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Hall v. Brookshire Brothers8/21/2002
ith a qualified health care provider. More recently, in the per curiam opinion of Conner v. Stelly, 02-280 (La. 1/30/02); 807 So.2d 827 (emphasis added), the supreme court stated the following regarding the quantification of victim and third-party fault in medical malpractice actions:
Although payment of $100,000 in settlement establishes proof of liability for the malpractice and for damages of at least $100,000 resulting from the malpractice, at the trial against the Fund, the plaintiff has the burden of proving that the admitted malpractice caused damages in excess of $100,000. Graham v. Willis-Knighton Med. Ctr., 97-0188 (La.9/9/97), 699 So.2d 365. Accordingly, that portion of the trial court's judgment prohibiting the PCF from arguing or presenting evidence before the jury that victim or third-party fault caused any of the damages in this case is reversed. See also Ceasar v. Barry, 02-52 (La.App. 3 Cir. 7/17/02); __ So.2d __, in which we held that the plaintiffs were not entitled to summary judgment as to the sole liability of the settling physician, where they were still pursuing a malpractice claim against another defendant (a hospital).
In light of the jurisprudence following Graham, 699 So.2d 365, we find that the trial court properly permitted the jury to quantify the fault of Mr. Vines and Mrs. Hall.
Exclusion of Dr. Fann's Testimony
Plaintiffs moved to prohibit the testimony of defense expert, Dr. William Fann, a pharmacologist. A Daubert hearing was held during the trial, after it was revealed that the doctor had never treated Mrs. Hall and was therefore limited to her medical records. Ultimately, the trial court decided that Dr. Fann's testimony, although relevant, would have greater prejudice than probative value, since it went to the ultimate issues of causation and fault, yet it would be limited to a pharmaceutical analysis of the effects of Gentamicin on the average person.
The Fund argues that the ultimate issue in this case concerns the allocation of fault among Dr. Seale, Mr. Vines, and Brookshire, as well as the causation of damages in excess of $100,000.00. Accordingly, Dr. Fann's testimony should not have been stricken simply because it "incriminated" the pharmaceutical parties and cast doubt upon Dr. Seale's admission of malpractice.
The trial court is allowed much discretion in determining whether to allow a witness to testify as an expert under La.Code Evid. art. 702. Its judgment will remain undisturbed unless clearly erroneous. Abshire v. Wilkenson, 01-75 (La.App. 3 Cir. 5/30/01); 787 So.2d 1158. Considering this broad discretion, we do not find error with the trial court's balancing test under La.Code Evid. arts. 401 and 403, and we agree in result.
Dr. Fann's testimony could not assist the trier of fact in determining damages to the inner ear. His expertise was pharmacology, not otolaryngology, and he admitted that vestibular function in the ear was not his area of expertise. Although he never examined Mrs. Hall, Dr. Fann opined that if she had stopped taking the drug while she was asymptomatic and in accordance with Dr. Seale's orders, it was within a reasonable medical probability that she would not have suffered the subsequent damage. However, this opinion was based upon discussions with two colleagues in other medical fields rather than on his own expertise. He could not cite any authoritative source for this opinion, and he had never treated anyone who had vestibular dysfunction due to Gentamicin ototoxicity. We find no error in the trial court's decision to exclude Dr. Fann's testimony.
Mrs. Hall's Testimony as to Dr. Seale's Treatment
On direct examination, Mrs
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