“[A]bsent a ‘valid objection’ to the physician defendant chooses [to perform the Rule 35 physical examination], the defendant’s choice is to be respected.”
How later courts described this case
- “[A]bsent a ‘valid objection’ to the physician defendant chooses [to perform the Rule 35 physical examination], the defendant’s choice is to be respected.”
- “[P]laintiff’s ability to obj ect to an expert physician chosen by the defendant [under Rule 35] should be rather limited with any questions of bias or prejudice of either side’s chosen expert being left to full exploration at trial.”
- “A plaintiff in a negligence action who asserts mental or physical injury places that mental or physical injury clearly in controversy.”
Written by the judges who cited it.
The opinion
□ Southern District of Texas
ENTERED
October 21, 2019
UNITED STATES DISTRICT COURT David J. Bradley, Clerk
SOUTHERN DISTRICT OF TEXAS . □
. GALVESTON DIVISION
MICHAEL DOUGLAS GRIFFITH, § □
as owner of the M/V Wellcraft Center §
Console, ET AL. §
§
Petitioners. §
§
VS. § CIVIL ACTION NO. 3:19-CV—00053 □
§
PAUL SANTILLAN, ET AL. §
§
Claimants. § .
. ORDER □
Before me is a request that I order Claimant Paul Santillan (“Santillan”) to submit
‘to an independent medical examination pursuant to Federal Rule of Civil Procedure 35
(“Rule 35”). See Dkt. 37. After reviewing the parties’ written submissions, hearing oral -
argument, and reviewing the applicable case law, I believe an independent medical
examination (“IME”) is appropriate in this case.
BACKGROUND
This lawsuit arose from an incident that occurred during a fishing trip aboard the
M/V Wellcraft Center Console Charter Boat (the “Vessel”) in the summer of 2017.
According to Santillan, the driver of the Vessel accelerated to a very high rate of speed, hit
the wake of a wave, and launched Santillan, a passenger on the Vessel, out of his seat.
When Santillan landed back on the Vessel, he says that he struck the seat extremely hard,
suffering immediate pain and injuries to his neck, lower back, and tailbone area. Santillan
further alleges that the driver continued to operate the Vessel in a negligent manner and at
a high rate of speed, causing him to fly upward a second time, further aggravating his
injuries. oo
Petitioners Michael Douglas, Ir. and Lori Griffith, as owners of the Vessel, and
Michael Coleton Griffith, individually and abla Get Fishy Charters, as owner prohac □□□□
of the Vessel (collectively “Petitioners”), invoked this Court’s admiralty jurisdiction by
filing a Complaint and Petition for Exoneration From or Limitation of Liability. Santillan
timely filed a claim seeking damages for personal injuries he allegedly sustained as a result □
of the incident.
Petitioners have requested that Santillan undergo an IME with Dr. Michael Kaldis,
a Board-Certified orthopedic surgeon. Santillan has objected to the request for an IME, □
claiming that Petitioners have failed to establish good cause for conducting such an
examination. □
ANALYSIS
Rule 35 provides that a district court “may order a party whose mental or physical
condition . . 1s in controversy to submit to a physical or mental examination by a suitably
licensed or certified examiner.” FED. R. CIv. P. 35(a). Such an order may be made “only
motion for good cause and on notice to all parties and the person to be examined.” /d. □
Although an order for a physical examination is not automatically granted in all '
cases, district courts in the Fifth Circuit have uniformly held that Rule 35(a) should be
construed liberally in favor of granting discovery. See, e.g., Valenzuela v. Willete, No.
5:14-cv-00062, 2015 WL 12843209, at *1 (S.D. Tex. May 15, 2015); Lahr v. Fulbright &
Jaworski, LLP, 164 F.R.D. 204, 207 n.1 (N.D. Tex. 1996). Ultimately, the decision on
>
whether to order an IME is left to the sound discretion of the district court. See Teche Lines.
v. Boyette, 111 F.2d 579, 581 (Sth Cir. 1940).
