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Last week, we covered Judge Morgan's Daubert order limiting testimony supporting future annual ablation treatments. Add May to the examples of recent trials in which the physician's recommendation was consistent with the limitations imposed by Judge Morgan. Dr. Eric Lonseth testified that plaintiff "would undergo a fluoroscopic rhizotomy procedure every year over the next 5-7 years to address her ongoing back pain." See page 3 of Judge Cate's Reasons For Judgment.
The low back pain was plaintiff's primary injury. An MRI revealed disc pathology, including L5-S1 herniation. Treating and defense physician testimony differed on some aspects of causation. Dr. Rand Voorhies testified that plaintiff was a candidate for fusion at L3-4 (presumably to address facet hypertrophy at that level), but plaintiff was unequivocal that she would not submit to the procedure. Prior to trial, Dr. Lonseth performed "several bilateral lumbar fluorscopic rhizotomy procedures." Cervical soft-tissue pain resolved "within a few months of the accident." Judge Cates awarded $560,000 general damages, $106,733 past medical expenses and $298,575 future specials.
After the Louisiana Supreme Court Hoffman v. 21st Century N. Am. Ins. Co. decision, holding that attorney medical discounts are not a collateral source, the question of third-party medical funding became a focus of it's effect. Taking an "Erie guess," EDLA Judge Zainey recently held that the balance between billed medical charges and the amount actually paid to the provider by a third-party was not recoverable from the defendant as a collateral source. The provider was paid 40% of billed medical expenses. The plaintiff was not a party to the finance contract and was not personally liable for the balance:
Significantly, Plaintiffs themselves were not parties to any of these agreements, and while they would have presumably agreed vis à vis their attorney that the Difference must come out of their recovery as a cost of the litigation, no suggestion has been made that Plaintiffs themselves agreed to be responsible to anyone for any medical bills or for the Difference should their recovery at trial fall short.
In this case, Plaintiffs cannot establish that they paid any benefit or suffered any diminution in their patrimony in order to obtain the discounted medical payments. The discounts were obtained via a series of contractual agreements that apparently triggered no obligations on Plaintiffs' part. Again, the Court assumes that Plaintiffs have agreed vis à vis their attorney that the Difference must come out of their recovery as a cost of the litigation, but in Hoffman the Supreme Court rejected the argument that this contractual obligation constitutes the type of payment or diminution in patrimony necessary to recover undiscounted medical expenses that were never incurred. Hoffman, 209 So. 3d at 707. The collateral source rule does not apply to the Difference so as to allow Plaintiffs to recover it as an element of special damages.
Williams at 5-7.
In 2009, Judge Barbier, applying federal law under the Jones Act, reached a different conclusion under circumstances where the "plaintiff engaged" the funding provider. Kelly v. Bayou Fleet, Inc., 2:05-cv-06871 (USDC-EDLA 06/09/09).
The distinction does not necessarily define categorically different results. The two cases were not decided under the same substantive law. Nevertheless, Judge Zainey comments in a footnote that plaintiff's personal obligation under the contract in Kelly is "critical."
- CDC Judge Julien on Dr. Charles Bain: "While Dr. Bain has a medical degree specializing in family emergency medicine, a certificate in accident reconstruction, and a nuclear engineering degree, he has no training in biomechanics and his education does not demonstrate a special knowledge in the mechanism of injury." Written Reasons - Excluding biomechanics testimony - CDC # 2015-11478.
- CDC Judge Griffin on Louis M. Fey, Jr.: In Harris v. U.S. Xpress, Inc., CDC # 2016-12685, defendants wanted to present expert testimony of Louis Fey in support of a contention that the subject accident was staged. Judge Griffin ruled that, absent evidence triggering an exception, Mr. Fey could not testify as an expert in "claim handling" specific to any accident other than the one at issue in Harris. Transcript posted at Louis Fey expert witness page.
Posted: March 8, 2019
What effect Judge Morgan's decision to limit future ablation treatment testimony may have is open to question. Her defense Daubert ruling in a case subsequently settled would not materially impact treatment recommendation evidence at other recent trials.fn Nevertheless, when ablations for life remains a recommendation of physicians, her memorandum opinion will be must reading for future briefs on the issue.
Presented with proposed testimony of Drs. Schlosser and DeFrancesch recommending 30 years of annual ablations, Judge Morgan documents the medical literature offered in support and opposition to the defendant's Daubert motion.
fn See, for example, Vinet v. Wal-Mart Stores, Inc., 763,474 (24th JDC 02/14/19), recommendation for 7 years of future ablation treatments; McAdams v. Mack, 644,205 (19th JDC 05/11/18), future abalations "for as long as the treatment provides adequate pain relief. Contra Cooley v. Adgate, 52,000 (La.App. 2 Cir. 05/30/18), amending trial court judgment to include cost of ablations for life. Judge Morgan distinguishes Cooley, emphasizing the Second Circuit's focus on the need for future medical care as opposed to the question of medical efficacy.
