Louisiana Cases March 25, 2022: Hicks v. USAA Gen. Indem. Co.

Case Description

Kolby Paul Marchand, Brent E. Kinchen, William Compton Helm, Baton Rouge, Leah Catherine Voth, Michael Mann Thompson, and Paula M. Wellons, New Orleans, for applicant-defendant

Richard J. Ward III, Evan P. Fontenot, Plaquemine, Nicholas Ryan Rockforte, New Orleans, Patrick W. Pendley, Plaquemine, and Stanley Paul Baudin, for respondent.

CRICHTON, J.

We granted the writ in this case to examine the meaning of the requirement of "good cause" in Louisiana Code of Civil Procedure article 1464. We hold that a showing of "good cause" under Code of Civil Procedure article 1464 requires that the moving party establish a reasonable nexus between the requested examination and the condition in controversy. We further find that the trial court abused its discretion in denying defendants’ motion to compel an additional medical examination in this case. We therefore reverse the court of appeal's judgment affirming the trial court ruling and remand the matter for further proceedings.

BACKGROUND

On October 1, 2015, Ronald Hicks ("plaintiff") was a passenger in a heavy-duty flatbed truck when it was rear-ended by a vehicle driven by Robert L. Harger, Jr., who was travelling at approximately 60-65 mph and did not brake before impact. The passenger side of plaintiff's truck was pushed up and along the railing of the bridge on which the vehicles were traveling for approximately 50-60 feet as a result.

On September 2, 2016, plaintiff filed a petition for damages against Mr. Harger and USAA General Indemnity Company ("USAA" and, together with Mr. Harger, "defendants"), the liability insurer of Mr. Harger's vehicle, alleging that he sustained personal injuries to his neck, back, and arm as a result of the accident. Defendants stipulated to liability, and trial therefore hinged upon the nature and extent of injuries and damages.

[339 So.3d 1109]

Plaintiff was treated on 79 occasions with several orthopedic and pain management specialists and surgeons and underwent 13 separate procedures. Relevant to the issues herein, plaintiff was initially examined by Dr. Jason Smith, an orthopedic spine surgeon, to whom he was referred in conjunction with his worker's compensation plan. Dr. Smith examined plaintiff and found no evidence of obvious trauma resulting from the accident. Instead, he determined the condition of plaintiff's lower back was indicative of preexisting degenerative disc disease that was aggravated by the accident. While Dr. Smith did not believe plaintiff exaggerated his pain, he also did not believe plaintiff was a candidate for surgery. Plaintiff ceased treatment with Dr. Smith on January 6, 2017. Plaintiff was thereafter referred by his attorney to Dr. Jorge Isaza, an orthopedic surgeon specializing in spine surgery. At the time of his 2017 deposition, Dr. Isaza recommended cervical surgery but had difficulty identifying the primary source of plaintiff's lumbar pain and did not definitively suggest lumbar surgery. Dr. Isaza linked the collision to plaintiff's injuries.

In November 2017, defendants filed a motion to compel an additional medical examination ("AME") under Louisiana Code of Civil Procedure article 1464, which governs AMEs and provides that "[w]hen the mental or physical condition of a party, ... is in controversy ," the court may order an AME "only on motion for good cause shown ...." (Emphasis added.) Defendants sought an examination of plaintiff by Dr. Chambliss Harrod, a board certified orthopedic surgeon. They argued that by alleging injury, disability, lost wages, lost earning capacity, and loss of enjoyment of life, plaintiff placed "both his physical condition and future ability to work into controversy." Quoting Schlagenhauf v. Holder , 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), defendants also argued that "good cause" existed for an AME, because a plaintiff "who asserts mental or physical injury ... places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury." Schlagenhauf , 379 U.S. at 119, 85 S.Ct. 234. Defendants pointed out that, in this case, plaintiff alleges he suffered severe injuries and claims damages for past and future wage losses and put the extent of those injuries and losses at issue. Further, plaintiff offered inconsistent medical testimony concerning his physical condition, because Dr. Smith did not believe plaintiff was a candidate for either neck or back surgery, whereas Dr. Isaza believed he may be a candidate for surgery in the future. Defendants explained that their proposed AME would be 20 or 30 minutes and would not be "intrusive."

