STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 13-865
ROBERT VEROLINE, JR., ET AL.
VERSUS
PRIORITY ONE EMS, ET AL.
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 76,157, DIV. A HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE
JOHN E. CONERY JUDGE
Court composed of Marc T. Amy, Billy Howard Ezell, and John E. Conery, Judges.
AFFIRMED.
Gregory Engelsman Bolen, Parker, Brenner, Lee & Engelsman, LTD. 709 Verailles Boulevard Post Office Box 11590 Alexandria, Louisiana 71315-1590 (318) 445-8236 COUNSEL FOR DEFENDANTS/APPELLEES: C.R.R. Enterprises, Inc. d/b/a Priority One Phillip Hutson Stewart Coleman Leslie R. Leavoy, Jr. Leavoy Law Office 125 North Washington Avenue Post Office Box 1055 DeRidder, Louisiana 70634 (377) 462-6051 COUNSEL FOR PLAINTIFF/APPELLANT: Robert Veroline, Jr. Cindy Veroline Joshua Paul Veroline CONERY, Judge.
FACTS AND PROCEDURAL HISTORY
On July 4, 2005, Heather Veroline dislocated her knee while near the dam
on Toledo Bend Reservoir, Texas side. Paramedics Phillip Hutson and Stewart
Coleman arrived at the scene and, according to their testimony, Ms. Veroline was
in severe pain. While Mr. Hutson prepared the ambulance and retrieved supplies,
Mr. Coleman immobilized her knee, placed her on a gurney, and carried her about
1,000 yards to the ambulance. Both paramedics testified that Ms. Veroline and her
mother requested that they administer pain medication. Mr. Coleman then
administered morphine for the pain and phenergan to prevent the side effects of
morphine, both through an IV. Shortly thereafter, Ms. Veroline gasped as if she
was going to vomit. She then began shaking, gasping, and she went into
ventricular fibrillation. Mr. Coleman administered narcan to reverse the effects of
the morphine. He commenced chest compressions and Ms. Veroline projectile
vomited. Mr. Coleman performed CPR, administered epinephrine, manually
evacuated the vomit, and attempted to intubate and defibrillate her without success.
He continued to perform CPR and attempted to defibrillate her until they arrived at
the hospital, where she was pronounced dead shortly thereafter.
Ms. Veroline’s parents, Robert and Cindy Veroline, and brother, Joshua
Veroline, filed suit against C.R.R. Enterprises, Inc. d/b/a Priority One and the
paramedics, Phillip Hutson and Stewart Coleman, alleging negligence, as they
purportedly breached the standard of care. After a five-day jury trial and a short
jury deliberation, the jury returned a verdict for defendants. Plaintiffs timely filed
a motion for a new trial and a judgment notwithstanding the verdict, which were both denied by the trial court. The plaintiffs appeal, asserting two assignments of
error. For the following reasons, we affirm.
ASSIGNMENTS OF ERROR1
I. The jury was manifestly erroneous by failing to find that the insertion of an IV and administration of morphine with phenergan violated the defendants’ own written protocols and was therefore negligent or grossly negligent.
II. The jury was manifestly erroneous by failing to find that the defendants’ failure to follow their own written protocols to treat allergic reactions immediately with epinephrine, not narcan was negligent or grossly negligent.
LAW AND ANALYSIS
“[A]ppellate jurisdiction of a court of appeal extends to law and facts.”
La.Const. art. 5, § 10(B). The appellate court must determine whether the trial
court committed an error of law or made a factual finding that was manifestly
erroneous or clearly wrong. Gibson v. State, 99-1730 (La. 4/11/00), 758 So.2d 782,
cert. denied, 531 U.S. 1052, 121 S.Ct. 656 (2000). The reviewing court must
review the record in its entirety to make this determination. Stobart v. State, Dep’t
of Transp. and Dev., 617 So.2d 880 (La.1993). “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.” Id. at
882.
This court has stated, “where two permissible views of the evidence exist,
the factfinder’s choice between them cannot be manifestly erroneous or clearly
wrong.” Id. at 883. See Darbonne v. Wal-Mart Stores, Inc., 00-551 (La.App. 3 Cir.