_ “Rule 35, as contrasted with the other discovery provisions, is distinct in its
requirements that the party requesting such a mental or physical examination must
affirmatively establish that the condition is ‘in controversy’ and ‘good cause’ exists for the
examination, two requirements which are ‘necessarily related.’” Ornelas v. S. Tire Mart,
LLC, 292 F.R.D. 388, 391 (S.D. Tex. 2013) (citation omitted). All the requirements under
Rule 35(a) are satisfied in this case.
A. SANTILLAN’S Conprrion Is “IN CONTROVERSY”
It is undisputed that Santillan’s medical and physical condition is “in controversy.”
Indeed, Santillan has put his medical and physical condition at issue by asserting a |
negligence claim. See Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964) (“A plaintiff in
a negligence action who asserts mental or physical injury places that mental or physical
injury clearly in controversy.”) (citation omitted). A cursory glance at Santillan’s Answer,
Affirmative Defenses, and Claim for Damages clearly reflects that Santillan’s medical and
physical condition are of critical importance to his personal injury claim:
° “As [a] result of Mr. Griffith’s negligence, [Santillan] sustained
severe personal injuries, including a compression fracture of his
- second lumbar vertebra.” Dkt. 12 at 2
“Due to the gravity of the injuries stated above, [Santillan] has had to
‘seek reasonable and necessary medical caré and attention, and this has
caused [Santillan] to incur reasonable and necessary medical expenses
for the treatment of [Santillan’s] injuries.” Jd. at 8.
° “In all likelihood, based upon a reasonable medical probability,
[Santillan] will require reasonable and necessary medical treatment
and incur reasonable and necessary medical expenses into the future.”
Id. .
° “Further, [Santillan] would show he has suffered physical pain and
mental anguish as a result of this incident. Such physical pain and
mental anguish in all reasonable medical probability will continue into
the future, if not permanently.” Jd.
e “Further, [Santillan] would show [he] has suffered physical
impairment as a result of this incident. Such physical impairment in
all reasonable probability will continue into the future, if not
permanently.” Id.
Accordingly, I find that Petitioners have established that Santillan’s physical condition is
“in controversy.”
B. PETITIONERS HAVE SHOWN “GOOD CAUSE”
Turning to “good cause,” Petitioners must show specific facts that demonstrate a
need for the information expected to be derived from the examination. See Schlagenhauf,
379 U.S. at 118. Petitioners contend that Santillan’s medical records establish a significant
medical history, including 10 orthopedic surgeries due to football-related injuries. It is
imperative, Petitioners argue, for a doctor to examine Santillan and assess the cause of his
current injuries and determine whether Santillan, as he alleges, will face future physical
impairment and medical expenses.
In opposing an IME, Santillan argues that “[t]here is no good cause for Dr. Kaldis
to examine Mr. Santillan because there are less invasive ways that your clients can learn
about [Santillan’s] medical conditions: you have access to all of [Santillan’s] medical
records and radiology films... . You can also have Dr. Kaldis watch the. videotaped
. + deposition of [Santillan].” Dkt. 37 at 2. This argument is completely unpersuasive. It
seems incredibly obvious that “[a] review of cold medical records is [simply] no substitute _
for an in-person examination by a doctor.” Hasan v. McCormack Baron Mgmt., Inc., No.
. 18-7779, 2019 WL 2122978, at *2 (E.D: La. May 15, 2019). Stated succinctly, it is patently
‘unfair for Santillan to stand in the way of an IME when he has filed a personal injury
lawsuit seeking to recover more than $1 million in damages. This is especially true when |
there is a treating orthopedic physician that Santillan expects to call to testify at trial to help
establish his medical condition and alleged damages. As Petitioners correctly note:
“1G]ood cause exists for the [Petitioners] to have an equal opportunity to evaluate his
medical and physical condition.” Dkt. 40 at 1. I believe the purpose of Rule 35 is
provide a level playing ld and that goal would be torn asunder if Santillan’s doctor was
permitted to conduct a physical examination while Petitioners’ doctor was not.
. Additionally, there is no possible harm or prejudice that could result from ordering an IME
in this ‘case. To. me, this is an easy call. Both parties acknowledge that Dr. Kaldis is
qualified to conduct an orthopedic examination, and Petitioners should be permitted to
select their preferred expert witness to conduct the examination. See Powell v. United
States, 149 F.R.D. 122, 124 (E.D. Va. 1993) (“[A]bsent a ‘valid objection’ to the physician
defendant chooses [to perform the Rule 35 physical examination], the defendant’s choice
is to be respected.”); Looney v. Nat’! R.R. Passenger Corp., 142 F.R.D. 264, 265 (D. Mass.
