Jacob Augustine And Brandi Augustine v. Safeco Insurance Company Of Oregon And James Br Own

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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #046
FROM: CLERK OF SUPREME COURT OF LOUISIANA
T
he Opinions handed down on the 21st day of October, 2022 are as follows:
P
ER CURIAM:
2021-CC-01753 JACOB AUGUSTINE AND BRANDI AUGUSTINE VS. SAFECO
INSURANCE COMPANY OF OREGON AND JAMES BR OWN (Parish
of Orleans Civil)
DISTRICT CO URT JU DGMENT VACATED. RE MANDED. S EE
PER CURIAM.
Hughes, J., additionally concurs and assigns reasons.

SUPREME COURT OF LOUISIANA

No. 2021-CC-01753

JACOB AUGUSTINE AND BRANDI AUGUSTINE

VS.

SAFECO INSURANCE COMPANY OF OREGON AND JAMES BROWN

On Supervisory Writ to the Orleans Civil District Court, Parish of Orleans

PER CURIAM

At issue is whether the district court abused its discretion when it granted
defendant’s motion to compel an additional medical examination, but placed
limitations on the examination. For the reasons that follow, we vacate the judgment
of the district court and remand the case for further proceedings.

UNDERLYING FACTS AND PROCEDURAL HISTORY
Plaintiffs, Jacob and Brandi Augustine, filed suit against James Brown and his
insurer, Safeco Insurance Company of Oregon (hereinafter collectively referred to
as “defendants”), alleging injuries from an automobile accident. In particular,
plaintiffs alleged both physical and mental injuries, including memory loss, anxiety,
traumatic brain injury, sleep disorder, headaches, dizziness, lethargy, nausea, blurred
vision, and irritability.
Defendants retained Dr. Kevin Greve, a board-certified neuropsychologist, to
perform an additional medical examination of plaintiffs pursuant to La. Code Civ.
P. art. 1464 . While plaintiffs agreed to be evaluated, they requested certain
restrictions be placed on the examination. The parties were ultimately unable to
reach an agreement regarding any restrictions on Dr. Greve’s examination. As a
result, defendants filed a motion to compel.

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Plaintiffs opposed the motion to compel and sought to restrict the
examination, including limiting the scope of the examination to those tests
previously performed by their treating ph ysicians. In support, they argued they
suffered from traumatic brain injuries and should not be subjected to an intense two-
day neuropsychological evaluation, which they did not undergo with their own
treating medical providers.
After a hearing, the district court granted defendants’ motion to compel in part
and denied it in part . Although the court compelled plaintiffs to submit to the
examination, it limited the examination to those tests performed by plaintiffs’
treating physicians, explaining it did not want the examination to be “just a fishing
expedition. . . .”
Defendants sought supervisory review of the district court’s ruling. The court
of appeal denied writs “on the showing made.”
Defendants then applied to this court. We granted certiorari to consider the
correctness of the district court’s ruling. Augustine v. Safeco Insurance Company of
Oregon, 2021-1753 (La. 3/22/22), __ So.3d __.

DISCUSSION
This case is in the nature of a sequel to our recent opinion in Hicks v. USAA
General Indemnity, 21-0840 (La. 3/25/22), 339 So.3d 1106. In Hicks, we discussed
the requirements for establishing good cause for an additional medical examination
under La. Code Civ. P. art. 1464 and recognized the district court’s sound discretion
in ordering an examination. We are now confronted with the question of whether a
district court which has found good cause for ordering an additional medical
examination may place restrictions on how that examination is conducted.
The authority for ordering an additional medical examination is found in La.
Code Civ. P. art. 1464, which provides, in pertinent part:

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A. When the mental or physical condition of a party, or of
a person in the custody or under the legal control 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. In
addition, the court may order the party to submit to an
additional medical opinion regarding an examination by a
vocational rehabilitation expert or a licensed clinical
psychologist who is not a physician, provided the party has
given notice of intention to use such an expert. 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. [emphasis added].

In our civil law system, we begin as we must with the language of the article.
See La. Civ. Code art. 9. In applying this article, we begin, as we did in Hicks, from
the proposition that 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.” Hicks,
339 So.3d at 1112.
Hicks recognized the importance of the additional medical
examination in furth ering this pursui t of justice, explaining “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.” Id.
Hicks made it cl ear that the decision as to whether the moving party has
affirmatively established the “in controversy” and “good cause” requirements of La.
Code Civ. P. art. 1464 “ultimately lies in the sound discretion of the trial court.” Id.
at 1114. By ordering the examination in this case, the district court obviously found
defendants demonstrated plaintiffs’ mental and physical conditions were in
controversy and showed good cause for the additional neuropsychological
examination. Plaintiffs do not challenge the district court’s decision in this regard,
and we find the district court was clearly within its discretion to order the
examination.

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However, having granted the motion to compel the examination , the district
court went on to place restrictions on the examination by limiting it to those tests
previously performed by plaintiffs’ treating physicians. Defendant s assert these
restrictions will prevent the trial from be ing conducted on a level playing fie ld
because plaintiffs will be able to present evidence favorable to them while
defendants will be prevented from conducting full testing which may lead to
evidence which will refute plaintiffs’ position. Conversely, plaintiffs submit La.
Code Civ. P. art. 1464 gives the district court b road powers to protect them against
unreasonable examinations in light of their physical conditions.
In Hicks, we recognized the “active role” of the district court in controlling
the parameters of the examination, stating:
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 a ny
examination. It remains the trial court’s role to balance the
competing interests and rights of the parties, considering
both “sanctity of the body” a nd the implication of one
party’s privacy rights against considerations of fairness for
the moving party in the adversarial process.

Id. [footnote omitted; emphasis in original].

