Strict Liability

February 14, 2011

Legal Remedy for People With Mesothelioma Due to Asbestos Exposure

Asbestos-related illnesses have impacted many families throughout the nation. The impact of asbestos exposure can lead to serious terminal illnesses. Partly as a response to such illnesses, the federal government created the Longshore and Harbor Worker’s Compensation Act (LHWCA). The act provides injury and occupational-disease protection for those who work on the navigable waters of the United States.

In the past, the Louisana shoreline was home to many companies that were involved with the direct use of asbestos. Those individuals who were impacted by the use of asbestos in such areas are potentially protected by the LHWCA. The act provides for a set of procedures that must be fulfilled prior to any case reaching a court of law. At first, an Administrative Law Judge (ALJ) reviews the facts of the case and decides whether the LHWCA provides relief for any party. If this decision is appealed, it will go to the Benefits Review Board (BRB), which will have to conclude whether the ALJ’s order was supported by substantial evidence on the record as a whole and is in accordance with the law. After this stage, if the decision of the BRB is challenged, the case will find its way into court.

In a recent decision by the United States Court of Appeals, Fifth Circuit, in Louisana Insurance Guaranty Association Baton Rouge Marine Contractors Inc. vs. Director Office of Worker Compensation, the process through which claims under the LHWCA proceed is clearly outlined. Plaintiff in the case worked on the Lousiana shoreline from 1965 to 1977. During the 60’s he worked directly with asbestos by unloading bags of asbestos. From 1970 to 1977 plaintiff worked on cranes for the same company. This position did not require direct contact with asbestos. However, he worked in and had to continuously walk through warehouses where asbestos was dealt with and stored. During the plaintiff’s employment, the company that he worked for was insured by Employers’ National. It provided insurance coverage from 1972 until 1982. However, it was declared insolvent and placed in receivership in 1994. Louisiana Insurance Guarantee Association (LIGA) appeared in its place as a substitute party in this proceeding.

February 11, 2011

Louisiana Court Sets Out Requirements for Summary Judgment

by Berniard Law Firm

During the course of litigation, one of the tools used by lawyers and the legal system to weed out weak cases is to file for summary judgment. The basic premise of summary judgment is to call the other side to provide solid evidence of their claim. The moving party, the party filing the summary judgment, tells the adverse side that they need to demonstrate to the judge that they can actually prove all the elements required to win the case. This does not mean that they need to show that they can win the case, it just means that they need to show that all the evidence they have acquired at least allows them to bring forth a feasible case on all necessary elements of their claim or defense. If the adverse party is unable to factually prove the elements of their claim, the Court grants smmary judgment by stating that their is “no genuine issue as to material fact.”

In Christine Comeaux vs Debbie Lemmons, the State of Louisiana Court of Appeal, Third Circuit, worked its way through the law of summary judgment to decide whether summary judgment was properly granted at the trial court level. The plaintiff was an employee of Giddy-Up-N-GO Lounge (Lounge) in Rayne, LA. After her shift, she remained at her place of work as a patron. During the course of the time she was there, another patron fell into plaintiff causing her to fall and break her leg. She sued the Lounge stating that the Lounge (1) Failed to monitor the consumption of its patrons (2) allowed patrons to dance in inappropriate conditions (3) encouraged reckless behavior (4) allowed the number of patrons to exceed maximum capacity and (5) failed to do and see all things necessary to ensure her saftey during her time as a patron.

During her deposition, plaintiff clearly stated that she was unsure and unaware of whether the patron who fell into her was intoxicated. Further, she admitted that she did not know whether the Lounge was beyond full capacity during the incident that broke her leg. Furthermore, she stated that although there were times when people receieved DWIs after leaving the Lounge, she had no facts to support her proposition that the Lounge was acting irresponsibly on the day of the accident. Her claim, that the Lounge was responsible for the actions of its drunk patrons, falls under the civil law of “dram shop liability.” States that adhere to this type of liabilty state different conditions in which those who provide alcohol, either at parties, or for sale, can be held liable for the actions of those who become drunk from the alcohol. In Louisiana, the statute La.Rs.9:2800.1 speaks to the legislatures view on dram shop liability. The statute states that liability for actions that cause damage or injury will be on those who do the drinking, not on those that provide alcohol, if the person receiving the alcohol is of legal age to consume it.

