Carter v. PhillipsCarter v. Phillips
Lead Opinion
We granted this Writ of Certiorari to review an order of the district judge that the plaintiff-relator furnish security for costs, as provided for under
The record shows that this is a medical malpractice case for damages in the total sum of $250,000. Plaintiff alleges that during oral surgery performed by the defendant physician he negligently severed several facial nerves, thereby seriously injuring her.
After filing an answer in which he generally denies negligence, the defendant filed a motion for security for costs under
“The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case, and on failure to do so within the time fixed by the court such suit or intervention, as the qase may be, shall be dismissed without prejudice. This section shall not apply to the Parish of Orleans and to cases brought in forma pauperis, nor to the state or any political subdivision thereof.”
In his motion, the defendant alleges that in order to show that he was not negligent he will be compelled to obtain the testimony of expert medical witnesses and to pay or be responsible for their fees and the costs and charges incident to taking their depositions. Plaintiff then lists by name five doctors, two from New Orleans and three from Alexandria, Louisiana. He alleges that the fees of the two doctors from New Orleans will be $150 each and the fees of the doctors from Alexandria will be $100 each and that the notary and transcription fees will be $60 per deposition, for a total of $900.
At the hearing on the motion, counsel for both defendant and plaintiff were present and argued. No witnesses were called and no evidentiary offerings made. The hearing was closed and the motion was submitted and taken under advisement by the judge. At a later date, the judge gave oral reasons and granted the motion ordering plaintiff to post the bond for costs in the sum of $900.
Plaintiff argues that under Romero v. Romero,
Essentially, we adopt the reasoning of the dissent in Romero, which leaves to the discretion of the trial judge the nature of the showing required of the defendant. It is not necessary that evidence be introduced in every case. It is within the discretion of the trial judge to determine whether the showing required may be
In the case of Stump v. City of Shreveport,
Although neither the Stump case nor the Carville case uphold the rigid rule that evidence must be produced by the defendant in every case, we wish to state, for the purpose of clarity, that we disagree with any construction of the decisions in these two cases which would support such a rule.
Since the rationale for our decision in the present matter has been fully set forth in the dissent in Romero, we see no need to repeat it here.
Plaintiff-relator makes an additional argument that there is no necessity for defendant to take the depositions of the three doctors from Alexandria since they can be subpoenaed as witnesses at the trial. This argument is expressly rejected in the leading case of Whitson v. American Ice Company,
For the reasons assigned, the Writ of Certiorari and the Stay Order issued herein on December 15, 1975 are recalled. The order of the district court requiring plaintiff to give security for costs is affirmed, except that the plaintiff, Elsie Carter, is to be allowed an additional ten days from the time this judgment becomes final within which to post the bond in the amount of $900. All costs of this Writ in the appellate court are assessed against the plaintiff-relator. Costs in the district court must await a final determination there.
Writ of certiorari and stay order recalled; order of the District Court affirmed as amended.
MILLER, J., dissents and assigns reasons.
Dissenting Opinion
(dissenting).
Under this decision, defendant is required to schedule a hearing in order to establish his need for security for costs, but does not need to present evidence at that hearing. I understand this ruling to mean that the hearing is scheduled to allow plaintiff to present evidence and show that defendant does not need security or as much security as he is requesting for costs. This switches the burden of proof contemplated by the statute and jurisprudence (which require defendant to schedule the hearing). It seems to me that when a party is required to schedule a hearing — that party should have the burden of establishing his need.
This 19 year old plaintiff was required to post a $1,000 cost bond on filing the suit. She has now been ordered to post an additional $900 bond to allow the defendant physician to depose three physicians practicing medicine in the defendant’s home city and two physicians practicing medicine in New Orleans, There is no af
There was no showing defendant could not obtain statements from these physicians or answers to interrogatories. There was no showing that one or more of these five physicians was in ill health or about to move and could not be expected to testify at trial. There is no showing that all this medical testimony is needed. If depositions of these five are needed (without a line of testimony to establish need), why not ten, fifteen, twenty, or fifty doctors?
I respectfully submit the trial judge's discretion must be exercised “with due regard for the actual necessity for a bond and for the interest or motive of the party demanding it.” Whitson v. American Ice Co.,
In Romero, we reserved to defendant the right to establish, on proper showing when the necessity may arise, his need for additional costs. Plaintiff relied on that ruling which placed the burden on defendant to establish his need for security.
Now that Romero has been overruled, I would at the very least grant plaintiff another hearing to afford him an opportunity to establish, if he is so disposed and can, that defendant can prepare his defense without all these depositions or that the costs will be less than the $900 which defendant requested.
I respectfully dissent.