Jones ex rel. Daughter v. Dr. William Black & La. Med. Mut. Ins. Co.

145 So.3d 402

Janie JONES, individually and on behalf of her Minor Daughter, Destinee Jones

v.Dr. William BLACK and Louisiana Medical Mutual Insurance Company.

No. 2013 CA 1889.

Court of Appeal of Louisiana, First Circuit.

May 2, 2014.

Donald W. Price, Paul H. Due, and Dr. Edward A. Robinson, III, Dr. Mark E. Robinson, Baton Rouge, LA, for Plaintiff/Appellant, Janie Jones, Individually and on behalf of her minor daughter, Destinee Jones.

Vance A. Gibbs, Jennifer Jones Thomas, Baton Rouge, LA, for Defendants/Appellees, Dr. William Black and Louisiana Medical Mutual Insurance Company.

Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.

CRAIN, J.

In this medical malpractice proceeding, the plaintiffs appeal judgments that sustained an exception of res judicata, granted a motion in limine, and granted summary judgment in favor of the defendants. We reverse the judgment granting the exception of res judicata, affirm in part and reverse in part the judgment granting the motion in limine, reverse the summary judgment, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

This litigation began approximately twenty-four years ago when the plaintiff, Janie Jones, individually and on behalf of her minor daughter, Destinee Jones, filed a petition against Dr. William Black and his insurer, Louisiana Medical Mutual Insurance Company (LAMMICO), alleging that Dr. Black breached the standard of care during the birth and delivery of Destinee. More particularly, Jones alleged that Dr. Black was negligent in the use of forceps during the delivery, and as a result, Destinee suffered a permanent loss of vision in her right eye. Jones also alleged that Dr. Black failed to inform her of the material risks associated with the use of forceps during the delivery.

The matter proceeded to a jury trial beginning on January 19, 1993, where Jones presented testimony from numerous witnesses, including Dr. William J. Cameron, an obstetrician and gynecologist, and Dr. Peter R. Kastl, an ophthalmologist, in support of her claim that Dr. Black negligently used the forceps and that his negligence caused Destinee to sustain a hemorrhage behind her right eye, referred to as a “retrobulbar hemorrhage.” The defendants countered with testimony from Dr. Black and other medical experts, including an obstetrician/gynecologist and two pediatric ophthalmologists, together with the medical review panel opinion in favor of Dr. Black and other documentary evidence. At the conclusion of the trial, the jury returned a verdict finding that Dr. Black's conduct fell below the applicable standard of care and that his conduct caused Destinee to suffer a retrobulbar hemorrhage as well as abrasions and/or lacerations. The jury awarded a total of $100,000.00 in general damages and no special damages. Thereafter, the trial court entered a judgment notwithstanding the verdict that modified the damages but did not increase the total award.

On appeal, this court found that the jury verdict was tainted by the trial court's efforts to encourage the jury to reach a verdict; and, as a result, this court conducted a de novo review of the evidence. Jones v. Black, 94–1505 (La.App. 1 Cir. 9/22/95) (unpublished opinion). Based upon that review, this court held that Jones failed to prove that negligence by Dr. Black caused Destinee's injury. Accordingly, the judgment on the jury verdict and the judgment notwithstanding the verdict were reversed.

The supreme court granted writs and in a per curiam opinion agreed that the trial court's action tainted the jury verdict, but the supreme court vacated the decision of this court and remanded for a new trial, stating:

After taking the unusual step of sending for and reviewing the entire record in this case, we are convinced that this case is one in which the weight of the evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues.

Jones v. Black, 95–2530 (La.6/28/96), 676 So.2d 1067 (quotation marks and citation omitted).

Several years after the remand and with a new trial date pending, the defendants filed an exception of res judicata, a motion in limine, and a motion for summary judgment. In the exception of res judicata, the defendants contended that a ruling made by the trial court during the prior trial precluded any argument, testimony, or other evidence of informed consent at the new trial. The ruling at issue was rendered at the conclusion of the evidence in the first trial, when the trial court determined that it was “not going to allow the issue of [informed] consent to go to the jury.” The defendants argued that this ruling became final and binding because Jones did not appeal or assign error to it in connection with the appeal of the prior judgment on the merits.

