Thomas Riggio v. Ports America Louisiana, L.L.C., Andre Bridges, Board of Commissioners of the Port of New Orleans, and Abc Insurance Company

• Court: Louisiana Court of Appeal
• Decided: November 13, 2023
• Docket: 2023-CA-0294
• Status: Published

Opinion

THOMAS RIGGIO * NO. 2023-CA-0294

VERSUS * COURT OF APPEAL PORTS AMERICA * LOUISIANA, L.L.C., ANDRE FOURTH CIRCUIT BRIDGES, BOARD OF * COMMISSIONERS OF THE STATE OF LOUISIANA PORT OF NEW ORLEANS, ******* AND ABC INSURANCE COMPANY

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-08935, DIVISION “G-11” Honorable Robin M. Giarrusso, Judge ****** Judge Roland L. Belsome ****** (Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Tiffany Gautier Chase)

W. Patrick Klotz KLOTZ & EARLY 909 Poydras Street Suite 2950 New Orleans, LA 70112

COUNSEL FOR DISC OF LOUISIANA/APPELLEE

Michael W. McMahon Kirk N. Aurandt DAIGLE FISSE & KESSENICH, PLC P.O. Box 5350 Covington, LA 70434-5350

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED NOVEMBER 13, 2023 RLB RML TGC Defendant-Appellant, Ports America Louisiana, L.L.C (“PAL”), seeks

review of the trial court’s February 6, 2023 judgment denying PAL’s motion to

compel production of documents from a non-party, DISC of Louisiana (“DISC”),

and DISC’s employee, Dr. K. Samer Shamieh (“Dr. Shamieh”). On September 7,

2022, PAL issued a subpoena duces tecum, (“Subpoena”), to DISC seeking eleven

categories of documents that could generally be described as 1) medical and

financial information relating to treatment of Mr. Riggio, (“Riggio”); 2) financial

information relating to treatment of clients of plaintiff’s counsel; and 3) financial

information relating to treatment of any patient whose injury is or was the subject

of litigation. DISC represented to the trial court that it has already produced all

documents in its possession that are responsive to the subpoena.1 However, a more

accurate observation would be that some categories of documents are not kept in a

manner that would permit a response without unduly burdensome effort by DISC.

1 PAL’s brief before the trial court and here only address categories numbered four through

eleven of the subpoena. We therefore conclude that PAL is satisfied with the responses to categories one through three and that they were not at issue in the motion or in this appeal.

1 FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This personal injury suit arises from a motor vehicle accident in 2019. Dr.

Shamieh treated some of the injuries that are the subject of Riggio’s petition.

PAL’s counsel initiated a conference to address what he believed were

inadequate responses to some parts of the subpoena. The result of the conference

was not satisfactory to PAL and it filed a motion to compel the production of

documents described in categories four through eleven of the subpoena. DISC filed

an opposition.2 The district court heard oral arguments on December 16, 2022 and

issued an order denying PAL’s motion. PAL filed an application for supervisory

writ seeking modification or reversal of the lower court’s order. On February 6,

2023, the application was denied on procedural grounds with the writ panel

holding that a discovery order involving a non-party is a final appealable judgment.

PAL then filed this devolutive appeal on February 7, 2023.

STANDARD OF REVIEW

While trial court discovery rulings generally are interlocutory and not

appealable, this court has ruled that “[t]he determination of discovery questions as

to a non-party to the case is a final appealable judgment.” St. Bernard Port, Harbor

& Terminal Dist. V. Violet Dock Port, Inc., L.L.C., 2014-0286 (La. 4 Cir. 8/27/14),

147 So. 3d 1266, n.1.”; McCloskey v. Higman Barge Lines, Inc., 2018-1008, p. 4

(La. App. 4 Cir. 4/10/19), 269 So. 3d 1173, 1178.

Under Louisiana law, “[a] trial court has broad discretion in handling

discovery matters and an appellate court should not upset a ruling absent an abuse

2 At the motion hearing, PAL introduced the report of Riggio’s medical examination by Dr.

Everett G. Robert, M.D., a physician retained by PAL for the purpose of conducting the examination. Dr. Robert opined that Riggio’s surgery was medically unnecessary.

