Jahmal Tillman and Jirus Tillman Individually and O/B/O Rose Tillman v. Lammico, Practice Protection Trust Fund, the State of Louisiana, Through the Board of Supervisors of the Louisiana State University and Agricultural Mechanical College, and Lsu Health Sciences Center, West Jefferson Holdings, LLC, Woldenberg Village, Inc., Durga Sure, M.D., Frank Culicchia, M.D., Joshua Lowentritt, M.D., and Michael Puente, M.D.

• Court: Louisiana Court of Appeal
• Decided: August 27, 2024
• Docket: 2024-C-0419
• Status: Published

Opinion

JAHMAL TILLMAN AND * NO. 2024-C-0419 JIRUS TILLMAN INDIVIDUALLY AND O/B/O * ROSE TILLMAN COURT OF APPEAL * VERSUS FOURTH CIRCUIT * LAMMICO, PRACTICE STATE OF LOUISIANA PROTECTION TRUST FUND, ******* THE STATE OF LOUISIANA, THROUGH THE BOARD OF SUPERVISORS OF THE LOUISIANA STATE UNIVERSITY AND AGRICULTURAL MECHANICAL COLLEGE, AND LSU HEALTH SCIENCES CENTER, WEST JEFFERSON HOLDINGS, LLC, WOLDENBERG VILLAGE, INC., DURGA SURE, M.D., FRANK CULICCHIA, M.D., JOSHUA LOWENTRITT, M.D., AND MICHAEL PUENTE, M.D.

APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-09836, DIVISION “I-14” Honorable Lori Jupiter, Judge ****** Judge Dale N. Atkins ****** (Court composed of Judge Daniel L. Dysart, Judge Dale N. Atkins, Judge Rachael D. Johnson)

Kara Hadican Samuels Amanda J. Francis KARA HADICAN SAMUELS & ASSOCIATES, L.L.C. 4004 Canal Street New Orleans, LA 70119

COUNSEL FOR RELATORS, Jahmal Tillman and Jirus Tillman, Individually and on Behalf of Rose Tillman Ann Marie LeBlanc Kathryn M. Caraway Erica L. Andrews CARAWAY LEBLANC, LLC 3936 Bienville Street New Orleans, LA 70119

COUNSEL FOR RESPONDENTS, Dr. Joshua Lowentritt and Woldenberg Village, Inc.

WRIT GRANTED; JUDGMENT REVERSED AUGUST 27, 2024 DNA

DLD

RDJ

This is a medical malpractice action. Relators, Jahmal Tillman and Jirus

Tillman, individually and on behalf of their deceased mother Rose Tillman (“Ms.

Tillman”), seek supervisory review of the trial court’s June 17, 2024 judgment,

which granted the “Motion to Exclude Portions of the Testimony/Opinions of Dr.

Jeffrey Zwerner” (“Motion to Exclude”) filed by Respondents, Joshua Lowentritt,

M.D. (“Dr. Lowentritt”), and Woldenberg Village, Inc. (“Woldenberg”)

(collectively “Respondents”). For the following reasons, we grant Relators’ writ

application and reverse the trial court’s judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petition for Damages

On October 11, 2017, Relators filed a Petition for Damages (“Petition”),

individually and on behalf of Ms. Tillman, in Orleans Civil District Court. Therein,

Relators named as defendants the State of Louisiana, through the Board of

Supervisors of the Louisiana State University and Agricultural Mechanical

College, and LSU Health Sciences Center; West Jefferson Holdings, LLC, d/b/a

West Jefferson Medical Center; Woldenberg; Practice Protection Trust Fund;

Durga Sure, M.D. (“Dr. Sure”); Frank Culicchia, M.D. (“Dr. Culicchia”); Michael

1 A. Puente, M.D.; and Dr. Lowentritt. In their Petition, Relators explained that on

March 25, 2012, Ms. Tillman, presented to the emergency department at West

Jefferson Medical Center via EMS complaining of a severe headache and left-sided

weakness. They further explained that after “[a] CT scan of the head . . . revealed a

right basal ganglia bleed extending into the right lateral ventricular posterior horn,”

Dr. Sure, a neurosurgeon, recommended that Ms. Tillman be admitted to the

Intensive Care Unit and receive a repeat CT scan in six hours. According to

Relators’ Petition, at this time, “Dilantin [(phenytoin)] was started for seizure

prophylaxis.” That same day, as the Petition stated, “Ms. Tillman was . . . admitted

to the Cardiac Care Unit under the care of Dr. Frank Culicchia with a diagnosis of

hemorrhagic stroke” and underwent a repeat CT scan. Relators averred that on

March 26, 2012, a neurologist, Dr. John Freiberg (“Dr. Freiberg”), evaluated Ms.