Plaintiff opposed the motion. While acknowledging that "in controversy" is a "relatively easy burden to meet," plaintiff argued that "good cause" for an AME "must be shown" and is not "acquired by right." Plaintiff further argued that two orthopedic specialists, Dr. Smith and Dr. Isaza, had already rendered their opinions and a third opinion by a defense orthopedist was not necessary. Rather, plaintiff asserted that Schlagenhauf required a balancing of privacy issues with the need for information.

The trial court denied defendants’ motion to compel an AME, finding that although

[339 So.3d 1110]

plaintiff placed the physical condition of his body in controversy by filing suit and alleging personal injuries, "good cause" did not exist for an AME by Dr. Harrod. The trial court highlighted that Dr. Harrod would have an opportunity to examine plaintiff's medical records and the depositions of plaintiffs’ physicians and testify based on those records. The trial court also referred to plaintiff's argument regarding the availability of testimony of Dr. Smith and Dr. Isaza, noting that a court must look to whether "the info sought can be obtained through least [sic] intrusive means, which, you know, looking at what I've read, yes, I think it can. Whether plaintiff's doctors are available for deposition. They have been deposed."

In April 2018, approximately three weeks before trial, Dr. Isaza performed a nerve block procedure and thereafter determined the majority of the pain was emanating from plaintiff's L5-S1 disc. Dr. Isaza recommended an anterior discectomy and fusion at L5-S1— i.e. , he changed his medical opinion from the time of his deposition, at which he deemed possible that plaintiff would require lumbar surgery, to now deeming it necessary . Defendants sought a continuance, arguing again that Dr. Harrod needed an opportunity to examine plaintiff to fairly evaluate Dr. Isaza's recommendation for surgery. The trial court denied the continuance.

The matter proceeded to a four-day jury trial in May 2018, and Dr. Harrod's failure to personally examine plaintiff pervaded the trial. During his opening statement, plaintiff's attorney stated that Dr. Harrod has "never seen Ronald Hicks. All he's ever done is reviewed medical records cold..." Dr. Harrod testified at trial by way of video deposition. He stated that he had been limited to a review of plaintiff's medical records and testified it would have been helpful to examine plaintiff, as "[t]here are certain things you really can't really get a full understanding for unless you see someone." While he agreed that the collision caused plaintiff's neck and back injuries, and further agreed that plaintiff would ultimately be a candidate for neck surgery, he disagreed that further back surgery was necessary. In closing arguments, plaintiff's counsel continued to refer to Dr. Harrod's failure to examine the plaintiff, stating:

[T]he context in which he is presented in this case is diabolical.... You know, [Dr. Harrod] came into this case and he never saw the patient . He said multiple times in order to make a decision, to make an opinion, he'd have to see him, and he didn't see him ..... But when [Dr. Harrod's] wearing a Defense hired gun hat, he changes all of this, critical of everything they say and do. He cannot be believed, he's just not credible. He's not seen this patient ."

(Emphasis added.) Finally, during jury deliberations, the jury asked the trial court whether Dr. Harrod was "allowed to see" plaintiff. After discussion with the parties, the trial court declined to answer the question.

The jury rendered a unanimous verdict in favor of plaintiff, awarding plaintiff $1,298,410.00, with $285,000 attributed to future medical expenses. The trial court signed a judgment in conformity with the verdict and thereafter denied defendants’ motion for new trial (or in the alternative, motion for remittitur).

