Full Opinion (html_with_citations)

KEVIN ESTUARDO PEREZ-                    *        NO. 2023-C-0718
FUENTES
                                         *
VERSUS                                            COURT OF APPEAL
                                         *
PROTECTIVE INSURANCE                              FOURTH CIRCUIT
COMPANY, BRIAN LOCKETT                   *
TRUCK DELIVERY SERVICE,                           STATE OF LOUISIANA
INC., FEDERAL EXPRESS               *******
CORPORATION AND SEMAJ
GRAY



                 APPLICATION FOR WRITS DIRECTED TO
                CIVIL DISTRICT COURT, ORLEANS PARISH
                      NO. 2022-11538, DIVISION “I-14”
                         Honorable Lori Jupiter, Judge
                                  ******
                            Judge Dale N. Atkins
                                  ******
(Court composed of Judge Daniel L. Dysart, Judge Tiffany Gautier Chase, Judge
Dale N. Atkins)

DYSART, J., CONCURS IN THE RESULT


C. Michael Parks
J. Edward McAuliffe, III
MOULEDOUX, BLAND, LEGRAND, & BRACKETT
701 Poydras Street, Suite 600
New Orleans, LA 70139

      COUNSEL FOR DEFENDANTS/RELATORS, Fedex Ground Package
System, Inc., and Brian Lockett Truck Delivery Service, Inc.

Dominick F. Impastato, III
Anthony J. Impastato
Marc L. Frischhertz
FRISCHHERTZ & IMPASTATO, LLC
1140 St. Charles Avenue
New Orleans, LA 70130

      COUNSEL FOR PLAINTIFF/RESPONDENT, Kevin Estuardo Perez-
Fuentes

      WRIT GRANTED; JUDGMENT REVERSED IN PART; REMANDED
                                     WITH INSTRUCTIONS
                                        DECEMBER 20, 2023
  DNA

  TGC

      Relators, FedEx Ground Package System, Inc. (“FedEx”), and Brian Lockett

Truck Delivery Service, Inc. (“Brian Lockett”) (collectively “Relators”), seek

review of the trial court’s September 12, 2023 judgment, which granted the

“Motion to Quash . . . Subpoena to Diagnostic Management Affiliates” (“Motion

to Quash”) filed by Respondent, Kevin Estuardo Perez-Fuentes (“Mr. Perez”),1 in

response to a “Notice of Records Deposition” filed by FedEx (“FedEx’s

subpoena”) and denied in part Brian Lockett’s “Second Motion to Compel . . .

Responses to Interrogatories and Requests for Production of documents” (“Second

Motion to Compel”). For the following reasons, we grant the writ, and we reverse

the trial court’s grant of Mr. Perez’s Motion to Quash and denial of Brian Lockett’s

Second Motion to Compel regarding Interrogatory Number 21, Interrogatory

Number 27, and Request for Production Number 16. Further, we grant Brian

Lockett’s Second Motion to Compel insofar as it pertains to Interrogatory Number

21, Interrogatory Number 27, and Request for Production Number 16; and we

remand this matter for further proceedings consistent with this Opinion.



      1 In his opposition filed with this Court on December 7, 2023, Respondent,

Kevin Estuardo Perez-Fuentes, refers to himself as “Mr. Perez,” so this Opinion
will do the same.

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RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      On December 21, 2022, Mr. Perez filed a Petition for Damages (“Petition”)

in Orleans Parish Civil District Court, in which he alleged that he had sustained

injuries in a vehicular accident that occurred on January 8, 2022. In pertinent part,

Mr. Perez named Relators as defendants.2 In his Petition, Mr. Perez contended that

the accident occurred when a vehicle, which was owned by FedEx and operated by

Semaj Gray in the course and scope of her employment with Brian Lockett,

collided with his vehicle.

      During the discovery phase of litigation, Relators obtained Mr. Perez’s

medical records, which included a notation that Diagnostic Management Affiliates

(“DMA”) was Mr. Perez’s primary insurance provider. Subsequently, on June 15,

2023, FedEx issued its subpoena to DMA, seeking information and records

regarding DMA’s involvement in Mr. Perez’s case. In response, on June 29, 2023,

Mr. Perez filed his Motion to Quash, wherein he asserted that the information

sought was “not relevant to any matter in controversy in this case” and “not

admissible.”

      Thereafter, Brian Lockett filed its Second Motion to Compel, arguing, in

pertinent part, that Mr. Perez’s responses to certain Interrogatories and Requests

for Production “were deficient and incomplete.”3 The discovery requests that are

the subject of Relators’ writ application are Interrogatory Number 21, Interrogatory

Number 27, and Request for Production Number 16. Interrogatory Number 21

      2 We note that Mr. Perez named “Federal Express Corporation” as a
defendant in his Petition, not “FedEx Ground Package System, Inc.”
      3  We note that, in total, Brian Lockett’s Second Motion to Compel
concerned seven interrogatories and four requests for production. As more fully
discussed throughout this Opinion, only two of the interrogatories and one of the
requests for production are the subject of Relators’ writ application.

