Case Law

Date Decided: October 5^th, 2009

Originally Filed in: Georgia (Federal)

Decided by: Georgia Southern District Court (Federal)

Court: USDC SD of Georgia

Judge: Judge Smith

Citation: 2009 WL 3213506 (SD GA 2009)

Background:
Plaintiff, Victor Berry ("Berry"), a longshoreman brought an action under the Longshore Harbor Workers' Compensation Act ("LHWCA"), against vessel owner Mi-Das Line ("Mi-Das") and Doun Risen Co. ("Doun") alleging injuries suffered as a result of crewmember's negligence causing him to fall and injure his knee.

Specifically Berry alleged that as he was proceeding down the gangway he slipped and fell as a result of a crewmember's negligence. Di-Mas and parent company owned and operated the vessel.  Berry alleged that under general maritime law, that defendants are jointly responsible and vicariously liable for the negligent acts of the crewmember who caused his injuries.

The defendants moved this Court for an order requiring Berry to submit to an independent examination by a rehabilitation expert.

Issues:
Did this Court grant defendants motion requiring that Berry submit to an independent examination by a rehabilitation expert provided by defendants?

Held:
Berry contended that the exam is not "independent" because the defendants retained the vocational rehabilitation provided. Berry emphasized he has provided the defendants with plenty of discovery information including a medical examination by another doctor retained by the defendant and all the information should suffice.

Defendants, however, countered that Berry's own vocational expert is going to assess him at the same level and it would be unfair to deny their expert the same access. Moreover, the defendants argued that the rule does not employ the word "independent" as suggested by Berry.

This Court found that the purpose for Berry submitted to the vocational expert was to supply their expert with more information and that it is analytically connected to medical examinations conducted upon Berry. Moreover, Berry seeks to be compensated for his injuries so it is important that the defendants have ample information in which to determine or refute any amount they must pay.

This Court granted defendants motion.

Comments:
The Court ultimately required Berry to submit to an examination by the defendants' vocational expert. The purpose of the examination, as in many trials, is to equip the defendants' (or plaintiffs') expert with ample information in order to get an idea how much of the injury is attributable to event in question.

Steve Gordon