Carroll v. Genesis Marine, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MICHAEL R. CARROLL CIVIL ACTION

v. NO. 19-13512

GENESIS MARINE, LLC, ET AL. SECTION "F"

ORDER AND REASONS

Before the Court are three motions by Genesis Marine, LLC:

(1) motion seeking review of Magistrate Judge Douglas’s order

granting the plaintiff’s request for attorney’s fees in connection

with a successful motion to compel; (2) motion seeking review of

Magistrate Judge Douglas’s order denying Genesis Marine’s motion

to compel the plaintiff to travel to Denver, Colorado to submit to

an Independent Medical Exam; and (3) motion for summary judgment.

For the reasons that follow, the motions are DENIED.

Background

This personal injury lawsuit arises out of a rupture aboard

a barge due to over-pressurization. A tankerman claims that he

has experienced dizziness, nausea, headaches, and other symptoms

after an air over-pressurization blowout on a barge next to the

one on which he was working, monitoring air pressure gauges during

a blowback procedure being performed on adjoining barges moored at

a dock. At the time of the blowout, the tankerman heard a loud

noise, saw air shoot vertically up from the adjoining barge, and

felt a pressure change, but otherwise was not directly or

contemporaneously physically impacted by the blowout.

In late September 2018, two barges, the GM3804 and the GM3806,

which were owned by Genesis Marine, LLC of Delaware, docked at the

International-Matex Tank Terminals, LLC, St. Rose Dock in St.

Charles Parish, Louisiana to discharge asphalt they were

transporting. On September 29, 2018, Michael Carroll was working

as a tankerman for Gulfstar Industries, LLC. He was working aboard

the GM3806, which was on the “inside,” closest to IMTT Dock 48,

while its twin barge -- the GM3804 -- was on the “outside,” next

to the GRM3806. Another Gulfstar tankerman, Charles Sens, was the

Person in Charge working aboard the GM3804. Genesis Marine

employee Ryan Swafford was working with or observing Sens on the

GM3804.

After the asphalt was unloaded from the barges, a blowback

procedure was being conducted from the IMTT Dock to the GM3806 and

GM3804 “[t]rying to clear the product [asphalt] out [by] “hav[ing]

air blown through” IMTT’s and Genesis’ hoses.1 Sens set up the

1 According to Carroll, the rupture occurred due to over-

pressurization and defective air-pressure release valves; Carroll

testified:

blowback aboard the GM3804 through the ullage hatch. At first,

the blowback was “fine,” meaning “we could hear air traveling

through the pipeline and ... our pressure gauges were reading

normally and everything seemed to be going like normal.” Carroll

Depo. Tr. p. 100-103 (if pressure is building up in a barge, the

gauges “should reflect pressure building”); (as for why he did not

see the gauges indicating pressure building, Carroll attributed

this to “[a] faulty pressure gauge on an asphalt barge gunked up”).

While Carroll was monitoring air pressure gauges on the GM3806,

the GM3804 “ruptured.”2 Carroll heard a loud noise, saw “out of

the corner of [his] eye” air shoot up from the GM3804, and he felt

the pressure change. For his part, Carroll offers different

estimates for how far he was from the rupture on GM3804; the

closest estimate he offered was his testimony that he was “50 or

They want the valves opened up a certain way to mitigate

a lot of risks that could happen. Certain things have to

be closed and certain things have to be open to try to

keep the product out of the water and people from getting

hurt.

Carroll Depo. Tr. p. 96.

2 At times, the parties appear to confuse the barge numbers, but

it is undisputed that the barge on which Carroll was working was

not the one that experienced the air blowout.

75 feet” away, on a different barge (GM3806), from the rupture on

GM3804.3

The IMTT dockside video recorded the over-pressurization or

rupture. The video footage does not show Carroll and the vantage

is quite a distance from the incident; the video shows what appears

to be white smoke (or air)4 shooting vertically in the air above

the vessel, for a few seconds. As Carroll described it: “It looked

just like a water geyser shooting up in the air probably about a

hundred foot.” Carroll Depo. Tr. p. 108.5 The video does not

show, but Carroll has testified that: the force of the blowout

caused the welds to break from a 200 lb. toolbox, popping its lid

into the air and that the rupture also caused the barge, the

GM3804, to raise up three to four feet.6

The mechanics of the rupture are not briefed and Genesis

Marine does not point to evidence that would allow an assessment

of negligence.7 There is no dispute that there was an over-

3 At best, there is a dispute concerning how close Carroll was

working to the rupture. Genesis Marine submits that Carroll was

223.71 feet away from the rupture on the other vessel.

4 According to the testimony in the summary judgment record, the

white smoke is a release of air.

5 He also stated that the force of the release caused the top of

an 8-foot-long toolbox to fly up about 50 feet in the air.

6 According to the parties’ pretrial submissions, there was

significant damage to the GM3804 as a result of the rupture. The

Court will not and need not search the summary judgment record to

determine the extent of the damage.