February 9, 2011

Court Reaffirms: No Passenger Responsibility in Car Crash Caused by Drunk Driver

by Berniard Law Firm

Louisiana courts have consistently held that a guest passenger is not responsible for a driver’s negligence. “This jurisprudential rule recognizes the fact that an automobile passenger is generally incapable of influencing the driver’s behavior: it is unrealistic to hold … that the occupant of a motor vehicle has factually any control or right of control over the driving of the operator.” See Adams v. Sec. Ins. Co. of Hartford, 543 So.2d 480, 485 (La. 1989). Despite this well-settled rule, the plaintiff in the case of Delcambre v. Jones attempted, unsuccessfully, to impute the defendant driver’s negligence to his passenger. On September 24, 2006, Stephen Delcambre was stopped at a red light on U.S. Highway 90 in St. Martin Parish when his car was struck from behind. The errant car, which had been rented by Jeffrey Schommer, was being driven at the time by Thaddeus Jones while Schommer was a passenger. Jones was drunk at the time of the accident and later pled guilty to DWI. Delcambre filed suit against Jones and Schommer, and eventually settled with Jones. During a trial in the continuing action against Schommer, Schommer’s counsel moved for dismissal after the close of Decambre’s evidence. The trial court granted this motion. Delcambre appealed, claiming as the sole assignment of error that the trial court erred in failing to find that Schommer was bound in solido (both together) in liability with Jones.

Delcambre urged that Schommer should be held liable with Jones in solido under Louisiana Civil Code Article 2324(A), which states:

“He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.”

February 7, 2011

Plaintiff’s Failure to Mitigate Damages in Shreveport Accident Results in Reduction of Damages Award

by Berniard Law Firm

It is well-settled in Louisiana jurisprudence that an injured party has a duty to mitigate damages. In other words, a victim is required to make reasonable efforts to minimize the extent of injury or damage that results from a tortfeasor’s actions, even though the actions may be negligent or wrongful. The idea is that a plaintiff cannot just “sit idly by” while his situation becomes worse if there is something he could do to stop or lessen the damage. A plaintiff, however, is not required to make extraordinary efforts or to do what is unreasonable or impractical to minimize the damages. Instead, the efforts need only pass the test of being consistent with common sense.

For a defendant to invoke the defense of the plaintiff’s failure to mitigate damages, the defendant must meet the burden of showing that: (1) the plaintiff’s conduct after the injury was unreasonable; and (2) that the plaintiff’s unreasonable conduct resulted in the aggravation the his harm. In light of the standard of reasonableness on the part of the plaintiff’s duty to mitigate, this is not a simple burden for a defendant to carry. The recent case of Britt v. City of Shreveport offers a look at the Second Circuit Court of Appeal’s treatment of this issue. On August 5, 2003, Carolyn Britt was driving her Chevy Astro van on Thornhill Street in Shreveport. The street was partially blocked by a crew of City employees that was trimming a roadside tree. One of the employees signaled to Britt to proceed through the area. As she drove through, a tree massive limb fell and landed on top of her vehicle. Britt suffered multiple injuries to her head, neck, shoulders, lower back, and legs, but did not immediately go to the hospital. Instead, she called her daughter to pick her up from the scene.

More than a week later, Britt sought treatment from a chiropractor who saw her over the course of the next six months. Although her condition improved, Britt continued to experience back pain, so the chiropractor referred her for an MRI. Britt refused the MRI but instead over the next year serially consulted four physicians whose recommendations she routinely ignored. After being told by the last physician that she was not a candidate for surgery, Britt visited a neurosurgeon in November of 2004. The neurosurgeon recommended surgery to correct her back problems. Britt then was examined by a physical therapist who suggested a physical therapy rehabilitation program to follow the surgery. Britt never underwent the surgery or enrolled in the therapy program. Instead, she filed a petition against the City of Shreveport to recover damages resulting from personal injuries, including pain and suffering, medical expenses, lost wages, loss of earning capacity, and loss of enjoyment in life. The City did not dispute its fault in the accident, so following a trial on the quantum of damages the court awarded Britt $371,963.96 in general and special damages. This amount included an unspecified reduction based on Britt’s failure to seek and follow proper medical treatment following the accident. The City appealed, arguing that the trial court’s award did not accuratly reflect that, had Britt submitted to the recommended treatments and physical therapy regimen, she would have substantially increased her chances of not needing surgery at all. In addition, the City argued that the trial court erred in determining that Britt was justified in refusing to undergo surgery because she would have been required to pay for the procedure out of her own pocket.

