Galloway v. Ioppolo

464 So. 2d 386
CourtLouisiana Court of Appeal
DecidedFebruary 26, 1985
DocketCA 84 0040
StatusPublished
Cited by13 cases

This text of 464 So. 2d 386 (Galloway v. Ioppolo) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Galloway v. Ioppolo, 464 So. 2d 386 (La. Ct. App. 1985).

Opinion

464 So.2d 386 (1985)

Lynn David GALLOWAY, et al.
v.
Dr. Anthony S. IOPPOLO, et al.

No. CA 84 0040.

Court of Appeal of Louisiana, First Circuit.

February 26, 1985.

*388 Leslie J. Schiff, Opelousas, for plaintiffappellant Lynn David Galloway, et al.

Felix R. Weil, Baton Rouge, for defendant-appellee Baton Rouge General Hosp.

Edward J. Rice, Jr., New Orleans, and Donald T.W. Phelps, Baton Rouge, for defendant-appellee Dr. Anthony S. Ioppolo.

Before COLE, CARTER and LANIER, JJ.

LANIER, Judge.

This is a suit for damages alleging a surgeon's medical malpractice caused the death of a patient. This suit was consolidated with a suit against the hospital where the surgery was performed. These consolidated cases proceeded to trial by judge. During the presentation of the plaintiffs' case, a witness made a side bar comment to the trial judge about the credibility of another witness. After the testimony of the witness was completed, the trial judge advised counsel for the parties of the substance of the comment. Counsel for the hospital requested a mistrial in his client's suit and that the case be transferred to another division of court. Counsel for the plaintiffs opposed the mistrial and asked that the consolidated trial continue. The trial judge declared a mistrial in the suit against the hospital, ordered the two cases severed, assigned the hospital case to another division of court and directed the trial in the suit against the surgeon to proceed. Counsel for the plaintiffs objected to the severance and the continuation of the trial against the surgeon contending it unfairly prejudiced the presentation of his case. The judge noted the objection and ordered the trial to proceed. Counsel for the plaintiffs then rested his case against the surgeon. Counsel for the surgeon made a motion for a directed verdict which was granted. Judgment was thereafter rendered dismissing the plaintiffs' suit against the surgeon at their costs. This devolutive appeal followed.

FACTS

Mrs. Ora Fay Andrus Galloway was admitted to the Baton Rouge General Hospital on August 20, 1979, as a patient of Dr. A.S. Ioppolo. Surgery (an anterior cervical decompression and fusion) was performed on Mrs. Galloway by Dr. Ioppolo on August 21, 1979, between 3:00 p.m. and 5:00 p.m. After surgery Mrs. Galloway was taken to the recovery room where she remained from 5:00 p.m. to 7:15 p.m. At approximately 7:15 p.m., she was discharged from the recovery room and taken to her private room. At approximately 7:55 p.m., Mrs. Galloway suffered a respiratory arrest which caused brain damage and resulted in her death on August 28, 1979. An autopsy conducted on December 6, 1979, revealed bleeding in the surgery site (in the neck) created pressure which made the trachea collapse and caused respiratory arrest.

SEVERENCE AND CONTINUATION OF TRIAL

(Assignment of Error No. 1)

Appellants contend the trial court committed error by severing the two suits and ordering them to continue with the trial of the suit against Dr. Ioppolo.[1] Appellants assert "the testimony could only proceed in an orderly fashion with both defendants in the case", they were "not fully prepared to aim all its guns at Dr. Ioppolo", "Dr. Ioppolo was afforded an advantage that he would not have had with his co-defendant at his side", and the "decision to declare a mistrial necessarily altered the strategy" of the case.

*389 The record shows this suit was filed on February 20, 1980. Dr. Ioppolo answered the suit on April 29, 1980. By letter dated May 26, 1982, counsel for appellants requested a pretrial conference in both suits (they had not yet been consolidated). Rule VII of the civil rules of the Nineteenth Judicial District Court provides, among other things, that the request for a pretrial conference can be made after issue is joined and after disposition of all discovery proceedings. The request also must certify the case is ready for trial. The order of consolidation was entered on October 25, 1982. The pretrial conference was held on April 14, 1983, and the consolidated cases were fixed for trial on August 22, 1983. The trial commenced as scheduled and carried over to August 23, 1983. Nine witnesses were called to testify by the appellants before they rested their case against Dr. Ioppolo. The record does not reflect that the appellants were precluded from calling additional witnesses prior to resting their case. No recess was requested to secure additional witnesses or recall prior witnesses.

La.C.C.P. art. 1631 provides, in pertinent part, as follows:

The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.

A trial judge also has inherent power to take reasonable actions to control his docket. Armstrong v. State Farm Fire and Casualty Company, 423 So.2d 79 (La.App. 1st Cir.1982); Sather v. White, 388 So.2d 402 (La.App. 1st Cir.1980).

Consolidation of actions pursuant to La.C.C.P. art. 1561 is a procedural convenience designed to avoid multiplicity of actions and does not cause a case to lose its status as a procedural entity. Broome v. Gauthier, 443 So.2d 1127 (La.App. 4th Cir. 1983), writ denied, 445 So.2d 449 (La. 1984); Howard v. Hercules-Gallion Co., 417 So.2d 508 (La.App. 1st Cir.1982), writ denied, 420 So.2d 984 (La.1982). Procedural rights peculiar to one case are not rendered applicable to a companion case by the mere fact of consolidation; each case must stand on its own merits. Broome, 443 So.2d at 1131; Howard, 417 So.2d at 511; Williams v. Scheinuk, 358 So.2d 340 (La.App. 4th Cir. 1978). Thus, it has been held the filing of a request for notice of judgment (Howard,) a request for trial by jury (Broome,) an intervention (Williams,) an order for briefs,[2] or a judgment[3] in one of several consolidated cases do not procedurally affect the others. By analogy, the granting of a mistrial in the hospital's consolidated suit did not necessitate the granting of a mistrial in the instant suit. It was within the discretion of the trial judge, in the exercise of control over his docket, to sever the suits and require the appellants to proceed with the trial against Dr. Ioppolo alone. That decision will not be disturbed on appeal, absent a showing of an abuse of discretion.

This suit had been in litigation three and one-half years when the trial commenced. Appellants were apparently prepared to and did proceed to trial against Dr. Ioppolo and the hospital for a full day and one-half of another with the presentation of nine witnesses. If the appellants could adequately present their case against Dr. Ioppolo and the hospital together, they should have been able to do so against Dr. Ioppolo individually. After the severance was granted and the trial judge ordered the trial with Dr. Ioppolo to resume, the appellants elected to present no additional evidence, although they had the opportunity to do so. Although the appellants allege prejudice in this assignment of error, the record, briefs and oral argument fail to show any specific example of how they were actually prejudiced or that the trial judge abused his discretion.

*390 This assignment of error is without merit.

DIRECTED VERDICT

(Assignments of Error 2 and 3)

Appellants contend the trial court erred in granting the directed verdict because the doctrine of res ipsa loquitur

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Bluebook (online)
464 So. 2d 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galloway-v-ioppolo-lactapp-1985.