     Case: 12-30237       Document: 00512099937         Page: 1     Date Filed: 01/03/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          January 3, 2013

                                       No. 12-30237                        Lyle W. Cayce
                                                                                Clerk

ALL PLAINTIFFS,

                                                  Plaintiffs
v.

TRANSOCEAN OFFSHORE DEEPWATER DRILLING INC.;
TRANSOCEAN HOLDINGS, L.L.C.; TRANSOCEAN DEEPWATER, INC.;
TRITON ASSET LEASING GMBH,

                                                  Defendants-Appellees
v.

DONALD VIDRINE,

                                                  Movant-Appellant



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                                  MDL No. 2179


Before BARKSDALE, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       In this interlocutory appeal, Appellant Donald Vidrine (“Vidrine”)
challenges a district court order that he: (1) submit to a medical examination


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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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 Appellees Transocean Offshore Deepwater
Drilling Inc., Transocean Holdings, L.L.C., Transocean Deepwater, Inc., and
Triton Asset Leasing GMBH (collectively “Transocean”). 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, Vidrine 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


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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) medical 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


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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 (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; 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



       1
         Appellants who seek to appeal interlocutory orders may also proceed pursuant to 28
U.S.C. § 1292, which grants us jurisdiction over certain enumerated types of interlocutory
orders, see 28 U.S.C. § 1292(a), and creates certification procedures to be followed to obtain
review of other interlocutory orders, see id. § 1292(b); Martin v. Halliburton, 618 F.3d 476, 481
(5th Cir. 2010). No party suggests that § 1292(a) is implicated, and the certification
procedures of § 1292(b) were not followed here; “[t]hus, our jurisdiction must exist, if at all,
under § 1291.” Martin, 618 F.3d at 481.

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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
(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (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 (2009) (noting that
where effective unreviewability condition was not satisfied, court did not decide
whether the other Cohen conditions were met).
      In deciding whether an order is effectively unreviewable, the “decisive
consideration is whether delaying review until the entry of final judgment
‘would imperil a substantial public interest’ or ‘some particular value of a high
order.’” Mohawk Indus., 130 S. Ct. at 605 (quoting Will v. Hallock, 546 U.S.
345, 352-53 (2006)). In making this determination, “we proceed on a categorical
basis, looking only at whether the class of claims, taken as a whole, can be
vindicated by other means than immediate appeal.” Martin, 618 F.3d at 483
(internal quotation marks omitted) (quoting Mohawk Indus., 130 S. Ct. at 605).
      Applying these standards, the February 24, 2012 district court order is
not effectively unreviewable on later appellate review. The order requiring
Vidrine to submit to a medical exam for the purpose of determining his ability
to give a deposition and to provide his medical records to a court-appointed
psychiatrist is most accurately characterized as a discovery order or an order
in aid of the district court’s inherent authority to determine preliminary issues,
such as a party’s or witness’ capacity to sit for a deposition or to testify. An
order of this type is reviewable by means other than immediate appeal. For
example, a party will be able to appeal any final adverse judgment based on
inadmissible evidence, see Mohawk Indus., 130 S. Ct. at 606-07 (noting that an
appellate court can remedy improper disclosure of privileged material on review


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of a final adverse judgment); Goodman v. Harris Cnty., 443 F.3d 464, 469 (5th
Cir. 2006) (noting that an appellate court could later review any judgment
based on inadmissible evidence obtained from a Rule 35 exam), and an order
holding a party in contempt for disobeying a discovery order would be a final
appealable judgment, see Mohawk Indus., 130 S. Ct. at 609; Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 377 (1981); Piratello v. Philips Elec. N. Am.
Corp., 360 F.3d 506, 508 (5th Cir. 2004).         While Vidrine argues that a
subsequent court will have no opportunity to review the lawfulness of the exam,
given that the exam’s purpose is to determine his ability to testify and that no
evidence from the exam will likely be admitted at trial, he cites no authority
that would prevent a later court from excluding evidence obtained during a
deposition of Vidrine, if that deposition is found to have occurred as a result of
an unlawfully ordered medical exam.
      Vidrine further argues that there is no adequate remedy on subsequent
appeal to redress the harm caused by being required to submit to a medical
examination, or to redress the infringement on the privilege caused by the
required production of his medical records to the court-appointed psychiatrist.
However, that a district court order “may burden litigants in ways that are only
imperfectly reparable by appellate reversal of a final district court judgment
. . . has never sufficed” to satisfy the unreviewability condition of the collateral
order doctrine. See Mohawk Indus., 130 S. Ct. at 605-06 (quoting Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 878-79 (1994)).              That an
interlocutory order requires disclosure of privileged material is likewise
insufficient by itself to invoke the doctrine. See id. at 606-08 (explaining that
postjudgment appeal, among other avenues for appeal of discovery orders, is
adequate to protect attorney-client privilege, even if an order requires
disclosure of privileged material in the interim). We do not disregard the rights


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and privilege that Vidrine asserts here by holding that, given the other
established avenues for appellate review of a discovery or preliminary order
such as this, deferring review of this order simply does not “so imperil[ ]” those
interests so as “to justify the cost of allowing immediate appeal of the entire
class of relevant orders.” Id. at 606.
                               III. Conclusion
      For the foregoing reasons, because this court lacks jurisdiction over this
appeal, it is DISMISSED.




