All v. Transocean Offshore Deepwater Drilling Inc.

505 F. App'x 355
Court of Appeals for the Fifth Circuit·Decided January 3, 2013·No. No. 12-30237·Published

Opinions

PER CURIAM: *

In this interlocutory appeal, Appellant Donald Vidrine (“Vidrine”) challenges a district court order that he: (1) submit to a medical examination by a court-appointed psychiatrist, who will provide a report to the court concerning whether Vidrine is medically able to give a deposition in the underlying litigation; and (2) provide his medical records and reports of his treating physician to the court-appointed doctor. For the reasons stated below, we lack jurisdiction to review this order and thus dismiss this interlocutory appeal.

I. Facts and Procedural Background

This case is part of Multidistrict Litigation (“MDL”) proceedings centralized in the Eastern District of Louisiana, arising out of the 2010 Deepwater Horizon Gulf oil spill and encompassing dozens of actions against multiple defendants, including Ap-pellees Transocean Offshore Deepwater Drilling Inc., Transocean Holdings, L.L.C., Transocean Deepwater, Inc., and Triton Asset Leasing GMBH (collectively “Trans-ocean”). See In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 731 F.Supp.2d 1352, 1353, 1356-58 (J.P.M.L.2010). In April 2010, the Deepwater Horizon, an offshore drilling rig, sank in the Gulf of Mexico after an explosion and fire; eleven workers were killed in the explosion and crude oil gushed from the well into the Gulf until mid-July. Id. at 1353. Donald Vidrine was the BP Well Site Leader on duty aboard the oil rig at the time of the incident. He is a named defendant in two of the MDL member cases, and Transocean states that he is a key source of information concerning the events and operations of the Deepwater Horizon before the explosion.

Since the incident, in response to inquiries and a subpoena from parties in the MDL proceedings, including Transocean, about his availability for a deposition, Vid-rine has asserted that due to an undisclosed medical condition, he is unable to appear for a deposition or to answer written questions. He submitted medical information in camera to the magistrate judge in July 2011 and November 2011 in support of his assertions; in response the court ordered on July 21, 2011 that Vidrine was not then required to appear for a deposition and in November 2011 removed Vidrine from the list of fact witnesses for the then-current phase of discovery. In February 2012, Transocean served deposition subpoenas on Vidrine and his treating psychiatrist and filed a motion to compel Vidrine’s deposition. Vidrine filed an opposition to the motion and a motion to quash the subpoenas, again providing medical information to the magistrate judge under seal.

On February 14, 2012, the magistrate judge quashed the deposition subpoenas, but ordered Vidrine to: (1) submit to a Federal Rule of Civil Procedure 35(a) med[357] ical examination by a court-appointed psychiatrist, who is to provide a report to the court concerning whether Vidrine is able to give a deposition; and (2) provide all his medical records and reports of his treating physician to the court-appointed psychiatrist. Vidrine filed a motion objecting to the magistrate judge’s order with the district court. See Fed.R.Civ.P. 72(a).

In a February 24, 2012 order, the district court affirmed the magistrate judge’s order. In response to Vidrine’s contention that providing his medical records to the court-appointed doctor infringed on his psychotherapist-patient privilege, the district court modified the magistrate judge’s order to add additional language concerning waiver of the privilege in other proceedings. The added language is as follows:

By complying with this order, Donald Vidrine shall not be deemed to have waived the right to assert the psychotherapist-patient privilege with respect to the information contained in his medical records in any other action outside the instant proceeding, specifically including any ongoing criminal investigation of the events giving rise to the Macondo well blowout.

Vidrine appeals the district court’s order. Vidrine argues that Rule 35 does not authorize the ordered medical exam, that the district court lacked any authority to order the exam, and that both the exam and the related order that he produce his medical records and reports to the court-appointed psychiatrist infringe on his psychotherapist-patient privilege.

II. Discussion

We begin, as we must, by determining whether we have jurisdiction to review this order. The threshold issue is whether the order is immediately appealable pursuant to 28 U.S.C. § 1291, which grants this court “jurisdiction of appeals from all final decisions of the district courts of the United States[.]” 28 U.S.C. § 1291.1 In general, “a final judgment is normally deemed not to have occurred until there has been a decision by the District Court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Martin v. Halliburton, 618 F.3d 476, 481 (5th Cir.2010) (quoting Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 171 (5th Cir.2009)). However, Vidrine relies on the collateral order doctrine created in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), which recognizes that some orders are immediately appealable pursuant to § 1291 because they are “final in effect although they do not dispose of the litigation,” Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920, 925 (5th Cir.1996), and are thus reviewable as final decisions before a case is terminated on the merits, see, e.g., Cohen, 337 U.S. at 546-47, 69 S.Ct. 1221; Martin, 618 F.3d at 481-82.

To fall within the collateral order doctrine, the “order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.” Henry, 566 F.3d at 171 [358] (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). This order is not “effectively unreviewable on appeal from a final judgment,” id., and thus does not satisfy the requirements of the collateral order doctrine, see Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 605, 175 L.Ed.2d 458 (2009) (noting that where effective unreviewability condition was not satisfied, court did not decide whether the other Cohen conditions were met).

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All v. Transocean Offshore Deepwater Drilling Inc., 505 F. App'x 355 (5th Cir. 2013).

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