Cooper v. Axiall LLC et al
Filing
167
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE MAGISTRATE JUDGE'S ORDER GRANTING DEFENDANTS' JOINT MOTION TO COMPEL AND OVERRULING PLAINTIFF'S OBJECTIONS: Affirming and Adopting the magistrate judge's 154 Order Granting 132 Motion to Compel and Overruling 157 Plaintiff's Objections. Signed by Senior Judge Frederick P. Stamp, Jr on 11/20/18. (copy to Pltff. by cert. mail)(soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROBERT W. COOPER,
Plaintiff,
v.
Civil Action No. 5:16CV148
(STAMP)
AXIALL LLC,
a Delaware limited liability company,
WILLIAM STARKEY,
WORLD WIDE SAFETY CONSULTING, LLC,
a Florida limited liability company
and SIMAKAS COMPANY, INC.,
a Pennsylvania corporation,
Defendants,
and
AXIALL LLC and WILLIAM STARKEY,
Third-Party Plaintiffs,
v.
MPW INDUSTRIAL SERVICES, INC.,
an Ohio corporation,
Third-Party Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE MAGISTRATE JUDGE’S
ORDER GRANTING DEFENDANTS’ JOINT MOTION TO COMPEL
AND OVERRULING PLAINTIFF’S OBJECTIONS
I.
Procedural History
The defendants in the above-styled civil action filed a joint
motion to compel.
ECF No. 132.
This motion specifically seeks to
compel the plaintiff to attend an independent medical examination
pursuant to Federal Rule of Civil Procedure 35.
Id.
This matter
was referred to the Honorable James P. Mazzone, United States
Magistrate Judge.
Magistrate Judge Mazzone entered an order
denying the plaintiff’s objections and granting the defendants’
motion to compel.
The plaintiff then filed objections to the
magistrate
judge’s
order.
magistrate
judge’s
order
For
is
the
following
affirmed
and
reasons,
adopted
the
and
the
plaintiff’s objections are overruled.
II.
Background
The claims of the plaintiff Robert W. Cooper (“Cooper”) arise
out of an incident when Cooper was employed by Simakas Company,
Inc. (“Simakas”) at the Natrium facility of Axiall LLC (“Axiall”)
in Marshall County, West Virginia.
In the complaint, Cooper
alleges that he was “a member of the Pipefitters and Plumbers Local
Union 495” and “plaintiff and his co-workers were working on water
lines on the ground floor of the chlorine building, when defendant
[William] Starkey [(“Starkey”)] removed a flange blank from the
bottom of the number 5 secondary chlorine receiver tank causing
chlorine
gas
present
in
plaintiff’s work area.”
the
tank
to
be
ECF No. 1-2 at 2-3.
released
and
enter
Cooper alleges that
as a result, he was exposed to chlorine gas and has developed
serious lung problems and other physical abnormalities.
Id. at 3.
Defendants, Axiall, Starkey, World Wide Safety and Consulting
(“World
Wide”),
and
Simakas,
and
third-party
defendant,
MPW
Industrial Services, Inc. (“MPW”), filed a motion to compel Cooper
to attend an independent medical examination under Federal Rule of
2
Civil Procedure 35 because Cooper alleges that he was exposed to
chlorine and has suffered serious lung problems and other physical
abnormalities as a result.
contended
that
after
ECF No. 132 at 2-3.
communicating
and
The defendants
conferring
with
the
plaintiff regarding such an examination by email and letter, Cooper
refused to attend such an examination, citing financial and medical
difficulties.
Id. at 3.
The defendants noted that Cooper’s
previous visits to lung specialists and medical facilities near his
home have made it difficult to locate a qualified pulmonary lung
specialist that he has not already visited.
Id.
The defendants
further indicated that they would reimburse Cooper for mileage and
other
travel
examination.
expenses
Id.
relating
to
the
independent
medical
However, the defendants alleged that Cooper
continues to refuse to attend such an examination. Id. Magistrate
Judge Mazzone granted the defendants’ motion to compel (ECF No.
154), and Cooper filed timely objections to that order (ECF No.
157).
III.
Applicable Law
Under Federal Rule of Civil Procedure 72(a), a district court
may refer to a magistrate judge “a pretrial matter not dispositive
of a party’s claim or defense.”
Fed. R. Civ. P. 72(a).
The
parties may file objections to the magistrate judge’s order, and
the magistrate judge’s ruling may be reversed only on a finding
that the order is “clearly erroneous or is contrary to law.”
3
Fed.
R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1).
“A finding is ‘clearly
erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with a definite and
firm conviction that a mistake has been committed.”
United States
v. United States Gypsum Co., 333 U.S. 354, 68 S. Ct. 525, 92 L.Ed.
746 (1948). In light of the broad discretion given to a magistrate
judge in the resolution of nondispositive discovery disputes, the
court should only overrule a magistrate judge’s determination if
this discretion is abused.