February 5, 2011

Passing Poses Problems: Automobile Accident Liability for Passing Vehicles on the Roadways

by Berniard Law Firm

Accidents are a common occurrence for automobile drivers. In fact, in 2009, there were 73,900 injuries caused by automobile accidents in the state of Louisiana. However, when one is injured in such an accident, liability is often difficult to assign. In other words, it takes a fact-finder to determine who is at fault for the accident and who is liable for damages incurred by any injured party. In a recent Louisiana court case, a passing motorist was found to be 100% liable for injuries sustained by an individual while the other motorist involved in the accident was not liable for payment of any damages.

On August 18, 1999, William Boyd was injured in a motor vehicle accident that occurred on Louisiana Highway 14 in Jefferson Davis Parish. Boyd, who was an inmate assigned to highway clean-up at the time of the accident, was a passenger in the prison van driven by Joseph Deville. A sixteen-foot trailer, used to carry tools and supplies needed for the work detail was attached to the rear of the prison van; also, a dump truck followed the van. The driver of the prison van was in search of a clear spot on Highway 14 to pull over and allow the inmates to eat lunch. Mr. Deville located a clear, shady spot on the left of the Highway and, as the prison van began to exit to the left, a passing car driven by Rosalinda Broussard hit the rear left side of the van. As a result of the accident, Mr. Boyd sustained injuries and brought suit against Mr. Deville, Wackenhut prison facility, Ms. Broussard and the insurance companies for the parties. Before trial, Mr. Boyd settled his claims against Ms. Broussard and her insurer. However, he proceeded with his claims against the three remaining defendants arguing that Mr. Deville began to make his left turn well after Ms. Broussard began her passing maneuver. In the bench trial, the trial judge found Ms. Broussard to be 100% liable for the injuries and dismissed the case against the other defendants. This decision was upheld by the Court of Appeals.

In order to reverse a trial court’s findings, “a reasonable factual basis [must] not exist for the finding of the trial court” and “the record establishes that the finding is not clearly wrong.” Otherwise, the decision would be reversed. When imposing liability for an automobile accident, a plaintiff must establish that the defendant owed a duty to the plaintiff to exercise reasonable care while driving on the road and that duty was breached by failing to act like the average reasonably motorist. This failure must have proximately caused the plaintiff’s damages. While duty and breach are questions of law and determined by the court, causation and damages are questions left for the fact-finder to determine. In Louisiana, courts have found that allocating fault “is not an exact science nor is it a search for a precise ration. Instead, the courts must determine if the “allocated fault falls within a certain range that does not violate the manifest error rule. While finding that Mr. Deville was not at fault for the accident, the court quoted a Louisiana statute, which provides specific instruction for motorists in the left lane attempting to pass other vehicles, entitled “Limitations for passing on the left.” Since Ms. Broussard did not comply with this statute and Mr. Deville used his turn signal and began to turn before Ms. Broussard began her passing maneuver, she was found to be solely responsible for the accident.

February 3, 2011

Lake Charles Bicycle Accident Case Leads Court to Review Role of Lay Witness Testimony

by Berniard Law Firm

In numerous prior posts, we have explored how critical expert testimony often is in determining the outcome of a negligence trial. Although experts can play a pivotal role in helping a plaintiff build his case, they do present some limitations. Typically, expert witnesses are required to render an opinion based on the information that they or someone else (e.g., a police officer) gathered after the fact; this can mean that not all useful evidence is available, and may call for some level of educated speculation. Also, practically speaking, it can be expensive for a plaintiff to retain the services of an expert, especially when the value of the claim is not particularly substantial. It follows then that often a plaintiff must rely on non-expert, or “lay,” witnesses at trial. Commonly, lay witnesses are recruited bystanders who happened to observe the incident which gave rise to the plaintiff’s claim. Although lay witnesses are somewhat limited in the types of opinions they can offer in testimony, their input is often extremely valuable for a plaintiff.