1992) (“[P]laintiff’s ability to obj ect to an expert physician chosen by the defendant [under
Rule 35] should be rather limited with any questions of bias or prejudice of either side’s
chosen expert being left to full exploration at trial.”).
.
At oral argument, Santillan suggested that I should refrain from ordering an IME at
this time because of the unique nature of a maritime limitation of liability action. In
particular, Santillan asks that I wait to address the IME issue until after the Court makes a □
determination as to whether the Vessel owner may limit liability. Although creative,
* Santillan’s argument is misplaced. Under the Limitation of Liability Act, a vessel owner
may limit his liability to “the value of the vessel and pending freight.” 46 U.S.C. §
30505(a). The Supreme Court has described in great detail the procedure a trial court
should follow in a limitation of liability action. □
The procedure for a limitation action is now found in Supplemental
Admiralty and Maritime Claims Rule F. Much like its predecessor
provisions, Rule F sets forth the process for filing a complaint seeking -
exoneration from, or limitation of, liability. The district court secures the
value of the vessel or owner’s interest, marshals claims, and enjoins the
prosecution of other actions with respect to the claims. In these proceedings,
the court, sitting without a jury, adjudicates the claims. The court determines
whether the vessel owner is liable and whether the owner may limit liability..
The court then determines the validity of the claims, and if liability is limited,
distributes the limited fund among the claimants.
Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 448 (2001). A bifurcation of the
limitation and personal injury claims is proper “where a single claimant sues a shipowner
. in state court and the owner files a petition for limitation of liability in federal court.”
re Tetra Applied Techs. LP, 362 F.3d 338, 340 (Sth Cir. 2004). The situation □□
complicated, however, when a limitation action involves multiple claimants, as it does
- here. The Fifth Circuit has held that claims involving multiple claimants “may proceed
outside the limitation action (1) if they total less than the value of the vessel, or (2) if the
claimants stipulate that the federal court has exclusive jurisdiction over the limitation of
liability proceeding and that they will not seek to enforce a greater damage award until the
limitation action has been heard by the federal court.” Jd. at 341 (internal quotation marks
and citation omitted). Neither of these scenarios is present in this case. In fact, I have
already rejected Santillan’s effort to allow him to pursue his personal injury claim in state
court. See Griffith v. Santillan, No. 3:19-cv-00053, 2019 WL 25438 19 (S.D. Tex. June 29,
2019). Most federal courts handling both limitation and personal injury claims try the
issues together in the name of judicial economy, and the practice followed in the Galveston
federal courthouse is no different. Because the limitation of liability action and the
personal injury claim will be tried together in a federal forum, there is no reason to delay
_ the Rule 35 physical examination to which Petitioners are clearly entitled. See, e.g., In re
Marquette Transp. Co. Gulf-Island, LLC, No. CIV.A. 13-6351, 2014 WL 3891760, at *4
(E.D. La. Aug. 7, 2014) (permitting a Rule 35 physical examination to proceed in a
limitation of liability action); In re Bordelon Marine, Inc., No. 11-173, 2012 WL 1902576,
at * 2 (E.D. La. May 25, 2012) (same); Matter of Arosita Shipping Co., Ltd., No. CIV. A.
92-3181, 1993 WL 205088, at *2 (E.D. La. June 7, 1993) (same).
CONCLUSION
Santillan claims that he suffered injuries as a result of the accident that forms the
basis of this lawsuit. These allegations expressly put his physical condition in controversy
and provide Petitioners with good cause for an examination under Rule 35 to determine the
existence and extent of those alleged injuries. I, therefore, order that Dr. Michael Kaldis
be permitted to conduct a physical examination of Santillan in accordance with Rule 35.
The parties are to confer on a convenient date, time, and place for the physical examination.
_ Ifthe parties cannot agree, they must let me know and I will unilaterally pick a date, time,
and place for the examination.
SIGNED at Galveston, Texas, this 21st day of October, 2019.
C ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE |