Guidry v. Noble Drilling Services, Inc. et al
Filing
120
ORDER AND REASONS denying 102 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Signed by Judge Martin L.C. Feldman on 5/29/2018. (clc)
EASTERN DISTRICT OF LOUISIANA
GLEN GUIDRY
CIVIL ACTION
V.
NO. 16-4135
NOBLE DRILLING SERVICES INC,
NOBLE DRILLING EXPLORATION
COMPANY AND NOBLE DRILLING
(U.S. LLC)
SECTION "F"
ORDER AND REASONS
Before the Court is the defendants’ motion for review of the
Magistrate
plaintiff’s
Judge’s
order
functional
denying
capacity
their
motion
evaluation.
For
to
compel
the
the
following
reasons, the motion is DENIED.
Background
Glen Guidry was employed as a field service representative by
VAM USA, LLC, a subcontractor of Shell. VAM performed casing
operations aboard the Noble Bully 1, a drill ship located in the
Gulf of Mexico, which was owned by Noble Drilling Services. The
drilling operation involved lowering a casing, a large-diameter
pipe, into the ocean floor. The casing is made up of casing joints,
or long steel pipes, which are attached with threads on each end
that join them together. 1 Guidry would walk from his computer to
the drill floor where he would wipe off the threads of the casing
1
Casing Joint, Oilfield Glossary, SCHLUMBERGER, http://www.glossary.
oilfield.slb.com/Terms/c/casing_joint.aspx (last visited April 3,
2018).
1
joint and inspect the joint for abnormalities before the crew
assembled it. As the driller operator ran the casing pipe down
into the ocean floor, oily mud would overflow from the casing and
accumulate at the base of the drilling floor.
On the early morning of May 11, 2015, Guidry was inspecting
the joint casing while standing upon the drilling floor, which was
covered in mud. Guidry slipped and allegedly sustained injuries to
his back, ligaments, muscles, and nervous system. On May 4, 2016,
he sued Noble Drilling Services, Inc, Noble Drilling Exploration
Company, and Noble Drilling (U.S.), LLC, claiming that he was
injured as a result of their negligence and seeking relief under
general maritime law and the Longshoremen’s and Harbor Workers’
Compensation Act. It is undisputed that Guidry is not a Jones Act
seaman.
Guidry underwent a six level thoracic fusion on February 22,
2017.
The
defendants’
physician,
Dr.
Brennan,
conducted
an
independent medical exam on July 27, 2012. Believing that the IME
was insufficient to determine the plaintiff’s current physical
capabilities, the defendants moved to compel the plaintiff to
submit to a functional capacity evaluation on April 2, 2018.
However, Guidry’s physician, Dr. Williams, refused to release
Guidry
for
an
FCE
because
he
is
not
physically
capable
of
participating in the evaluation. Magistrate Judge Roby denied the
motion on May 17, 2018, but noted in the order that the plaintiff
2
agreed
to
a
second
IME
by
Dr. Brennan.
The
defendants
seek
reconsideration of Magistrate Judge Roby’s order.
I.
Pursuant to Federal Rule of Civil Procedure 72(a), a party
may appeal the ruling of the Magistrate Judge to the District
Judge. A Magistrate Judge is afforded broad discretion in the
resolution of non-dispositive motions. See Fed. R. Civ. P. 72(a);
see
also
28
U.S.C.
§ 363(b)(1)(A).
If
a
party
objects
to
a
Magistrate Judge’s ruling on a non-dispositive matter, the Court
will disturb a Magistrate’s ruling only when the ruling is “clearly
erroneous or is contrary to law.” See Fed. R. Civ. P. 72(a); see
also Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995). A finding
is "clearly erroneous" when the reviewing Court is "left with the
definite and firm conviction that a mistake has been committed."
United States v. Stevens, 487 F.3d 232, 240 (5th Cir. 2008)(quoting
United States. v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
II.
