Henry Carroll and Annie Carroll v. Dr. Mahmoud Sheikh-Khalil and P&S Surgical Hospital

• Court: Louisiana Court of Appeal
• Decided: January 10, 2024
• Docket: 55,413-CA
• Status: Published

Opinion

Judgment rendered January 10, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 55,413-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

HENRY CARROLL AND ANNIE Plaintiffs CARROLL

versus

DR. MAHMOUD SHEIKH- Defendants-Appellees KHALIL AND P&S SURGICAL HOSPITAL

Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 19-2250

Honorable Alvin R. Sharp, Judge

THE HARVILLE LAW FIRM, LLC Counsel for Appellants By: Douglas Lee Harville Annie Carroll and the Estate of Henry Carroll S. DOUGLAS BUSARI & ASSOCIATES, LLC By: S. Douglas Busari

CHARLES M. HEROLD, III, APLC Counsel for Appellee, By: Charles M. Herold, III Dr. Mahmoud Sheikh- Khalil HAMMONDS, SILLS, ADKINS, GUICE, NOAH & PERKINS, LLP Counsel for Appellee By: John B. Saye P&S Surgical Hospital

Before PITMAN, STEPHENS, and MARCOTTE, JJ. MARCOTTE, J.

This appeal arises from the Fourth Judicial District Court, Ouachita

Parish, the Honorable Alvin R. Sharp presiding. Plaintiffs, Henry Carroll

and Annie Carroll (“plaintiffs” or “appellants”), appeal the trial court’s

ruling precluding them from calling any witnesses at trial as a result of their

failure to timely file a “will call” witness list. For the following reasons, we

affirm.

FACTS

On October 5, 2016, Mr. Carroll underwent an outpatient heart

procedure by Dr. Mahmoud Sheikh-Khalil (“Dr. Khalil”) at P&S Surgical

Hospital (“P&S Hospital”) located in Monroe, Louisiana. On July 17, 2019,

plaintiffs filed a medical malpractice action against Dr. Khalil and P&S

Hospital (“defendants” or “appellees”) alleging that Dr. Khalil negligently

perforated Mr. Carroll’s right ventricular apical sac during an attempt to

place a biventricular ICD.1 Plaintiffs sought damages arising from Dr.

Khalil’s negligence.

On December 3, 2019, P&S Hospital filed a motion for summary

judgment asserting that it did not employ Dr. Khalil and, therefore, was not

vicariously liable for his actions. P&S Hospital further argued that the

medical review panel found all services rendered by P&S Hospital and its

staff were within the standard of care and that plaintiffs had produced no

opinion stating otherwise.

1 Henry Carroll died prior to trial. His widow, Annie Carroll, was substituted in his place. On January 27, 2020, plaintiffs opposed the motion for summary

judgment and attached an expert affidavit by Dr. David Korn wherein Dr.

Korn found Dr. Khalil and P&S Hospital performed below the standard of

care resulting in the injuries claimed by plaintiffs.

On March 11, 2020, the trial court granted summary judgment on

plaintiffs’ direct liability and negligent hiring claim against P&S Hospital.

However, the trial court denied summary judgment on plaintiffs’ vicarious

liability claims against P&S Hospital. On March 16, 2020, the trial court

entered a judgment consistent with these findings.

On October 5, 2020, the trial court entered a scheduling order setting

trial for August 30, 2021. Among other deadlines, the scheduling order

provided as follows with respect to exhibits and witnesses:

IT IS ORDERED that exhibit lists shall be exchanged and filed three weeks before the trial date.

IT IS ORDERED that each party shall name, exchange, and file a final WILL CALL witness list which specifically categorizes each witness as either “layperson,” “fact,” or “expert.” This shall be done no later than three weeks before the trial date.

THIS COURT WILL STRICTLY ADHERE TO THIS PROVISION. THIS COURT WILL NOT PERMIT COUNSEL TO CALL WITNESSES WHO ARE NOT LISTED. (Emphasis in original.)

On July 14, 2021, the trial was continued and reset for April 4, 2022.

On March 10, 2022, P&S Hospital and Dr. Khalil filed and exchanged their

final will call witness lists and exhibit lists. Plaintiffs, however, did not file

or exchange either their witness list or exhibit list at that time.