Tillman at Dr. Culicchia’s request and “noted that Ms. Tillman was doing well,

with no clear need for continued prophylactic, anti-convulsant medication.”

Relators also asserted that Dr. Freiberg “suggested that discontinuation of the

antiepileptic drug, Dilantin, be considered.”

Despite Dr. Freiberg’s recommendation, as explained by Relators, “[o]n

March 27, 2012, Dr. Sure noted that Ms. Tillman’s neurological examination was

improved, but ordered that Ms. Tillman was to continue receiving Dilantin.”

Further, according to Relators’ Petition, “Dr. Sure ordered Benadryl every eight

hours as needed for ‘itching.’” Later, on March 29, 2012, as stated by Relators,

“Ms. Tillman’s neurological examination was described as ‘stable,’” at which time

“[t]ransfer to rehabilitation was . . . approved by neurosurgery.” Relators

contended that over the next month, Ms. Tillman continued to receive Dilantin, and

she complained of symptoms indicative of an allergic reaction, including itching,

2 for which she also received medication though medical staff failed to document her

symptoms.

As the Petition explained, after time at the West Jefferson Medical Center

rehabilitation unit, Ms. Tillman was transferred to Woldenberg on April 27, 2012,

on which date Dr. Lowentritt assumed care for Ms. Tillman and ordered that Ms.

Tillman would continue to receive phenytoin. Relators contended that “Dr.

Lowentritt never questioned why a patient without a personal history of seizures

and a stable neurological exam required ongoing antiepileptic drug therapy.” In

early May 2012, as Relators explained, Ms. Tillman experienced a fever. Then, on

May 8, 2012, according to Relators, nurses at Woldenberg noticed a change in Ms.

Tillman’s mental status; nurses documented that a rash on Ms. Tillman’s body that

had been attributed to Aleve had worsened, despite the discontinuation of Aleve

and the application of a topical steroid; and Dr. Lowentritt ordered that Ms.

Tillman be transferred back to West Jefferson Medical Center.

As Relators then explained in their Petition, after Ms. Tillman returned to

West Jefferson Medical Center, on May 13, 2012, Dr. Christopher Dalinkus (“Dr.

Dalinkus”) “noted that he highly suspected [Drug Reaction/Rash with Eosinophilia

and Systemic Symptoms (“DRESS”)] syndrome present upon admission due to

phenytoin,” and “[t]he drug was finally discontinued.” Relators contended that

another doctor at West Jefferson Medical Center, Dr. Markalain Dery, “agreed

with Dr. Dalinkus that phenytoin was the most likely cause of Ms. Tillman’s

symptoms” and “also suspected DRESS . . . syndrome.” Despite the

discontinuation of phenytoin and efforts to stabilize Ms. Tillman, her condition

worsened, and she ultimately passed away on May 22, 2012. As asserted by

Relators, “postmortem findings and clinical presentation including Ms. Tillman’s

3 laboratory values were diagnostic for DRESS.” Relators alleged that Ms. Tillman

“suffered injuries, damages, and ultimately, a wrongful death . . . caused,

contributed to, and/or precipitated by the negligence and/or departures from the

proper standard of medical care of [multiple] Defendants,” including Respondents.