11/2/00), 774 So.2d 1022. Additionally, “When the district court has permitted
1 Although mentioned, the issues of the denial of appellants’ post-verdict motions and the allegedly “hurried” jury deliberation were not briefed. Thus, we will consider the issues abandoned. Uniform Rules–Courts of Appeal, Rules 1–3 & 2–12.4.
2 both parties to present their experts before making its factual determinations, the
fact finder’s choice of alternative permissible views cannot be considered to be
manifestly erroneous or clearly wrong.” Houssiere v. ASCO USA, 12-791, p. 12
(La.App. 3 Cir. 1/16/13), 108 So.3d 797, 805-6 (quoting Dumesnil v. Sw. La. Elec.
Membership Corp., 08-982, p. 6 (La.App. 3 Cir. 2/4/09), 2 So.3d 1254, 1258), writ
denied, 13-693 (La. 5/17/13), 118 So.3d 377. Furthermore, “[w]here the testimony
of expert witnesses differ, it is for the trier of fact to determine the most credible
evidence and a finding of fact in this regard will not be overturned absent manifest
error.” Smith v. Cappaert Manufactured Hous., Inc., 11-1464, p. 11 (La.App. 3 Cir.
4/10/12), 89 So.3d 1234, 1242-3 (quoting Opelousas Prod. Credit Ass’n v. B.B. &
H., Inc., 587 So.2d 812, 814 (La.App. 3 Cir.1991)), writs denied, 12-1418 (La.
10/8/12), 98 So.3d 857 and 12-1516 (La. 10/12/12), 98 So.3d 871. See also Revel v.
Snow, 95-462 (La.App. 3 Cir. 11/2/95), 664 So.2d 655, writ denied, 95-2820 (La.
2/2/96), 666 So.2d 1084. “The only time [the trial court’s decision to accept the
opinion of one expert and to reject that of another] will be deemed manifestly
erroneous is when the court was clearly wrong in accepting the expert’s opinion on
which it relied.” Tullis v. Rapides Parish Police Jury, 95-905, p. 8 (La.App. 3 Cir.
1/17/96), 670 So.2d 245, 250.
In this case, the appellants assert two assignments of error, both alleging that
the jury was manifestly erroneous in its factual findings. Appellants do not
contend, nor is there evidence in the record to support, that the trial court was
erroneous in accepting the three experts and their opinions. The assignments of
error concern Mr. Coleman’s administration of morphine and phenergan, followed
by narcan, and eventually epinephrine. Each drug administration or the timing
thereof was allegedly in violation of appellee’s own written protocols. Because
3 both assignments of error allege that the jury was manifestly erroneous in its
factual findings, they will be discussed together.
At trial, the jury heard the testimony of several fact witnesses and three
expert witnesses. Dr. John McMillan testified as plaintiff’s only expert witness.
He testified that, according to the defendants’ own protocols, Mr. Coleman should
not have administered morphine, should not have followed up with narcan, but
should have administered epinephrine immediately upon Ms. Veroline’s reaction.
He further testified that Ms. Veroline did not demonstrate all of the symptoms of
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 13-865
ROBERT VEROLINE, JR., ET AL.
VERSUS
PRIORITY ONE EMS, ET AL.
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 76,157, DIV. A HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE
JOHN E. CONERY JUDGE
Court composed of Marc T. Amy, Billy Howard Ezell, and John E. Conery, Judges.
AFFIRMED.
Gregory Engelsman Bolen, Parker, Brenner, Lee & Engelsman, LTD. 709 Verailles Boulevard Post Office Box 11590 Alexandria, Louisiana 71315-1590 (318) 445-8236 COUNSEL FOR DEFENDANTS/APPELLEES: C.R.R. Enterprises, Inc. d/b/a Priority One Phillip Hutson Stewart Coleman Leslie R. Leavoy, Jr. Leavoy Law Office 125 North Washington Avenue Post Office Box 1055 DeRidder, Louisiana 70634 (377) 462-6051 COUNSEL FOR PLAINTIFF/APPELLANT: Robert Veroline, Jr. Cindy Veroline Joshua Paul Veroline CONERY, Judge.