With the April 4, 2022, trial date fast approaching, plaintiffs were

having issues producing their expert for a deposition. In order to address

2 those issues, the trial court held a status conference on March 14, 2022, and

ordered plaintiffs to make their expert available to be deposed no later than

March 18, 2022. Plaintiffs did not comply.

On March 31, 2022, the trial court continued the trial again without a

date. On May 16, 2022, the trial court set trial for December 5, 2022, and

entered a new scheduling order, which preserved the aforementioned

deadlines as follows:

IT IS ORDERED that the deadlines and requirements in the Court’s Minute Entry and Order of July 16, 2021,2 as it related to the April 4, 2022, trial date shall remain in place with no additional time granted for discovery, amendment to pleadings, exchange of will call witness lists and exhibit lists, filing of dispositive motions, joint jury charges, posting jury bond and filing fax numbers & emails. THIS COURT WILL STRICTLY ADHERE TO THIS PROVISION. THE COURT WILL NOT PERMIT COUNSEL TO CALL WITNESSES WHO ARE NOT TIMELY LISTED. (Emphasis in original.)

The scheduling order further admonished that “failure to comply may

result in dismissal, delay and/or all appropriate actions by this court.”

Plaintiffs, however, did not exchange or file their will call witness list and

exhibit list by the court-imposed deadline.

Having not received plaintiffs’ lists, P&S Hospital and Dr. Khalil

jointly filed a motion in limine on December 2, 2022. The motion asserted

that plaintiffs’ lawsuit should be dismissed or that all testimony and

evidence should be excluded at trial because of their failure to file and

exchange a will call witness list and exhibit list within the deadline set by

the scheduling order. The motion also asserted that plaintiffs did not

2 The reference in the scheduling order to a July 16, 2021, minute entry appears to be in error, as the trial court did not issue a new scheduling order in July 2021. The trial court almost certainly meant to refer to the minute entry and order of October 5, 2020.

3 sufficiently plead the issue of informed consent and, thus, should be

prohibited from raising it at trial.

In response, plaintiffs filed their will call witness list, albeit more than

two weeks after the deadline had passed. Plaintiffs did not file an exhibit

list.

Trial commenced on December 5, 2022. Before trial, Dr. Khalil and

P&S Hospital urged their motion in limine, which the trial court granted.

The trial court orally ruled that informed consent had not been sufficiently

pled, thus plaintiffs would be precluded from offering testimony or exhibits

related to informed consent claims. As to the issue of plaintiffs’ failure to

timely file and exchange their witness and exhibit lists, the trial court found

it important to enforce its own orders:

The real issue here is whether or not the Court’s orders should be complied with. The Court is of the view and of the position and we have been like I said for twenty-five years, it has to be. If we don’t, the Court would be in the business of doing a useless thing, and we would be wasting ink and killing trees for no purpose. We would have to ask the question, if the defense can file theirs, why can’t you file yours?

Due to the court’s ruling, plaintiffs were prohibited from calling any

witnesses once trial began. Dr. Khalil and P&S Hospital promptly moved

for a directed verdict, which the trial court granted, citing its ruling on the

motion in limine. Plaintiffs were then permitted to proffer the expected

testimony of their witnesses.

On January 11, 2023, the trial court entered a written order granting

the motion in limine. On February 16, 2023, the trial court entered a written

4 order granting the directed verdict. Plaintiffs appeal the trial court’s

rulings.3

DISCUSSION

Appellants argue that there was no showing of prejudice to Dr. Khalil

and P&S Hospital based on plaintiffs’ failure to timely file a will call

witness list and exhibit list. Plaintiffs note that Dr. Khalil and P&S Hospital

did not assert that they were unaware Ms. Carrol or Dr. Korn would testify

at trial or that they had knowledge relevant to plaintiffs’ allegations.

Plaintiffs further pointed out that any witness identified in discovery was

named as a may call witness, and that Ms. Carroll and Dr. Korn had both

been deposed prior to trial. Thus, according to plaintiffs, there was no

surprise when Ms. Carroll, Dr. Korn, and Dr. Khalil were identified as will

call witnesses by plaintiffs in their tardily filed will call witness list.

Appellants further argue that there was no showing of bad faith on

their part in failing to timely file their lists. Plaintiffs note that Dr. Khalil

and P&S Hospital did not allege that plaintiffs were involved in their

attorney’s failure to provide a timely will call witness list. Plaintiffs assert

that they should not be punished for their attorney’s mistake.

