All v. Transocean Offshore Deepwater Drilling Inc.

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). 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, 126 S.Ct. 952, 163 L.Ed.2d 836 (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 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, 101 S.Ct. 669, 66 L.Ed.2d 571 (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, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994)). That an interlocutory order requires disclosure of privileged — 359 — 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 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. Footnotes [*] 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. [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.