FACTS AND PROCEDURAL HISTORY
On July 4, 2005, Heather Veroline dislocated her knee while near the dam
on Toledo Bend Reservoir, Texas side. Paramedics Phillip Hutson and Stewart
Coleman arrived at the scene and, according to their testimony, Ms. Veroline was
in severe pain. While Mr. Hutson prepared the ambulance and retrieved supplies,
Mr. Coleman immobilized her knee, placed her on a gurney, and carried her about
1,000 yards to the ambulance. Both paramedics testified that Ms. Veroline and her
mother requested that they administer pain medication. Mr. Coleman then
administered morphine for the pain and phenergan to prevent the side effects of
morphine, both through an IV. Shortly thereafter, Ms. Veroline gasped as if she
was going to vomit. She then began shaking, gasping, and she went into
ventricular fibrillation. Mr. Coleman administered narcan to reverse the effects of
the morphine. He commenced chest compressions and Ms. Veroline projectile
vomited. Mr. Coleman performed CPR, administered epinephrine, manually
evacuated the vomit, and attempted to intubate and defibrillate her without success.
He continued to perform CPR and attempted to defibrillate her until they arrived at
the hospital, where she was pronounced dead shortly thereafter.
Ms. Veroline’s parents, Robert and Cindy Veroline, and brother, Joshua
Veroline, filed suit against C.R.R. Enterprises, Inc. d/b/a Priority One and the
paramedics, Phillip Hutson and Stewart Coleman, alleging negligence, as they
purportedly breached the standard of care. After a five-day jury trial and a short
jury deliberation, the jury returned a verdict for defendants. Plaintiffs timely filed
a motion for a new trial and a judgment notwithstanding the verdict, which were both denied by the trial court. The plaintiffs appeal, asserting two assignments of
error. For the following reasons, we affirm.
ASSIGNMENTS OF ERROR1
I. The jury was manifestly erroneous by failing to find that the insertion of an IV and administration of morphine with phenergan violated the defendants’ own written protocols and was therefore negligent or grossly negligent.
II. The jury was manifestly erroneous by failing to find that the defendants’ failure to follow their own written protocols to treat allergic reactions immediately with epinephrine, not narcan was negligent or grossly negligent.
LAW AND ANALYSIS
“[A]ppellate jurisdiction of a court of appeal extends to law and facts.”
La.Const. art. 5, § 10(B). The appellate court must determine whether the trial
court committed an error of law or made a factual finding that was manifestly
erroneous or clearly wrong. Gibson v. State, 99-1730 (La. 4/11/00), 758 So.2d 782,
cert. denied, 531 U.S. 1052, 121 S.Ct. 656 (2000). The reviewing court must
review the record in its entirety to make this determination. Stobart v. State, Dep’t
of Transp. and Dev., 617 So.2d 880 (La.1993). “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.” Id. at
882.
This court has stated, “where two permissible views of the evidence exist,
the factfinder’s choice between them cannot be manifestly erroneous or clearly
wrong.” Id. at 883. See Darbonne v. Wal-Mart Stores, Inc., 00-551 (La.App. 3 Cir.
11/2/00), 774 So.2d 1022. Additionally, “When the district court has permitted
1 Although mentioned, the issues of the denial of appellants’ post-verdict motions and the allegedly “hurried” jury deliberation were not briefed. Thus, we will consider the issues abandoned. Uniform Rules–Courts of Appeal, Rules 1–3 & 2–12.4.
2 both parties to present their experts before making its factual determinations, the
fact finder’s choice of alternative permissible views cannot be considered to be
manifestly erroneous or clearly wrong.” Houssiere v. ASCO USA, 12-791, p. 12
(La.App. 3 Cir. 1/16/13), 108 So.3d 797, 805-6 (quoting Dumesnil v. Sw. La. Elec.
Membership Corp., 08-982, p. 6 (La.App. 3 Cir. 2/4/09), 2 So.3d 1254, 1258), writ
denied, 13-693 (La. 5/17/13), 118 So.3d 377. Furthermore, “[w]here the testimony
of expert witnesses differ, it is for the trier of fact to determine the most credible
evidence and a finding of fact in this regard will not be overturned absent manifest
error.” Smith v. Cappaert Manufactured Hous., Inc., 11-1464, p. 11 (La.App. 3 Cir.
