Williams v. Smith

576 So. 2d 448, 1991 WL 32173
CourtSupreme Court of Louisiana
DecidedMarch 11, 1991
Docket90-CC-1607
StatusPublished
Cited by16 cases

This text of 576 So. 2d 448 (Williams v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Smith, 576 So. 2d 448, 1991 WL 32173 (La. 1991).

Opinion

576 So.2d 448 (1991)

David W. WILLIAMS
v.
Harry SMITH, Goudchaux/Maison Blanche, Inc. & Liberty Mutual Insurance Company.

No. 90-CC-1607.

Supreme Court of Louisiana.

March 11, 1991.

*449 Harry L. Shoemaker, III, Shoemaker, Lazarre, Daspit & Blackwell, Baton Rouge, for David W. Williams, for plaintiff-applicant.

Thomas E. Balhoff, Baton Rouge, for Goudchaux/Maison Blanche Inc. & Gilbert Mut. Ins. Co., for defendants-respondents.

MARCUS, Justice.

David W. Williams was injured on March 31, 1986, in a vehicular collision in which the truck driven by him and owned by his employer, Firestone Tire and Rubber Company, was rear-ended by a truck driven by Harry Smith and owned by his employer, Goudchaux/Maison Blanche, Inc., while traveling in a northerly direction on Monterrey Boulevard in East Baton Rouge Parish. Williams filed suit on March 26, 1987, against Harry Smith, Goudchaux/Maison Blanche, Inc. and Liberty Mutual Insurance Company (the insurer of the vehicle driven by Smith), alleging that he sustained personal injuries as a result of the accident and that the proximate cause of the accident was the negligence of Smith and Goudchaux/Maison Blanche. Plaintiff prayed for judgment against defendants in the sum of $420,000 together with legal interest and costs. Plaintiff's itemized damages set forth in his petition included a claim for personal injuries and residual disability of $75,000 and for lost wages in the amount of $25,000.[1]

The most serious injuries sustained by plaintiff were to his back resulting in three surgical operations. The first was a lumbar laminectomy performed in July of 1986. The second surgery was a three level double spinal fusion of the lumbar vertebrae from the anterior and posterior sides including the insertion of two steel rods in April of 1988. The third surgery was to remove the steel rods fourteen months later. At the time of the accident, Williams had been the store manager of the Firestone Tire and Rubber Company Store at the Cortana Mall in Baton Rouge for three years. As a result of injuries caused by the accident, Williams' employment with Firestone was terminated and he was placed on permanent disability by the company.

Williams amended his petition in April of 1989 adding his wife, Julia B. Williams, as an additional plaintiff[2] and alleging that he has sustained permanent damage and injuries that have rendered him totally disabled. Williams increased his total damages to $3,125,000 including a claim for lost past and future wages, future fringe benefits and impaired earning capacity in the amount of $1,050,000. Additionally, his wife claimed damages of $650,000.

Dr. Jack Loupe, an orthopedic surgeon, has been Williams' treating physician since March of 1987. He performed the double spinal fusion surgery and insertion of the steel rods as well as the subsequent removal of the rods. Dr. Loupe has given four depositions in this case at the request of Goudchaux/Maison Blanche and Liberty Mutual (hereinafter called defendants).[3] In those depositions he allegedly testified that plaintiff's severe injuries and surgeries have resulted in substantial and continuing disability and work limitations.

Defendants sought to have plaintiff evaluated by a vocational rehabilitation expert who would perform a functional capacities assessment on him,[4] and notified plaintiff's *450 counsel by letter of August 31, 1989. Counsel for plaintiff refused to make him available on the ground that La.Code Civ.P. art. 1464 limits independent medical examinations to those performed by a physician. Defendants then filed a "Motion to Compel Examination of Plaintiff by Vocational Rehabilitation Expert or Alternatively to Suppress Testimony Related To Impairment of Earning Capacity/Lost Wages." After a hearing, the trial judge granted defendants' motion to compel the examination of plaintiff by an independent vocational rehabilitation expert of defendants' choice for the purpose of determining his impairment of earning capacity and/or lost wages and further ordered that if plaintiff failed to submit to the examination, then all testimony and other evidence on behalf of plaintiff, whether offered by plaintiff or any witness on his behalf, related to lost wages and/or earning capacity, would be prohibited at trial. The court of appeal denied plaintiff's application for writs stating that "relator has an adequate remedy by review on appeal." On plaintiff's application to this court, we granted certiorari to review the correctness of the trial judge's order.[5]

The issue presented for our review is whether La.Code Civ.P. art. 1464 provides the trial court with authority to order a party to submit to an examination by a vocational rehabilitation expert who is not a physician.

La.Code Civ.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 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. 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]

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.[6] In interpreting La.Code Civ.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. Matherne v. Hannan, 545 So.2d 1094 (La.App. 4th Cir.), writ granted in part and denied in part, 550 So.2d 617, rehearing denied, 551 So.2d 1314 (La. 1989); see Madison v. Travelers Insurance Co., 308 So.2d 784 (La. 1975) (since our state discovery rules were obtained from the federal rules, we may look for guidance to the federal decisions which have interpreted identical provisions).

Our research has revealed that those federal courts that have considered the issue have held that Fed.R.Civ.P. 35(a) cannot be used as authority to compel a party to undergo an examination by a vocational rehabilitation expert. Acosta v. Tenneco *451 Oil Co., 913 F.2d 205 (5th Cir.1990); In re Mitchell, 563 F.2d 143 (5th Cir.1977); Landry v. Green Bay & Western Railroad Co., 121 F.R.D. 400 (E.D.Wis.1988); Soudelier v. Tug Nan Services, Inc., 116 F.R.D. 429 (E.D.La.1987);[7]Acocella v. Montauk Oil Transportation Corp., 614 F.Supp. 1437 (S.D.N.Y.1985). While some courts did compel a party to submit to a mental examiantion by a psychologist

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Cite This Page — Counsel Stack

Bluebook (online)
576 So. 2d 448, 1991 WL 32173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-smith-la-1991.