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Supreme Court Clarifies “Good Cause” for Additional Medical Opinion (“AMO”)

Published on: March 30, 2022

In cases that involve physical injury, defendants often request an “Additional Medical Opinion [AMO]” from a physician of their choice as part of the defense of the case. Louisiana Code of Civil Procedure article 1464 allows a defendant to select a physician to perform a physical and/or mental examination of a plaintiff to challenge the plaintiff’s claimed physical and mental injuries. At times, a plaintiff may voluntarily agree to the examination. However, if an objection is lodged to the requested examination, a defendant must proceed with a Motion to Compel the Additional Medical Opinion. In the context of the motion, the defendant must establish the following for the AMO to be ordered pursuant to article 1464:

  1. The mental or physical condition of a party is in controversy; and
  2. “Good cause” exists for the AMO.

Because Louisiana courts routinely hold that a plaintiff puts his or her physical and mental condition in “controversy” by filing suit and requesting damages for physical and mental pain and suffering, the focus of a motion for an AMO is often on the “good cause” requirement. “Good cause” is not defined in La. CCP article 1464, and its meaning is not clear. Recently, however, the Louisiana Supreme Court provided guidance on the issue in the case of Hicks v USAA General Indemnity Company, et al., holding that a showing of “good cause” requires that a moving party establish a reasonable nexus between the requested examination and the condition in controversy.

In Hicks, the defendant moved for an AMO with an orthopedic surgeon after plaintiff filed suit, alleging personal injuries to his neck, back, and arm as a result of an accident. In the context of the Motion to Compel, it was argued the plaintiff put his physical condition in controversy by alleging injury. The defendant noted plaintiff treated with two physicians, one of whom did not believe plaintiff was a surgical candidate. The defendant also maintained “good cause” existed because a plaintiff “who asserts mental or physical injury… places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.” In support of this argument, the defendant also highlighted inconsistent medical testimony concerning plaintiff’s physical conditions and treatment in support of “good cause.”

In opposing the motion, the plaintiff argued “good cause” was absent because two physicians already had offered opinions on plaintiff’s condition and treatment.

The trial court denied defendant’s Motion to Compel AMO on grounds that “good cause” did not exist. The trial court noted that two physicians already had been deposed and that a physician selected by the defendant could review plaintiff’s medical records and the depositions of the other doctors to offer an additional medical opinion at trial. The case proceeded to trial, where the defendant introduced testimony from a physician who relied upon the materials referenced in the court’s ruling to support his medical opinion. Not surprisingly, the plaintiff argued the opinion of the defendant-selected physician should be discredited because he never examined plaintiff.

After a trial judgment in favor of plaintiff, the defendant appealed. The appeal court also concluded “good cause” did not exist for the AMO, noting the absence of “definitive guidelines as to what constitutes good cause.” The appeal court also noted the fact that defendant had the ability to obtain the desired information by other means was relevant in deciding whether good cause was shown.

The Louisiana Supreme Court reversed the lower courts’ decisions. It started its analysis by noting the basic premise of our system of justice: that both sides to a dispute stand on equal footing in gathering evidence and preparing for trial. It noted the AMO allowed under La. CCP article 1464 actually limits the extensive discovery permitted under Louisiana law, as it balances considerations of “sanctity of the body and the right to privacy with considerations of fairness in the judicial quest for truth.” Article 1464 seeks to achieve balance by requiring more than “relevance” for an AMO, granting the right to courts to order an AMO only when a plaintiff’s condition is “in controversy” and “good cause” supports allowing the examination. The Supreme Court also noted that an AMO may be one party’s only opportunity to independently ascertain the existence and extent of the other party’s claimed injuries.

After balancing these competing interests, the Louisiana Supreme Court found “good cause” under article 1464 requires the moving party to establish a reasonable nexus between the requested examination and the condition in controversy. The decision as to whether the moving party has demonstrated both the “in controversy” and “good cause” requirements lies in the sound discretion of the trial court. At times, the pleadings alone may contain sufficient information to establish a reasonable nexus.

As part of its decision, the Louisiana Supreme Court noted that although meeting the statute’s requirements may entitle a defendant to an examination, a defendant is not entitled to any AMO it request; reasonable limitations may still be applied. It remains the trial court’s role to balance the competing interests and rights of the parties, considering both “sanctity of the body” and the implication of one party’s privacy rights against considerations of fairness for the moving party.

After employing its analysis, the Louisiana Supreme Court concluded the defendant in Hicks demonstrated “good cause” because plaintiff alleged severe injuries as a result of the accident, claimed damages, and inconsistent medical testimony concerning plaintiff’s physical condition existed. It remanded the case for a new trial.

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On October 19, 2011, the Louisiana Supreme Court ordered the implementation of the first changes to the grading standards of the Louisiana Bar exam since the exam was instituted. These changes: began "compensatory scoring;" eliminated essay portions of the test; included "multiple choice" format portions; doubled the score value of the "Code subjects;" ended the "conditional failure" status; and, placed a five-time limit on unsuccessful attempts to pass. Under the new rules, an applicant must score a 650 or higher or will be required to retake the nine (9) section, week-long test encompassing over twenty one (21) hours of testing.

These changes did not go unopposed. The LSU Paul Hebert Law Center submitted a position paper to the Louisiana Supreme Court arguing against compensatory scoring. In support of its position, LSU cited the analysis of the Louisiana Supreme Court Committee on Bar Admissions which indicated that a sizable number of applicants could pass the bar under compensatory scoring, even though they failed two or more of the Code subjects.

