Hunt v. R B Falcon Drilling USA, Inc.

Full title: VINCENT HOWARD HUNT v. R B FALCON DRILLING USA, INC

Court: United States District Court, E.D. Louisiana

Date published: Dec 12, 2000

Civil Action No. 99-1685, Section "I" (1) (E.D. La. Dec. 12, 2000)

Opinion

Civil Action No. 99-1685, Section "I" (1).

December 12, 2000.

ORDER AND REASONS

SCHWARTZ, United States District Judge.

Defendant seeks to have the court "appoint an independent orthopedic surgeon" to "examine everything, including Mr. Hunt, and give his or her diagnosis and opinion."¹ Defendant brought the motion pursuant to Federal Rule of Civil Procedure 35, yet has not proposed examination by its own physician. Instead, defendant seeks a court-appointed physician to perform the medical examination, a motion more properly made pursuant to Federal Rule of Evidence 706.

1 Memorandum in Support of Motion to Appoint Independent Physician to Conduct Physical Examination, at 4.

"Rule 706 should be reserved for exceptional cases in which the ordinary adversary process does not suffice." In re Joint Eastern Southern Dists. Asbestos Litig., 830 F. Supp. 686, 693 (E. S.D.N Y 1993). Defendant does not contend that the plaintiff has refused to be examined by its physician or has challenged the qualifications of its physician. Indeed, defendant has not requested the plaintiff be examined by a doctor of its choice. Defendant has been provided with the plaintiff's medical records. The court finds that defendant has not demonstrated the necessity of a court-appointed physician to conduct a medical examination of the plaintiff.

Defendant has established that the plaintiff's physical condition is a matter in controversy. At issue is whether the condition originally diagnosed and treated for over one year as a shoulder injury supports the current diagnosis by plaintiff's physician of a herniated disc, causation, and surgical treatment. Thus, good cause exists to permit defendant to select its own expert to examine the plaintiff and make a current assessment, with the examination limited to the conditions at issue in this case.

Accordingly,

IT IS ORDERED that defendant's Motion to Appoint Independent Physician to Conduct Physical Examination is DENIED. Defendant may select a physician to perform a current medical examination of the plaintiff, limited to plaintiff's shoulder and cervical and lumber spine.