7 In Carroll’s complaint, he alleges that the valves owned by

International-Matex Tank Terminals, LLC, connected from the IMTT

pressurization on the GM3804 and that Carroll claims he was injured

as a result. Asked about physical impact, Carroll stated that the

rupture did not cause him to fall and that no object hit or struck

him; however, he “felt the pressure change” and it was very loud.8

There is nothing in the record to indicate that anyone on the

GM3804 suffered any injury due to the over-pressurization

incident. Although he was on the adjacent GM3806 -- not the GM3804

that ruptured -- Carroll claims he began experiencing symptoms

which he attributes to the blowout. After the rupture, Carroll

said he was in shock and began experiencing frequent headaches,

dock to the Genesis barge, through which the air pressure flowed.

As Carroll monitored the pressure, he alleges, IMTT personnel

released air through the IMTT valves but they failed to monitor

the air flow and caused too much air to be released. And, it is

alleged, the gauge that Carroll used to monitor the air pressure

was defective and failed to indicate correct pressure readings.

As he monitored the pressure, the barge became over-pressurized,

the pressure relief valve failed to open, and the Genesis barge

“ruptured due to shock waves,” which allegedly injured Carroll.

8 Carroll testified:

Q. Am I correct that you suffered no physical injuries

as a result of the air shooting out on September 29,

2018?

A. I didn’t fall or nothing hit me.

...

A. ... It didn’t knock me down or anything like that. It

was a very loud bang and I felt the pressure change.

Carroll Depo. Tr. p. 119.

indigestion, occasional blurred vision, ringing in his ears,

dizziness, nausea, and neck pain.

Carroll continued to work as a tankerman on barges a “handful”

of times after the incident. But he ultimately stopped.

He claims his first serious migraine symptoms manifested in

mid-October 2018 and that he experienced earaches and ringing. He

also became agitated. On October 15, 2018, Carroll reported to

his supervisor that he needed to seek medical treatment. The next

day, Carroll presented to urgent care, but left before seeing a

medical provider. On October 19, 2018, Carroll was referred to

Prime Occupational Medicine by his employer, Gulfstar.

Complaining of excessive fatigue, ringing in his ears, irregular

heartbeat, numbness/tingling, neck pain, muscle pain,

dizziness/fainting, and eye trouble, Carroll was treated by Mark

Collier, N.P. Anxiety, headaches, migraines, and PTSD were noted,

as was “[r]eferral to Psyh.” A checkmark indicates “[R]eturn to

assigned duties, as directed.”

On October 24, 2018, with complaints of “headaches,

dizziness, and nausea,” Carroll returned to Prime again and was

again referred to psychology. On October 31, 2018, complaining of

head pain, nausea, and blurred vision, Carroll visited a

neurologist, Troy Beaucoudroy, M.D., who noted that Carroll

“note[d] a percussion type blast as well as an intense loud noise

that sounded like ‘a shotgun going off in my ear.’” Dr.

Beaucoudroy also noted “tenderness to palpation and spasm in his

cervical spine area.”9 Dr. Beaucoudroy opined that Carroll likely

sustained a concussion due to the blast and had ongoing post-

concussion symptoms and that he developed PTSD, severe anxiety

related to the work-related injury. Dr. Beaucoudroy noted that

Carroll is not coping well and recommend that he undergo

psychiatric evaluation and it was recommended that he not return

to work. Dr. Beaucoudroy diagnosed: postconcussional syndrome;

post-traumatic headache; post-traumatic stress disorder; anxiety

disorder; and cervicalgia.

The next day, Carroll underwent a neurologic exam by Dr.

Melcher, who opined that Carroll’s neurologic examination was

“presently normal.” Carroll told Archie Melcher, M.D. that he was

“100 feet away” from the rupture, and that he “did not lose

consciousness.” Carroll described the rupture as feeling like

“the pressure change like when you open up an oven.” Things got

worse for Carroll.

Carroll returned to Dr. Beaucoudray on November 14, 2018, at

which time it was noted that he had ongoing symptoms of headaches,

nausea, anxiety, forgetfulness, irritability, poor appetite, and

9 Carroll says Dr. Beaucoudroy diagnosed him as having suffered a

concussion.

neck pain, intermittent blurry vision, and tinnitus accompanying

headaches. He had lost 30 lbs. since the incident. His

medications were listed as Butalbital APAP-Caffeine 50-325mg,

Cephalexin 500mg, Ativan 1mg at bedtime, and he was prescribed

Promethazine HCI 12.5mg once daily for nausea as Zofran had not

been effective.

Just two weeks later, Carroll says that his anxiety became so

severe that he passed out and fractured his teeth. Tony Humphries,

D.D.S. performed an emergency oral examination and repaired

Carroll’s teeth with resin composite.10

Two days later, on Dr. Beaudoudray’s referral, Carroll sought

psychiatric treatment at Pine Belt Mental Healthcare Resources.

Before visiting Pine Belt, Carroll had no history of any

psychiatric hospitalizations or outpatient counseling. The notes

at Pine Belt indicate that Carroll was referred due to and

complained of crying spells, poor sleep, poor appetite, high

anxiety, depressed mood, fatigue, lack of concentration, and loss

of short-term memory; and that “[p]resenting issues for referral

- ... involved with an explosion on a barge two months ago.” Pine

Belt’s “clinical interpretation” was that Carroll “is suffering

from Adjustment Disorder with mixed disturbance of emotions and

10 Carroll checked off boxes indicating the following symptoms:

dizziness, fainting, nervous disorder, and head injury.

conduct.” Individual therapy and medical services were

recommended, and he was prescribed Paxil 10mg and Trazodone 100mg.