[339 So.3d 1111]

The court of appeal affirmed. Hicks v. USAA Gen. Indem. Co. , 2019-0552 (La. App. 1 Cir. 3/25/21), 323 So. 3d 1. The court of appeal found plaintiff placed his physical condition "in controversy" by filing this suit for damages for personal injuries. However, the court of appeal did not find "good cause" existed to compel an AME. The court noted that there are "no definitive guidelines as to what constitutes good cause." Here, the court noted that though the proposed AME of 20 minutes would not be invasive, the short duration "diminishes the defendants’ argument that the examination would provide any evidence not already available given [plaintiff's] continuing treatment history." Hicks , 2019-0552, p.15-16, 323 So. 3d at 15-16. Notably, the court of appeal found that the ability of the moving party to obtain the desired information by other means is relevant in deciding whether good cause was shown. See id. The court pointed to the depositions of Dr. Smith and Dr. Isaza as examples of depositions and medical records to which Dr. Harrod already had access. The court of appeal therefore affirmed the trial court's denial of the motion to compel.

This Court thereafter granted defendants’ writ application. 2021-0840 (La. 11/17/21), 327 So. 3d 508.

DISCUSSION

The issue presented here is a res nova question: the meaning of the requirement of "good cause" in Louisiana Code of Civil Procedure article 1464. In making that determination, we must also determine if the lower courts properly interpreted "good cause" and, if not, whether any error by the lower courts was prejudicial and the remedy for any such error.

"The starting point for the interpretation of any statute is the language of the statute itself." Auricchio v. Harriston , 2020-1167 (La. 12/10/21), 332 So. 3d 660. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the provision must be applied as written, with no further interpretation made in search of the legislature's intent. Id . ; La. C.C. art. 9 ; La. R.S. 1:4. Code of Civil Procedure article 1464 governs additional medical examinations and provides in pertinent part:

A. When the mental or physical condition of a party, ... is in controversy , the court in which the action is pending may order the party to submit to an additional medical opinion regarding physical or mental examination by a physician or to produce for examination the person in his custody or legal control, except as provided by law.... The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

B. Regardless of the number of defendants, a plaintiff shall not be ordered to submit to multiple examinations by multiple physicians within the same field of specialty for the same injury except for good cause shown.

(Emphasis added.)

As an initial matter, the parties do not dispute that plaintiff's neck and lumbar conditions are "in controversy." However, the parties dispute the meaning of "good cause," which is not defined in the statute, nor is it clear from the plain language. We therefore look to other sources for interpreting the meaning of the term "good cause,"

[339 So.3d 1112]

including the intent of the legislature in enacting the statute and statutory scheme. See La. C.C. art. 10 ("When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law."); La. R.S. 24:177(A).

A basic premise of our system of justice is that both sides to a dispute stand on equal footing in gathering evidence and preparing for trial. La. C.C.P. art. 1422 ("Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ...."). The discovery rules are not ends in themselves, but are meant to aid in "the search for the truth." Robin v. Associated Indem. Co. , 297 So. 2d 427, 430 (La. 1973) ("The purpose of Code of Civil Procedure article 1493 [the predecessor of article 1464 ] is to expedite the search for the truth."). See also State, Through Dept. of Highways v. Spruell , 243 La. 202, 142 So. 2d 396, 397 (1962) (purpose of discovery is "to afford all parties a fair opportunity to obtain facts pertinent to litigation, to discover the true facts and compel disclosure of these facts wherever they may be found"); Judge Steven R. Plotkin, et al ., 2 La. Prac. Civ. Proc. Book II III 3 Sum. (2021 ed.) ("Discovery of the facts allows the trial to be less a game between adversaries and more a search for truth and justice."). To that end, this Court has previously summarized the objectives of the Louisiana discovery process as "afford[ing] all parties a fair opportunity to obtain facts pertinent to the litigation," "discover[ing] the true facts and compel[ling] disclosure of these facts wherever they may be found," and "assist[ing] litigants in preparing their cases for trial." Hodges v. S. Farm Bureau Cas. Ins. Co ., 433 So. 2d 125, 129 (La. 1983). Discovery statutes are to be "liberally and broadly construed to achieve [their] intended objectives." Id .