In the recent case Mitchell v. Roy, the Louisiana Court of Appeals examined the handling of important lay witness testimony by the trial court. In March of 2008, Darion Mitchell, age 10, was riding his bicycle on 8th Avenue between 9th and 10th Streets in Lake Charles when he veered into the path of a Chevrolet minivan driven by Albert Roy, Jr. Mitchell, who was not wearing a helmet, was thrown onto the hood of the van and struck the windshield. He was transported by ambulance to Christus St. Patrick’s Hospital where he underwent a series of tests that revealed he suffered some minor soft tissue swelling but no brkoen bones. Mitchell was diagnosed with a head injury and scalp lacerations, and he received stitches before being discharged from the hospital later the same day. Within a few months, Mitchell’s mother filed suit against Roy, alleging that Roy had negligently caused the accident by driving in excess of the posted speed limit, by failing to keep a proper lookout, and by failing to take care to avoid the collision. A bench trial was held. One of Mitchell’s key witnesses was Angela Dodd, a neighborhood resident who happened to be sitting on her front porch at the time the accident occurred. Dodd offered testimony about the speed of Roy’s van: she estimated that Roy was driving between 35 and 40 MPH. This estimate was based on Dodd’s prior experience operating her own vehicle “at various speeds” and the fact that Roy’s vehicle “kicked up dust” on the street as it approached Mitchell. The trial resulted in a finding that Roy’s negligence was the sole cause of the collision, a verdict in Mitchell’s favor, and an award of damages. Roy appealed, citing as error, among other things, the trial court’s allowing Dodd to offer a lay opinion as to the speed of Roy’s vehicle.

The Third Circuit addressed this enumeration of error by first reviewing the standard in Louisiana for assessing the admissibility of a lay witness’s opinion testimony. The state Code of Evidence in Article 701 provides that such testimony is limited to opinions which are (1) rationally based on the perception of the witness; and (2) helpful to a clear understanding of her testimony or the determination of a fact in issue. Put another way, a lay witness is permitted to draw reasonable inferences from her personal observations, so long as she also explains what those observations were. As a general rule, when reviewing a trial court’s admission of lay opinion testimony, an appellate court must ask whether the testimony was an improper speculative opinion or simply an inference drawn from the witness’s observations and, if erroneously admitted, whether the testimony was so prejudicial as to constitute error that should be reversed. The court noted that in overruling Roy’s objections to Dodd’s testimony, the trial court stated that it would “take into consideration that [Dodd] is not an expert on speed” and that it would consider her opinion “in the context of just a lay impression.” After reviewing the record of Dodd’s “compelling” testimony about what she observed and how she arrived at her speed estimate, the court determined it was “satisfied that the trial court properly allowed Dodd to testify as to the inferences she drew based upon her personal observations, [and] that the trial court gave the proper weight to Dodd’s opinion testimony.” Furthermore, the court deemed the opinion, even if admitted in error, insufficiently prejudicial to Roy so as to warrant reversal.

February 1, 2011

Court Upholds Exclusion Clause in Hotelier’s Insurance Policy Following Rape of Guest

by Berniard Law Firm

Hotel owners, like other hospitality business operators, have a general duty to exercise reasonable care for the safety and security of their guests. The duty extends to protecting guests from harm caused by other guests and visitors to the premises. This does not mean that hotels are liable for any injury or loss that a guest suffers–generally, the victim must show that the hotel (through the actions of its employees) was negligent before the hotel faces liability. To help protect against this exposure, hotel owners typically buy liability insurance policies to cover the property in the event of a problem. However, these insurance policies frequently include substantial limitations. In particular, many policies exclude coverage for any injuries that arise from the service of alcoholic beverages on the premises. Other exclusions include denying coverage for physical assaults. In Piligra v. America’s Best Value Inn, Inc., No. 10-254 (La. App. 3d Cir. 2010), the court examined–and upheld–this very type of coverage exclusion.

Susana Piligra visited the nightclub inside the America’s Best Value Inn hotel where she consumed an excessive amount of alcohol and passed out. An employee of the hotel took Piligra up to a room on the second floor and, on the way, they came upon an unknown male who helped get Piligra to the room. The hotel employee left Piligra in the room with the unknown male. When Piligra’s friend later went to check on her, the friend opened the door to find the unknown male “climbing off her with his pants down.” Piligra went to a local hospital where it was determined that she was apparently raped by the unknown male while she was unconscious. Piligra filed suit against the hotel and its liability insurance carrier, Evanston Insurance Company, alleging that the hotel negligently transported her to a room without her consent and failed to attend to her in a responsible manner given her condition. Evanston filed a motion for summary judgment based on the exclusions contained in the hotel’s policy. The trial court granted Evanston’s motion, and both Piligra and the hotel appealed.