Prior to implementation of the new rules, many feared that the changes would cause an artificial increase in the number of applicants who passed the bar. However, the exact opposite has occurred. The first examination under the new method was administered during July, 2012. The overall applicant passage rate was 61.32%, an 11.08% drop in the passage rate. The February 2013 examination demonstrated a similar decline. The February 2013 examination passage rate was 40.65%, a 12.95% drop from February 2012.

At this time, it is unknown whether the decline in the overall passage rate will become the "new norm." It has been suggested that passage rates will return to historical levels over time. Until then, applicants will continue to ponder, and the attorneys at Keogh Cox will continue to wish them luck.

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Claims for Indemnity and Defense Brought Prior to a Liability Determination Are No Longer Premature

The Louisiana Supreme Court recently held that a claim for defense and indemnity may be asserted before a judicial finding of liability. The Court’s decision overruled prior decisions that held claims for defense and indemnity were premature until it was determined that damages were actually owed and the party claiming indemnity sustained a loss.

In Daniel Bennett v. Demco Energy Services, the plaintiff alleged he was injured when he drove over a downed power line that belonged to Cox Communications. Evidence showed Cox Communications contracted with Cable Man to provide services, maintenance, and repair for its telecommunication companies. The contract covered maintenance and repair of the subject phone line.

The contract included an indemnification provision that required Cable Man to indemnify and defend Cox Communications from any and all claims relating to Cable Man’s work, Pursuant to the contract, Cox Communications sent Cable Man a request to tender defense and indemnification under the contract. Cable Man refused the tender and Cox Communications filed a cross-claim against Cable Man asserting that it was owed defense and indemnification. In response, Cable Man filed an Exception of Prematurity and maintained that the claim for indemnity had not accrued because there had not been a judgment or a finding a Cable Man’s fault or liability.

The Louisiana First Circuit Court of Appeals granted the Exception of Prematurity and stated that “It is well-established that claims for indemnity, as well as claims for defense arising under an indemnity agreement, are premature prior to a determination that damages are actually owed and the indemnitee sustains a loss.” The court reasoned that the lawsuit was still pending against both parties and no liability determination had been made. Therefore, under the “well-established” law, Cable Man owed no obligation to Cox Communications for indemnity and costs at the time Cox asserted its cross-claim.

However, the Louisiana Supreme Court reversed the First Circuit’s decision and Cable Man’s claims of prematurity were denied. Acknowledging such claims for indemnification previously were considered premature, the Court held the law moving forward should allow for a claim for indemnity, whether in a third-party demand or a cross-claim, that is raised during the course of litigation and before a finding of liability. Further, the Court recognized potential inconsistencies with prior judicial determinations and stated, “in light of our ruling today, to the extent any prior jurisprudence can be interpreted otherwise, we now clarify that such a claim for indemnity is not prohibited before a liability adjudication.”

This ruling makes clear that “asserting a claim for indemnity, arising out of the same facts and circumstances, is not premature before a judicial finding of liability.” The right to collect on an indemnity agreement continues to be determined upon a finding of liability or loss, but a claim for indemnity can now be asserted in the same proceeding.

References:

Daniel Bennett v. Demco Energy Services, et al, 2023-CC-01358 (La. 5/10/24); 386 So.3d 270.

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Keeping Testimony of Future Medical Expenses “Out of the Gate”

Ina recent case involving Keogh Cox attorneys, the Eastern District of Louisiana in MichaelBrander, Jr. v. State Farm Mutual Auto. Ins. Co., Civ. A. No. 18-982(Feb. 14, 2019), 2019 WL 636423 barred testimony of substantial projectedmedical expenses because it was not based on a reliable methodology. Thisruling stands to impact many other cases where plaintiffs seek to usefar-reaching projections of a life-long need for radiofrequency ablations("RFAs") or other pain-management modalities to "board" sixand even seven-figure numbers for future medical expenses.

InDaubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), theUnited States Supreme Court recognized the trial judge as the “gatekeeper” of expertopinion testimony and held that only reliable and relevant expert opinions maybe admitted. The reliability requirement serves to keep expert opinions“outside the gate” when they constitute unsupported speculation or meresubjective belief; only scientifically valid expert opinions are allowedinside. To ascertain whether an expert opinion is scientifically valid, Daubertinstructs the trial court to consider:

∙ whether theexpert’s theory can or has been tested;

∙ whether it hasbeen subject to peer review and publication;

∙ the known orpotential rate of error when applying the theory;

∙ applicablestandards and controls; and,

∙ the degree towhich the theory has been generally accepted in the scientific community.

InBrander, the plaintiff advanced medical testimony that he would needRFAs every year of his expected lifetime, a period of 36 years. The courtdisallowed the testimony, noting that the plaintiff’s physicians had less thanten years personal experience in administering RFAs to patients, the medicalliterature only considered the effectiveness of RFAs over a span of seven toten years, and there was no showing that the 36-year treatment plan was ingeneral acceptance by the medical community. According to the court, theexpert opinions offered by plaintiff failed Daubert “on all points.” Asa result, the plaintiff was permitted to introduce testimony of future RFAs foronly a seven-year period.

The reasoning of Brander may be equally applicable to projections of lifetime treatment involving other medical procedures, such as medial branch blocks, Botox injections, or spinal cord stimulators, for which the long-term efficacy has not been firmly established in the medical literature. Opinions unsupported by personal treatment experience and peer-reviewed medical studies are not scientifically valid and are properly halted “at the gate.”

Nancy B. Gilbert is a partner with Keogh Cox in Baton Rouge, Louisiana. She is a puzzle-solver by nature, and specializes in providing clear and in-depth analysis of complex litigation issues.

Chad A. Sullivan

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Louisiana Supreme Court
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