4/10/12), 89 So.3d 1234, 1242-3 (quoting Opelousas Prod. Credit Ass’n v. B.B. &
H., Inc., 587 So.2d 812, 814 (La.App. 3 Cir.1991)), writs denied, 12-1418 (La.
10/8/12), 98 So.3d 857 and 12-1516 (La. 10/12/12), 98 So.3d 871. See also Revel v.
Snow, 95-462 (La.App. 3 Cir. 11/2/95), 664 So.2d 655, writ denied, 95-2820 (La.
2/2/96), 666 So.2d 1084. “The only time [the trial court’s decision to accept the
opinion of one expert and to reject that of another] will be deemed manifestly
erroneous is when the court was clearly wrong in accepting the expert’s opinion on
which it relied.” Tullis v. Rapides Parish Police Jury, 95-905, p. 8 (La.App. 3 Cir.
1/17/96), 670 So.2d 245, 250.
In this case, the appellants assert two assignments of error, both alleging that
the jury was manifestly erroneous in its factual findings. Appellants do not
contend, nor is there evidence in the record to support, that the trial court was
erroneous in accepting the three experts and their opinions. The assignments of
error concern Mr. Coleman’s administration of morphine and phenergan, followed
by narcan, and eventually epinephrine. Each drug administration or the timing
thereof was allegedly in violation of appellee’s own written protocols. Because
3 both assignments of error allege that the jury was manifestly erroneous in its
factual findings, they will be discussed together.
At trial, the jury heard the testimony of several fact witnesses and three
expert witnesses. Dr. John McMillan testified as plaintiff’s only expert witness.
He testified that, according to the defendants’ own protocols, Mr. Coleman should
not have administered morphine, should not have followed up with narcan, but
should have administered epinephrine immediately upon Ms. Veroline’s reaction.
He further testified that Ms. Veroline did not demonstrate all of the symptoms of
anaphylaxis, but that all of the symptoms and manifestations are not required for
an anaphylaxis determination. Dr. McMillan concluded that Ms. Veroline died
from morphine anaphylaxis. He further concluded that Mr. Coleman breached the
standard of care and his course of treatment was a direct causal relationship to the
morphine anaphylaxis and ultimately Ms. Veroline’s death.
The appellees presented the jury with two expert witness as trial, Dr. James
“Butch” Knoepp and Dr. Thomas Arnold. Dr. Knoepp testified that an
anaphylactic reaction to morphine is “unusual.” He further testified that he
“searched high and low for evidence of anaphylaxis,” but he could find none.
Disagreeing with Dr. McMillian, Dr. Knoepp testified that anaphylaxis is a
“cascade of events,” which means that he is of the opinion that a patient is “not
going to have just the trachea closing down without other parts of the body
swelling, redness, manifesting.” Dr. Knoepp acknowledged that the administration
of narcan was not in appellees’ protocol, but that “it was a thoughtful response.”
Dr. Knoepp concluded that he thinks that Ms. Veroline “died from ventricular
fibrillation and the inability to defibrillate her.” He testified that he does not
4 believe that Mr. Coleman breached the standard of care and stated that “this poor
guy was a one-man band playing five instruments.”
Dr. Arnold testified that a dislocated knee would be “extremely
uncomfortable” and “quite painful.” He testified that he did not have a problem
with the administration of morphine. Regarding the narcan, he stated that he
“would have done the same thing.” He further testified that he did not think Ms.
Veroline had an anaphylactic reaction, as it was not systemic or an “anaphylaxis
picture.” Dr. Arnold opined that Ms. Veroline had an adverse reaction to one of
the medications given to her, but it was a reaction different from anaphylaxis. He
stated that Mr. Coleman did an “admirable job.” Dr. Arnold concluded that the
standard of care was upheld.
The fact finder in this case, the jury, was presented with several alternative
permissible views of what occurred on the day of Ms. Veroline’s death. The jury
found that the defendants had not breached the standard of care, apparently
adopting some or all of the defense’s expert’s views. The jury decided which
experts were credible and its adoption of those opinions cannot be considered
manifestly erroneous. Therefore, we affirm.
DISPOSITION
The jury was not manifestly erroneous in its conclusions, and for this reason,
we affirm the judgment of the trial court.