Motion to Exclude

On February 21, 2024, Respondents filed their Motion to Exclude, wherein

they moved to exclude portions of the testimony of Relators’

dermatologist/dermatopathologist expert, Dr. Jeffrey Zwerner (“Dr. Zwerner”)

pursuant to La. R.S. 9:27941 and La. C.E. art. 702.2 In their Motion to Exclude,

Respondents asserted that the reasoning for their motion was because “[a]s it

relates to Dr. Lowentritt and Woldenberg, this case involves alleged acts of

medical negligence which raise issues peculiar to the particular medical specialty

of internal medicine and physician treatment and nursing care within skilled

nursing facilities” while Relators’ “dermatology expert, Dr. Zwerner, has no

training or experience in the practice of any medicine within any skilled nursing

facility and is not a medical expert who may testify as to the degree of care which

should be exercised by internal medicine physicians and nurses in skilled nursing

facilities.” Therefore, Respondents argued that Dr. Zwerner should not be allowed

to provide testimony as to the standard of care, nor Respondents’ alleged breach

thereof.

1 Louisiana Revised Statutes 9:2794 is titled “Physicians, dentists, optometrists, and chiropractic physicians; malpractice; burden of proof; jury charge; physician witness expert qualification.” 2Louisiana Code of Evidence Article 702 provides the standard for admissibility of expert testimony.

4 As another basis for their Motion to Exclude, Respondents argued that

opinions provided by Dr. Zwerner during his August 28, 2023 deposition were

beyond the scope of his January 16, 2019 report and after the expert identification

and reporting deadlines, thereby precluding Respondents from retaining an expert

in a similar specialty to counter Dr. Zwerner’s opinion. In particular, Respondents

argued that Dr. Zwerner’s January 2019 report indicated that he would “testify

regarding medical causation and damages” and “would testify concerning

dermatology and dermatopathology.” According to Respondents’ Motion to

Exclude, their counsel understood that the only expert that would comment “on the

standard of care of Dr. Lowentritt and/or Woldenberg would be [another expert,]

Dr. [Michael] Ayati.” However, as asserted in Respondents’ Motion to Exclude,

“during his deposition, Dr. Zwerner ventured into an area far outside his area of

specialty and beyond his report wherein he merely focused on whether phenytoin

was the cause of Mrs. Tillman’s death and whether her death could have been

prevented by her treating physicians.” Respondents noted that in his report, Dr.

Zwerner stated that he “believed that DRESS should have been considered a

possible diagnosis at Woldenberg, and . . . opined that had the medication been

stopped before or after [Ms. Tillman] was admitted to Woldenberg, she had a

better chance of having a better outcome.” Respondents further noted that in his

report, Dr. Zwerner “never defined the standard of care relating to any defendant in

the case nor did he state the standard of care was breached.” Nonetheless, as

asserted in Respondents’ Motion to Exclude, Dr. Zwerner “did an about face,”

when questioned about Dr. Lowentritt and Woldenberg during his deposition,

affirmatively responding that he was making opinions about the applicable

standard of care of Dr. Lowentritt and the Woldenberg nurses.

5 June 17, 2024 Judgment

On April 18, 2024, the trial court conducted a hearing on Respondents’

Motion to Exclude and took the matter under advisement at the close of the

hearing. Then, on June 17, 2024, the trial court signed a judgment which granted

Respondents’ Motion to Exclude. It stated, in pertinent part:

This matter came before this Court on April 18, 2024, pursuant to Defendant’s [sic] Motion to Exclude Portions of the Testimony/Opinions of Dr. Jeffery Zwerner filed on February 21, 2024.

....

IT IS ORDERED, ADJUDGED, AND DECREED that the Defendant’s [sic] Motion to Exclude Portions of the Testimony/Opinions of Dr. Jeffery Zwerner is hereby GRANTED. Dr. Jeffery Zwerner is prohibited from testifying regarding the standard of care as it relates to Dr. Lowentritt and the nursing staff at Woldenberg Village.

Relators’ timely writ application to this Court followed.

ASSIGMENTS OF ERROR

In their writ application to this Court, Relators assert two assignments of

error:

A. The trial court erred in granting Defendants’ Motion to Exclude Portions of the Testimony/Opinions of Dr. Jeffrey Zwerner and limiting Dr. Zwerner’s testimony despite that Dr. Zwerner’s methodology and opinions are unquestionably reliable under Daubert and its progeny; and

B. The trial court abused its discretion in its restrictive interpretation of the Code of Evidence by improperly conditioning Dr. Zwerner’s qualification based upon his specialty.