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directed Mr. Perez to “[l]ist, by name and address, any health insurance plan or

medical finance agreement providers which have covered you and/or with which

you have contracted in the last ten years, including but not limited to any

specifically related to your claims from the subject accident.” Mr. Perez’s

Response to Interrogatory Number 21 was “[o]bjection, collateral source, and

therefore not relevant and not reasonably calculated to lead to admissible evidence.

Notwithstanding, Plaintiff does not receive Medicare/Medicaid benefits.” In

Interrogatory Number 27, Brian Lockett asked Mr. Perez to “[p]lease state whether

you are a member of and/or provided coverage by any group health plan, including

Medicare, Medicaid, the Veterans Administration, Tricare, or any other public,

private, or government health benefit plan, and if your answer is in the affirmative,

please identify the plan and your member number.” Mr. Perez responded that he

was “not a member.” Request for Production Number 16 asked Mr. Perez to

“[p]roduce front and back copies of health insurance cards and/or medical

financing agreements representing any health insurance and/or medical financing

company you have had coverage with in the last ten years, including any

specifically related to your claims from the subject accident.” In response, Mr.

Perez stated that he did “not possess any documents responsive to this request” but

“reserve[d] the right to supplement this response.”

      On September 7, 2023, the trial court held a hearing on the motions. At the

hearing, the trial court stated “that the case law [concerning La. R.S. 9:2800.27]

support[ed] the position of” Mr. Perez and granted Mr. Perez’s Motion to Quash,

thereby effectively denying Fedex’s subpoena. The trial court did not provide

reasons during the hearing for its denial of Brian Lockett’s Second Motion to

Compel regarding Interrogatory Number 21, Interrogatory Number 27, and

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Request for Production Number 16, instead simply noting the decision to deny

them. Accordingly, in its September 12, 2023 judgment, the trial court granted Mr.

Perez’s Motion to Quash and denied in part Brian Lockett’s Second Motion to

Compel regarding Interrogatory Number 21, Interrogatory Number 27, and

Request for Production Number 16.4 On November 13, 2023, Relators timely filed

their writ application with this Court.

                           ASSIGNMENTS OF ERROR

      Relators assert two assignments of error in their writ application:

      1)     The trial court was in error when it granted [Mr. Perez]’s
             Motion to Quash . . . . This ruling effectually cut off all
             discovery and inquiry into [Mr. Perez]’s medical financing,
             including the discovery of the parameters of the alleged
             contract, potential discounts [Mr. Perez] may receive, and the
             bias of any of [Mr. Perez]’s medical providers. Most
             particularly, the trial court was in error in not ruling based on
             the existing law ([La.] R.S. 9:2800.27), but rather relying upon
             older judicial opinions (some unpublished, only at the district
             level, and/or otherwise inapplicable).

      2)     The trial court was in error when it denied [Brian Lockett]’s
             Second Motion to Compel responses to Interrogatories 21 and
             27 and Request for Production No. 16. This ruling also
             effectually cut off all discovery and inquiry into [Mr. Perez]’s
             medical financing, including the discovery of the parameters of
             the alleged contract, potential discounts [Mr. Perez] may
             receive, and the bias of any of [Mr. Perez]’s medical providers.
             This also includes the trial court’s error in relying upon
             inapplicable judicial opinions rather than the applicable statute,
             [La.] R.S. 9:2800.27.

Before addressing the merits of these assignments of error, we begin with the

standard of review.



      4 Regarding Brian Lockett’s Second Motion to Compel, the September 12,

2023 judgment granted the motion with respect to one interrogatory; denied the
motion with respect to five interrogatories; denied the motion with respect to one
interrogatory as moot; and denied the motion with respect to all four requests for
production.

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                           STANDARD OF REVIEW

      As this Court has previously explained, “[a] trial court has broad discretion

in handling discovery matters and an appellate court should not upset such a ruling

absent abuse of discretion.” St. Bernard Port, Harbor & Terminal Dist. v. Violet

Dock Port, Inc., 2017-0388, 0412, p. 7 (La. App. 4 Cir. 4/18/18),
246 So.3d 23, 28

(quoting St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock, Inc., 2014-

0286, p. 5 (La. App. 4 Cir. 8/27/14),
147 So.3d 1266, 1268
). In particular,

appellate courts “review[] a [trial] court’s rulings on motions to quash and for

protective orders concerning subpoena [duces tecum] under an abuse of discretion

standard.” In re Subpoena Duces Tecum by Inspector Gen. of City of New Orleans

to Duplantier, Hrapmann, Hogan & Maher, 2021-0010, p. 12 (La. App. 4 Cir.