Affirming one of the more interesting 2018 general damage awards (Koertge v. State Farm Fire & Cas. Ins. Co., 148,797 (26th JDC 05/04/18)), the Second Circuit amended to add $10,000 future medical care and $4,500 future psychological counseling. Plaintiff was 14 years old when she suffered severe scalp chemical burns. Multiple surgeries preceded trial. The treating plastic surgeon testified that two future hair follicle transplants would probably be necessary. The trial court awarded special damages for the cost of only one. The trial court also denied recovery of future psychological counseling expenses. The $250,000 general damage award was affirmed over plaintiff's quantum appeal.
The Second Circuit reversed a defense judgment sustaining an exception of no cause of action. Plaintiff sued the Minden PD for its actions in connection with reported sexual abuse of her daughter. A mandatory hospital referral to the police and ensuing investigation culminated with a decision by the medical staff to forego "rape kit testing." The daughter allegedly attempted suicide, partially in reaction to the loss of chance that the perpetrator could be held accountable.
The panel's discussion of duty-risk and "Child in Need of Care" (La. Ch. C. art. 601, et seq.) legislation is informative.
CompQuantum Trial Reports on Appeal
- Thomas v. Cage, 2018-1144 (La.App. 1 Cir. 02/25/19), Unpublished, affirming 50% fault assessed to pedestrian injured by motorist and assessment of $2,000 general damages;
- Bernal v. Crescent Foundations, LLC, 18-495 (La.App. 5 Cir. 02/27/19), affirming special and general damages resulting from "fraudulent criminal charges filed by the defendants"; and
- Antippas v. NOLA Hotel Group, 2017-0798 (La.App. 4 Cir. 02/27/19), affirming 30% plaintiff fault and general damage award to cyclist injured in accident with notor vehicle in the French Quarter.
Posted: Feb. 28, 2019
Defense results often don't make the cut for reporting here. Plenty are reported at CompQuantum, but to include in an email, there must be an issue of compelling interest. And today we have one, but not without the company of two significant plaintiff judgments.
Plaintiff worked as a Merchant Mariner from 1966 until 2002. Asbestos exposure and development of mesothelioma led to multiple legal actions in California and this suit in the Eastern District of Louisiana.
Pretrial motions considered by Judge Sarah Vance included defense Daubert motions to exclude testimony on medical causation. Finding that neither Dr. Robert Harrison, an occupational health and environmental medicine expert, nor Dr. David Tarin, an expert pathologist, knew enough about the plaintiff's exposure to provide "specific causation" testimony, the evidence was excluded. Lacking support for a causal relation between plaintiff's alleged six-week exposure on the vessel AVOCET and his cancer, the court further granted summary judgment for the defense.
Judge Vance's detailed discussion will be of interest to anyone dealing with difficult medical causation issues. It is not an asbestos specific opinion. The depositions of Drs. Harrison and Tarin are also posted at CompQuantum.
For the second consecutive Newsflash, Darrell Papillion features as prevailing counsel. A Western District, Lafayette Division jury awarded $2,000,000 wrongful death damages to the wife of a worker killed by a natural gas pipeline valve failure. Each of three surviving children was awarded $100,000.
The defense argued that plaintiffs' claims were subject to workers compensation exclusive remedy. A jury finding of a "significant causal link" between the death and defendant's offshore operations allowed tort recovery under the Outer Continental Shelf Lands Act.
Following a five day bench trial, Judge Milazzo issued her findings and signed a judgment awarding $3,308,094.55 total damages under the Longshore and Harbor Workers Compensation Act. The court found that the injured worker was not a Jones Act seaman. The owner was not entitled to limitation of liability on finding knowledge of the captain's "unsafe custom of allowing equipment to be offloaded from the M/V TROOPER without first tying up the vessel."
General damages for cervical, head and minor brain injuries totaled $975,000. Plaintiff's treatment included 28 staples to close a scalp laceration and two-level cervical fusion. Inner ear and TBI issues were relatively minor, but persistent and were sigificnat contributing factors to the damage evaluation.
I will be unveiling a host of never before seen trial court stats and covering recent trial quantum at the Baton Rouge Bar Association Bench Bar Conference in April. Come for the enlightenment. Stay for the comfort of Point Clear's beautiful Grand Hotel.
Posted: Feb. 8, 2019
Simpson v. UV Insurance Risk Retention Group, Inc.
628-15 (31st JDC 02/14/19)
On overcoming long odds
Joshua Simpson testified that the second to last truck of an oversize load convoy veered to the left, striking his box truck. The driver of the trailing vehicle testified that Simpson caused the minor accident, then attempted to flee.
The contrast prioritized credibility for jury deliberations. Simpson's claim hinged on gaining the jury's trust. Evidence of drug seeking behaviors, low impact accident and a relevant prior injury claim history made Blake David's task on Simpson's behalf more difficult. But not impossible.
Defying conventional wisdom on serveral levels, a Jefferson Davis Parish jury's plaintiff verdict assessed general damages of $490,000 for a neck injury treated with two level fusion. Special damages totalled $809,433.
Vinet v. Wal-Mart Stores, Inc.
