Vizier v. Crescent Marine Towing, Inc.

Filing 29

ORDER AND REASONS denying 24 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Signed by Chief Judge Sarah S. Vance on 2/18/15. (NEF: Mag 1) (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALLEN VIZIER, SR.

CIVIL ACTION

VERSUS

NO: 13-6472

CRESCENT MARINE TOWING, INC.

SECTION: R(1)

ORDER AND REASONS
Before the Court is plaintiff, Allen Vizier's, motion for
appeal and limited review of Magistrate Judge Shushan's order
granting defendant, Omni Marine Transportation's,1 motion for a
medical

examination.2

The

Court

denies

the

motion

because

plaintiff has failed to show that Magistrate Judge Shushan's order
was clearly erroneous or contrary to law.

I. BACKGROUND
Plaintiff brought this suit under the Jones Act, 46 U.S.C.
App. § 688, alleging that he was injured while working on the
defendant's vessel.3

Plaintiff was initially treated by Dr. Ralph

Katz, an orthopedic surgeon, who performed a cervical fushion.
After the surgery, plaintiff continued to complain of shoulder pain
1

Plaintiff filed an amended complaint replacing defendant
Crescent Marine Towing with Omni Marine Transportation. R. Doc.
10.
2

R. Doc. 24.

3

R. Doc. 10.

and an inability to move his left arm.
Sledge, another orthopedic surgeon.

Plaintiff then saw Dr. John

Dr. Sledge referred plaintiff

to a neurologist, Dr. James Dominique, who administered EMG and
nerve conduction studies.

After reviewing the studies, Dr. Sledge

recommended a "complete neurological evaluation and followup."4
On November 4, 2014, defendant filed a motion to compel an
independent medical examination (IME) by Dr. Everett Robert, a
neurosurgeon.5

Plaintiff opposed the motion on the grounds that

defendant was not entitled to an IME and, even if it was, that an
IME by a neurosurgeon was inappropriate.6
motion

to

Magistrate

Judge

Shushan.

The Court referred the
On

November

21,

2014,

Magistrate Judge Shushan granted the motion and ordered plaintiff
to submit to an IME with Dr. Robert.7

Plaintiff now seeks a

limited review of Magistrate Judge Shushan's order "to the extent
that it ordered an examination by a neurosurgeon."8

II. STANDARD OF REVIEW
A magistrate judge's ruling on a non-dispositive civil motion
may be appealed to the district court.

4

R. Doc. 25-1 at 3.

5

R. Doc. 17.

6

R. Doc. 18 at 1.

7

R. Doc. 23.

8

R. Doc. 24-1 at 1.
2

Fed. R. Civ. P. 72(a).

When a timely objection is raised, the district judge must review
the magistrate's ruling and "modify or set aside any part of the
order that is clearly erroneous or contrary to law."

Id.

Under

this highly deferential standard, a magistrate judge's ruling
"should not be rejected merely because the court would have decided
the matter differently."

Ordemann v. Unidentified Party, CIV. A.

No. 06-4796, 2008 WL 695253, at *1 (E.D. La. Mar. 12, 2008)
(internal quotations omitted).

Instead, the decision must be

affirmed unless "on the entire record [the court] is left with a
definite and firm conviction that a mistake has been committed."
United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948).

III. DISCUSSION
After reviewing the applicable law, the magistrate judge's
order, and the parties' arguments, the Court finds no error in
Magistrate Judge Shushan's order.

Federal Rule of Civil Procedure

35 allows a party to seek an independent medical examination when
a party's physical or mental health is at issue in the case and
there is "good cause" for the exam.

The Supreme Court has

recognized that "[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

3

asserted injury."
(1964).

Schlagenhauf v. Holder, 379 U.S. 104, 119

Plaintiff, however, does not object to Magistrate Judge

Shushan's finding that plaintiff's physical health is at issue or
her finding of good cause. Instead, plaintiff objects to the order
to the extent that it requires an independent medical examination
by a doctor of a particular specialty, namely a neurosurgeon.9
Rule 35 does not provide any limitation on the practice area
or specialty of the physician performing the independent medical
examination. Instead, Rule 35 merely requires that the examination
be conducted by a "suitably licensed or certified examiner."
R. Civ. P. 35.
previously

Fed.

Courts in the Eastern District of Louisiana have

recognized

that

"both

orthopedic

surgeons

and

neurosurgeons" treat injuries similar to plaintiff's, and the Court
finds no reason to reach a different conclusion here.

Y & S

Marine, Inc. v. Maza, CIV. A. No. 11-1425, 2011 WL 4807706, at *4
(E.D. La. Oct. 11, 2011).

Plaintiff has not provided the Court

with any contrary authority and has not demonstrated that an
examination by a neurosurgeon would be unreasonable here.
plaintiff's
plaintiff
followup."10

chosen
undergo

physician,
a

Dr.

"complete

Plaintiff

has

thus

9

Sledge,

neurological
failed

to

Indeed,

recommended
evaluation
demonstrate

that
and
that

R. Doc. 24-1 at 1 ("Plaintiff now seeks a limited review
of the Magistrate's Order to the extent it ordered an examination
by a neurosurgeon.") (emphasis in original).
10

R. Doc. 25-1 at 3.
4

Magistrate Judge Shushan's order is clearly erroneous or contrary
to law. Fed. R. Civ. P. 72(a). Accordingly, plaintiff's motion is
DENIED.

IV.

CONCLUSION
For the foregoing reasons, plaintiff's motion for appeal and

limited review of Magistrate Judge Shushan order is DENIED.

New Orleans, Louisiana, this _______ day of February, 2015.
18th
______________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

5