent medical examination (“IME”), to be
conducted by Defendants’ designated expert, Dr. Jack, on March
13, 2012.1

During the IME, Plaintiff reportedly experienced

kidney failure, prompting Dr. Jack to prescribe emergency
dialysis treatment.

Subsequently, on April 17, 2012, Defendants

notified Plaintiff’s counsel that Dr. Jack would no longer be
testifying as an expert and would instead be retained solely as a
non-testifying, consulting expert.

Accordingly, they informed

Plaintiff’s counsel that Dr. Jack would not be produced for
deposition and would not prepare an expert report.

On April 20,

2012, Plaintiff filed a Motion to Compel the Deposition of Dr.
Jack and for Sanctions.2

In the motion, Plaintiff argued that

the re-designation of Dr. Jack as a non-testifying expert does
not preclude him from deposing her as a testifying expert under
FED. R. CIV. P. 26(b)(4)(A).
On April 30, 2012, the Magistrate Judge denied Plaintiff’s
motion, in part, stating:
The deposition of Dr. Jack shall go forward on May 2,
2012, limited to what she observed during the IME that
was performed on March 13th and the reasons she ordered
treatment for plaintiff. To the extent that Dr. Jack
requested plaintiff’s medical history during the course
1

Rec. Doc. 21.

2

Rec. Doc. 73.

of the IME, she should be prepared to testify to that
as well. Because Dr. Jack will not be testifying as an
expert for the defendants, there is no reason to go
into any report she may have previously issued for that
purpose. Nor shall she be questioned on issues of
causation.3
Plaintiff immediately filed a motion seeking an order from
this Court overturning the magistrate’s order and compelling
Defendants to produce Dr. Jack for an unrestricted deposition.
Plaintiff also requested that the motion be heard on an expedited
basis because Dr. Jack’s deposition is scheduled for May 2, 2012,
two days after the magistrate’s ruling was issued.4

On May 2,

2012, the Court denied Plaintiff’s motion for review of the
magistrate’s order.5

The instant motion followed.
DISCUSSION

Pursuant to 28 U.S.C. § 1292(b), a district court may
certify an order for discretionary interlocutory appeal if the
moving party demonstrates that the matter involves (1) a
controlling question of law, (2) as to which there is substantial
ground for difference of opinion, and (3) an immediate appeal
from the order may materially advance the ultimate termination of
the litigation.

See Breeden v. Transocean Offshore Ventures, No.

00-2561, 2001 WL 125343, at *1 (E.D. La. Feb. 14, 2001) (citing
McAuslin v. Grinnell Corp., 2000 WL 1251966 (E.D. La. Sept. 5,
3

Rec. Doc. 97.

4

See Rec. Doc. 99.

5

See Rec. Doc. 106.

2000)).

It should be noted, however, that an interlocutory

appeal is “exceptional” and “assuredly does not lie simply to
determine the correctness of a judgment.”

Clark-Dietz &

Assocs.-Eng’rs, Inc. v. Basic Constr. Co., 702 F.2d 67, 68-69
(5th Cir. 1983).
Here, Plaintiff fails to show how this Court’s order
refusing to overturn the magistrate’s ruling on his discovery
motion involves a controlling question of law.

A question of law

is controlling if reversal would terminate the litigation.
Breeden, 2001 WL 125343, at *1 (citing McAuslin, 2000 WL 1251966,
at *2).

As several courts have recognized, pretrial discovery

orders will seldom meet the requirements for interlocutory
appeal.

See, e.g., Hyde Constr. Co. v. Koehring Co., 455 F.2d

337, 338-39 (5th Cir. 1972) (noting that it is a “rare case where
the issue presented in the context of discovery . . . involves a
controlling question of law and where an immediate appeal may
materially advance the ultimate termination of the litigation”);
Union Pac. R.R. Co. v. ConAgra Poultry Co., 189 F. App’x. 576, at
*3 (8th Cir. 2006) (“Pretrial discovery orders are almost never
immediately appealable.”); White v. Nix, 43 F.3d 374, 377-78 (8th
Cir. 1994) (noting that “the discretionary resolution of
discovery issues precludes the requisite controlling question of
law” requirement).

Here, if this Court’s judgment on Plaintiff’s

discovery motion were to be reversed, it would not terminate this
litigation.

The Court would still be required to resolve the

merits of Plaintiff’s claims, either at trial or through a
dispositive pretrial motion.

Moreover, for substantially the

same reasons, an immediate appeal from the Court’s prior ruling
would also fail to materially advance the ultimate termination of
this litigation, as required by 28 U.S.C. § 1292(b).

As such,

IT IS ORDERED that the Plaintiff’s Motion for Leave to
Appeal (Rec. Doc. 124) is DENIED.
New Orleans, Louisiana this 9th day of May, 2012.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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