763,474 (24th JDC 02/14/19)
A case of careless customer service
On evidence that "service area" employees violated internal safety regulations, a Jefferson Parish jury assigned 75% fault to the defendants for backing a car into their customer. General damages for rotator cuff and knee meniscus tears and a lumbar injury treated with ablations totalled $360,000. The judgment also included special damages of $172,746.
Posted: Feb. 22, 2019
Homeowner's insurance and the business pursuits exclusion
Buiness pursuit liability coverage exclusions: 2 from the 3rd Circuit
Parker v. American Western Home Ins. Co., 18-392 (La.App. 3 Cir. 12/28/18)
Latour v. Allstate Ins. Co., 18-395 (La.App. 3 Cir. 12/28/18)
The Third Circuit released two opinons on December 28, 2018 guiding litigants through the narrows of buisness pursuits exclusions to homeowner's insurance liability coverage.
The scrutinized activities included a day care operation and rental of an insured property. In Latour, a three judge panel reversed the trial court and granted summary judgment for Allstate Insurance Company on finding that the policyholder breached a duty to properly supervise a child under her paid care. Judge Sylvia Cooks dissented. A five judge panel in Parker held that "there are genuine issues of material fact as to whether the property at issue was being leased on an occasional basis," potentially triggering an exception to the exclusion (emphasis added). Judge Cooks authored the Parker opinion.
The majority in Latour looked to "the alleged actions or omissions of the insured upon which liability is asserted and whether those actions further the operation of the daycare." The Parker, opinion quotes The Law of Liability Ins., Rowland Long, Matthew Bender & Co., Inc., § 9.06:
Many courts that have examined the definition of business and the business pursuits exclusion agree that a business pursuit must involve two elements: continuity of the activity, and monetary gain, or at least the hope or expectation of monetary gain.
See Parker at p. 8.
These opinions work remarkably well together to define understandable parameters for analysis of a buisness pursuits exclusion defense.
Posted: Jan. 4, 2019
Judge Piper Griffin recently ruled in favor of LIGA, allowing a credit for medical expenses incurred by a Medicaid eligible plaintiff even though she had not and could not submit the bills for payment under the program. See, Anderson v. Gutierez-Cruz, 2015-00611 (Civil District Court 10/24/18).
At issue were $5,408.12 of billed medical expenses related to treatment for injuries incurred in a March 1, 2014 motor vehicle accident. The deadline for submitting the bills to Medicaid for payment was November 12, 2015.
Plaintiff filed suit against an insured of Affirmative Casualty Insurance Company. Rather than going through Medicaid, she sought recovery of medical expenses through liability insurance. When Affirmative was declared insolvent on March 24, 2016, the Medicaid deadline was expired.
LIGA claimed a credit for medical expenses under Louisiana Revised Statute 22:2062. Plaintiff opposed the credit, arguing that before LIGA's obligation ever existed, her right to the alternative benefits was extinguished.
Judge Griffin recognized the "unfortunate" consequences, but concluded that the statutory "expression of legislative will" superseded "plaintiffs' equity argument."
Posted: Nov. 27, 2018
By judgment signed October 4, 2018, the trial court denied defendant's motion for judgment notwithstanding the jury's verdict. The jury awarded plaintiff $6,470,000 general damages following trial from April 2-10, 2018. See Duplessis v. Turner, 2015-4256 (Civil District Court 06/22/18).
Posted: Oct. 22, 2018
With the kind permission of the publishers of the Bulletin of the American College of Surgeons, CompQuantum is posting its "Statement on the physician acting as an expert witness" for your reference.
Posted: Oct. 19, 2018
In 2016 we reported on the Supreme Court's remand of a Houma medical malpractice suit for retrial based on the "miscarriage of justice" brought about Judge Timothy Ellender's "bizarre and disturbing behavior" during trial. See A judge is gone, but not forgotten. Preparing for my October 29 CLE presentation on 2018 trials for the Terrebonne Bar Association, I ran across the re-trial result.
The second time around was no more successful for the plaintiff. Another 32nd JDC jury concluded that plaintiff failed to prove Dr. Schwab's treatment fell below the standard of care. See, Logan v. Schwab, 165,756 (32nd JDC 03/22/18). Perhaps Justice Crichton correctly dissented on the majority conclusion that a re-trial was necessary.
This trial will be among several from Houma discussed as part of my 3:00 p.m. hour on 2018 trials in Houma on October 29. We will, of course, cover many more from across Louisiana. Join us if you are able.
Posted: Oct. 8, 2018
In one of those opinions concluding oddly in relation to the text, a Third Circuit panel reversed a defense merchant liability, slip and fall summary judgment. See, Barton v. Wal-Mart Stores, Inc., 18-146 (La.App. 3 Cir. 09/26/18).
Several paragraphs describe details that don't seem to suggest a final statement on the impropriety of credibility determinations for summary judgment purposes. Rather, the facts, as described, could be grounds for explanation that the plaintiff's credibility alone, no matter how strong, could not overcome an "absence of factual support for" proof of constructive notice. Nevertheless, the matter returns to the 9th JDC for further proceedings.
Posted: Sept. 27, 2018