8/4/21),
326 So.3d 1265
, 1273 (first citing McMaster v. Union Carbide Corp.,

2019-0592, p. 2 (La. App. 4 Cir. 7/18/19),
369 So.3d 381
, 382; then citing Doe v.

La. Bd. of Ethics, 2012-1169, 1170, p. 2 (La. App. 4 Cir. 3/13/13),
112 So.3d 339, 341
; and then citing Thomas v. Weatherford Int’l,
463 So.2d 751, 753
 (La. App. 4

Cir. 1985)). Therefore, we will review the trial court’s September 12, 2023

judgment regarding Mr. Perez’s Motion to Quash and Brian Lockett’s Second

Motion to Compel for an abuse of discretion.

                                  DISCUSSION

      In their assignments of error, Relators contend that the information they seek

about DMA’s involvement in Mr. Perez’s case is relevant and may lead to

admissible evidence. In his opposition to Relators’ writ application, Mr. Perez

argues that the information sought is not relevant because DMA is a collateral




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source. Relators assert that the collateral source rule5 does not apply to DMA

because DMA is not a “health insurance issuer” as required under La. R.S.

9:2800.27.6 Our review of the record reveals, however, that we need not discuss

the collateral source rule for resolution of the merits of Relators’ writ application

because the issue is not the admissibility of evidence. Instead, the matter sub judice

concerns the discoverability of evidence relating to DMA’s agreements with Mr.

Perez, Mr. Perez’s counsel, and Mr. Perez’s medical providers; so our resolution of

this writ application necessarily turns on application of Louisiana’s rules of

discovery.

      Louisiana Code of Civil Procedure Article 1422 pertains to the “[s]cope of

discovery” and provides, in pertinent part, that “[p]arties may obtain discovery

regarding any matter, not privileged, which is relevant to the subject matter

involved in the pending action, whether it relates to the claim or defense of the

party seeking discovery or to the claim or defense of any other party . . . .” Further,

La. C.C.P. art. 1422 states that “[i]t is not ground for objection that the information

sought will be inadmissible at the trial if the information sought appears reasonably


      5 According to “the collateral source rule, a tortfeasor may not benefit, and

an injured plaintiff’s tort recovery may not be reduced, because of monies received
by the plaintiff from sources independent of the tortfeasor’s procuration or
contribution.” La. Dep’t of Transp. & Dev. v. Kan. City S. Ry. Co., 2002-2349, p. 6
(La. 5/20/03),
846 So.2d 734, 739
 (first citing Warren v. Fidelity Mut. Ins. Co.,
1999 So.2d 382
, 385 (La. App. 1st Cir. 1957); then citing Williamson v. St. Francis
Med. Ctr., Inc.,
559 So.2d 929, 934
 (La. App. 2d Cir. 1990); and then citing Griffin
v. The La. Sheriff’s Auto Risk Assoc., 1999-2944, p. 34 (La. App. 1 Cir. 6/22/01),
802 So.2d 691, 713
).
      6 Louisiana Revised Statutes 9:2800.27(A)(4) is titled “Recoverable past
medical expenses; collateral sources; limitations; evidence.” It defines “Health
insurance issuer” as “any health insurance coverage through a policy or certificate
of insurance subject to regulation of insurance under state law, a health
maintenance organization, an employer-sponsored health plan, the Office of Group
Benefits, or an equivalent federal or state health plan.”

                                          6
calculated to lead to the discovery of admissible evidence.” Additionally, La.

C.C.P. art. 1354(A) provides that “[a] subpoena may order a person to appear and

produce at the trial, deposition, or hearing, books, papers, documents, any other

tangible things, or electronically stored information, in his possession or under his

control, if a reasonably accurate description thereof is given.” Louisiana Code of

Civil Procedure Article 1354(A) also states, however, that “[t]he court in which the

action is pending in its discretion may vacate or modify the subpoena if it is

unreasonable or oppressive.” If “a trial court vacates a subpoena without first

finding that the subpoena is unreasonable or oppressive,” then the trial court “has

gone beyond [its] authority under the provisions of La. C.C.P. art. 1354.” Francois

v. Norfolk S. Corp., 2001-1954, p. 2 (La. App. 4 Cir. 3/6/02),
812 So.2d 804, 806
.

In interpreting Louisiana’s discovery articles, the Louisiana Supreme Court has

explained that they “are to be liberally and broadly construed to achieve their

intended objectives.” Stolzle v. Safety & Sys. Assurance Consultants, Inc., 2002-

1197, p. 2 (La. 5/24/02),
819 So.2d 287
, 289 (citing Hodges v. S. Farm Bureau

Cas. Ins. Co.,
433 So.2d 125, 129
 (La. 1983)).

