Johnson v Jowin Express Inc et al

Filing 35

ORDER granting 29 Motion to Compel Neuropsychological Examination. Signed by Magistrate Judge Patrick J Hanna on 6/8/2016. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHARONNE JOHNSON

* CIVIL NO. 6:15-1862

VS.

* JUDGE DRELL

JOWIN EXPRESS, INC., ET AL.
GIS MARINE, LLC, ET AL.

* MAGISTRATE JUDGE HANNA
ORDER

By the instant Motion to Compel Neuropsychological Examination [rec. doc.
29], the defendants seek to have plaintiff, Sharonne Johnson, examined by Dr. Kevin
Bianchini, Ph.D., who will perform neuropsychological testing of Ms. Johnson over
a two day period.
While not contesting that Ms. Johnson's mental condition is "in controversy",
the plaintiffs oppose the Motion arguing that Ms. Johnson has already undergone
neuropsychological testing performed by her chosen expert, Eric Cerwonka, Psy.D.
Accordingly, they argue that Dr. Bianchini may formulate his opinion utilizing Dr.
Cerwonka's test results and corresponding raw data, without the need for additional
testing. They additionally argue that the requested examination should not be
ordered because the defendants have not specifically identified the exact tests which
Dr. Bianchini wishes to administer. In support of this argument, the cite Louisiana
state law cases.

Independent medical examinations are authorized under Rule 35, FRCP.1 A
medical examination may be ordered under the Rule when the moving party shows
“good cause” for the examination and that the condition to be examined be “in
controversy”. Moore v. Calavar Corp., 142 F.R.D. 134, 135 (W.D. La. 1992);
Grossie v. Florida Marine Transporters, Inc., 2006 WL 2547047, at *2 (W.D. La.
2006); Schlagenhauf v. Holder, 379 U.S. 104, 118-119, 85 S.Ct. 234, 243, 13
L.Ed.2d 152 (1964). Generally, courts liberally construe the rule in favor of granting
discovery. Gilley v. Lowe's Home Centers, LLC, 2015 WL 1304592, *1 (W.D. La.
2015) citing McClanahan v. Transocean Offshore Intern. Ventures Ltd., 2006 WL
2989243, at *2 (W.D. La. 2006) citing Grossie, supra. Rule 35 does not establish a
limitation on the number of examinations to which a party may be subjected; each
request for an independent medical examination must turn on its own facts, and
depends solely on the circumstances underlying the request. Moore, 142 F.R.D. at
135. Because the standards established by Rule 35 are flexible, the resolution of the
pending motion rests within the sound discretion of the trial court. Id. citing Teche
Lines v. Boyette, 111 F.2d 579, 581 (5th Cir. 1940); see also Glaze v. Bud's Boat
Rental, Inc, 1993 WL 441890, *1 (E.D. La. 1993).

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Federal Rule of Civil Procedure 35(a) provides, “The court where the action is pending may
order a party whose mental or physical condition—including blood group—is in controversy to submit to
a physical or mental examination by a suitably licensed or certified examiner.”

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Here, plaintiffs do not argue that Ms. Johnson's medical condition is not in
controversy. Rather, plaintiffs argue that the defendants have not shown "good
cause" for the examination. More specifically, plaintiffs argue that because Ms.
Johnson has already undergone neuropsychological testing by an expert of her
choosing, an examination by Dr. Bianchini, an expert for the defense, should not be
ordered by this Court, as such an examination would be unnecessary and redundant.
Instead, plaintiffs argue that Dr. Bianchini should be required to rely on the test
results and corresponding raw data obtained from the tests administered by their
expert, Dr. Cerwonka, to form his opinion.
Plaintiffs cite no federal jurisprudence in support of their position and the
Court knows of no such jurisprudence that supports this proposition. To the
contrary, the plaintiffs' position is contrary to existing federal jurisprudence. A
plaintiff may not avoid a Rule 35 examination simply on the grounds that other
sources of information are available. Ornelas v. Southern Tire Mart, LLC, 292
F.R.D. 388, 391-392 (S.D. Tex. 2013) citing Jackson v. Entergy Operations, Inc.,
1998 WL 28272, at *2 (E.D. La. 1998) and Ferrell v. Shell Oil Co., 1995 WL
688795, at *1 (E.D. La. 1995). "Indeed, when a plaintiff has retained her own
experts and intends to prove her claim at trial through their testimony, and when her
mental injuries will be an important component of her damages, good cause exists to
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permit defendant to select its own expert to examine her." Jackson, 1998 WL 28272,
at 2; Ferrell, 1995 WL 688795, at *1. "This is largely because one purpose in
granting a request for an examination pursuant to Rule 35 is to preserve the equal
footing of the parties.” Ornelas, 292 F.R.D. at 391-392 (internal quotations and
citations omitted).
Plaintiffs further argue that an examination by Dr. Bianchini should not be
ordered because the defendants have failed to specifically identify the exact tests
which Dr. Bianchini wishes to administer. Again, plaintiffs fail to cite any
applicable federal jurisprudence in support of this argument, and the Court again is
unaware of the existence of any such jurisprudence. To the contrary, under
applicable federal law, a list of tests is not required before a psychological
examination can be conducted under Rule 35. Daigle v. Nabors Drilling USA, LP,
2007 WL 580781, *2 (W.D. La. 2007). Further, Dr. Bianchini's
"Neuropsychological Evaluation" provided by the defendants to plaintiffs
sufficiently describes the nature and scope the nature of the tests which may be
performed, and as such, satisfies the notice requirement of Rule 35.
For these reasons, as well as those orally assigned during the hearing of the
Motion, the defendants' Motion to Compel Neuropsychological Examination [rec.
doc. 29] is granted. Accordingly, Sharonne Johnson shall attend a
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neuropsychological examination by Dr. Kevin Bianchini on July 19 and 20, 2016
from 9:00 a.m to 5:00 p.m. each day, at Dr. Bianchini's office located in Metairie,
Louisiana.
Signed at Lafayette, Louisiana on June 8, 2016.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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