Article 1464 limits the extensive discovery provided by article 1422, as it balances considerations of "sanctity of the body and the right to privacy with considerations of fairness in the judicial quest for truth." Williams v. Smith , 576 So. 2d 448, 451 (La. 1991). See also Lindsey v. Escude , 179 So. 2d 505, 508 (La. App. 3d Cir. 1965) (Tate, J.) ("[A] compulsory examination of an individual involves a sensitive question touching closely upon the constitutionally protected sanctity of the person."). Article 1464 seeks to achieve this balance by requiring more than "relevance" for an AME, and granting courts the authority to order a party to submit to an examination only when a plaintiff's condition is "in controversy," and "good cause" supports allowing such an examination. La. C.C.P. art. 1464(A). Though article 1464 is by its nature a limitation on article 1422, the availability of a medical examination under article 1464 is vital, as it may be one party's only opportunity to independently ascertain the existence and extent of the other party's claimed injuries.

When the source provision of article 1464 was enacted, it was virtually identical to Federal Rule of Civil Procedure 35(a). Williams , 576 So. 2d at 450. Therefore,

[339 So.3d 1113]

in interpreting article 1464, Louisiana courts have relied upon federal court interpretations of Fed.R.C.P. 35(a) as persuasive guides to the intended meaning of article 1464. Id . See also Hodges , 433 So. 2d at 129. The leading case interpreting Federal Rule 35(a) is Schlagenhauf v. Holder , 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), in which the United States Supreme Court addressed the "in controversy" and "good cause" requirements of Rule 35. The Supreme Court recognized the "in controversy" and "good cause" requirements "are not met by mere conclusory allegations of the pleadings—nor by mere relevance to the case—but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination." Id. at 118, 85 S.Ct. 234. The Court went on:

Rule 35, therefore, requires discriminating application by the trial judge, who must decide, as an initial matter in every case, whether the party requesting a mental or physical examination or examinations has adequately demonstrated the existence of the Rule's requirements of "in controversy" and "good cause," which ... are necessarily related. This does not, of course, mean that the movant must prove his case on the merits in order to meet the requirements for a mental or physical examination. Nor does it mean that an evidentiary hearing is required in all cases. This may be necessary in some cases, but in other cases the showing could be made by affidavits or other usual methods short of a hearing. It does mean, though, that the movant must produce sufficient information, by whatever means, so that the district judge can fulfill his function mandated by the Rule.

Of course, there are situations where the pleadings alone are sufficient to meet these requirements. A plaintiff in a negligence action who asserts mental or physical injury places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.

Id. at 118-19, 85 S.Ct. 234 (citation omitted).

With the Supreme Court's descriptions of the "in controversy" and "good cause" requirements in mind, it is apparent that the "in controversy" prong is the easier prong to meet—indeed, that plaintiff's injury is "in controversy" in this case is undisputed. Broadly, a party's mental or physical condition is "in controversy" when a party asserts his mental or physical condition as a claim or a defense to claim. 379 U.S. at 119, 85 S.Ct. 234. A showing of "good cause" under

[339 So.3d 1114]

Code of Civil Procedure article 1464(a), in turn, requires that the moving party establish a reasonable nexus between the requested examination and the condition in controversy. In some circumstances, as anticipated in Schlagenhauf , the pleadings alone may contain sufficient information to establish the reasonable nexus that is necessary for the moving party to demonstrate "good cause."

