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BP Supervisor Must Comply With Medical Orders in Spill Litigation

By Robyn Hagan Cain on January 10, 2013 | Last updated on March 21, 2019

Last week, the top BP supervisor on the Deepwater Horizon rig lost his appeal to avoid testifying in the upcoming civil case about the 2010 explosion that devastated the Gulf of Mexico, New Orleans' WWL-TV reports.

The Fifth Circuit Court of Appeals ruled Jan. 3 that Donald Vidrine must comply with a district court order to submit to a medical examination and provide his medical records and reports to a court-appointed doctor.

Vidrine has asserted that due to an undisclosed medical condition, he is unable to appear for a deposition or to answer written questions in the ongoing Deepwater Horizon Gulf oil spill litigation. In 2011, he twice submitted medical information in camera to the magistrate judge in support of his assertions. In November 2011, the court 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 fought back, again providing medical information to the magistrate judge under seal.

Later that month, 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, 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, but the district court affirmed the magistrate judge's order.

Vidrine based his Fifth Circuit appeal on the collateral order doctrine created in Cohen v. Beneficial Indus. Loan Corp., which recognizes that some orders are immediately appealable pursuant to 28 U.S.C. § 1291 because they are "final in effect although they do not dispose of the litigation," and are thus reviewable as final decisions before a case is terminated on the merits.

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."

The Fifth Circuit, however, concluded that the order regarding Vidrine's participation was not "effectively unreviewable on appeal from a final judgment," so it did not satisfy the requirements of the collateral order doctrine.

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.'" Since the district court's order was not effectively reviewable under this standard, the Fifth Circuit lacked jurisdiction to consider the appeal.

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