Herbert Brooks, Jr. Versus Ray Allen Jacob, Safety Shoe Distributors, LLP, and Sentry Insurance Company

HERBERT BROOKS, JR. NO. 21-C-119

VERSUS FIFTH CIRCUIT

RAY ALLEN JACOB, SAFETY SHOE COURT OF APPEAL
DISTRIBUTORS, LLP, AND SENTRY
INSURANCE COMPANY STATE OF LOUISIANA

April 13, 2021

Susan Buchholz
First Deputy Clerk

IN RE RAY ALLEN JACOB, SAFETY SHOE DISTRIBUTORS, LLP, AND SENTRY INSURANCE
COMPANY

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT,
PARISH OF ST JAMES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE STEVEN C. TUREAU,
DIVISION "D", NUMBER 38,655

Panel composed of Judges Jude G. Gravois,
Robert A. Chaisson, and Stephen J. Windhorst

WRIT GRANTED WITH LIMITING INSTRUCTIONS

Relators/defendants, Ray Allen Jacob, Safety Shoe Distributors, LLP, and
Sentry Insurance Company, seek this Court’s supervisory review of the trial
court’s February 22, 2021 judgment which denied their Motion to Compel
Supplemental Deposition of Plaintiff.

On March 23, 2018, plaintiff, Herbert Brooks, Jr., filed a petition for
damages against defendants, alleging injuries sustained as a result of a March 27,
2017 motor vehicle accident. Plaintiff’s deposition was taken on September 11,
2018. Thereafter, over two years later, in October 2020, defendants sought to take
plaintiff’s supplemental deposition. On December 23, 2020, defendants filed a
Motion to Compel Supplemental Deposition of Plaintiff, arguing that since his
deposition, plaintiff has been diagnosed with new medical conditions, both
physical and mental, undergone an additional surgery, received a surgical
recommendation for an injury, and experienced a change in employment
circumstances. Defendants noted that they stipulated to 100% fault, and thus the
only issue that remains for trial is the question of medical causation, i.e., the nature
of plaintiff’s injuries and the extent those injuries are attributable to the subject
accident. Since plaintiff’s ongoing injuries have changed since his deposition and
because the nature and extent of his injuries are the only issues for trial, defendants
argued that a supplemental deposition is necessary.

In opposition, plaintiff asserted that the information sought by defendants
can be discovered through other methods. Plaintiff contended that defendants have
access to and continue to obtain plaintiff’s medical and employment records and
have deposed all of plaintiff’s doctors since taking his deposition. Further,

21-C-119

defendants’ IME doctor is issuing a new report after reviewing the records and
without a supplemental deposition.

The matter came for hearing on February 8, 2021, after which the trial court
denied defendants’ motion. In its oral reasons for judgment, the trial court stated
that it did not find that good cause existed for the taking of a second deposition.
The Louisiana Supreme Court has long held:

The basic objectives of the Louisiana discovery process are (1) to
afford all parties a fair opportunity to obtain facts pertinent to the
litigation, (2) to discover the true facts and compel disclosure of these
facts wherever they may be found, (3) to assist litigants in preparing
their cases for trial, (4) to narrow and clarify the basic issues between
the parties, and (5) to facilitate and expedite the legal process by
encouraging settlement or abandonment of less than meritorious
claims.
Moak v. Ill. Cent. R.R., 93-0783 (La. 1/14/94), 631 So.2d 401, 403
(quoting Hodges v. S. Farm Bureau Cas. Ins. Co., 433 So.2d 125, 129
(La. 1983)).

To achieve these objectives, courts are to construe the discovery statutes liberally
and broadly. Id. Courts have broad discretion when regulating pre-trial discovery,
which will not be disturbed on appeal absent a clear showing of abuse. Id. at 406.
Louisiana Code of Civil Procedure article 1421 provides:

Parties may obtain discovery by one or more of the following
methods: depositions upon oral examination or written questions;
written interrogatories; production of documents or things or
permission to enter upon land or other property, for inspection and
other purposes; physical and mental examinations, including
additional medical opinions under Article 1464; request for release of
medical records; and requests for admission. Unless the court orders
otherwise under Article 1426, the frequency of use of these methods is
not limited.
Louisiana Code of Civil Procedure article 1422 is Louisiana’s general
discovery article which provides that any relevant matter, not privileged, is
discoverable. Wolford v. Joellen Smith Psychiatric Hosp., 96-2460 (La. 5/20/97),
693 So.2d 1164, 1166.