Federal Rule of Civil Procedure 35 provides that a court may
order a party “to submit to a physical or mental examination by a
suitably licensed or certified examiner” if (1) the party’s mental
or physical condition is in controversy and (2) the movant shows
“good cause.” Fed. R. Civ. Pro. 35(a). Rule 35 is not satisfied by
3
“mere conclusory allegations of the pleadings . . . but require[s]
an affirmative showing by the movant that each condition as to
which
the
examination
is
sought
is
really
and
genuinely
in
controversy and that good cause exists for ordering each particular
examination.” Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964).
When determining if a party has shown good cause, courts consider
whether
“a
plaintiff
plans
to
prove
his
claims
through
the
testimony of expert witnesses,” if an examination would preserve
the “equal footing of the parties,” and whether the movant has
“exhausted alternative discovery procedures.” Lahr v. Fulbright &
Jaworski, L.L.P., 164 F.R.D. 169, 200 (N.D. Tex. 1995)(internal
citations omitted); Diaz v. Con-Way Truckload, Inc., 279 F.R.D.
412, 419 (S.D. Tex. 2012).
Rule 35 does not limit the number of independent medical
examinations that may be ordered. Fed. R. Civ. Pro. 35; Moore v.
Calavar Corp., 142 F.R.D. 134, 135 (W.D. La. 1992). However, some
courts are concerned about protecting a party’s privacy from
additional examinations. See Moore, 142 F.R.D. at 135. Courts have
found that a second examination is justified when: (1) “separate
injuries call[] for examination by distinct medical specialties”;
(2) “a physician requires assistance of other consultants before
he
can
render
a
diagnosis”;
(3)
the
first
examination
was
inadequate or incomplete; or (4) there has been a “substantial
time lag . . . between the initial examination and the trial.”
4
Id.; Mathias v. Omega Protein, Inc., No. 10-2835, 2011 WL 1204000,
*3 (E.D. La. 2011).
III.
Magistrate Judge Roby held that Guidry’s physical condition
is in controversy, but that there is no good cause for an FCE
because there are several other sources of information for the
defendants
to
Specifically,
evaluate
the
Guidry’s
defendants’
IME
functional
physician
capabilities.
could
effectively
assess any physical limitations because he evaluated Guidry five
months after the surgery, enough time to determine if Guidry had
made
positive
progress
and
was
manufacturing
complaints.
Magistrate Judge Roby also pointed to reports completed by Guidry’s
physical therapist that address his physical functional capacity
as a source for information. She noted the reports indicate that
his functional ability is greater than what his physician has
represented. But she also held “that the FCE would subject the
Plaintiff to a battery of tests that would not provide insight
different from that of the physical therapists.”
Magistrate Judge Roby did not clearly err. The first IME was
completed less than a year ago, and the plaintiff agrees to undergo
a
second
physically
one.
Guidry’s
capable
of
physician
claims
participating
in
that
Guidry
is
not
another
FCE,
but
the
defendants disagree, pointing to the physician’s recommendations
5
that
he
increase
his
physical
activity,
reports
by
Guidry’s
physical therapist that indicate that he is physically capable,
and that the evaluation can be modified to better fit Guidry’s
physical limitations. But evidence that Guidry may be capable of
completing a FCE does not establish good cause. The defendants
also contend that Guidry reported that his back pain was mild to
his physical therapist, but reported that he was experiencing
severe pain to his pain management physician during the same
period, and that the inconsistency in his statements establishes
good cause. However, the defendants fail to address how a FCE will
provide information that the initial IME, the second IME, and the
physical therapist cannot. The Magistrate Judge was not clearly
erroneous in her finding that the defendants will have sufficient
information to evaluate the plaintiff’s complaints and functional
capabilities.
Accordingly,
the
defendants’
motion
for
review
of
the
Magistrate Judge’s order is DENIED. 2
New Orleans, Louisiana, May 29, 2018
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
2
That Guidry is manufacturing his symptoms and continuing
complaints will, however, be relevant to the merits of his case at
trial.
6
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