Regan v. Gore

670 So. 2d 268, 95 La.App. 3 Cir. 998, 1996 La. App. LEXIS 237, 1996 WL 34381
CourtLouisiana Court of Appeal
DecidedJanuary 31, 1996
DocketNo. 95-998
StatusPublished

This text of 670 So. 2d 268 (Regan v. Gore) 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
Regan v. Gore, 670 So. 2d 268, 95 La.App. 3 Cir. 998, 1996 La. App. LEXIS 237, 1996 WL 34381 (La. Ct. App. 1996).

Opinion

hWOODARD, Judge.

This is a medical malpractice case. The jury rendered a verdict in favor of defendants-appellees (Dr. William Stanley Gore, Lake Charles Medical and Surgical Clinic, and Louisiana Medical Mutual Insurance Company, a/k/a LAMMICO). Plaintiff-appellant Lois Marie Regan has appealed. We affirm.

FACTS & ACTIONS OF THE COURT

Lois Marie Regan, following surgery for the removal of a lesion from one of her breasts, was referred to Dr. William Stanley Gore, a hematologist/oncologist, for chemotherapy. During the course of her chemotherapy regime, she caught a cold and asked Gore for medication. One of the medications he prescribed, Sulfatrim, contained sulfa, which Regan is allergic to. She sustained a stroke.

After a medical review panel unanimously found in Gore’s favor, Regan and her husband sued him for malpractice. They also made defendants Lake Charles Medical & Surgical Clinic, where he practices and in which he is a partner, and Louisiana Medical Mutual Insurance Company, his insurer. They alleged in their petition that the stroke was caused by the sulfa-derivative medication prescribed by |2Gore, and that Gore knew or should have known that she was allergic to sulfa drugs. Following a four-day trial, a twelve-person jury returned a unanimous verdict in favor of the defendants. After the trial court denied the Regans’ motion for a JNOV, she, alone, filed this appeal.

ASSIGNMENTS OF ERROR

The plaintiff assigns two errors: (1) the trial judge erred when he refused to admit into evidence, under the learned treatise exception to hearsay, excerpts from a medical publication relating sulfa drugs to strokes; and (2) the jury’s verdict was manifestly erroneous and contrary to law and evidence.

LAW & ARGUMENT

Both assignments of error raise the question of whether the trial court abused its discretion. From the panoply of legal precepts pertaining to the applicable standard of appellate review, as comprehensively recapitulated by the Louisiana Supreme Court in Stobart v. State Through DOTD, 617 So.2d 880 (La.1993), the following seem pertinent to this case:

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). This court has an[271]*271nounced a two-part test for the reversal of a factfinder’s determinations:
1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

See Mart v. Hill 505 So.2d 1120, 1127 (La.1987).

This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. Id. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.
^Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell 549 So.2d at 844-45. Nonetheless, this Court has emphasized that “the reviewing court must always keep in mind that ‘if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’” Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).
This court has recognized that “[t]he reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Canter v. Koehring Co., 283 So.2d 716 (La.1973). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

In the case now before this court, we conclude, after a review of the record, that the trial court was presented with two permissible views concerning both issues. We, thus, hold that the trial court’s findings were not manifestly erroneous or clearly wrong.

Was Medical Text Material Properly Excluded?

We first address whether the trial judge properly excluded from admission into evidence certain portions of a written publication. The plaintiffs attorney, while directly examining medical expert Dr. Donald Harper, attempted to have introduced into evidence, as a learned treatise, excerpts from Baker and Baker’s Clinical \ Neurology, comments on a study, known as the Zeek Study, purportedly relating sulfa-derivative drugs to strokes. The defense objected on the grounds that, by the witness’s own admission, the text was not authoritative. The judge sustained the objection. .

Louisiana Code of Evidence article 803(18) governs hearsay exceptions as they apply to this matter:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or, in a civil case, relied upon by him in direct examination, [272]*272statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, such a statement may be read into evidence and received as an exhibit but may not be taken into the jury room. [Emphasis supplied.]

We find that the judge did not err in refusing to admit into evidence the written material in question. Under direct examination, Dr. Harper clearly testified that he did not consider the publication authoritative. Plaintiff-appellant now contends that the doctor had in mind a medical definition of “authoritative,” not a legal

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Related

Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Arceneaux v. Domingue
365 So. 2d 1330 (Supreme Court of Louisiana, 1978)
Cosse v. Allen-Bradley Co.
601 So. 2d 1349 (Supreme Court of Louisiana, 1992)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Sistler v. Liberty Mut. Ins. Co.
558 So. 2d 1106 (Supreme Court of Louisiana, 1990)
Housley v. Cerise
579 So. 2d 973 (Supreme Court of Louisiana, 1991)
Canter v. Koehring Company
283 So. 2d 716 (Supreme Court of Louisiana, 1973)
Mart v. Hill
505 So. 2d 1120 (Supreme Court of Louisiana, 1987)
Viviano v. Arceneaux
572 So. 2d 813 (Louisiana Court of Appeal, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
670 So. 2d 268, 95 La.App. 3 Cir. 998, 1996 La. App. LEXIS 237, 1996 WL 34381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/regan-v-gore-lactapp-1996.