In their writ application, defendants contend that there have been substantial
changes to plaintiff’s condition since his deposition, including new mental and
physical injuries, surgery, surgical recommendations, and employment
circumstances. Defendants argue that no one can testify as to the changes in
plaintiff’s subjective symptoms, mental state, and ability to return to work since his
deposition other than plaintiff, the party asserting those claims.

When plaintiff was questioned about mental health treatment at his
deposition, he stated that he was never treated for mental illness or depression.
However, beginning on August 30, 2019, plaintiff sought treatment with a
psychologist and was diagnosed with a “mood disorder due to medical condition.”
According to the vocational evaluation report conducted in 2019, on August 30,
2019, plaintiff was examined by a psychologist for symptoms of anxiety,
2

depression, chronic pain, and feelings of hopelessness/helplessness secondary to
his inability to work. Further, in his deposition, plaintiff stated that he was
employed by TCI. The vocational evaluation report states that plaintiff stopped
working as a truck driver for TCI in September 2018 because the driving
exacerbated the pain in his left shoulder and lower back. Also due to medication
he was on, plaintiff was not allowed to drive a commercial vehicle. According to
the report, plaintiff was restricted to light duty work. Additionally, at the time of
his deposition, due to injuries to his shoulder and back, plaintiff had undergone
arthroscopic shoulder surgery and had had a lumbar radiofrequency ablation.
According to the vocational evaluation report, since his deposition, plaintiff
continued to be consistently treated for injuries to his shoulder and back. He has
undergone another arthroscopic shoulder surgery, and it has also been
recommended by one treating physician that he have a SI joint fusion.

Upon review, we find that the trial court abused its broad discretion in
denying defendants’ motion to compel a supplemental deposition of plaintiff. In
the interest to fairness to both sides and after carefully considering all of the
particular facts and circumstances involved in this matter, we find that defendants
have shown good cause to take a supplemental deposition of plaintiff, particularly
considering the lengthy time period that has passed since plaintiff’s deposition, and
the changes that have occurred regarding plaintiff’s mental and physical health and
treatment and employment status since his deposition. In accordance with the
Supreme Court’s holding in Moak, supra, in order (1) to afford all parties a fair
opportunity to obtain facts pertinent to the litigation, (2) to discover the true facts
and compel disclosure of these facts wherever they may be found, (3) to assist the
litigants in preparing their cases for trial, (4) to narrow and clarify the basic issues
between the parties, and (5) to facilitate and expedite the legal process by
encouraging settlement or abandonment of less than meritorious claims, we grant
this writ application and reverse the trial court’s ruling which denied the motion to
compel supplemental deposition of plaintiff; however, we limit plaintiff’s
supplemental deposition to cover only new matters not specifically covered in
plaintiff’s original deposition.

Gretna, Louisiana, this 13th day of April, 2021.

JGG
RAC
SJW

3

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 04/13/2021 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

21-C-119
E-NOTIFIED
23rd Judicial District Court (Clerk)
Honorable Steven C. Tureau (DISTRICT JUDGE)
Charles J. Duhe, Jr. (Relator)
Rachel Roe (Relator)
Michael P. Fruge (Respondent)

MAILED
Antonio M. Clayton (Respondent) Richard J. Ward, III (Respondent) Leah Voth (Relator)
Attorney at Law Michael C. Hendry (Respondent) Attorney at Law
3741 Highway 1 South Attorney at Law 4041 Essen Lane
Port Allen, LA 70767 3741 Louisiana Highway 1 South Suite 500
Port Allen, LA 70767 Baton Rouge, LA 70809
John C. Loupe (Respondent)
Attorney at Law
5656 Hilton Avenue
Baton Rouge, LA 70808

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Antonio M. Clayton
Attorney at Law
3741 Highway l South
Port Allen, LA 70767
21-C-119 04-13-21

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