Click to return to blog page
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