The decision as to whether the moving party has affirmatively demonstrated the existence of both the "in controversy" and "good cause" requirement, and thus whether or not an examination is warranted, ultimately lies in the sound discretion of the trial court. Melerine v. Tom's Marine & Salvage LLC , 20-C-0571 (La. 3/24/21), 315 So. 3d 806 (trial court has broad discretion in admissibility of evidence and decisions will not be overturned absent an abuse of discretion). See also Schlagenhauf , 379 U.S. at 119, 85 S.Ct. 234. Notably, the plain language of article 1464 anticipates that the trial court take an active role, requiring the trial court to "specify the time, place, manner, conditions, and scope of the examination." These parameters provide limitations on any examination. In other words, even when a moving party establishes good cause for an examination by demonstrating a reasonable nexus between the requested examination and the condition in controversy, the moving party does not necessarily establish good cause for any examination. It remains the trial court's role to balance the competing interests and rights of the parties, considering both "sanctity of the body" and the implication of one party's privacy rights against considerations of fairness for the moving party in the adversarial process. See Williams , 576 So. 2d at 451.

Here, plaintiff put his spinal condition squarely "in controversy," alleging that he sustained personal injuries to his neck, back, and arm as a result of the accident. Defendants demonstrated good cause in their motion to compel AME by providing a reasonable nexus between the condition in controversy and the examination sought. Defendants specifically noted that plaintiff alleged severe injuries as a result of the accident and is claiming damages, there is inconsistent medical testimony concerning his physical condition, and the defendants are therefore entitled to the opportunity to have the plaintiff examined by their choice of physician. Because defendants did not have the opportunity for an expert not chosen by plaintiff to conduct an examination, the jury was inhibited from arriving at the truth, which upset the careful balancing act that article 1464 seeks to satisfy. As such, defendants’ motion to compel AME asserted sufficient "good cause" for the trial court to order an examination under article 1464.

Of note, the court of appeal in this case found that, in order to establish "good

[339 So.3d 1115]

cause," a proposed AME physician must review depositions of plaintiff's experts and medical records in a case before moving for an AME. Hicks , 2019-0552, p. 17, 323 So. 3d at 17. The court of appeal further found that the proposed AME physician be required to "specifically explain" how his examination "was still necessary" given the availability of the alternative sources of information. Id. See also Coates v. Whittington , 758 S.W.2d 749, 753 (adopting a "less intrusive means" factor as part of the "good cause" analysis in Texas). We decline to adopt this less intrusive means test as a component of "good cause." This approach conflicts with the delicate balancing act that constitutes the intent behind article 1464. La. C.C. art. 10. Requiring a moving party to demonstrate that there are no less intrusive means to obtaining the requested information favors a plaintiff's privacy interests over fairness in the adversarial process, which denies defense experts equal access to evidence and hampers the jury's ability to find the truth. Williams , 576 So. 2d at 451 (discussing the balancing act required by article 1464 ).

In light of the trial court's errors, as described above, we must determine the proper disposition of this case. A reviewing court may not set aside a trial court or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Evans v. Lungrin , 97-541, p. 6-7 (La. 2/6/98), 708 So. 2d 731, 735. However, where the trial court makes a legal error that interdicts the fact-finding process, the manifest error standard is no longer applicable and the appellate court may conduct a de novo review. Id. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Id. Errors are prejudicial when they materially affect the outcome of the trial and deprive a party of substantial rights. Id . When such a prejudicial error of law skews the trial court's finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo . Id.

Generally when the trial court makes evidentiary errors that are prejudicial,

[339 So.3d 1116]

such that they materially affect the outcome of the trial and deprive a party of substantial rights, and if the record is otherwise complete, the appellate court will conduct its own de novo review of the record. Melerine v. Tom's Marine & Salvage, LLC , 20-0571 (La. 3/24/21), 315 So. 3d 806 (collecting cases). See also La. C.E. art. 103A. However, this Court has recognized that in limited circumstances, when necessary to reach a just decision and to prevent a miscarriage of justice, an appellate court should remand the case to the trial court under the authority of Louisiana Code of Civil Procedure article 2164, rather than undertaking de novo review. Id . Whether a particular case should be remanded is largely within the court's discretion and depends upon the circumstances of the case. Id.

