Recently, the Louisiana Supreme Court rejected biomechanical testimony due to a lack of sufficient facts or data. In Louisiana, as elsewhere, the trial court is to serve as the “gatekeeper” in deciding the admissibility of expert testimony.
In Blair v. Coney 20-00795 (La. 4/3/20),the plaintiff sought damages for injuries caused by a rear-end collision. The defendant offered testimony from Dr. Charles E. Bain, partial owner of Biodynamics Research Corporation. Dr. Bain testified that the plaintiff was not subjected to acceleration and forces sufficient to cause lasting injuries. Dr. Bain’s testimony was based on previously conducted collision tests, photographs of the accident, and inspection of two vehicles of the same make and model.
The plaintiff moved to have Dr. Bain’s testimony excluded, claiming the testimony was irrelevant, unreliable, unduly prejudicial, and failed to satisfy the requirements of the “Daubert standard” as applied through Code of Evidence art. 702. The district court granted the plaintiff’s motion and the defendant appealed. After ordering reasons from the trial court, the appellate court reversed the trial court’s rejection of Dr. Bain. The Louisiana Supreme Court reversed.
According to the Blair Court, Dr. Bain’s testimony was properly excluded where he did not review prior medicals, inspect the vehicles involved, and made assumptions regarding the plaintiff’s body position which contradicted sworn testimony. As such, the testimony did not satisfy the reliability required for expert testimony.
The Blair Court declined to address whether Dr. Bain’s testimony satisfied any of the other requirements of Code of Evidence art. 702. The Court expressed no opinion as to Dr. Bain’s qualifications or methodology.
The Louisiana Supreme Court recently held that failure to pay filing fees necessary to add a defendant does not invalidate the proceeding as to other defendants. Prior to the ruling, Louisiana courts held that a failure to pay for one defendant invalidated the entire proceeding.
In Kirt v. Metzinger 2019-C-1162 (La. 04/03/20), plaintiffs requested a medical review panel after the death of their mother due to complications after surgery. Plaintiffs named three defendants—two doctors and the hospital. A letter from the Patient’s Compensation Fund Oversight Board (PCF) was mailed to the plaintiffs, confirming that the defendants were qualified under the Louisiana Medical Malpractice Act, and informing the plaintiffs that they were required by La. R.S. 40:1231.8 to pay a filing fee of $100 per named defendant within forty-five days of the mailing of the letter. Plaintiffs responded, requesting to add two additional defendants to the panel, one of whom was an unidentifiable nurse. Plaintiffs also included payment of $500.
The PCF responded that it was unable to add the nurse without proper identification. Three weeks later, plaintiffs notified the PCF they were also unable to identify the nurse. Upon request, Parish Anesthesia was added to the panel instead. Nearly five months later, plaintiffs provided the PCF with the identity of the nurse in question and requested she be added. The PCF sent confirmed the addition and requested another $100 filing fee which was never paid. Nevertheless, the medical review panel thereafter determined that none of the defendants, including the nurse, breached their standard of care. Suit followed against all defendants.
The defendants moved for summary judgment, arguing that the failure to pay the additional filing fee invalidated the proceeding as to all defendants. The trial court granted this motion, and the appellate court affirmed. Reversing the lower courts, the Supreme Court found that the failure to pay the additional $100 filing fee did not invalidate the entire proceeding. The court observed that separate confirmation letters sent by the PCF provided a different forty-five day period during which to pay the filing fee tied to each individual defendant.
The Kirt court stated: “[t]he notion of ‘one filing fee’ for every panel proceeding cannot be reconciled with the different payment deadlines that arise when the PCF sends separate letters confirming defendants’ qualified status. A single filing fee cannot be subject to different payment deadlines.” The court dismissed only the nurse and remanded the remainder of case to the lower courts.
Chad A. Sullivan is a partner with Keogh, Cox & Wilson, Ltd. Prior to becoming an attorney, he worked as a licensed Registered Nurse. He utilizes his background in nursing on a daily basis in his law practice that primarily focuses on automobile liability, medical malpractice, nursing home litigation, healthcare professional licensure and discipline, and products liability.