For these reasons, plaintiffs ask this court to reverse the trial court’s

order that they cannot call any witnesses at trial and to remand this matter to

the trial court for further proceedings.

3 Plaintiffs’ notice of appeal was filed on February 10, 2023, thus it only referenced the trial court’s ruling on the motion in limine. However, the written judgment on the directed verdict was based directly on the trial court’s ruling on the motion in limine to preclude plaintiffs from offering testimony or exhibits. Therefore, any prematurity in the notice of appeal was cured when the judgment was signed. See e.g. Reed v. Superior Motors, 415 So. 2d 219 (La. App. 2 Cir. 1982) (holding that “appeals are favored under the law and the signing of the judgment appealed from at a point close in time to the time the judgment was orally stated, cures the alleged defect of a premature appeal”).

5 P&S Hospital argues that the trial court did not abuse its discretion in

excluding plaintiffs’ witnesses and exhibits for their failure to comply with

the clear terms of the scheduling order, which used the mandatory term

“shall.” P&S Hospital notes that the scheduling order required plaintiffs to

file and exchange the lists at least three weeks before the April 4, 2022 trial

date, or at the very least, three weeks before the December 5, 2022 trial date,

and it is undisputed that plaintiffs missed these deadlines.

P&S Hospital further asserts that, contrary to plaintiffs’ claims, this

court is not required to determine plaintiffs’ willfulness or bad faith. Since

this case involves the exclusion of witnesses and exhibits rather than outright

dismissal, P&S Hospital asserts that this court’s role is to determine whether

the trial court’s decision was reasonable or an abuse of discretion.

P&S Hospital argues that plaintiffs’ assertion that appellees should

have known which witnesses plaintiffs would call ignores the realities of

litigation and the purpose of requiring final witness lists. P&S Hospital

further asserts that this claim by plaintiffs is seriously undercut by the fact

that the witness list plaintiffs filed one business day before trial named a

previously undisclosed expert, Dr. Robert White.

Dr. Khalil argues that the trial court has broad discretion to control the

pretrial proceedings and enforce its own orders. Dr. Khalil further takes

issue with plaintiffs’ insinuation that the trial court’s ruling was based on a

single, harmless infraction of the pretrial order. Dr. Khalil claims that the

trial court’s ruling was instead based on plaintiffs’ entire body of work,

which included multiple violations, false representations, refusal to answer

direct questions by the court, and judicial confessions.

6 Dr. Khalil lists plaintiffs’ numerous violations of the scheduling order

as follows:

1. Plaintiffs failed to comply with all of the trial court’s orders requiring the exchange and filing of will call witness lists three weeks before trial.

2. Plaintiffs failed to comply with all of the trial court’s orders requiring the exchange and filing of exhibit lists three weeks before trial.

3. Plaintiffs never filed a trial exhibit list.

4. Plaintiffs failed to produce an expert for deposition by defendants on or before March 18, 2022, as ordered by the court.

5. Plaintiffs failed to take their expert’s trial deposition on or before March 18, 2022, as ordered by the court.

6. Plaintiffs’ attorney falsely stated to the court that defendants did not file or exchange will call witness lists or exhibit lists.

7. Only after receiving defendants’ motion in limine on the eve of trial did plaintiffs file and exchange their will call witness list.

8. Plaintiffs’ counsel refused to admit to the court that he only filed and exchanged their will call witness list after defendants’ motion in limine was filed.

9. Plaintiffs’ counsel provided no good faith explanation for multiple violations of the trial court’s orders.

Dr. Khalil argues that this court is not required to determine plaintiffs’

willfulness or bad faith, but that even if it was, the totality of the

circumstances and cumulative effect of plaintiffs’ actions and judicial

confessions reflect bad faith, fault, and willful failure to comply with the

trial court’s orders.

Dr. Khalil and P&S Hospital request that this court affirm the trial

court’s rulings granting both their motion in limine and motion for a directed

verdict.

7 At the outset of our explanation, we underscore that the power

necessary for the exercise of a court’s jurisdiction inheres in the court with

the corollary that such power embraces the reasonable enforcement of its

lawful orders and directives such that those subject to its lawful orders and

directives can be compelled to adhere to them. See La. C.C.P. art. 191 (“A

court possesses inherently all of the power necessary for the exercise of its

jurisdiction even though not expressly granted by law”). The inability – or

even the failure – of a court to reasonably enforce its judgments, orders, or

directives would render them mere words on paper.