The Third Circuit reviewed that an “insurance policy is interpreted like any other contract,” and that “[i]nsurance companies are permitted to limit coverage through policy exclusions as long as the limitations do not conflict with statutory provisions or public policy.” Ledbetter v. Concord Gen. Corp., 665 So.2d 1166 (1996). With those principles in mind, the court examined the policy Evanston issued to the hotel and found a provision that clearly excluded coverage for any claim arising out of “assault and/or battery.” The court noted that “Louisiana courts have upheld [limitations] similar to the Evanston policy [limitations] that preclude coverage for assault and battery, including rape.” Thus, the court reasoned, “[b]ecause rape is a battery and because the assault and battery exclusion in the Evanston policy is unambiguous, we find that the exclusion is applicable and precludes coverage for Ms. Piligra’s injuries.” Accordingly, the court affirmed the decision of the trial court to dismiss Evanston Insurance Company from the suit.

January 30, 2011

Asbestos Exposure Case Shows Importance of Early Medical and Legal Prognosis

by Berniard Law Firm

In late 2010, the Court of Appeal of Louisiana, Fourth Circuit, shed some light on how the sale of a company may impact claims made by employees against the successor company in Pichon v. Asbestos Defendants AG. The plaintiffs in the case were the wife and children of the deceased Mr. Pichon. The plaintiffs alleged that Mr. Pichon was exposed to asbestos between 1955 and 2004. Mr. Pichon died in 2006 from Mesothelioma and Lung Cancer, which the plaintiffs argue was as a result of his exposure to asbestos. One of the defendants in the case was Detroit Diesel Corporation (DDC). DDC filed for summary judgment stating that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law. The Court broke its discussion down into two time periods: (1) Pre-1988 exposure by Mr. Pichon, before the creation of DDC, under which plaintiffs argued that DDC is liable under the theory of successor liability and (2) Post-1988, after the creation of DDC, under which plaintiffs argued that Mr. Pichon was exposed to asbestos as a result of DDC manufacturing.

In 1970, GM merged its Diesel Division with its Allision Division to create the Detroit Diesel-Allision Division. This division manufactured marine engines at Halter Marine. In 1988 GM and Penske formed DDC as a joint venture. Subsequently, DDC purchased the assets of most of the division that produced the marine engines. The sales agreement between DDC and GM stated that DDC would not be liable for GM’s conduct or for claims relating to products manufactured, distributed, or sold by GM prior to closing. The Court stated that there were three ways in which a successor company could be held liable for the actions of the selling company: (1) When the successor company clearly assumed the liability or obligations (2) When the buying company was merely a continuation of the selling company or (3) Where is it found that the transaction occurred only to avoid liability. The Court stated that it was clear that DDC expressly denied any pre-sale liability for the actions of GM. However, the plaintiffs argued that DDC’s liability was as a result of test number two, namely that DDC was a continuation of GM’s Diesel-Allision Division.

In response to plaintiffs argument concerning the second test for successor liability, the Court cited to a U.S. Supreme Court case that held that successor liability could be found on the basis of the buying company being a mere continuation of the selling corporation where the sale was for all of the company’s assets. The issue for the plaintiffs in this case was that DDC clearly did not purchase all of GM’s assets. Further, DDC did not even purchase all of GM’s assets concerning manufacturing of marine engines. DDC only purchase those assets relating to the Redford Operations. Because the plaintiffs were unable to provide evidence that DDC purchased all of GM’s assets, the Court granted DDC’s summary judgment on this claim and plaintiffs thus lost on this point.

January 28, 2011

Lawsuit Over Double Knee Surgery and Subsequent Injury Leads to Ruling Demonstrating MedMal Complexity – Part 2

by Berniard Law Firm

In a post earlier this week, we reviewed the Third Circuit’s treatment of a medical malpractice case that arose from a double knee replacement surgery. In addition to her enumeration of error about the faulty opinion returned by the state medical review panel, the plaintiff, Margie McGlothlin, also asserted there was no “reasonable factual basis” for the jury’s conclusion that the hospital was not liable for her injuries. As part of its de novo review, the court examined the record for details on the two incidents that McGlothlin pointed to as the cause of her kneecap dislocation. The first involved her transfer between a wheelchair and her hospital bed at the rehabilitation center during which a nursing assistant, working without help, dropped McGlothlin. The other incident similarly involved a nursing assistant–again working unaided–who dropped McGlothlin as she was transferring to the restroom. The court reviewed the applicable standard of care for these situations:

The transfer from wheelchair to either bed or toilet of a bilateral knee replacement patient weighing almost 300 pounds requires at least two people assisting in the transfer together with the use of a gait belt.

