HICKS v. USAA GENERAL INDEMNITY COMPANY (2022)

Application for rehearing denied.

I would grant plaintiff's rehearing application in part, solely to vacate this court's order remanding this matter for a new trial. I would instead remand this matter to the court of appeal to determine whether it can be resolved on the record following de novo review. Otherwise I would deny the application for rehearing.

I agree with the unanimous decision to deny rehearing. I write separately first to note that the issues raised in this case in relation to Louisiana Code of Civil Procedure art. 1464 can and, in my view, should, be addressed and resolved by pretrial motions in limine. See generally La. C.C.P. art. 1551(A). Notably, after the trial court ruled against the defense here, there is no indication that the defense made any motion to prohibit plaintiff's counsel from repeatedly bringing up the expert's failure to personally examine the plaintiff. Resolving admissibility issues before trial would promote the various interests discussed in the initial opinion, permitting the trial court an opportunity to balance the sanctity of the body and privacy rights with considerations of fairness in the adversarial process.

I also write separately to call attention to the principles of professionalism I believe are implicated here. All attorneys should strive to comply with the professionalism guidelines set forth by both the Louisiana State Bar Association and the Louisiana Supreme Court. See La. Sup. Ct. R. Part G, § 11 (“Lawyers’ Duties to the Courts”); La. State Bar. Ass'n Code of Professionalism. In my view and as highlighted in the initial opinion, certain conduct in this case fails to meet these basic obligations. Most glaringly, plaintiff's counsel referred to the defense expert as “diabolical” to the jury after actively opposing the physician's examination throughout the course of discovery. This conduct falls short of the aspirations of the professionalism guidelines to conduct oneself with the utmost integrity and fails to adhere to the oath every lawyer of this state takes to conduct himself with “fairness, integrity, and civility” and “abstain from all offensive personality.”

Weimer, C.J., would grant rehearing in part and assigns reasons. Crichton, J., additionally concurs and assigns reasons. Hughes, J., recused.