Sparling v. Ranger Offshore Inc

Filing 46

MEMORANDUM RULING granting 34 Motion to Compel Independent Medical Examination Under Rule 35. Signed by Magistrate Judge Patrick J Hanna on 7/25/2013. (crt,Dauterive, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
TIMOTHY JAMES SPARLING

CIVIL ACTION NO. 11-CV-2204

VERSUS
RANGER OFFSHORE, INC.

MAGISTRATE JUDGE HANNA

Memorandum Ruling
(Rec. Doc. 34)
Before the court is the defendant’s Motion to Compel Independent Medical
Examination under Rule 35, which motion is opposed by Plaintiff. Oral argument
was heard on July 23, 2013. For the reasons recited in open court and discussed
further below, the motion is granted.
Pertinent History and Positions of the Parties:
Timothy Sparling has alleged in this litigation that he sustained
decompression injuries while working as a tender aboard the M/V Savannah
River in October, 2010. By November, 2011, treating physicians Dr. Joseph Serio
and Dr. David Weir had issued reports indicating that Sparling had reached
maximum medical improvement. In January, 2013, Sparling was diagnosed with
Paroxysmal Positional Vertigo (atypical mixed canal variant) by a different
physician, who connected the new diagnosis to the accident. Recently a
hyperbaric expert has opined that Sparling has permanent and irreversible damage

to his vestibular system, disqualifying him from diving. Additional testing has
also been recommended. On these developments, Defendant has filed the instant
motion to have the plaintiff independently evaluated by specialists in hyperbaric
medicine, including an ear, nose, and throat physician, in order to evaluate and
make determinations regarding the nature and cause of the plaintiff’s current
symptoms and the extent of his medical issues. Specifically, Defendant seeks to
have the plaintiff undergo a complete hyperbaric assessment and ENT evaluation
by Dr. Richard Moon, asserted to have expertise in evaluating and treating
hyperbaric injuries, and Dr. David Kaylie, a specialist in otolaryngology, at the
Duke Center for Hyperbaric Medicine and Environmental Physiology in Durham,
North Carolina.
Sparling responds to the motion with two arguments: (1) that he has been
seen, examined, and treated for the decompression illness made subject of this
litigation by a team of physicians selected by Defendant Ranger from the date of
the injury incident, including Drs. Weir and Serio, a neurologist and occupational
medicine specialist with experience in treating diving-related conditions; and (2)
that Ranger’s request that Sparling travel from his home in Washington State to
North Carolina for the requested evaluation is unreasonable.

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Applicable Law and Discussion
Rule 35 of the Federal Rules of Civil Procedure sets out the grounds and
procedure for court-ordered physical and mental examinations. Generally, the
court 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. Such an order may be made “only on motion for good cause and on
notice to all parties and the person to be examined,” and it “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)(2). A court may order an
independent medical examination when a party's medical condition is in
controversy and good cause for the examination has been established.
Schlagenhauf v. Holder, 379 U.S. 104, 117-18, *119,85 S.Ct. 234, 243, 13
L.Ed.2d 152(1964). See also Grossie v. Florida Marine Transporters, Inc., 2006
WL 2547047, *2 (W.D.La. August 31, 2006). “The decision as to whether or not
to order an independent medical examination under F.R.C.P. 35(a) rests in the
court's sound discretion.” Glaze v. Bud's Boat Rental, Inc., 1993 WL 441890, *1
(E.D.La. Oct. 21, 1993). Furthermore, “[a]lthough Rule 35 examinations may be
ordered ‘only on motion for good cause shown,’ and use of the rule to compel
such examinations is not unfettered, Rule 35(a) generally has been construed
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liberally in favor of granting discovery.” Grossie at *2.
Both parties agree that Sparling has put his physical condition in
controversy by filing this suit seeking damages. However Plaintiff argues that
Ranger has failed to satisfy the ‘good cause’ requirement set out in Rule 35. He
urges that the employer defendant has already had its choice of physician for
evaluation and treatment of Sparling, since Dr. Serio started overseeing the
treatment of the plaintiff even before he left the vessel after the incident, and Dr.
Weir was introduced to the plaintiff by the insurance adjuster who took Sparling to
Weir’s office. Further, Dr. Serio is well-known to have experience with diving
accidents and injuries. While these factual assertions are correct, it is also correct
that neither Dr. Serio nor Dr. Weir are hyperbaric medicine specialists (Dr. Serio is
an occupational medicine physician and Dr. Weir is a neurologist), and neither has
evaluated the plaintiff for DCI or inner ear issues. Further, the two physicians
have been treating physicians of the plaintiff, although the treatment was paid for
by the defendant employer. Neither was asked to perform an independent medical
examination of the plaintiff by Ranger.
Courts have found that where treatment is periodic in nature, such treatment
is not properly classified as an IME. See, e.g., Atkinson v. Warrior Energy
Services Corp., No. 09–7769, 2010 WL 4067623, at *1–*2 (E.D.La. Oct. 15,
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2010); Mitchell v. Aramark 2012 WL 5608376, 3 (E.D.La.) (E.D.La.,2012). In
McClanahan v. Transocean Offshore Inter. Ventures Ltd, 2006 WL 2989243
(W.D.La. 2006), the district court considered the question whether a Jones Act
employer should be deprived of independent medical examinations on grounds
that they selected and/or paid for a seaman’s treating physicians. In that case, as in
this case, no authority was provided to support such deprivation, and the court
cited to Schlagenhauf v. Holder, 379 U.S. 104(1964) for the proposition that a
plaintiff who asserts mental or physical injury, provides the defendant with good
cause for an examination of such asserted injury. The McClanahan court held that
Transocean was entitled to an IME in light of the conflicting impairment reports
issued by his physicians. On the facts presented, the undersigned finds this to be a
similar case.
On the travel issues raised by Plaintiff, the movant represents that there are
no facilities in Louisiana which could conduct the appropriate evaluations in one
location, and the Duke facility can do that. The record also demonstrates that
Plaintiff has continued to travel to Louisiana from his residence in the state of
Washington for his medical treatment; he is not limited in travel by his condition,
and travel to North Carolina for the requested IME is not any more cumbersome
than travel to Louisiana. Further, the court will order that all travel expense for
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the IME, including the plaintiff’s airfare, lodging and meals, shall be borne by the
defendant.
Based on the foregoing, and for the reasons stated on the record at oral
argument, the Motion to Compel Independent Medical Examination is
GRANTED, and
IT IS ORDERED that Plaintiff shall submit to an independent medical
examination to be conducted by Dr. Richard Moon and Dr. David Kaylie at the
Duke Center for Hyperbaric Medicine and Environmental Physiology in Durham,
North Carolina on a date and at a time agreed upon by the parties and the doctors.
IT IS FURTHER ORDERED that all costs for the independent medical
examination, including the cost for Plaintiff’s travel from his home to the
examination facility, shall be borne by Defendant. Flight and lodging shall be
arranged and funded in advance, and meal expenses for Plaintiff’s trip shall be
reimbursed by Defendant.
Signed at Lafayette, Louisiana this 25th day of July,2013.

______________________________________
Patrick J. Hanna
United States Magistrate Judge

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