In Re: Callan Marine, Ltd

Filing 25

ORDER denying 10 Opposed MOTION for Protective Order. Garza is ordered to be examined under Rule 35(a)(1) without the presence of attorneys, at a time and place to be agreed upon by the parties. (Signed by Magistrate Judge Andrew M Edison) Parties notified.(gclair, 4)

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United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE THE COMPLAINT AND
PETITION OF CALLAN MARINE,
LTD. AS OWNER OF THE DREDGE
GENERAL PATTON, ITS ENGINES,
GEAR, TACKLE, ETC. IN A CAUSE
FOR EXONERATION FROM OR
LIMITATION OF LIABILITY

September 08, 2021
Nathan Ochsner, Clerk

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§ CIVIL ACTION NO. 4:21-cv-01938
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§

ORDER
This discovery dispute presents a narrow question: Is a plaintiff permitted
to have his lawyer attend a so-called “independent medical examination.”1 The
short answer is “no.”
BACKGROUND
Cesar Garza (“Garza”) alleges that he was injured on December 23, 2020,
while working on a vessel owned and operated by Callan Marine, Ltd. (“Callan
Marine”). Garza has brought general maritime negligence and unseaworthiness
claims against Callan Marine under the Jones Act.
In connection with this lawsuit, Garza agreed to submit to a medical
examination conducted by a doctor selected by Callan Marine. Callan Marine
picked David G. Vaderweide, a board-certified orthopedic surgeon. The
examination was scheduled for noon on July 23, 2021. Garza timely arrived at Dr.
Vaderweide’s office that day with his attorney in tow. Dr. Vaderweide’s nurse met
them in the waiting room. Garza wanted his attorney to accompany him into the
examination room, but Dr. Vaderweide’s nurse said that was not allowed. The
only person she would allow in the examination room with Garza was an
interpreter provided to make sure there was no language barrier since Garza does
Let’s call a spade a spade. It is really not an “independent” medical examination since
the defendant usually selects the physician who will perform the examination. See
Eubank v. Dunn, No. MO:19-CV-153-DC, 2020 WL 7553827, at *2 (W.D. Tex. Oct. 27,
2020) (“In general, courts will appoint the physician of the moving party's choice unless
the non-moving party raises a serious objection.”).
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not speak fluent English. Garza’s lawyer informed Dr. Vaderweide’s nurse that he
believed both he and the interpreter could be present for the examination, but the
nurse refused to budge. Garza and his lawyer left Dr. Vaderweide’s office without
Garza undergoing a medical examination.2
Garza has filed a motion for protective order, imploring me to “issue an
Order that provides that [Garza] is allowed to have his attorney present along
with an interpreter while being examined and questioned by a retained, testifying
expert.” Dkt. 10 at 2.
ANALYSIS
Federal Rule of Civil Procedure 35 provides that the Court “may order a
party whose mental or physical condition . . . is in controversy to submit to a
physical or mental examination.” FED. R. CIV. P. 35(a)(1). Because the parties
have agreed to the physical examination, the only issue for me to decide is
whether Garza’s counsel should be allowed to attend the medical examination.
See id. (requiring a district court to specify the “manner, conditions, and scope”
of the examination).
The text of Rule 35 is silent on who may attend a physical examination. As
a result, the issue is left to the sound discretion of the district court. Nonetheless,
the overwhelmingly majority of district courts to consider the issue have refused
to permit third-party observers, including attorneys, from attending Rule 35
examinations. See Smolko v. Unimark Lowboy Trans., LLC, 327 F.R.D. 59, 61
(M.D. Pa. 2018) (“The majority rule adopted by the federal courts is that the
The parties have conflicting accounts of exactly what happened in the waiting
room. Garza claims that the appointment was cancelled. Callan Marine asserts
that Garza and his lawyer voluntarily chose to leave the premises once told that
both the lawyer and the interpreter would not be allowed in the examination
room. For purposes of the present discovery squabble, it does not matter which
version I believe. The ultimate question I must decide is whether Garza’s lawyer
should be allowed in the examination room during the Rule 35 medical
examination.
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court may, and often should, exclude third-party observers, including counsel,
from medical or psychiatric evaluations.”); Shannon v. Ellis, No. 4:18-CV-00506
JAR, 2018 WL 4698783, at *2 (E.D. Mo. Oct. 1, 2018) (“[T]he greater weight of
authority favors the exclusion of a plaintiff’s attorney from the conduct of a Rule
35 examination.”); Dunlap v. Hood, No. 3-07-CV-2147-B, 2008 WL 4851316, at
*1 (N.D. Tex. Nov. 7, 2008) (“A party has no right to the presence of any third
person, including his or her attorney, at a physical or mental examination.”).
The rationale for refusing to allow lawyers into the examination room has
been perfectly summarized in one law review article:
The presence of an attorney has a high probability of causing adverse
effects on the examination, including the injection of an adversarial
atmosphere into the examination and the possibility of making the
attorney a witness. The consequences of this presence, including
delays in the trial and disruptions of the examinations, warrants the
exclusion of attorneys.
William Scott Wyatt & Richard A. Bales, The Presence of Third Parties at Rule 35
Examinations, 71 TEMP. L. REV. 103, 127 (1998). See also Jackson v. Harris
Cnty., No. H-17-3885, 2019 WL 2544058, at *1 (S.D. Tex. June 20, 2019)
(refusing to allow plaintiff’s counsel to attend a medical examination because a
lawyer’s attendance constitutes a distraction and introduces an adversarial
character into the process); Ornelas v. S. Tire Mart, LLC, 292 F.R.D. 388, 395
(S.D. Tex. 2013) (same).
In addition to these reasons, a number of courts have refused to allow a
