Hicks v. USAA Gen. Indem. Co.

339 So.3d 1106

Ronald HICKS

v.USAA GENERAL INDEMNITY COMPANY, Robert L. Harger, Jr., R.L. Harger and Associates, Inc., and Harger and Company, Inc.

No. 2021-C-00840

Supreme Court of Louisiana.

March 25, 2022

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.¹

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 ...."² (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 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.³

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).

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.⁴ 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. 2021-0...