We begin our discussion with the standard of review.

DISCUSSION

Standard of Review

6 “[T]o determine whether a physician possesses the requisite degree of

knowledge or skill or whether he exercised reasonable care or diligence,” courts

are “guided by expert witnesses who are members of the medical profession and

who are qualified to testify.” In re Boryca, 2020-0670, 0671, 0672, 0673, p. 4 (La.

App. 4 Cir. 8/11/21), 366 So.3d 110, 115 (citing Jackson v. State through Charity

Hosp. of La. at New Orleans, 1994-2090, p. 3 (La. App. 4 Cir. 5/16/95), 655 So.2d

795, 797). The trial court has “broad discretion in determining whether expert

testimony should be held admissible and who should or should not be permitted to

testify as an expert.” Id. (quoting Johnson v. Morehouse Gen. Hosp., 2010-0387,

0488, p. 17 (La. 5/10/11), 63 So.3d 87, 99). Accordingly, this Court reviews

evidentiary rulings regarding the admissibility of expert testimony under the abuse

of discretion standard. Leininger v. Heaney, 2023-0574, p. 9 (La. App. 4 Cir.

8/15/24), ___ So.3d ___, ___, 2024 WL 3823429, at *4 (quoting Schwarzenberger

v. La. State Univ. Health Scis. Ctr. New Orleans, 2017-0024, p. 6 (La. App. 4 Cir.

8/24/17), 226 So.3d 1200, 1205).

Law and Analysis

Louisiana Code of Evidence Article 702 provides the standard for

admissibility of expert testimony. If a witness “is qualified as an expert by

knowledge, skill, experience, training, or education” then the witness “may testify

in the form of an opinion or otherwise if:”

(1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and methods; and

7 (4) The expert has reliably applied the principles and methods to the facts of the case.

La. C.E. art. 702(A).

With regard to medical malpractice claims, this Court has stated that “[t]o

prevail in a medical malpractice case, the plaintiff must establish the standard of

care applicable to the charged physician, a violation by the physician of that

standard of care, and a causal connection between the physician’s alleged

negligence and the plaintiff’s injuries resulting therefrom.” McDaniel v. Reed,

2000-2529, pp. 2-3 (La. App. 4 Cir. 10/3/01), 798 So.2d 1121, 1123 (citing La.

R.S. 9:2794(A)). Further, “[w]here the alleged acts of negligence raise issues

peculiar to the particular specialty involved, then only those qualified in that

specialty may offer evidence of the applicable standard of care.” Id. at p. 3, 798

So.2d at 1123 (citing La. R.S. 9:2794(A)(1)). However, the determination as to

whether a specialist may testify as to the degree of care that should have been

exercised is based on the “specialist’s knowledge of the requisite subject matter,

rather than the specialty within which the specialist practices.” Id. This

determination must be made “on a case by case basis.” Id. (citing McLean v.

Hunter, 495 So.2d 1298, 1302 (La. 1986)). That is, “[c]ase law . . . allows for

physicians to testify in fields other than their own, when there is sufficient

knowledge of the requisite subject matter.” Pennington v. Ochsner Clinic Found.,

2017-0647, p. 10 (La. App. 4 Cir. 4/25/18), 245 So.3d 58, 65.

In McDaniel, this Court explained that “where medical disciplines overlap,

specialists in one field may give expert testimony as to the standard of care

applicable to areas of the practice of medicine common to both disciplines.” 2000-

2539, pp. 4-5, 798 So.2d at 1123 (citing Soteropulos v. Schmidt, 556 So.2d 276,

8 280 (La. App. 4th Cir. 1990). Moreover, this Court also held that “a patient’s skin

care is not peculiar to any one specialty and thus any qualified physician [can]

testify as to the applicable standard of care.” Id. (citing Smith v. Juneau, 1995-

0724, p. 15 (La. App. 4 Cir. 4/9/97), 692 So.2d 1365, 1373). Additionally, in

McDaniel, we explained that the fact that an expert is one type of doctor instead of

a specialist in the field about which he or she testifies “applies only to the effect on

the weight to be given to his testimony, not to its admissibility.” Id. at pp. 5-6, 798

So.2d at 1124 (citing Bernard v. Lott, 1995-0167, p. 6 (La. App. 4 Cir. 12/28/95),

666 So.2d 702, 705).

Based on our review of the foregoing jurisprudence, we find that Relators’

assertion that the trial court erred in granting Respondents’ Motion to Exclude has

merit because a specialist like Dr. Zwerner may provide standard of care testimony

as to Respondents in this matter. Contrary to the Respondents’ contentions, Dr.