lawyer to attend his client’s medical examination because allowing a third person
to be present at a medical examination “would subvert the purpose of Rule 35,
which is to put both the plaintiff and defendant on an equal footing with regard[]
to evaluating the plaintiff’s medical status.” Ornelas, 292 F.R.D. at 396 (cleaned
up). “In other words—where one party has been examined by his or her doctors
outside the presence of others . . . —the other party should be given the same
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equal opportunity.” In re Soc’y of Our Lady of Most Holy Trinity, 622 S.W.3d 1,
13 (Tex. App.—Corpus Christi 2019, no pet.). Since Garza was examined by his
hand-picked medical professional outside the presence of observers, Callan
Marine should be afforded the same opportunity to have its expert examine Garza
without anyone (other than an interpreter) in attendance.
The only time district courts should allow the presence of an attorney at a
medical examination is the rare instance where “special circumstances” exist. See
Stefan v. Trinity Trucking, LLC, 275 F.R.D. 248, 250 (N.D. Ohio 2011) (“Federal
courts have determined that third parties—whether human or electronic—cannot
sit in on physical and mental examinations under Federal Civil Rule 35 unless
special circumstances require it. . . . [A]bsent a showing of good cause, counsel
does not have the right to monitor an independent medical examination.”);
Holland v. United States, 182 F.R.D. 493, 495 (D. S.C. 1998) (“The weight of
federal authority . . . favors the exclusion of the plaintiff’s attorney from a Rule 35
examination absent a compelling reason.”); 8B CHARLES ALAN WRIGHT & ARTHUR
R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2236 (3d ed. 2010) (“[T]he norm
in federal court is that counsel will not be allowed to attend [a Rule 35 medical
examination] unless good cause is presented to justify that.”). A party seeking to
have his lawyer present at a medical examination bears a heavy burden to show
there are “special circumstances,” unique to that party’s situation, that
distinguish the case from others in which examinations are sought. See Gade v.
State Farm Mut. Auto. Ins. Co., No. 5:14-CV-00048-CR, 2015 WL 12964613, at
*3 (D. Vt. Jan. 2, 2015) (“[T]he weight of authority places the burden of
identifying special circumstances on Plaintiff.”); Perez Ortiz v. Colon Zambrana,
No. 09-2261 PG, 2010 WL 3894648, at *2 (D.P.R. Sept. 23, 2010) (“The party
seeking to have the observer present bears the burden of demonstrating good
cause for the request, as the presence of a third party is not typically necessary or
proper.” (cleaned up)).
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In this case, Garza argues that his counsel should be permitted to attend
the Rule 35 examination “to provide moral support” and ensure that the doctor
performing the examination does not engage in “improper conduct.” Dkt. 10 at 3.
Neither of these reasons constitute “special circumstances” sufficient to justify
the presence of counsel at a medical examination.
Let me start with the “moral support” argument. Although I fully recognize
that the presence of his lawyer at the examination may provide Garza “moral
support, this would be true in all cases involving a [medical] examination of this
type. Thus, [Garza’s] request does not distinguish this case from others or
constitute a special circumstance.” Favale v. Roman Catholic Diocese of
Bridgeport, 235 F.R.D. 553, 557 (D. Conn. 2006). See also Hirschheimer v.
Associated Metals & Minerals Corp., No. 94 CIV. 6155(JKF), 1995 WL 736901, at
*3 (S.D.N.Y. Dec. 12, 1995) (rejecting the “moral support” argument for the same
reasons).
Garza’s claim that he needs his lawyer to attend the medical examination to
ensure that nothing improper occurs fares no better. This argument has been
repeatedly rejected because “there are numerous pre-trial and trial procedures
that will protect the examinee from any impermissible harm.” Wyatt & Bales, The
Presence of Third Parties at Rule 35 Examinations, 71 TEMP. L. REV. at 127. For
example, Garza will “receive a Rule 35 examination report and then have the
opportunity to depose the physician, cross-examine him . . . , and introduce
contrary expert evidence. Additionally, should the physicians improperly inquire,
plaintiffs have the opportunity to seek to exclude such questioning from trial.”
Tarte v. United States, 249 F.R.D. 856, 859 (S.D. Fla. 2008) (citation omitted).
See also Copenhaver v. Cavagna Grp. S.p.a Omeca Div., No. CV 19-71-BLGSPW-TJC, 2021 WL 3171787, at *7 (D. Mont. July 27, 2021) (“Rule 35 and the
adversarial process provide safeguards to plaintiffs, such as a Rule 35
examination report, opportunity to depose the physician/expert, cross5

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examination, introduction of contrary expert evidence, and the opportunity to
exclude questioning at trial.”); Mayorga Martinez v. United States, No. CV 178810 FMO (SS), 2019 WL 4277803, at *6 (C.D. Cal. Apr. 10, 2019) (“There is
nothing before the Court to suggest that the standard safeguards available to a
plaintiff in a Rule 35 examination—the physician’s report, deposition and crossexamination of the physician, contrary expert evidence, and motions to exclude
evidence improperly obtained during the examination—will not be sufficient to
address Plaintiffs’ concerns.”).
In short, a lawyer does not have an inherent right to attend the medical
examination of his client. Garza has not met his burden to demonstrate that there
are special circumstances in this case that warrant his lawyer accompanying him
into the examination room for a Rule 35 physical examination.
CONCLUSION
For all the reasons identified above, I order that Garza be examined under
Rule 35(a)(1), without the presence of attorneys, at a time and place to be agreed
upon by the parties.
SIGNED this 8th day of September 2021.

______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

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