Matherne v. Hannan

545 So. 2d 1094, 1989 WL 59478
CourtLouisiana Court of Appeal
DecidedJune 5, 1989
Docket89-C-0546
StatusPublished
Cited by4 cases

This text of 545 So. 2d 1094 (Matherne v. Hannan) 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
Matherne v. Hannan, 545 So. 2d 1094, 1989 WL 59478 (La. Ct. App. 1989).

Opinion

545 So.2d 1094 (1989)

Clifton J. MATHERNE, et al
v.
Archbishop Philip M. HANNAN, et al.

No. 89-C-0546.

Court of Appeal of Louisiana, Fourth Circuit.

June 5, 1989.

*1095 H. Martin Hunley, Jr., Vincent Paciera, Jr., Thomas A. Rayer, Don M. Richard, New Orleans, for relator.

M.H. Gertler, New Orleans, for respondent.

Before GARRISON, KLEES and WILLIAMS, JJ.

WILLIAMS, Judge.

For the reasons assigned, certiorari is granted and the trial court's judgment which orders Father X to submit to a mental examination, Dr. Duffourc to disclose in deposition information that is protected by Father X's patient-physician privilege, and Father X to answer in-depth questions regarding his sexual history is vacated.

I. Psychiatric Examination of Father X

In regard to the psychiatric examination of Father X, the trial court's judgment of February 13, 1989 ordered:

that the motion for reconsideration is made absolute and accordingly, Father [X] shall submit to a medical examination to be conducted by Ray Bauer, M.D., within thirty days from the date of this order during which examination no other person shall be present; this medical examination shall be audio/video tape recorded in its entirety and the technician taping the examination shall set up all equipment and commence its running but absent himself from the examination; the audio/video tape and any and all reproductions or transcripts thereof may be viewed by all counsel of record, parties to this litigation and such experts employed by them but shall be subject to a protective order and shall not be disclosed for any purpose to any other person, firm or entity including their agents, employees and attorneys, except as noted herein or upon order of this Court under penalty as provided by law, including contempt.

Father X opposes the taking of the examination and, in the alternative, seeks the protection of having his counsel present during the examination. In support of his application for certiorari, Father X claims plaintiffs have not met the prerequisites needed for the issuance of the order compelling the examination, as LSA-C.C.P. art. 1464 permits the trial court to order a party to submit to a physical or mental examination by a physician only when that party's mental or physical condition is "in controversy" and "good cause" for the examination is shown. As we agree with the assertions of Father X, the ruling of the trial court which orders the examination is vacated and plaintiffs' motion is denied.

LSA-C.C.P. art. 1464 provides:

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 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. 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)

The source of Article 1464 is Fed.Rule Civ.Pro. 35(a). Consequently, when interpreting Article 1464, our courts often rely upon prior interpretations by federal courts of Rule 35(a), using the federal decisions as persuasive guides to the intended meaning of Article 1464. Vaughn v. Commercial Union Ins. Co. of N.Y., 263 So.2d 50, 52 (La.App. 4th Cir.1972), writ den., 266 So.2d 425 (La.1972); see Madison v. Travelers Ins. Co., 308 So.2d 784 (La.1975).

Under Rule 35(a) and Article 1464, the freedom of action that is normally afforded a party resorting to depositions and *1096 interrogatories is restricted. Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); Anno: Federal Civil Procedure Rule 35, 13 L.Ed.2d 992. Instead, the decision to grant or deny a motion for examination requires the trial court to determine whether the party requesting the motion has adequately demonstrated "good cause" and met the showing of a physical or mental condition "in controversy". Schlagenhauf v. Holder, 379 U.S. at 118, 85 S.Ct. at 242. Neither Article 1464 nor Rule 35(a) differentiates between plaintiffs and defendants; their language requires only that the person to be examined be a party to the action. Schlagenhauf v. Holder, 85 S.Ct. at 240-1 [the waiver theory, that because plaintiff seeks redress for injuries in a court of law, plaintiff thereby waives his right to claim the inviolability of his person, is invalid]. Thus, as a threshold matter, Father X, a defendant, can be ordered to submit to an examination pursuant to Article 1464, if the "in controversy" and the "just cause" requirements are met.[1]

The general scope of discovery set forth in LSA-C.C.P. art. 1422 et seq., "that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ...", is restricted in Article 1464 by both the "in controversy" and "just cause" prerequisites, which are an express limitation on the use of the Article. See Schlagenhauf v. Holder, 85 S.Ct. at 242; Anno, 13 L.Ed.2d at 996, § 4(a). In order to meet the requirements for the issuance of an examination order, however, the movant need not prove his case on the merits. Instead, movant must only produce sufficient information, by pleadings, affidavits and/or an evidentiary hearing so that the trial court can fulfill its function under Article 1464, i.e. finding "just cause" and the condition "in controversy". Id.

In Schlagenhauf, the United States Supreme Court dealt with a situation where defendant A sought to place the mental and physical condition of defendant B in controversy by making conclusory statements in cross-claim pleadings that defendant B `"was not mentally or physically capable of operating "the bus at the time of the accident" and ... that "the eyes and vision of [defendant B] was [sic] impaired and deficient."' 379 U.S. at 120, 85 S.Ct. at 243. The Supreme Court specifically noted that defendant B never asserted his mental or physical condition either in support of or in defense of a claim. Nevertheless, the trial court ordered defendant B to submit to both mental and physical examinations by a total of nine specialists in the fields of internal medicine, ophalmology, neurology and psychiatry.

Reviewing the record, the Supreme Court found that the only showing supporting that defendant B's condition was in controversy, were the general conclusory allegations in the pleadings and the affidavit by movant's attorney which stated that 1) an eyewitness testified that before the impact he saw the truck's lights flicker ¾ to ½ mile away and 2) defendant B's deposition stated that he was involved in a prior rear-end collision and before the accident in suit he saw red lights for ten to fifteen seconds yet drove the vehicle on without altering his course. Applying the guidelines discussed supra, the Supreme Court found this record plainly revealed that movant failed to affirmatively show defendant B's mental and physical condition was in controversy and there was good cause for the requested examination.

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Bluebook (online)
545 So. 2d 1094, 1989 WL 59478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matherne-v-hannan-lactapp-1989.