Mangrum v. Powell

181 So. 2d 400, 1965 La. App. LEXIS 3749
CourtLouisiana Court of Appeal
DecidedDecember 21, 1965
DocketNo. 10505
StatusPublished
Cited by1 cases

This text of 181 So. 2d 400 (Mangrum v. Powell) 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
Mangrum v. Powell, 181 So. 2d 400, 1965 La. App. LEXIS 3749 (La. Ct. App. 1965).

Opinion

GLADNEY, Judge.

We granted writs of certiorari herein to review certain rulings of the trial court relating to the production and discovery of evidence. In one of these rulings the plain[401]*401tiff was directed by ex parte order to produce for inspection and copying, under the provisions of LSA-C.C.P. Art. 1492, the medical reports of her personal physicians. Plaintiff by contradictory proceedings sought to quash the order but this motion after hearing was overruled and this application for writs by the relator followed. Included in her application were three questions presented by relator following an adverse ruling to her opposition to the means employed by Milwaukee Insurance Company in answering interrogatories propounded to it.

Plaintiff’s action arose from an automobile collision on October 31, 1964 wherein personal injuries were sustained by her while a passenger in the automobile operated by her husband. The accident occurred when the vehicle driven by Man-grum was struck from the rear by a car owned by Floyd C. Turner and almost simultaneously the Turner vehicle was struck in the rear by a vehicle owned and operated by the defendant, John Powell. The Powell automobile was covered by a liability insurance policy issued by the defendant, American Home Assurance Company and the Turner vehicle was insured by Milwaukee Insurance Company. Man-grum was named a defendant in a third party petition filed by Milwaukee Insurance Company.

Pertinent facts relative to the first issue presented herein discloses that John Powell and the American Home Assurance Company by motion filed on September 14, 1965 obtained an ex parte order directing relator to produce and file medical reports in order that movers might inspect and copy the same. In opposition to the motion counsel for relator moved for a contradictory hearing to the end that the order of September 14, 1965 be revoked and recalled. No evidence was adduced at the hearing and the court minutes note the court’s ruling thereon : “Motion to set aside the Order of Production of Documents argued and motion overruled.”

The substance of relator’s argument on this question is that when the ex parte order was obtained plaintiff had been examined only by doctors of her choice, and that the reports thereof included the expert opinions of her doctors, which, under the order would be required to be submitted for inspection and copying by a defendant; that plaintiff had not been requested or directed to submit to a physical examination by any other physician, and further, that depositions addressed to her own physicians had not been sought by interrogatories or oral examination. Therefore, it is contended LSA-C.C.P. Art 1452 may not be interpreted herein as, to require the production of such medical reports as were made to plaintiff or her counsel by the physicians selected by her. .

The respondents, John Powell and American Home Assurance Company, averred in their motion that their request for copies of the medical reports rendered by doctors who had examined plaintiff concerning her injuries had been refused by plaintiff’s attorney, and that as such reports were necessary and material to their defense, LSA-C.C.P. Art 1492 accorded to them the privilege of inspecting and copying said reports.

The pertinent part of LSA-C.C.P. Art 1492 provides:

“Upon motion of any party showing good cause therefor, and subject to the provisions of Article 1452, the court in which an action is pending or in which the judgment was originally rendered may:
(1) Order any party to produce and permit the inspection and copying * * * of any designated documents * * * not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Article 1436 and which are in his possession, custody, or control; * *

Manifestly, the area in which discovery is permitted under the article quoted is re[402]*402stricted by the provisions of LSA-C.C.P. Art. 1452, the pertinent part of which reads:

“ * * * The court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety indem-nitor, expert or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense will cause him undue hardship or injustice. The court shall not order the production or inspection of any part of the writirfg that reflects the mental impressions, conclusions, opinions, or theories of an attorney or expert.”

Thus we find that Article 1452 contains two prohibitions with respect to the general application of Article 1492 in that it: 1) Prohibits the production or inspection of the written reports of experts prepared in anticipation of litigation or in preparation of trial, unless the denial will produce undue hardship; 2) Prohibits the production or inspection of any portion of the written conclusions, impressions, opinions ■or theories of an expert.

The opinions of licensed members of the medical profession are uniformly accepted as constituting expert testimony. As it is difficult to conceive of a medical report with respect to a patient’s condition without containing an expression of the doctor’s opinion, we hold the reports which form the subject of this discussion contained expression of expert opinion. State of Louisiana, through Department of Highways v. Riverside Realty Company, Inc., La.App., 152 So.2d 345 (1st Cir. 1963). We conceive of no substantial reason why pretrial depositions of the medical experts herein cannot be obtained. State of Louisiana, through Department of Highways v. Riverside Realty Co., supra; State through Dept. of Highways v. Spruell et al., 243 La. 202, 142 So.2d 396 (1962). Respondents have not disclosed any circumstances which show that undue prejudice will be caused in the preparation of their case or that will bring about undue hardship or injustice. For these reasons it is our conclusion that the medical reports sought by respondents fall squarely within both of the prohibitions of LSA-C.C.P. Art. 1452 as set forth above and consequently, the trial court erred in ordering the production and inspection of the medical reports.

We are cognizant of the ruling in Raia v. WWL-TV, 247 La. 1095, 176 So.2d 390 (1965) wherein the Supreme Court invoked the well-recognized presumption that in the absence of a transcript of evidence the judge a quo had before him sufficient evi-. dence and reasons to support the ruling complained of. We observe, however, that the cited case did not invoke application of the limitations imposed upon LSA-C.C.P. Art. 1492 by the provisions of Article 1452. It was not contended in Raia that the data sought therein through discovery means was affected by the limitations of Article 1452. In the instant case at the time the motion to produce was filed no request had been made for Mrs. Mangrum to submit to a physical examination concerning her injuries. At that stage of the case the written medical reports of plaintiff’s doctors, whose qualifications as experts in the case had not been determined, should have been regarded as reports prepared in anticipation of litigation or in preparation of trial and their production could not be required by an order of the court except upon a showing that denial of production would result in undue hardship or injustice.

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191 So. 2d 658 (Louisiana Court of Appeal, 1966)

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181 So. 2d 400, 1965 La. App. LEXIS 3749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mangrum-v-powell-lactapp-1965.