Zwerner as a dermatologist/dermatopathologist, is not prohibited from providing

testimony and opinions as to their standard of care or as to their alleged breach

thereof simply because Dr. Lowentritt is an internal medicine physician and

Woldenberg is a skilled nursing facility. As Relators argue in their writ application

to this Court, Dr. Zwerner is qualified to provide testimony as to Respondents’

breach of the standard of care provided that Respondents’ “failure to conduct a

differential diagnosis in response to Ms. Tillman’s alarming clinical symptoms—

which included a rash, burning, itching, increasing eosinophils, and worrisome

laboratory results—does not raise any issues ‘peculiar to internal medicine,’ which

is notably not a specialized area of medicine in and of itself.” That is, Dr. Zwerner

is not offering testimony concerning the standard of care in an area peculiar to an

internist or a skilled nursing facility, but only the standard of care as to his

9 specialty, skin care. See Pennington, 2017-0647, pp. 11-12, 245 So.3d at 65 (first

quoting Smith, 1995-0724, 692 So.2d 1365; and then citing Slavich v. Knox, 1999-

1540, pp. 5-6 (La. App. 4 Cir. 12/15/99), 750 So.2d 301, 304). Thus, Dr. Zwerner

has knowledge in the requisite subject matter. Despite Respondents’ arguments to

the contrary, Louisiana law does not require Dr. Zwerner to have performed the

exact same tasks as Dr. Lowentritt (i.e., practiced in a skilled nursing facility,

instead of a hospital or clinic setting), “but, rather, looks to [his] knowledge on the

subject matter to determine whether he[] qualifies as an expert witness.” See In re

Boryca, 2020-0670, 0671, 0672, 0673, p. 7, 366 So.3d at 116. Dr. Zwerner is a

dermatologist/dermatopathologist whose qualifications as such have not been

challenged by Respondents. The fact that Dr. Zwerner is a

dermatologist/dermatopathologist, and not an internist, like Dr. Lowentritt, nor a

physician who practices at a skilled nursing facility, such as Woldenberg, affects

only the applicable weight that his testimony should be given, not to its

admissibility.

Regarding Respondents’ allegation that Dr. Zwerner’s deposition testimony

went beyond the scope of his expert report, we note that in his January 2019 report,

Dr. Zwerner opined that Ms. Tillman “died as the result of DRESS related to

phenytoin exposure” and described DRESS” as “a type of severe cutaneous drug

eruption that can be caused by several classes of medications, including

antiepileptics.” As to Ms. Tillman’s treatment at Woldenberg, Dr. Zwerner opined

in his report that the rash that started after her admission to the facility and

continued to worsen even after the facility stopped administering Aleve was likely,

the initial development of phenytoin-induced DRESS. Further, Dr. Zwerner

opined that if DRESS would have been considered while Ms. Tillman was at

10 Woldenberg, as he believes it should have been, “the phenytoin stopped, and

supportive therapy promptly started,” then “there is an excellent chance that her

reaction to the medication would not have had the severe progression that it did.”

Considering these statements in Dr. Zwerner’s report, we agree with Relators’

contention that Dr. Zwerner did in fact identify breaches of Respondents’ standard

of care, such that his subsequent August 2023 deposition testimony should not

have come as a surprise to them as they allege it did.

In sum, we find that the trial court abused its discretion in granting

Respondents’ Motion to Exclude and in limiting Dr. Zwerner’s testimony.

DECREE

For the foregoing reasons, we conclude that the trial court abused its

discretion in granting Respondent’s Motion to Exclude. Accordingly, we grant

Relators’ writ application and reverse the trial court’s June 17, 2024 judgment.

WRIT GRANTED; JUDGMENT REVERSED