In the motion in limine, the defendants sought to exclude any testimony from Dr. Cameron, Dr. Kastl, and Dr. Frederick Gonzalez, an expert retained by Jones after the case was remanded for a new trial. According to the defendants, Dr. Cameron was not qualified to render an opinion on the standard of care or causation, and Dr. Gonzalez, an obstetrician and gynecologist, lacked the necessary expertise to render an opinion concerning the cause of the retrobulbar hemorrhage. As to Dr. Kastl, the defendants argued that his testimony was not definitive because he identified two possible causes of the retrobulbar hemorrhage: the forceps or the forces/pressures of labor. Therefore, the defendants asserted that Dr. Kastl's testimony “does not carry the burden of proof on the issue of causation” and should be excluded. The defendants also maintained that Dr. Kastl had “no peer-reviewed medical literature or studies” to support his opinion that the forceps were a possible cause of the injury.

In anticipation of a favorable ruling on the motion in limine, the defendants filed a motion for summary judgment asserting that Jones could not establish the requisite elements of her case against Dr. Black, specifically the element of causation.

After a hearing on the exception and motions, the trial court granted the exception of res judicata and entered a judgment precluding Jones from presenting any argument, testimony, or other evidence on the issue of informed consent at the trial. The court continued consideration of the motion in limine until a subsequent hearing date and denied the motion for summary judgment. After the ensuing hearing, the trial court granted the motion in limine and entered a judgment that precluded Jones from presenting any testimony of Dr. Cameron, Dr. Gonzalez, or Dr. Kastl at the trial of the matter. Thereafter, the defendants re-urged their motion for summary judgment, which the trial court granted. In accordance therewith, the trial court entered a judgment that dismissed Jones' claims against Dr. Black and LAMMICO with prejudice.

Jones appeals and asserts three assignments of error: (1) the trial court erred in finding that the informed consent claim is barred by reversed and vacated judgments under the doctrine of res judicata, (2) the trial court erred in excluding the testimony of the medical experts on the grounds that they were unqualified and used unscientific methods, and (3) the trial court erred in finding that there were no genuine issues of material fact that precluded summary judgment.

LAW AND ANALYSIS

A. Exception of Res Judicata

The burden of proving the facts essential to sustaining an exception of res judicata is on the party pleading the exception. Union Planters Bank v. Commercial Capital Holding Corp., 04–0871 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130. If any doubt exists as to its application, the exception of res judicata must be overruled and the second lawsuit maintained. Pierrotti v. Johnson, 11–1317 (La.App. 1 Cir. 3/19/12), 91 So.3d 1056, 1063. The concept should be rejected when doubt exists as to whether a plaintiff's substantive rights actually have been previously addressed and finally resolved. Patin v. Patin, 00–0969 (La.App. 1 Cir. 6/22/01), 808 So.2d 673, 676. The res judicata effect of a prior judgment is a question of law that is reviewed de novo. Pierrotti, 91 So.3d at 1063.

Although the law of res judicata underwent a substantial revision in 1990, the law in effect prior to that revision applies in the present matter because the petition was filed before January 1, 1991, the effective date of the act. See La. Acts 1990, No. 521, § 5. Nevertheless, under both the pre-amendment and post-amendment version of the law, an essential requirement to the application of res judicata is a “final judgment.” See Preis v. Standard Coffee Service Company, a Division of W.M. B. Reilly and Company, Inc., 545 So.2d 1010, 1012–13 (La.1989) (pre-amendment); La. R.S. 13:4231 (after amendment by La. Acts 1990, No. 521, § 1). A “final judgment” is one that “determines the merits in whole or in part.” La.Code Civ. Pro. art. 1841. As explained hereinafter, the absence of a final judgment in this proceeding is fatal to the defendants' argument that the doctrine of res judicata prevents Jones from pursing her claim of lack of informed consent.

The defendants do not contend that the judgment on the jury verdict or the judgment notwithstanding the verdict are final judgments, as both of those judgments were reversed in an opinion by this court, which was later vacated by the supreme court. See Jones, 676 So.2d at 1067. The supreme court's decision to remand the case for a new trial effectively vacated the prior judgments by the trial court, so those judgments cannot constitute final judgments. SeeLa. R.S. 13:4231, Comment (d) (“The use of the phrase ‘final judgment’ also means that the preclusive effect of a judgment attaches once a final judgment has been signed by the trial court and would bar any action filed thereafter unless the judgment is reversed on appeal ”) (Emphasis added).

Instead, the defendants argue that Jones' informed consent claim was “effectively...