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                                  No. 12-30237


DENNIS, J., Circuit Judge, concurring.
      This case raises the important and novel issue of whether a court may
order a psychiatric examination of a potential witness by a court-appointed
psychiatrist under Federal Rule of Civil Procedure 35 to determine whether the
witness is substantially likely to suffer serious physical or mental harm by being
forced to submit to a discovery deposition. The district court’s order requires
Donald Vidrine, a potential witness in this litigation and a defendant in member
cases that have been consolidated with the underlying multidistrict litigation,
to submit to an examination by a psychiatrist appointed by the court and to turn
over his medical or psychiatric records to the court-appointed psychiatrist. The
court-appointed expert will be required to report his findings to the court after
his examination of Vidrine, and the court, based on those findings, as well as the
reports and records made by Vidrine’s own psychotherapist, will decide whether
to force Vidrine to submit to a discovery deposition by other parties to the
consolidated litigation. I fully concur in the majority’s opinion that the district
court’s order is not an appealable collateral order. I write separately to explain
that, despite the novelty, importance, and sensitive nature of the issue, Vidrine
is not entitled to mandamus at this time, primarily because he did not apply for
such relief, and to point out that he still has other possible remedies available
to him.
      I agree with the majority that the Supreme Court’s opinion in Mohawk
Industries, Inc. v. Carpenter, 558 U.S. 100 (2009), effectively precludes collateral
appeals of discovery orders, even when important privileges safeguarding
private or confidential communications are at issue. Despite the general rule
that discovery orders are not directly appealable, courts have sometimes
considered the propriety of discovery orders on review by extraordinary writ.
See Schlagenhauf v. Holder, 379 U.S. 104, 109-12 (1964) (granting petition for

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writ of mandamus to challenge Rule 35 order); see also, e.g., SEC v. Rajaratnam,
622 F.3d 159, 167-72 (2d Cir. 2010) (holding the district court’s order to turn
over wiretapped conversations to the SEC was not immediately appealable
under Mohawk, but granting the alternative petition for writ of mandamus).
“The Supreme Court has explained that the remedy of mandamus is a drastic
one, to be invoked only in extraordinary situations. The writ has traditionally
been used in the federal courts only to compel it to exercise its authority when
it is its duty to do so. Only exceptional circumstances amounting to a judicial
usurpation of power will justify the invocation of this extraordinary remedy.
Mandamus traditionally is not to be used as a substitute for an appeal, or to
control the decision of the trial court in discretionary matters.” In re Amy
Unknown, 701 F.3d 749, 2012 WL 5835827, at *5 (5th Cir. 2012) (internal
citations, quotation marks, and alterations omitted).
      Some of the prerequisites for review by extraordinary writ are arguably
met here. The district court’s order brings about a serious intrusion into
Vidrine’s privacy and his mental and emotional health, and the question
presented is a novel issue of importance affecting privacy interests and the
contours of the psychotherapist-patient privilege. In addition, the district court’s
use of Federal Rule of Civil Procedure 35 was likely a “clear abuse of discretion.”
E.g., Schlagenhauf, 379 U.S. at 109-12. Vidrine did not put his mental or
physical health “in controversy” as a disputed merits issue, FED. R. CIV. P.
35(a)(1); rather, his mental health is only relevant to whether he may be made
to sit for a deposition, cf., e.g., Schlagenhauf, 379 U.S. at 118-19, 121 (holding
that Rule 35 does not permit “sweeping examinations of a party who has not
affirmatively put into issue his own mental or physical condition” by “assert[ing]
his mental or physical condition either in support of or in defense of a claim,”
and that “mere relevance to the case” is insufficient); Acosta v. Tenneco Oil Co.,
913 F.2d 205, 209 (5th Cir. 1990) (holding that neither the plaintiff’s charge of

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discrimination nor employer’s failure-to-mitigate defense put the plaintiff’s
mental or physical condition “in controversy” under Rule 35).1
      Nevertheless, mandamus is not appropriate in this case for several
reasons. First, Vidrine’s principal objection to the district court’s order is the
disclosure of the records compiled by his own physician and of the results of the
court-ordered psychiatric examination; he does not specifically and urgently
complain that the examination itself would jeopardize his mental or emotional
well-being. Moreover, Vidrine did not petition for a writ of mandamus in the
alternative to taking a direct appeal. Compare, e.g., Coastal (Bermuda) Ltd. v.
E.W. Saybolt & Co., 761 F.2d 198, 203 (5th Cir. 1985) (declining to “treat [the]
appeal as a petition for writ of mandamus” because the appellant did “not
request[] that [the court] treat its notice of appeal as anything other than what
it is, and we reserve writs of mandamus only for the most egregious of
discretionary abuses, and where other avenues of relief had been traversed
without success”), with, e.g., Rajaratnam, 622 F.3d at 164 (granting petition for
writ of mandamus filed concurrently with notice of appeal). Nor did Vidrine
request that the district court certify the question for interlocutory appeal to this
court. See 28 U.S.C. § 1292(b); Mohawk, 130 S. Ct. at 607-08. Vidrine may
choose to “defy [the] disclosure order and incur court-imposed sanctions,” which
would allow him to either obtain review of a discovery sanction on appeal from
a final judgment rendered in the case, or, in some cases, to appeal from a
contempt citation the district court may issue. Mohawk, 130 S. Ct. at 608. If
Vidrine had petitioned for a writ of mandamus, and had argued that he would
have had no adequate remedy because his mental or physical health would have
been harmed by the psychiatrist’s examination itself, then issuance of a writ of
mandamus may have been warranted. Significantly, Vidrine has done neither.

      1
       Of course, that is not to say that the district court could not have ordered the
examination on some other ground.

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      For the foregoing reasons, I concur in the majority’s judgment that the
district court’s order is not directly appealable, and, further, I am of the opinion
that review by extraordinary writ is not appropriate at this time.




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