Carroll followed up at Pine Belt on December 6, 2018, at which

time Donald Dearman, a psychiatric mental health nurse

practitioner, reiterated Carroll’s prior diagnoses and further

diagnosed him with post-traumatic stress disorder; he reiterated

this PTSD diagnosis on five other occasions.

About a week later on December 13, 2018, Carroll returned to

Dr. Beaucoudray, who prescribed a trial of Promethazine to help

with decreased appetite and nausea, which were related to his

ongoing anxiety and stress disorder attributed to the incident.

Carroll continued to report anxiety attacks and recalled an episode

where he became so anxious and irritable that he ripped apart some

of the interior of his truck. He relayed the teeth-fracture

incident and reported that his anxiety causes him to remain in a

tense position with his fists clenched, resulting in neck pain.

Carroll continued with his treatment at Pine Belt and with

Dr. Beaucoudray during the first two months of 2019. He was

prescribed Catapres .1mg, Paxil 10mg, Paxil 30mg, Trazodone 100mg,

Doxepin 75mg, and Xanax 1mg. Carroll was referred for a cervical

MRI and MRI of the brain to rule out any intracranial pathology.

On March 18, 2019, Carroll was seen for a fainting episode at

Christus Lake Area Hospital. Eleven days later, he was

involuntarily committed into South Mississippi State Hospital

until he was discharged on April 11, 2019. While committed for

two weeks, Carroll participated in individual, group, and mileu

therapy; and some medications were administered. After his

release, Carroll continued to follow up with Dr. Beaucoudray and

mental health professionals at Pine Belt.

On September 27, 2019, Michael Carroll sued Genesis Marine,

LLC of Delaware and International Matex-Tank Terminals, LLC,

seeking to recover for lost wages and for the medical treatment he

has needed since the shock waves caused his ears to ring, frequent

headaches, indigestion, blurred vision, nausea, and other

injuries, including emotional ones. Genesis Marine removed the

case, invoking this Court’s diversity jurisdiction.

As recently as March 2021, Carroll presented to Dr.

Beaucoudray with continued complaints of headaches, neck pain,

nausea, and blurred vision and it was noted that “his symptoms of

PTSD as well as severe anxiety continued to be obviously present.”

Carroll has been diagnosed with post-traumatic stress disorder,

acute; post-traumatic headache; anxiety disorder; dysthymic

disorder; and cervicalgia, each of which Carroll attributes to the

rupture on GM3804.11 Dr. Beaucoudray has noted that Carroll

11 Dr. Beaucoudray opines that those conditions were caused by the

September 2018 incident “[b]ased on the history that was reported

to me.” See Beaucoudray Depo. Tr. p. 106-17.

“sustained a work-related injury which he felt was a life-

threatening experience, which he has had significant difficulties

coping with since that time.”

Genesis Marine now objects to two other non-dispositive

orders by Magistrate Judge Douglas:12 one allowing the plaintiff

to recover his attorney’s fees in connection with a successful

motion to compel; and a second denying Genesis Marine’s motion to

compel the plaintiff to travel to Denver, Colorado to submit to an

Independent Medical Exam. Genesis Marine also seeks summary

judgment dismissing the plaintiff’s claims on the ground that

recovery for purely emotional injuries is precluded as a matter of

law because he did not suffer a physical impact nor was he in the

zone of danger; tests applied by some courts to limit recovery for

purely emotional damages.

I.

A.

Non-dispositive pretrial matters may be referred to

magistrate judges. Federal Rule of Civil Procedure 72(a) allows

a party to appeal to the district judge rulings by a magistrate

12 Last year, Genesis Marine filed objections to Magistrate Judge

Douglas’s order denying in part its motion to compel an answer

related to Mr. Carroll’s lifetime of prior arrests. On December

9, 2020, construing the objections as a motion to review or to

appeal the magistrate judge’s order, the Court overruled Genesis

Marine’s objection, denying the motion seeking review of (and

thereby affirming) the magistrate judge’s order.

judge. Magistrate judges are given broad discretion when resolving

non-dispositive motions. See Fed. R. Civ. P. 72(a); see also 28

U.S.C. § 636(b)(1)(A). Upon timely objection to an order

concerning a non-dispositive motion, the district court will set

aside the magistrate judge’s order only if it is “clearly erroneous

or is contrary to law.” See Fed. R. Civ. P. 72(a). A magistrate

judge’s legal conclusions are reviewed de novo, while factual

findings shall not be overturned unless clearly erroneous. Moore

v. Ford Motor Co., 755 F.3d 802, 806 (5th Cir. 2014)(citation

omitted). A ruling is “clearly erroneous” when the district court

is “left with the definite and firm conviction that a mistake has

been committed.” See 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)); see also Moore v. Ford Motor Co., 755 F.3d

802, 808 n.11 (5th Cir. 2014)(citation omitted)(“A finding is

clearly erroneous only if it is implausible in the light of the

record considered as a whole.”).