      For example, in Francois, the defendant, Norfolk Southern Railway Co.

(“Norfolk Southern”), sought supervisory review of the trial court’s judgment,

which denied Norfolk Southern’s motion to enforce the subpoena duces tecum it

served upon the plaintiffs’ medical expert, Dr. Raul Reyes. 2001-1954, p. 1,
812 So.2d at 805
. This Court granted Norfolk Southern’s application for supervisory

writs and reversed the trial court’s judgment, stating:

            First, the information sought is generally discoverable under the
      provisions of La. C.C.P. art. 1422 because it “is relevant to the subject
      matter involved in the pending action.” Although the trial court has
      great discretion in discovery matters, that discretion may be abused
      when the trial judge denies a motion to compel the production of

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      information that meets the requirements of La. C.C.P. art. 1422,
      especially where, as here, examination of the requested information
      may be the only means available to the party seeking discovery to
      defend against claims made by the party from whom discovery is
      sought. In the instant case, the information sought by the subpoena
      duces tecum is discoverable because it provides the only method by
      which Norfolk Southern can investigate and prove its assertion that
      Dr. Reyes was biased or operated in collusion with the plaintiffs’
      attorney(s).
Id.
 In Francois, this Court further found that the trial court had abused its

discretion under La. C.C.P. art. 1354 because the trial court made “no finding in its

written judgment that the subpoena in question [wa]s either unreasonable or

oppressive, but simply denie[d] the motion to enforce the subpoena.” Id. at p. 2,
812 So.2d at 805
. Moreover, this Court concluded that, under the circumstances

presented in Francois, the subpoena in question was neither unreasonable nor

oppressive. Id. at p. 2,
812 So.2d at 806
.

      Turning to the matter sub judice, a review of the DMA agreements is

necessary to determine if the collateral source rule applies and whether Relators

have a valid defense against the application of the collateral source rule. Relators

cannot adequately defend and prepare their case without a review of these

documents. As in Francois, the information that Relators seek “is generally

discoverable under the provisions of La. C.C.P. art. 1422 because it ‘is relevant to

the subject matter involved in the pending action’” and “examination of the

requested information may be the only means available to Relators” to defend

against Mr. Perez’s claims. 2001-1954, p. 1,
812 So.2d at 805
 (quoting La. C.C.P.

art. 1422). Therefore, in denying Brian Lockett’s Second Motion to Compel

regarding Interrogatory Number 21, Interrogatory Number 27, and Request for

Production Number 16, the trial court abused its discretion.




                                             8
      Likewise, the trial court abused its discretion when it granted Mr. Perez’s

Motion to Quash, thereby issuing a ruling tantamount to vacating FedEx’s

subpoena. Like Brian Lockett’s Second Motion to Compel, FedEx’s subpoena

sought information related to DMA’s involvement in Mr. Perez’s case, which is

information “relevant to the subject matter involved in the pending action.” La.

C.C.P. art. 1422. In granting Mr. Perez’s Motion to Quash, the trial court did not

first find that the subpoena was unreasonable or oppressive, so the trial court

exceeded its authority under La. C.C.P. art. 1354. Francois, 2001-1954, p. 2,
812 So.2d at 806
. Further, we find that FedEx’s subpoena was neither unreasonable nor

oppressive.

      In sum, we conclude that the trial court abused its discretion in granting Mr.

Perez’s Motion to Quash and in denying Brian Lockett’s Second Motion to

Compel regarding Interrogatory Number 21, Interrogatory Number 27, and

Request for Production Number 16. Accordingly, we exercise our supervisory

jurisdiction and grant Relators’ writ application; and we reverse the trial court’s

judgment as it relates to Mr. Perez’s Motion to Quash and Brian Lockett’s Second

Motion to Compel Interrogatory Number 21, Interrogatory Number 27, and

Request for Production Number 16. Additionally, we remand this matter for further

proceedings consistent with this Opinion.

                                    DECREE

      For the foregoing reasons, we grant Relators’ writ application, and we

reverse the trial court’s judgment insofar as it granted Mr. Perez’s Motion to Quash

and denied Brian Lockett’s Second Motion to Compel regarding Interrogatory

Number 21, Interrogatory Number 27, and Request for Production Number 16.

Further, we grant and Brian Lockett’s Second Motion to Compel as it pertains to

                                         9
Interrogatory Number 21, Interrogatory Number 27, and Request for Production

Number 16. We also remand this matter for further proceedings consistent with

this Opinion.

      WRIT GRANTED; JUDGMENT REVERSED IN PART; REMANDED
                                     WITH INSTRUCTIONS




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