Thus, our law necessarily affords trial judges great discretion and

power over the control of proceedings in their respective courtrooms: “A

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.” La. C.C.P. art. 1631(A).

La. C.C.P. art. 1551 gives a court wide discretion to provide for

implementation of a pretrial scheduling order and to ensure that the items of

the pretrial order are enforced. The theory inherent in pretrial procedure is

the avoidance of surprise and the allowance of the orderly disposition of the

case. Allen v. Bridges, 41,169 (La. App. 2 Cir. 11/1/06), 942 So. 2d 686.

Absent an abuse of discretion, the trier of fact’s decision in implementing

and enforcing a pretrial scheduling order will be upheld. Robinson v. Apria

Healthcare, Inc., 38,438 (La. App. 2 Cir. 5/27/04), 874 So. 2d 418.

In Benware v. Means, 99-1410 (La. 1/19/00), 752 So. 2d 841, the

Louisiana Supreme Court concluded that there was no error in a trial court’s

exclusion of all witnesses, exhibits, and defenses by a defendant who had

8 repeatedly failed to comply with pretrial orders. At trial, the defendant

could only cross-examine witnesses presented by the plaintiff and

ultimately, judgment was entered against him. Reasoning that the “drastic”

remedy relied on by the trial court was appropriate given the circumstances,

the supreme court set forth several factors for crafting penalties for failure to

follow a pretrial order, stating:

Other important considerations in determining the appropriateness of the penalty for a pre-trial order violation, in addition to the question of whether the client participated in the violation, are the stage of the proceeding at which the violation occurred, the presence or absence of prejudice to the opposing party’s preparation of the case, and the nature and persistency of the misconduct that constitutes the violation.

Id. at p. 6, 752 So. 2d at 845. The supreme court further explained that

“[e]ach case must be decided upon its own facts and circumstances, and the

trial judge is vested with much discretion in determining the penalty for

violation of pre-trial and discovery orders.” Id. at p. 5, 752 So. 2d at 844.

In a similar case, Brooks v. Sewerage & Water Bd. of New Orleans,

02-2246 (La. App. 4 Cir. 4/30/03), 847 So. 2d 639, the trial court excluded

the defendant’s witnesses at trial because the defendant failed to file a

witness list as required by a pretrial order. As here, the offending party

attempted to equate the penalty to a dismissal of his case. However, the

court of appeal found that the sanction of exclusion of witnesses was

distinguishable from that of an outright dismissal, and held as follows:

We find the ruling of the trial court to be reasonable, especially in light of the written requirement of the trial order, twice given, requiring that each party file a witness list by a date certain. It was not an abuse of discretion, under these circumstances, for the trial court to enforce the trial order in an attempt to prevent an injustice to the party who relied upon and followed that order in preparing for trial.

9 In Robertson v. Lafayette Ins. Co., 11-0975 (La. App. 4 Cir. 2/8/12),

85 So. 3d 186, the plaintiff failed to file a witness list as required in the

scheduling order. The defendant moved the trial court to strike all of the

plaintiff’s witnesses once the deadline for filing a witness list had expired.

The trial court granted the motion and the court of appeal affirmed, noting

that the plaintiff never sought to modify the pretrial order to obtain more

time in which to file the witness list and had sufficient time to do so before

the scheduled trial date.

Here, the trial court was faced with a party who missed two deadlines

to file and exchange witness and exhibit lists. At the very least, plaintiffs

had from May 16, 2022, the date of the scheduling order explicitly warning

them of the potential penalty, to November 14, 2022, three weeks before the

trial date, to compile their lists. We cannot condone plaintiffs’ refusal to

comply with the trial court’s reasonable pretrial order. Furthermore,

accepting appellants’ argument would require this court to find that a party

may excuse himself from his mandatory obligation to adhere to court orders

by simply ignoring them, which is untenable.

While less drastic penalties may have been available, or even

advisable, we do not conclude that it is an abuse of discretion, under these

facts, for a trial court to enforce its own order. To reverse here undermines a

trial court’s authority to set and enforce pretrial procedure and orders which

are established for the fair and orderly progression of a case. Appellants’

assignments of error lack merit.

10 CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court

granting the motion in limine and motion for a directed verdict filed by Dr.

Mahmoud Sheikh-Khalil and P&S Surgical Hospital. All costs of this

appeal are assessed to appellants.

AFFIRMED.