B.

1. The magistrate judge did not err in granting the

plaintiff’s request for attorney’s fees.

Magistrate Judge Douglas granted Carroll’s request for

attorney’s fees after determining that Genesis Marine failed to

properly and timely respond to discovery. Genesis Marine does not

object insofar as the magistrate judge granted the plaintiff’s

motion to compel; rather, Genesis Marine objects insofar as the

magistrate judge granted the plaintiff’s request to fix attorney’s

fees in connection with its successful motion to compel. In

particular, Genesis Marine accuses plaintiff’s counsel of making

“inaccurate representations in pursuit of fees.”13 Genesis Marine

identifies no error of fact or law in the March 10, 2021 ruling

and thus offers no ground whatsoever to disturb it.14

The scope of permissible discovery embraced by the Federal

Rules of Civil Procedure is broad. See Fed. R. Civ. P.

26(b)(1)(“Parties may obtain discovery regarding any nonprivileged

matter that is relevant to any party’s claim or defense and

proportional to the needs of the case[.]”). Once a party is served

with a request within Rule 26(b)’s scope, that “party to whom the

request is directed must respond in writing within 30 days after

being served[;]” and the rules direct a response “[f]or each item

or category[.]” Fed. R. Civ. P. 34(b)(2)(A). When a party fails

13 Genesis Marine challenges the accuracy of this statement by

plaintiff’s counsel: “At one point, counsel for Genesis advised

that the supplemental production would be delayed [due to]

unforeseen circumstances that caused his administrative assistant

to miss time from work.” Precisely the source of Genesis Marine’s

objection is unclear: Genesis Marine admits that it advised

opposing counsel that its counsel’s assistant tested positive for

COVID-19 and thus was out of the office.

14 As it did in its prior objections, Genesis Marine invokes the

incorrect standard of review. Rule 72(a) pertaining to non-

dispositive matters governs here, not (b).

to produce documents or respond to discovery requests, Rule 37

allows the party seeking discovery to request an order compelling

discovery. Failing to cooperate or failing to fulfill discovery

obligations may result in sanctions. If a motion to compel is

granted or the requested information is provided after the motion

to compel is filed, Rule 37(a)(5)(A) mandates that the Court must,

“after giving an opportunity to be heard, require the party ...

whose conduct necessitated the motion, or the party or attorney

advising that conduct, or both to pay movant’s reasonable expenses

incurred in making the motion, including attorneys’ fees.” The

Court shall not order payment of expenses if

(i) the movant filed the motion before attempting in

good faith to obtain the disclosure or discovery without

court action;

(ii) the opposing party’s nondisclosure, response, or

objection was substantially justified; or

(iii) other circumstances make an award of expenses

unjust.

Fed. R. Civ. P. 37(a)(5)(A). Although Genesis Marine invokes

(iii), it identifies no circumstances that make an award of

expenses unjust.

Counsel for Carroll directed specific discovery requests to

counsel for Genesis Marine, including a request for production of

incident reports or statements by any other person related to the

incident; inspection, maintenance, repair, and safety meeting

minutes for the vessel, valves, gauges, and equipment five years

prior to the incident to the present time; and all reports prepared

in connection with any investigation conducted by outside agencies

or third parties. When Genesis Marine failed to provide written

responses addressed to each of these requests within 30 days, the

plaintiff filed a motion to compel. In the motion to compel, the

plaintiff also requested that Genesis Marine be compelled to

provide deposition dates for fact witness (and Genesis Marine

employee) Ryan Swafford; plaintiff’s counsel had requested

deposition dates five times between January 5, 2021 and February

4, 2021. Counsel for Genesis Marine wholly ignored those

requests.15 It was not until March 1, 2021 at 8:37 p.m. -- almost

one month after the motion to compel was filed -- that counsel for

Genesis Marine proposed dates for Swafford’s deposition. Genesis

Marine’s failure to timely cooperate in scheduling Swafford’s

deposition offers an independent ground to reject its present

motion seeking reversal of the magistrate judge’s non-dispositive

pretrial ruling concerning attorney’s fees. Reasonable

cooperation among counsel on discovery matters is required by the

Federal Rules and failure to do so without substantial

justification is sanctionable. Where, as here, opposing counsel

15 Counsel for Genesis Marine fails to mention this aspect of the

motion to compel or its failure to respond to repeated requests by

plaintiff’s counsel to depose Ryan Swafford.

are not cooperating with the utmost professionalism and good faith,

compliance with the formalities of the Federal Rules of Civil

Procedure is particularly critical.16

Genesis Marine appears to challenge the magistrate judge’s

application of the Federal Rules’ requirement that a party must

provide an item-by-item response to a discovery request.17 Genesis

Marine’s objection holds no water.18 Having failed to identify any

16 The record indicates that the common denominator in cooperation/

communication failures in this case is Genesis Marine.

