McCurdy v. Ault

654 So. 2d 716, 1995 WL 239630
Louisiana Court of Appeal·Decided April 7, 1995·No. 94 CA 1449·Published·Cited by 13 cases

Opinion

654 So.2d 716 (1995)

Anthony McCURDY
v.
Dr. R.F. AULT, d/b/a Ault Chiropractic Clinic and Dr. Jim Terrell.

No. 94 CA 1449.

Court of Appeal of Louisiana, First Circuit.

April 7, 1995.
Rehearing Denied June 6, 1995.

*717 Glen C. Reynaud, Robert Stratton, Baton Rouge, for plaintiff-appellant Anthony McCurdy.

*718 William H. Parker, III, Lafayette, for defendant-appellee Dr. Robert F. Ault.

James L. Dendy, Baton Rouge, for defendant-appellee Dr. Jim Terrell.

Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.

CARTER, Judge.

This is an appeal from a trial court judgment dismissing plaintiff's action pursuant to a motion for involuntary dismissal.

FACTS

On or about October 24, 1979, plaintiff, Anthony McCurdy, consulted Dr. Jim Terrell and/or Dr. R.F. Ault, chiropractors, regarding sinus problems. As a treatment, McCurdy was placed in inverted traction, which required him to be suspended upside down. While being reverted to an upright position, McCurdy began experiencing problems with his lower back, which was allegedly attributable to an insufficient period of acclimation. Thereafter, McCurdy suffered serious injury to his lower back, which necessitated surgery and prevented his return to work.

On October 24, 1980, McCurdy filed a petition for damages against Dr. R.F. Ault, d/b/a Ault Chiropractic Clinic, and Dr. Jim Terrell.[1] Numerous other claims and cross claims were filed among the defendants. The matter then proceeded to trial.

After the plaintiff presented his case, the defendants moved for an involuntary dismissal, which was granted by the trial judge. By judgment, dated December 1, 1993, plaintiff's claims against Dr. R.F. Ault, d/b/a Ault Chiropractic Clinic, and Dr. Jim Terrell were dismissed with prejudice.[2] Thereafter, McCurdy filed a motion for new trial, which was denied by the trial judge.

From this adverse judgment, McCurdy appeals, assigning the following errors:[3]

1. The trial court erred in failing to determine as a matter of law whether or not the use of the inverted traction table in 1979 exceeded the scope of practice for chiropractors as provided by statute.
A) The trial court erred in failing to determine as a matter of law whether or not use of a non-chiropractor to administer chiropractic treatment to Mr. McCurdy exceeded or violated the scope of practice for chiropractors, as provided by law.
2. The trial court erred in ruling that even if plaintiff's expert, Dr. Thomas Finn, had been allowed to testify as to the standard of care that his testimony was such that the doctors did not violate the standard of care in this case.
3. The trial court erred in limited [sic] Dr. Finn's testimony, as to the appropriate standard of care related to Mr. McCurdy's treatment, to the period of 1984 and afterwards.
4. The trial court erred in granting defendants' Motion for Involuntary Dismissal.

EXPERT TESTIMONY

McCurdy contends that the trial court erred in refusing to allow Dr. Thomas Finn, a chiropractor who did not become licensed until 1984, to testify as an expert witness regarding the standard of care in 1979. Dr. Finn's testimony was proffered. McCurdy reasons that the standard of care exercised by chiropractors in utilizing inverted traction tables remained unchanged between 1979 and 1984 and that, as such, Dr. Finn was qualified to testify in that regard.

Generally, an expert must satisfy the trial judge that he or she is qualified to give testimony regarding the applicable standard of care. See Piazza v. Behrman Chiropractic Clinic, Inc., 601 So.2d 1378, 1382 (La. 1992). In Arceneaux v. Koch, 567 So.2d 786, *719 787 (La.App. 3rd Cir.1990), the appellate court determined that a chiropractor who had not met the licensing requirements could not testify regarding treatment for the year in which he was not qualified to practice. Similarly, in Ensminger v. McCormick, 489 So.2d 1316, 1319 (La.App. 1st Cir.), writ denied, 493 So.2d 1219 (La.1986), this court held that if a person is not licensed to practice chiropractic in this state and he performs examinations in this state, then he cannot qualify as an expert witness.

Trial judges have great discretion in determining the qualifications of experts and the effect and weight to be given expert testimony. State v. Stringer, 567 So.2d 758, 761 (La.App. 2nd Cir.1990); Anthony v. Hospital Service District No. 1, 477 So.2d 1180, 1185 (La.App. 1st Cir.1985), writ denied, 480 So.2d 743 (La.1986); Brown v. Morgan, 449 So.2d 606, 608 (La.App. 1st Cir.1984). Trial judges are generally given wide discretion in determining whether a question or subject falls within the scope of an expert witness's field of expertise. Bourgeois v. Puerto Rican Marine Management, Inc., 589 So.2d 1226, 1236 (La.App. 4th Cir.1991), writs denied, 592 So.2d 1299, 1300 (La.1992); Nichols v. U.S. Rentals, Inc., 556 So.2d 600, 609 (La.App. 5th Cir.), writ not considered, 558 So.2d 597 (La.1990). Absent a clear abuse of the trial court's discretion in accepting a witness as an expert, appellate courts will not reject the testimony of an expert or find reversible error. State v. Stringer, 567 So.2d at 761-62.

In the instant case, Dr. Finn was examined on his qualifications as an expert. The testimony revealed that Dr. Finn graduated from the National College of Chiropractic in Lombard, Illinois in April of 1984. However, according to Dr. Finn, in 1979, he was employed as an industrial painter. Dr. Finn testified that he had no contact with chiropractic care in 1979 and did not attend chiropractic school until 1981. Moreover, Dr. Finn acknowledged that he did not read any literature relative to use of the inverted traction table printed prior to 1980, nor was he aware when this modality became accepted by chiropractors. However, Dr. Finn testified that, prior to 1984, the use of the inverted traction table was a modality utilized by chiropractors and that the scope of chiropractic care changed in 1986. Based on this testimony, the trial judge, while accepting Dr. Finn as an expert, refused to allow him to testify relative to the standard of care in 1979.

Although Dr. Finn was a qualified chiropractor at the time of trial, the record clearly reveals that he was not a licensed chiropractor at the time of McCurdy's treatment by the defendants. Additionally, Dr. Finn's own testimony demonstrates that he was not familiar with the standard of care regarding the use of inverted traction in 1979. Therefore, we find that the trial court did not abuse its discretion in refusing to allow Dr. Finn's testimony relative to the standard of care in 1979.

INVOLUNTARY DISMISSAL

Plaintiff contends that the trial court erred in granting the motion for involuntary dismissal.

LSA-C.C.P. art. 1672 B provides as follows:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any

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