202 So. 3d 529
La. Ct. App.2016Background
- On Oct. 17, 2009 Andrew Moonan was treated in an ER for two fractured ribs and discharged with instructions to follow up with his PCP, Dr. Frank Monte.
- Moonan remained largely bedridden at home; he and family members made multiple calls to physicians. On Oct. 20 an after‑hours call to Dr. Monte occurred; family witnesses could not hear the doctor and later said Moonan reported being told to “get up and walk.”
- Moonan collapsed Oct. 22 and died Oct. 23; autopsy showed pulmonary embolism. Plaintiffs (wife and son) filed a malpractice claim alleging failure to warn of immobility/PE risk and failure to direct ER evaluation.
- A medical review panel unanimously found no breach by Dr. Monte; plaintiffs then sued in state court. Trial occurred March 2016 and the jury returned a unanimous defense verdict; the trial court denied plaintiffs’ motion for new trial.
- On appeal plaintiffs raised two errors: (1) allowing Dr. Diechmann (a panel member) to testify as an expert despite no 90‑day expert report under the scheduling order; and (2) redaction of two statements from Mrs. Moonan’s post‑death timeline as hearsay.
- The appellate court affirmed, finding no abuse of discretion in admitting Diechmann’s testimony and in redacting hearsay portions of the timeline; the verdict and denial of new trial were upheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by allowing medical review panel member Dr. Diechmann to testify as a retained expert despite no expert report per scheduling order | Moonan: admission violated the court’s pre‑trial scheduling order requiring expert reports 90 days before trial and deprived plaintiffs of required disclosure | Monte: plaintiffs knew Diechmann’s opinion (he was on pretrial witness lists, plaintiffs’ counsel met him) and LMMA allows panelists to be called; trial court has discretion | Affirmed — no abuse of discretion; plaintiffs were aware of Diechmann’s opinion and LMMA permits panelists’ testimony once panel duties are discharged (trial court properly received testimony) |
| Whether trial court erred by redacting two statements from Mrs. Moonan’s timeline as hearsay | Moonan: redactions were improper because statements were admissible non‑hearsay under the rule for prior consistent statements (declarant testified and was subject to cross‑examination) | Monte: the redacted portions quoted Dr. Monte and were offered for truth of the matter asserted; plaintiffs did not hear the doctor and timeline portions are hearsay | Affirmed — redactions proper; statements attributed to Dr. Monte were hearsay and trial court did not abuse discretion |
Key Cases Cited
- Robinson v. Apria Healthcare, Inc., 874 So.2d 418 (La. App. 2 Cir. 2004) (trial court has broad discretion enforcing pretrial orders; pretrial procedure aims to avoid surprise)
- Alix v. E‑Z Serve Corp., 846 So.2d 156 (La. App. 5 Cir. 2003) (doubt on pretrial‑order objections resolved in favor of receiving contested information)
- Medine v. Roniger, 879 So.2d 706 (La. 2004) (LMMA does not preclude calling medical review panel members as trial experts and does not restrict their testimony after panel duties end)
- Heller v. Nobel Ins. Grp., 753 So.2d 841 (La. 2000) (motions in limine are matters of trial court discretion in evidentiary rulings)