17 It is difficult to follow Genesis Marine’s argument in its

objection. At the outset, counsel focuses on plaintiff’s counsel’s

alleged misrepresentation (without explaining which part of the

statement was inaccurate or how any inaccuracy about a circumstance

conveyed by defendant’s counsel to plaintiff’s counsel could be

attributed to plaintiff’s counsel). The Court fails to see how

plaintiff’s counsel’s representation to the magistrate judge that

Genesis Marine’s counsel’s assistant missed some time from work

was either inaccurate or somehow misleading. Genesis Marine admits

that its office was closed due to his assistant’s positive COVID-

19 diagnosis at the relevant time. What bearing this fact, or at

what level of abstraction it was conveyed to plaintiff’s counsel

or the magistrate judge, has on the magistrate judge’s attorney’s

fees ruling is not clear. If counsel is suggesting he could not

work while the office was closed and therefore this time period

should not count against him, he stops short of advancing this

argument. Even if he did, it would fail. There is no dispute

that Genesis Marine failed to respond to each item of discovery

requested within 30 days and it failed to timely provide dates to

depose a fact witness.

18 Counsel for Genesis Marine frames its objection as challenging

the magistrate judge’s grant of attorney’s fees, insisting that

other circumstances make an award of expenses unjust. Counsel

fails to persuade the Court how such an award is unjust, where, as

here, the record indicates that it is counsel for Genesis Marine

that has obstructed the plaintiff’s efforts to cooperate, whether

it be in properly and formally responding to discovery requests,

scheduling a deposition, or as explained below, instead of covering

the expenses of its retained expert to travel to the forum,

insisting that the plaintiff -- a person claiming severe emotional

error of fact or law in the magistrate judge’s non-dispositive

ruling, its objection must be overruled.19

2. The magistrate judge did not err in denying Genesis

Marine’s motion to compel the plaintiff to appear for his mental

examination in Denver, Colorado.

On March 5, 2021, counsel for Genesis Marine advised counsel

for plaintiff that Carroll was scheduled to undergo an Independent

Medical Exam in Denver, Colorado at 2:00 p.m. on March 12, 2021

with Hal Wortzel, M.D., and that all reasonable and necessary

expenses for the trip would be paid by Genesis Marine. Carroll’s

counsel advised “without explanation” that Carroll would not

travel to Denver for an IME. This prompted Genesis Marine to file

a motion to compel, which was denied by the magistrate judge, who

observed that counsel for Genesis Marine had identified no cases

on point in the Eastern District of Louisiana that support defense

counsel’s position that a plaintiff can or should be compelled to

distress -- travel well outside the forum to Denver, Colorado to

submit to a defense medical exam.

19 Genesis Marine also objects to the length of the plaintiff’s

motion to compel. Because there is no dispute that plaintiff’s

counsel attempted to resolve the discovery issues before filing

the motion to compel and the length of the motion was well within

the page limitations prescribed by the Local Rules, this objection

is frivolous. Again, Genesis Marine insists that its global

response (that all documents it could locate had been produced)

complied with the discovery rules. Magistrate Judge Douglas

disagreed. The clear language of the discovery rules demonstrate

that she did not err in doing so.

board a plane during a pandemic to travel 1,300 miles outside of

the forum state to submit to an independent medical exam with the

defense’s retained expert. Counsel for Genesis Marine objected on

the record at the hearing that the magistrate judge had not

identified any case that refuted its position that “it’s

plaintiff’s burden and plaintiff has failed. They had more than I

want to say it was more than 1.5 million people traveled this

weekend by air.” This motion seeking to overturn the magistrate

judge’s ruling followed. Because Genesis Marine has identified no

portion of the magistrate judge’s ruling that was clearly erroneous

or contrary to law, its objection must be overruled.

Rule 35 of the Federal Rules of Civil Procedure allows the

Court to 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. There is no dispute that

Carroll’s mental condition is in controversy and Genesis Marine

retained a licensed examiner. Nor is there any dispute that, even

before Genesis Marine filed its motion to compel, the plaintiff

agreed to submit to the examination with Genesis Marine’s doctor

of choice in the forum, New Orleans, Louisiana. Rule 35 does not

address the location where the IME should or must take place. Now

it is Genesis Marine that “without explanation” refuses to

accommodate the plaintiff’s reticence to travel to Denver,

Colorado. Because Genesis Marine fails to invoke any binding or

persuasive authority in support of its position that a plaintiff

complaining of emotional distress must be compelled to travel

outside the forum of New Orleans to Denver for a mental health

exam by its expert, the magistrate judge’s order denying Genesis

Marine’s motion will not be disturbed.

Genesis Marine does not dispute the magistrate judge’s

observation that it invoked no on-point, let alone binding,

authority to support its position (that the plaintiff must travel

wherever the defendant’s retained expert is located unless he

submits medical or other evidence to show doing so unduly burdens

him). Indeed, it still has not. Instead, Genesis Marine maintains

its singular focus that it is permitted to select a doctor of its

choosing and it is the plaintiff’s burden to demonstrate

particularly why or how air travel to wherever that doctor might

be located is unduly burdensome. An unreasonable position

considering the case law.

There are plenty of unpublished, district court decisions

considering what is a reasonable location, or reasonable distance

to travel, for an IME. And the general rule that emerges is that

the plaintiff should make himself available for examination in the

forum or district in which the lawsuit was filed. Like other

discovery matters, the touchstone is reasonableness. For example,

in Stephens v. FAF, Inc., No. 18-006, 2018 WL 7288582, at *2 (W.D.