Given the particular circumstances of this case, a remand for a new trial is proper. See La. C.C.P. art. 2164. In Melerine , the Court required remand where the evidence at issue was (i) "central" to the case, (ii) a res nova issue, and (iii) the rulings "undoubtedly affected trial strategy and witness selection by both sides." Id. , 20-0571, p. 25, 315 So. 3d at 822-23. The same is true here. First, the evidence was central, as the defendants accurately point out they could neither retain nor consult a physician who examined plaintiff before trial and could not fairly discover, let alone rebut, plaintiff's claims for future lumbar surgery. Notably, plaintiff's counsel referred to Dr. Harrod as "diabolical" in closing arguments, and pointed out repeatedly Dr. Harrod's failure to examine plaintiff in person. Further, the jury in this case expressed particular concern that Dr. Harrod was reviewing a cold record and did not perform his own examination of plaintiff, demonstrating the importance of this issue to the factfinder. Second, the Court's interpretation of "good cause" under article 1464 is res nova . See generally Haider v. Morris , 2019-1477 (La. 11/12/19), 282 So. 3d 209 (writ denied) (Crichton, J., would grant) ("I believe that if this Court does not provide appropriate guidelines for the legal analysis of ‘good cause’ under La. C.C.P. art. 1464(A), deference to the district court in determinations thereof is unwarranted."). Third, the rulings affected trial strategy and witness selection, as evidenced by plaintiff's counsel specifically using the pretrial ruling prohibiting the AME to undermine the credibility of defendants’ expert's opinion, calling him "merely" a "hired gun" who "was not credible." See Alex v. Rayne Concrete Serv. , 2005-1457, p.24 (La. 1/26/07), 951 So. 2d 138, 156 (remanding case for a new trial and noting that "consideration of judicial economy must yield to the greater legal principles involved").

CONCLUSION

Pursuant to the above, we hold that "good cause" under Code of Civil Procedure article 464 requires that the moving party establish a reasonable nexus between the requested examination and the condition in controversy. In some circumstances, the pleadings alone may contain sufficient information to establish the reasonable nexus. We find the trial court abused its discretion, as its decision denying the motion to compel AME failed adequately to balance the "sanctity of the body" with considerations of fairness for the movant in the adversarial process. See Williams , 576 So. 2d at 451. For these reasons, and for those set forth in detail in this opinion, the ruling of the court of appeal is reversed. The matter is remanded for further proceedings.

REVERSED AND REMANDED

Retired Judge Paul Bonin appointed Justice ad hoc sitting for Hughes, J., recused in case number 2021-C-00840 only.

Weimer, C.J., additionally concurs and assigns reasons.

WEIMER, C.J., additionally concurring.

[339 So.3d 1117]

I agree with the majority's opinion and the result reached. I write separately only to summarize the analysis to assist the bench and bar in an area which has generated a significant divergence in opinions. As explained in the majority opinion, a showing of "good cause" requires that the party moving for additional medical examination establish a "reasonable nexus" between the requested examination and the condition in controversy. This "reasonable nexus" factor was included among other elements of good cause by the Texas Supreme Court in Coates v. Whittington , where the court explained:

The requirement of good cause for a compulsory mental examination may be satisfied only when the movant satisfies [these] elements. First, that an examination is relevant to issues that are genuinely in controversy in the case. It must be shown that the requested examination will produce, or is likely to lead to, evidence of relevance to the case. Second, a party must show a reasonable nexus between the condition in controversy and the examination sought.

758 S.W.2d 749, 753 (Tex. 1988) (Internal citations omitted); see also In re Buch , No. 05-98-01665-CV, 1998 WL 908843, at *3 (Tex.App. Dec. 31, 1998). I would include an additional consideration: both parties should have access to examinations of similar quality and type that would allow the accurate evaluation of the medical condition in controversy, while balancing "the sanctity of the body and the right to privacy." Hicks , 2021-0840, op. at 1112 (La. 3/__/2022). Including such a consideration would further support balancing the "sanctity of the body" with considerations of fairness for the movant.