Estate of Patrick v. Board of Supervisors of Louisiana State University

828 So. 2d 1199, 2002 La.App. 4 Cir. 1224, 2002 La. App. LEXIS 3055, 2002 WL 31256439
CourtLouisiana Court of Appeal
DecidedSeptember 25, 2002
DocketNo. 2002-C-1224
StatusPublished

This text of 828 So. 2d 1199 (Estate of Patrick v. Board of Supervisors of Louisiana State University) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Patrick v. Board of Supervisors of Louisiana State University, 828 So. 2d 1199, 2002 La.App. 4 Cir. 1224, 2002 La. App. LEXIS 3055, 2002 WL 31256439 (La. Ct. App. 2002).

Opinion

JjDENNIS R. BAGNERIS, Sr., Judge.

The relator seeks supervisory review of the trial court’s order granting the plaintiffs’ Motion to Quash and Motion for Protective Order regarding the relator’s request for production of tissue samples. FACTS

Dr. Andrew Patrick, along with his wife and children, filed a petition for damages against LSU in 1993, prior to his death, alleging he contracted malignant mesothe-lioma partially as a result of exposure to asbestos in several buildings at the LSU Medical Center in New Orleans (LSU). Dr. Patrick died in May 1994, and his surviving spouse and children remain named plaintiffs along with the Estate of Dr. Patrick.

Tissue samples were taken from Dr. Patrick before he died to determine the extent and progression of his illness, and the material is in the custody and control of Our Lady of the Lake Regional Medical Center in Baton Rouge. LSU previously had an expert examine the tissue samples and slides in 1997, and on February 15, 2002, LSU notified the plaintiffs that it intended to subpoena the material for examination by another expert. The plaintiffs opposed LSU’s request, and on February 21, 2002, they filed a l2Motion to Quash LSU’s subpoena and also motioned for a protective order precluding LSU from obtaining the tissue samples and slides. The plaintiffs argued that this subsequent review would be an unnecessary and duplicative second independent medical examination of the plaintiff. LSU argued that review of the tissues samples and slides pursuant to a subpoena duces tecum does not constitute an independent medical examination. On May 3, 2002, the trial court heard and granted the plaintiffs motions, and on May 21, 2002, the trial court’s ruling was reduced to writing.

DISCUSSION

In general, “parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” La. C.C.P. art. 1422. Connick v. Brechtel, 98-0543, p. 7 (La.App. 4 Cir. 4/22/98), 713 So.2d 583, 587. The Louisiana Supreme Court has delineated the “basic objectives” of the Louisiana discovery process as follows: (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. Connick, 98-0543, p. 7-8, 713 So.2d at 587, citing Hodges v. Southern Farm Bureau Cas. Ins. Co., 433 So.2d 125, 129 (La.1983) (citations omitted). “The discovery statutes are to be liberally and broadly construed to achieve [their] intended objective.” Id.

Pursuant to La.Code Civ. P. art. 1464, a party plaintiff may be compelled to submit to a physical examination as part of the discovery process. La.Code Civ. P.art. 1464 reads as follows:

[1201]*1201| ..¡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 a 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 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.

When the source provision of article 1464 was enacted, (former article 1493), it was virtually identical to Subsection (a) of Rule 35 of the Federal Rules of Civil Procedure.1 Williams v. Smith, 576 So.2d 448, 450 (La.991). Our state discovery rules were obtained from the federal rules, and we may look for guidance to the federal decisions that have interpreted identical provisions. Williams, 576 So.2d at 450, citing Madison v. Travelers Insurance Co., 308 So.2d 784 (La.1975). In interpreting La.C.C.P. art. 1464, Louisiana courts have relied upon prior interpretations of Fed.R.Civ.P. 35(a) by the federal courts, using federal decisions as persuasive guides to the intended meaning of article 1464. Williams, 576 So.2d at 450, citing Matheme v. Hannan, 545 So.2d 1094 (La.App. 4 Cir.1989).

[1202]*1202LSU argues that the trial court erred in agreeing with the plaintiffs that production of tissue samples from the now deceased Dr. Patrick is analogous to an IME. We are unable to find a Louisiana state court case on point, but the federal court in Eastern District of Louisiana has found that “a pathologist’s or other expert’s examination of tissue samples taken from the body of a person who is now deceased is sufficiently analogous to an examination under Rule 35(b) so that all parties have a right to the type of information set forth in that rule.” Coates v. AC & S, Inc., 133 F.R.D. 109, 110, 21 Fed. R.Serv.3d 94 (E.D.La.1990).

Based either on the trial court’s vast powers to control and limit the scope of discovery or on the persuasiveness of the Coates decision, we find that the trial court acted within its discretion in granting plaintiffs’ Motion to Quash LSU’s second request for examination of the tissue and slides taken from Dr. Patrick. LSU had the opportunity to submit the tissue samples and slides to as many experts as it desired when the materials were originally made available in 1997. We find that any claims by LSU that the plaintiffs have had more regular and extensive access to the tissue samples and slides are unsubstantiated in the record before this Court. Consequently, we find | Bthat the trial court was within its discretion in granting plaintiffs’ Motion to Quash and Motion for Protective Order.

Further, the relator argues for the first time in its reply brief that a specific test is now available to it that was not available to it in 1996 when LSU originally tested the tissue samples of the now deceased plaintiff. The relator claims that the test for the presence of simian virus 40 (“SV40”) became available in 1997 to establish a potential causative link between SV40 and mesolioma, that is, a cause of death unrelated to exposure to asbestos.

Pursuant to Rule 2-12.6 of the Uniform Rules for the Courts of Appeal, the appellant may file a reply brief, if he has timely filed an original brief, but it shall be strictly confined to rebuttal of points urged in the appellee’s brief. No further briefs may be filed except by leave of court. It is only in an exceptional case that despite an appellant’s failure to raise or notice an issue until its reply brief on appeal should substance prevail over this procedural rule restricting the reply brief to rebuttal points raised in the appellee’s brief. See Peterson v. Jefferson Parish, 95-711 (La.App. 5 Cir.

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Related

Williams v. Smith
576 So. 2d 448 (Supreme Court of Louisiana, 1991)
Madison v. Travelers Insurance Company
308 So. 2d 784 (Supreme Court of Louisiana, 1975)
Peterson v. Parish of Jefferson
668 So. 2d 1386 (Louisiana Court of Appeal, 1996)
Matherne v. Hannan
545 So. 2d 1094 (Louisiana Court of Appeal, 1989)
Hodges v. Southern Farm Bureau Cas. Ins. Co.
433 So. 2d 125 (Supreme Court of Louisiana, 1983)
Connick v. Brechtel
713 So. 2d 583 (Louisiana Court of Appeal, 1998)
Gygax v. Brugoto
646 So. 2d 1236 (Louisiana Court of Appeal, 1994)
Peterson v. Parish of Jefferson
672 So. 2d 670 (Supreme Court of Louisiana, 1996)
Peterson v. Parish
695 So. 2d 1057 (Louisiana Court of Appeal, 1997)
Outdoor Systems, Inc. v. Entergy Corp.
804 So. 2d 848 (Louisiana Court of Appeal, 2001)
Coates v. AC & S, Inc.
133 F.R.D. 109 (E.D. Louisiana, 1990)

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828 So. 2d 1199, 2002 La.App. 4 Cir. 1224, 2002 La. App. LEXIS 3055, 2002 WL 31256439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-patrick-v-board-of-supervisors-of-louisiana-state-university-lactapp-2002.