Detection Sys., Inc. v. Pittway Corp.,
96 F.R.D. 152, 154 (W.D. N.Y. 1982); Shoop v. Hott, No. 5:08CV188,
2010 WL 5067567, at *2 (N.D. W. Va. Dec. 6, 2010).
Federal Rule of Civil Procedure 26(b)(1) permits parties to
“obtain
discovery
regarding
any
nonprivileged
matter
that
is
relevant to any party’s claim or defense and proportional to the
needs of the case.”
Fed. R. Civ. P. 26(b)(1).
In considering
proportionality, courts must consider: (1) “the importance of the
issues at stake in the action;” (2) “the amount in controversy;”
(3) “the parties’ relative access to relevant information”; (4)
“the parties’ resources; (5) “the importance of the discovery in
resolving the issues;” and (6) “whether the burden or expense of
the
proposed
discovery
outweighs
its
likely
benefit.”
Id.
“Information within this scope of discovery need not be admissible
in evidence to be discoverable.”
Id.
Courts may forbid certain
disclosures or discovery “to protect a party or person from
4
annoyance, embarrassment, oppression, or undue burden or expense.”
Fed. R. Civ. P. 26(c)(1).
IV.
Discussion
The defendants requested that “the Court compel [p]laintiff to
attend an independent medical examination.”
ECF No. 132 at 4.
Magistrate Judge Mazzone granted the defendants’ motion to compel,
concluding that the plaintiff placed his medical condition in
controversy and that the defendants made reasonable efforts to
obtain the medical examination.
ECF No. 154 at 4-5.
First, Magistrate Judge Mazzone concluded that the defendants
made reasonable efforts to obtain the medical examination but,
because of logistical difficulties involving Cooper, were unable to
obtain the same.
contests
the
ECF No. 154 at 5.
finding
that
the
In his objections, Cooper
defendants
met
and
conferred
regarding the scheduling of a Rule 35 medical examination, in
accordance with Federal Rule of Civil Procedure 37 and Local Rule
of Civil Procedure 37.02.
ECF No. 157 at 2-3.
Despite Cooper’s
objections, the evidence demonstrates that the parties met and
conferred in an exchange of emails and a letter.
132-1 and 145-2.
See ECF Nos.
In fact, Cooper stated on the record at the
evidentiary hearing before Judge Mazzone, pertaining to the motion
to compel, that:
Counselor Hanna asked [him] to modify the Honorable Judge
Stamp’s scheduling dates and there was two of them. He
wanted [Cooper] to change the dates of the medical
examination for the reason being he think[s] he finally
5
got that doctor in a little late, now he’s pressed for
time. And the second date he wanted [Cooper] to exchange
was the date for the examination results.
He wanted
[Cooper] to change that.
He asked [Cooper] for
permission to do that and [Cooper] wrote him back.
Second, Magistrate Judge Mazzone concluded that there is good
cause for an independent medical examination because Cooper alleges
in his complaint that he was exposed to chlorine gas and developed
lung problems as a result.
Importantly, in his objections, Cooper
does not seem to contest the finding that his physical condition is
placed in issue and that such an examination might be applicable.
Rather, Cooper argues that the defendants did not comply with the
requirements under Federal Rule of Civil Procedure 37 and, as well,
Local Rule of Civil Procedure 37.02(a)(1) and (3), which provide
that when moving for an order to compel disclosure or discovery,
the motion must include “a certification that the movant has in
good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to
obtain it without court action,” specifying, “(1) the names of the
parties who conferred or attempted to confer, (2) the manner by
which they conferred, and (3) the date and time of the conference.”
ECF No. 157 at 2-3.
However, Cooper has failed to adequately
explain how including such a certificate with the motion to compel
would have changed his position or altered the magistrate judge’s
findings with respect to the motion to compel.
Furthermore, as
indicated in the preface to the Local Rules of the Northern
6
District of West Virginia, “[a] district judge may, in the interest
of
the
orderly,
expeditious
and
efficient
administration
of
justice, allow departures from the[] Local Rules when warranted by
particular facts and circumstances.”
Third, Magistrate Judge Mazzone noted that the plaintiff
should
be
compelled
to
travel
to
Beachwood,
Ohio
for
the
independent medical examination. ECF No. 154 at 5. The magistrate
judge
noted
that
substantially
treatment,
the
similar
and
that
plaintiff
distance
the
has
traveled
before
defendants
are
for
the
his
willing
same
own
to
or
a
medical
reimburse
plaintiff for travel expenses. Id. Moreover, the magistrate judge
noted that plaintiff is under no driving or travel restriction from
any health care provider.
Id.
This Court finds no clear error in
the magistrate judge’s conclusion, and thus, affirms and adopts the
magistrate judge’s order granting the defendant’s motion to compel
(ECF No. 154).
V.
For
the
foregoing
Conclusion
reasons,
the
magistrate
judge’s
order
granting the defendants’ motion to compel (ECF No. 154) is AFFIRMED
and ADOPTED.
Accordingly, plaintiff Cooper’s objections to the
magistrate judge’s order (ECF No. 157) are OVERRULED.
IT IS SO ORDERED.
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The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiff by certified mail and to
counsel of record herein.
DATED:
November 20, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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