2 of discretion.” Debezies v. Trelo, 2018-0278, p. 2 (La. App. 4 Cir. 5/23/18); 248

So.3d 498, 501. Nevertheless, a court may abuse its discretion when it “denies a

motion to compel the production of information that meets the requirements of La.

C.C.P. art. 1422.” Francois v. Norfolk Southern Corp., 2001-1954, p. 1 (La. App. 4

Cir. 3/6/02); 812 So.2d 804. Finally, “[a] trial court necessarily abuses its

discretion if its ruling is based on an erroneous view or application of the law.”

State v. Franklin, 2013-1489 (La. App. 4 Cir. 6/11/14), 147 So. 3d 231, 240.

DISCUSSION

According to the Louisiana Supreme Court, “Generally a showing of

relevancy and good cause for production has been required in cases where a party

seeks production of records from a non-party.” Stolzle v. Safety & Systems Assur.

Consultants, Inc., 2002-1197, p. 3 (La. 5/24/02); 819 So.2d 287, 289.

PAL argues that the documents requested are relevant because they might

show a financial basis for bias by DISC and / or Dr. Shamieh in favor of its

patients or the attorneys representing them. PAL would hope to use any bias it

discovers to challenge the necessity of Riggio’s surgery that was recommended

and performed by Dr. Shamieh.

Louisiana law defines “relevant evidence” as “evidence having any tendency

to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.” La.

C.E. art. 401. “All relevant evidence is admissible, except as otherwise provided by

the Constitution of the United States, the Constitution of Louisiana, th[e] Code of

Evidence, or other legislation.” La. C.E. art. 402. Thus, relevant evidence “may be

excluded if its probative value is substantially outweighed by the danger of unfair

3 prejudice, confusion of the issues, or misleading the jury, or by consideration of

undue delay, or waste of time.” La. Code Evid. art. 403.

Louisiana courts have held that a subpoena duces tecum request must be

“limited to information that is relevant or necessary to the case before the court.”

Bank of New Orleans and Trust Co. v. Reed Printing & Custom Graphics, Ltd.,

399 So.2d 1260, 1261 (La. App. 4 Cir. 1981) (citing In Re Kohn, 357 So.2d 279

(La. App. 4 Cir. 1979); Keiffe v. La Salle Realty Co., 112 So. 799 (La. 1927)).

Moreover, the party issuing a subpoena duces tecum must show good cause for its

issuance, and failure to demonstrate good cause provides a basis for the court to

modify or vacate the subpoena. See Cousins v. State Farm Mut. Auto. Ins. Co., 258

So.2d 629, 633-34 (La. App. 1 Cir. 1972).

In Fauria v. Dwyer, 2002-2320 (La. App. 4 Cir. 9/24/03), 857 So. 2d 1138,

1147, defendants issued a similar wide-ranging subpoena duces tecum to a treating

physician. As in the case at bar, defense counsel in Fauria defended the relevance

and good cause for the subpoena as a means to “establish bias ‘to impeach the

testimony of the plaintiffs' treating … physicians’”. Id., 2002-2320, p. 12, 857

So.2d at 1147. The court went on to hold that the defendants’ attempt to obtain

impeachment material in this manner was “inappropriate”.3

In Qurashi v. Rosenow, 2022-0424 (La. App. 4 Cir. 12/29/22), 367 So.3d

730, 735, this court also held that the “the burdensome nature” of such extensive

subpoenas should also be considered when asked to enforce such extensive

requests to non-party doctors. In Qurashi, the court upheld the lower court’s

decision to quash a subpoena for materials that were not maintained in a manner by

which patient information could be accessed electronically. Id.

3 Id at 1147.

4 The jurisprudence of our circuit supports the trial court’s order quashing

PAL’s subpoena with respect to documents that seek information beyond that

which relates to Riggio’s medical treatment. Therefore, we affirm the trial court’s

judgment.

AFFIRMED