Terrebonne v. B&J Martin Inc
2:16-cv-08630
E.D. La.Feb 24, 2017Background
- Plaintiff David Terrebonne sued under the Jones Act and general maritime law alleging that while working aboard the F/V Amy Claire he experienced chest pain and that the vessel owner, B&J Martin, denied timely medical care, culminating in open-heart surgery and damages sought of $1,850,000.
- Defendant moved to compel a Rule 35 independent medical examination (IME) by Dr. R. Dean Yount, a cardiologist in New Orleans.
- Plaintiff opposed only the IME location, arguing he is medically unable to travel from Golden Meadow to New Orleans after recent open‑heart surgery and sought a nearer location (Houma or Thibodaux).
- Plaintiff did not contest that his physical condition is in controversy or that there is good cause for an IME; his sole objection was the travel distance and asserted health risk.
- Defendant countered that medical records show no travel restrictions and that Plaintiff’s primary care physician has declared him at maximum medical improvement.
- The magistrate judge found Plaintiff’s unsupported assertion of an inability to travel insufficient to override the usual rule favoring the defendant’s choice of IME physician and ordered the IME in New Orleans on February 23, 2017.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court should compel a Rule 35 IME | Terrebonne contends he cannot travel safely to New Orleans after open‑heart surgery; requests IME closer to home | B&J Martin asserts Plaintiff’s condition is in controversy, there is good cause for an IME, and medical records show no travel restriction; proffers Dr. Yount in New Orleans | Granted: Court ordered IME with Dr. Yount in New Orleans; Plaintiff’s travel objection insufficient without medical documentation |
Key Cases Cited
- Acosta v. Tenneco Oil Co., 913 F.2d 205 (5th Cir. 1990) (three requirements for Rule 35 exam: condition in controversy, proper expert, and good cause)
- Schlagenhauf v. Holder, 379 U.S. 104 (1964) (movant must show the condition is really and genuinely in controversy and good cause exists for each examination)
- Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 204 (N.D. Tex. 1996) (Rule 35 construed liberally in favor of discovery; guidance on choice of physician)
- Baird v. Quality Foods, Inc., 47 F.R.D. 212 (E.D. La. 1969) (plaintiff ordinarily must appear for examination where suit is filed unless travel would be injurious to health)