Tex. June 21, 2018), the magistrate judge denied without prejudice

the defendants’ motion seeking an independent medical examination,

finding that “the distance to the location of the proposed medical

exam is unreasonable.” Id. (“Google Maps estimates the proposed

location of the medical examination [in] Houston, Texas, is 562

miles from Plaintiff’s residence, and the travel time from

Plaintiff’s residence to the examination location is 7 hours and

58 minutes.”). The magistrate judge further ordered that,

respecting any future motion for an independent medical

examination, “the location of the examination must be within the

boundaries of the ... Western District of Texas” unless the

defendants showed good cause for their inability to find a suitable

medical practitioner within the District. Id.

The magistrate judge in Stephens relied on two cases from the

Eastern District of Louisiana. The first observed that the venue

where the suit is filed typically is the appropriate location for

a medical exam, Williams v. Nguyen, No. 16-13983, 2017 WL 1177914,

at *2 (E.D. La. Mar. 30, 2017)(Roby, M.J.)(citation omitted).

There, ultimately, Chief Magistrate Judge Roby granted the motion

as unopposed when the parties agreed that the defendant would pay

for an Uber or taxi to transport the plaintiff to and from his

house in Algiers to Houma, Louisiana. The second held that, given

the limitation-claimant’s physical condition and the fact that he

is a claimant who did not choose the New Orleans forum, a distance

of 214 miles is too far to make the plaintiff travel for a medical

exam, In re Bordelon Marine, Inc., No. 11-1473, 2012 WL 1902576,

at *3 (E.D. La. May 25, 2012)(Roby, M.J.)(finding that the IME and

vocational rehabilitation evaluation should be conducted at a

location closer to the claimant). These two cases were invoked by

Magistrate Judge Currault in Knuth v. Regional Transit Authority

of New Orleans, No. 20-396, 2020 WL 6742800 (E.D. Nov. 17,

2020)(citation omitted)(noting the “usual case” that a plaintiff

may be ordered to appear for examination at the place where the

trial will be held, which allows the examining physician to be

available for testimony and indicating that the plaintiff, a New

York resident, could be compelled to travel from her home state to

the forum in New Orleans, Louisiana for an IME); see also Thomas

v. W&T Offshore, Inc., No. 16-14694, 2018 WL 501508 (E.D. La. Jan.

22, 2018)(van Meerveld, M.J.)(granting motion to compel IME,

determining that it is reasonable and not unduly burdensome for

the plaintiff to travel 85 miles within the forum to submit to the

examination).20

20Other non-binding authorities in which a plaintiff was ordered

to travel involve long-distance travel to the forum. See, e.g.,

Integrated Communications & Technologies, Inc. v. Hewlett-Packard

Financial Services Company, No. 16-10386, 2021 WL 723322, at *1

(D. Mass. Feb. 24, 2021)(denying motion for remote Rule 35 medical

exams by plaintiffs, who were residents of China, and ordering the

plaintiffs to fly to the United States, where they chose to file

suit, for examination in spite of pandemic); Cameron v. Gutierrez,

No. 19-841, 2020 WL 5326946, at *5 (D.N.M. Sept. 4, 2020)(noting

that the burden was on the plaintiff to provide documentation from

Genesis Marine fails to address these cases and the “usual

case” rule that has emerged: a plaintiff will generally be ordered

to appear for an IME conducted somewhere in the forum. It is

Genesis Marine that seeks to create an exception to this general

custom of ordering a plaintiff to travel to the forum to submit to

an IME.21

Instead of demonstrating a clear error of fact or law,

reviewing the non-binding authorities summarized here simply

reinforce the reasonableness of Magistrate Judge Douglas’s ruling.

It is clear that she did not err when she determined that it was

unreasonable to order the plaintiff, who alleges that he suffers

from severe emotional distress, to travel from Foxworth,

Mississippi to New Orleans, Louisiana to board a plane to fly to

Denver, Colorado, submit to a four-hour mental health examination,

and then return by flight to New Orleans, Louisiana and then drive

back to Foxworth, Mississippi.22 The plaintiff has no objection

a medical provider confirming that travel from Kentucky to submit

to an IME in the forum of New Mexico during the pandemic presented

a medically unacceptable level of risk).

21 The non-binding authorities invoked by Genesis Marine do not

depart from this “usual case” custom; rather, Genesis Marine

invokes cases in which travel to the forum was compelled or the

parties agreed to the location of the exam.

22 Cf. Sanders v. Cangiolosi, No. 17-8563, 2021 WL 1121084, at *2-

3 (N.D. Ill. Mar. 24, 2021)(denying the defendant’s motion to

compel IME where it would require the plaintiff to travel from

California to Chicago, but ordering that the plaintiff must submit

to a medical examination within 100 miles driving distance from

the plaintiff’s house; noting that the plaintiff’s concern about

traveling in the midst of a pandemic “cannot be said to be invalid

to submitting to an IME with Genesis Marine’s expert of choice,

only to the location and burdensome nature of traveling so far

outside the forum during a pandemic to submit to it. The non-

binding case literature indicates that the plaintiff’s offer to be

examined in this District was a reasonable accommodation.

Magistrate Judge Douglas did not err in denying Genesis Marine’s

motion.

II.

A.

Summary judgment is proper if the record discloses no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). A dispute is

genuine if “the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Anderson v. Liberty

Lobby, 477 U.S. 242, 248 (1986). A fact is material if it “might

affect the outcome of the suit.” Id. at 248.

If the non-movant will bear the burden of proof at trial, the

movant “may merely point to an absence of evidence, thus shifting

to the non-movant the burden of demonstrating by competent summary

judgment proof that there is an issue of material fact warranting

or raised merely to obstruct the defendants’ undoubted right to

have the plaintiff examined.”).

trial.” In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir.

2017)(citation omitted).

The mere argued existence of a factual dispute does not defeat

an otherwise properly supported motion. See Anderson, 477 U.S. at

248. Nor do “[u]nsubstantiated assertions, improbable inferences,

and unsupported speculation[.]” Brown v. City of Houston, Tex.,

337 F.3d 539, 541 (5th Cir. 2003); Hathaway v. Bazany, 507 F.3d

312, 319 (5th Cir. 2007)("[T]he nonmoving party cannot defeat

summary judgment with conclusory allegations, unsubstantiated

assertions, or only a scintilla of evidence."). The non-moving

party must come forward with competent evidence, such as affidavits

or depositions, to buttress his claims. Donaghey v. Ocean Drilling

& Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Hearsay

evidence and unsworn documents that cannot be presented in a form

that would be admissible in evidence at trial do not qualify as

competent opposing evidence. Martin v. John W. Stone Oil Distrib.,

Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).

Ultimately, to avoid summary judgment, the non-movant “must go

beyond the pleadings and come forward with specific facts

indicating a genuine issue for trial.” LeMaire v. La. Dep’t of

Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).

In deciding whether a fact issue exists, the Court views the

facts and draws all reasonable inferences in the light most

favorable to the non-movant. See Midwest Feeders, Inc. v. Bank of

Franklin, 886 F.3d 507, 513 (5th Cir. 2018). And the Court

“resolve[s] factual controversies in favor of the nonmoving

party,” but “only where there is an actual controversy, that is,

when both parties have submitted evidence of contradictory facts.”

Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)

(citation omitted).

The Court must not evaluate the credibility of witnesses on

a paper record, nor may it weigh evidence. When considering summary

judgment motions prior to a bench trial, however, the Court in

non-jury cases “has somewhat greater discretion to consider what

weight it will accord the evidence” and “to decide that the same

evidence, presented to him . . . as a trier of fact in a plenary

trial, could not possibly lead to a different result.” Jones v.

United States, 936 F.3d 318, 321-22 (5th Cir. 2019)(citations,

internal quotations omitted).

B.

Though the issue was not briefed, the parties appear to agree

that their dispute is governed by general maritime law. Genesis

Marine moves for summary judgment on the ground that the plaintiff

was not in the zone of danger such that, even if the Court

considered the plaintiff’s negligent infliction of emotional

distress theory of recovery, he is not eligible to pursue it

because he was outside the zone of danger. The plaintiff counters

that a contested issue of material fact -- Carroll’s proximity to

the rupture; whether he was, in fact, in the “zone” -- precludes

summary judgment.23 The Court agrees.

Twenty-eight years ago, this Court determined that genuine

issues of material fact as to whether an “emotionally disabled”

plaintiff diagnosed with Post-Traumatic Stress Disorder was within

the “zone of danger” following an explosion on a rig and whether

the plaintiff’s post-incident fright was a reasonably foreseeable

consequence of the drilling company’s negligence precluded summary

judgment for the defendant, in Anselmi v. Penrod Drilling Corp.,

813 F. Supp. 436 (E.D. La. 1993). Once again, this Court is

presented with a fact-specific scenario that tests the limits of

the scope of workplace tort liability for plaintiffs alleging

emotional damages and physical manifestations of emotional injury.

And, once again, this Court finds that a defendant has failed to

carry its burden to show that summary judgment in its favor must

be granted.

23 Carroll also submits that another issue of fact that precludes

summary judgment is whether his reaction to the incident was a

reasonably foreseeable consequence of Genesis Marine’s negligence.

Because Genesis Marine’s motion is anchored to Carroll’s proximity

to the rupture, the Court does not address this other asserted

fact issue.

Under general maritime law, it is settled that a plaintiff

may “recover for emotional injury provided that there is some

physical contact.” Plaisance v. Texaco, Inc., 966 F.2d 166, 169

(5th Cir. 1991)(en banc)(consulting the Restatement for the

requirements to satisfy the physical-injury test). To recover for

emotional injuries under the physical-impact test, the plaintiff

must show that the physical contact or impact is more than

“trivial” or “transitory, non-recurring physical phenomena, ...

such as dizziness, vomiting, and the like,” and there must be a

causal relationship between the physical impact and the emotional

injury. See In re Deepwater Horizon, 841 Fed.Appx. 675, (5th Cir.

2021)(unpublished, per curiam)(citations omitted).

A plaintiff pursuing a zone-of-danger theory under general

maritime law to recover for emotional injury is on shakier ground.

The zone of danger test limits recovery for emotional injury to

those plaintiffs whose emotional injury occurred while they were

in immediate risk of physical harm by the defendant’s negligent

conduct; Jones Act seaman or railroad employees within the zone of

danger of physical impact can recover for fright.24 However, as

24 See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 544,

547-48 (1994)(holding that claims for negligent infliction of

emotional distress are cognizable under FELA and adopting the zone

of danger test to “limit[] recovery for emotional injury to those

plaintiffs who sustain a physical impact as a result of a

defendant’s negligent conduct, or who are placed in immediate risk

of physical harm by that conduct.”).

it has for decades, the Fifth Circuit recently reaffirmed that it

continues to “le[ave] open the question of whether a zone-of-

danger negligent infliction of emotional distress claim presents

a recoverable injury.” See In re Deepwater Horizon, 841 Fed.Appx.

675 (5th Cir. 2021)(unpublished, per curiam)(citing Barker v.

Hercules Offshore, Inc., 713 F.3d 208, 224 (5th Cir. 2013)).

There, Bradley Shivers and other fishermen plaintiffs alleged that

they were 100 to 200 feet away from the Deepwater Horizon oil rig

when they approached after it exploded, felt and heard a sonic

boom and rumbling sounds coming from below the surface of the

water, and arrived at the scene to assist in rescue efforts, saw

flames from the rig as high as 500 feet in the air, and suffered

burns on their faces and singed here during their rescue efforts

before leaving five hours later. Another Section of this Court

granted the defendants’ motion to dismiss, determining that the

allegations were insufficient to satisfy the zone of danger test.

And the Fifth Circuit agreed. See id. (“we have held that the

plaintiff must be in the same location as the accident and face

immediate risk of harm.”).

Genesis Marine invokes the Shivers case, arguing that the

record shows that Carroll was not in the dangerous area because he

was on an adjacent barge “looking the opposite direction”25 from

25 Genesis Marine submits the video in support of its submission

that Carroll was looking in the direction opposite the rupture.

the barge that ruptured.26 A genuine dispute concerning a material

fact -- the distance the plaintiff was from the rupture on the

GM3804 -- precludes summary judgment. Genesis Marine submits that

“[t]he reality to observe is that Mr. Carroll was more than 220

feet away” from the rupture. In support of this fact, Genesis

Marine submits that Randy Bullard, its retained surveyor -- using

Carroll’s expert’s (Greg Perkins’) data -- calculated that Carroll

was 223.71 feet away from the rupture on the other vessel.27 To

be sure, if this fact is proved at trial, then it seems to undermine

the plaintiff’s zone of danger showing. However, the plaintiff

counters with his deposition testimony in which he attests that he

was working much closer, just 50-75 feet away from the rupture

and, thus, close enough to bring him within the zone of danger of

imminent physical harm.28 This factual dispute precludes summary

judgment.

No people were discernible from the Court’s viewing of the video.

In any event, Carroll testified that he saw the rupture out of the

corner of his eye.

26 It is undisputed that Carroll was not on the GM3804 barge that

ruptured. See, e.g., Carroll Depo. Tr. p. 176.

27 Carroll purportedly told Dr. Melcher on November 1, 2019 that

he was “100 feet away” and that he “did not lose consciousness.”

28 Genesis Marine did not reply to the plaintiff’s identification

of this fact issue. Nor does it respond to the evidence in the

record supplied by the plaintiff detailing the severity of the

damage to the GM3804, including deck deformity for a length of 69

feet and a width of 28 feet, six inches; repair of 56,680 lbs. of

steel; and repairs costing $1.5 million. The severity of the

damage, the plaintiff argues, supports the plaintiff’s narrative

that the incident was so substantial that the plaintiff felt and

heard the rupture. It is the loud sound and percussive impact

kkk

Fright is a subjective and thus often mystifying phenomenon.

For a fact-finder to evaluate the genuineness of a plaintiff's

subjective fear that he faced death or physical harm,??2 the

plaintiff must first establish that he was objectively within the

zone of danger. One aspect of this objective determination is the

plaintiff’s proximity to the danger. On this relative fact, there

is a controversy in the record. Summary judgment must be denied.

Accordingly, for the foregoing reasons, IT IS ORDERED that

Genesis Marine’s three motions are hereby DENIED. 2°

New Orleans, Louisiana, May 5, 2021

MARTIN JL. C. (FELDMAN

UNITED STAWES DISTRICT JUDGE

(and resulting ringing in the ears, blurred vision, dizziness,

earaches, etc.), which the plaintiff suggests defeats summary

judgment on the physical injury test. On this record, the Court

agrees that Genesis Marine has not carried its burden to show it

is entitled to judgment as a matter of law.

29 Genesis Marine does not appear to dispute that the subjectivity

prong is met for the purposes of its motion.

30 As this Court indicated during the pretrial conference, the

parties shall brief all seriously contested issues of law in

advance of trial. The applicable law and the parameters of the

zone of danger theory of recovery shall be included in that

briefing. Counsel shall be mindful of 28 U.S.C. § 1927.

30