This language, derived from the language of the article , clearly dispels any
notion that the district court’s finding of good cause for ordering examination divests
the court of any control over the parameters of the examination. Rather, the district
court retains the role of “balancing considerations of the 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).

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Nonetheless, La. Code Civ. P. art. 1464 does not provide much guidance as to
how the district court should achieve this balance. While the court is clearly given
broad discretion to control the scope of the examination, any decision which places
undue restrictions on the health care provider’s ability to perform the examination
could frustrate the other party’s ability to obtain relevant evidence.
In beginning our inquiry, we note the jurisprudence has long recognized that
“[i]t must be presumed that doctors will conduct their physical examinations
properly.” Simon v. Castille, 174 So.2d 660, 665 (La. App. 3 Cir.), writ denied, 247
La. 1088, 176 So.2d 145, cert . denied, 382 U.S. 932 (1965). To rebut this
presumption, the courts have required the party seeking to place conditions on the
examination to make a showing of special circumstances. Id. ; see also Dao v.
Thibodeaux, 21-153 (La. App. 5 Cir. 5/11/21) , ___ So.3d ___; Henry v . Barlow,
2006-283 (La. App. 3 Cir. 8/9/06), 937 So.2d 895, 897, writ denied, 2006-2592 (La.
1/12/07), 948 So.2d 153; Walker v. Marcev, 427 So.2d 678, 681 (La. App. 4th Cir.),
writ denied, 433 So.2d 182 (La. 1983).
These decisions are consistent with the holdings of the federal courts which
have interpreted the analogous provisions of Rule 35 of the Federal Rules of Civil
Procedure. See, e.g., Abdulwali v. Washington Metro Area Transit Auth., 193 F.R.D.
10, 15 (D.D.C. 2000) (“plaintiff has offered no compelling reason to intrude upon
the examining doctor ’s discretion regarding the scope, means and timing of her
psychiatric examination; nor has she shown that any of the components of the
psychiatric examination as des cribed by Dr. Berger are unduly intrusive or
overbroad”); Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 196, 202 (N.D. Tex.
1995), aff’d, 164 F.R.D. 204 (N.D. Tex. 1996) (“[f]or the court to intervene and limit
the type of examination an expert has indicated is necessary in order to analyze
plaintiff's claims would subvert the truth finding function inherent in Rule 35
examinations”).

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Reduced to its essentials, plaintiffs’ request to place restrictions on the
examination is analogous to a motion for a protective order under La. Code Civ. P.
art. 1426.1 In such cases, it is well settled that the burden rests upon the mover, that
is the party who seeks to prevent or to limit the scope of the examination, to show
good cause for such a protective order. Chesson v. Hungerford, 228 So.2d 332, 334
(La. App. 3rd Cir. 1969).
Combining these approaches, we have arrived at a practical framework for
addressing the issue presented in this case while applying the law as written by the
legislature. We start from the proposition that the initial burden of establishing good
cause for seeking the additional medical examination rest s with the moving party,
which in this case is the defendants. Once the court finds this burden has been

1 La. Code Civ. P. art. 1426 provides, in pertinent part:

A. Upon motion by a party or by the person from whom discovery
is sought, and for good cause shown, the court in which the action
is pending or alternatively, on matters relating to a deposition, the
court in the district where the deposition is to be taken may make
any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following:
(1) That the discovery not be had.
(2) That the discovery may be had only on specified
terms and conditions, including a designation of the
time or place.
(3) That the discovery may be had only by a method
of discovery other than that selected by the party
seeking discovery.
(4) That certain matters not be inquired into, or that
the scope of the discovery be limited to certain
matters.
(5) That discovery be conducted with no one present
except persons designated by the court.
(6) That a deposition after being sealed be opened
only by order of the court.
(7) That a trade secret or other confidential research,
development, or commercial information not be
disclosed or be disclosed only in a designated way.
(8) That the parties simultaneously file specified
documents or information enclosed in sealed
envelopes to be opened as directed by the courts.

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satisfied and good cause exists for ordering an additional medical examination, the
court should presume that the examination will be conducted in a reasonable manner.
If the opposing party wishes to place restrictions on the examination, the burden
shifts to that party to establish special circumstances justifying the imposition of
restrictions on the examination. In meeting this burden, the party may not rely on
mere allegations or speculation, but should produce competent evidence establishing
a need for restrictions an d the harm which may result if such restrictions are not
imposed. See, e.g., Newman v. San Joaquin Delta Cmty. Coll. Dist., 272 F.R.D. 505,
512 (E.D. Cal. 2011)(rejecting the plaintiff’s request to limit an examination because
“the court has not been presented with evidence that certain tests will be dangerous
or harmful”; rather, the plaintiff merely argued she should not be subjected to
“unnecessary” or duplicative tests that might be “burdensome” to her).
Because we have now clarified the application of the law , we find it
appropriate to vacate the district court’s ruling insofar as it placed restrictions on the
examination. We will remand the case to the district court to conduct a new hearing
consistent with the principles we have enunciated.

DECREE
For the reasons assigned, t he judgment of the district court imposing
limitations on the examination of plaintiffs by Dr. Kevin Greve is vacated and set
aside. The case is remanded to the district court for further proceedings consistent
with this opinion.

SUPREME COURT OF LOUISIANA

No. 2021-CC-01753

JACOB AUGUSTINE AND BRANDI AUGUSTINE

VS.

SAFECO INSURANCE COMPANY OF OREGON AND JAMES BROWN

On Supervisory Writ to the Orleans Civil District Court, Parish of Orleans Civil

Hughes, J., concurring.
I agree with the clarity provided by the opinion although I believe the trial
judge has already made the appropriate calculation in this case.