Whether the hospital employees breached that standard of care, and whether that breach caused McGlothlin’s injury, are questions of fact usually left to the jury. The second incident, in particular, involved several factual discrepancies. McGlothlin testified that, after she fell while attempting to make her way to the bathroom, she immediately called for her doctor, explained what happened, and submitted to an x-ray which revealed the dislocation of her kneecap. The nursing assistant caring for McGlothlin during this time, however, denied that the restroom incident occurred at all and maintained that McGlothlin never suffered injuries of any kind. The hospital further argued that McGlothlin’s kneecap became dislocated as a result of activities during rehabilitation and without any negligence on the part of hospital employees. In reviewing the account of McGlothlin’s progress, the court found no evidence of a “traumatic event” during therapy that could have caused the injury. However, the report did make note of McGlothlin’s increased pain in her left knee and a corresponding reduction in recommended exercise by her therapist. Ultimately, the court found that McGlothlin’s allegations had “credibility.” Reviewing the entire record, the court concluded that McGlothlin carried her burden of establishing that during the restroom transfer, the nursing assistant breached the duty of the care, and that this breach resulted in an injury to McGlothlin’s left knee. Accordingly, after considering the appropriate level of damages, the court reversed the trial court’s judgment dismissing McGlothlin’s claims and rendered judgment in her favor and against Christus St. Patrick Hospital. The court awarded McGlothlin the statutory maximum of $500,000.00 in damages, plus $62,341.29 in past medical costs and the expenses of reasonable future medical treatment.

January 26, 2011

Lawsuit Over Lake Charles Surgery Reveals Role of Review Panel in Medical Malpractice Cases – Part 1

by Berniard Law Firm

Previously in this blog we have examined a number of cases involving medical malpractice claims. One common thread in these cases is the involvement of the state’s medical review panel. This is because claims brought against healthcare providers under the Louisiana Medical Malpractice Act must be reviewed by a medical review panel before proceeding to court. The panel is made up of three doctors and one attorney. The panel’s purpose is limited: its authorized by statute only to determine whether the evidence supports the plaintiff’s allegation that the defendant healthcare provider failed to observe appropriate standard of care in the plaintiff’s treatment and, if the standard was not met, whether the failure contributed to the plaintiff’s injury. The panel is specifically prohibited from rendering conclusions about issues of material fact that do not require on an expert opinion. The panel’s report, which it issues in writing, is considered an expert opinion which, though not conclusive, is admissible in any subsequent legal action.

In this post, the first of two on the case of McGlothlin v. Christus St. Patrick Hospital, we will explore the Third Circuit’s treatment of the trial court’s erroneous admission of the medical review panel’s faulty opinion. The facts are as follows: In 1999, after nearly a decade of suffering with osteoarthritis, Margie McGlothlin checked into Christus St. Patrick Hospital in Lake Charles for a double total knee replacement. The surgery was successful, and McGlothlin’s initial recovery uneventful. Three days after the procedure, McGlothlin was transferred from the main hospital to the rehabilitation wing. While there, McGlothlin alleged that she fell and injured her left knee on two separate occasions when the nursing assistants who were attempting to transfer her did so without assistance. McGlothlin, claiming that these falls caused the dislocation of her knee cap, first submitted her claim for damages to a medical review panel as required by the Louisiana Medical Malpractice Act. The panel rejected McGlothlin’s claim, and she filed suit. During the trial, the parties did not dispute that McGlothlin sustained a kneecap dislocation while under the care of the hospital and that the standard of care for moving a double knee replacement patient requires the assistance of more than one trained attendant. But the hospital denied that either of the two falling events alleged by McGlothlin occurred at all and instead suggested that her dislocated kneecap resulted from physical therapy (a risk with all knee replacement procedures). Following a three-day trial, the jury returned a verdict for Christus St. Patrick’s, and McGlothlin appealed.

One enumeration of error offered by McGlothlin centered on the trial court’s admission of an edited version of the medical review panel’s report. The editing resulted from McGlothlin’s objecting during the trial to the hospital’s attempt to introduce the report into evidence. McGlothlin argued that the report contained non-expert conclusions of issues of material fact, which violated the limited authority granted to the panel by state law. Specifically, the panel determined that there was “no violation of the applicable standard of care without even stating what that standard of care was. Instead, the panel’s written reasons addressed only the factual conflicts raised by the information” presented by the parties. In an effort to preserve as much of the panel’s report as possible, the trial court redacted from the report the panel’s conclusion as well as part of the last sentence, which stated “but we feel that the versions of both of the incidents by the patient and her family appear to have numerous inconsistencies.” The Third Circuit stated, “a clear reading of what remains of the medical review panel’s opinion establishes to the reader that the underlying dispute was factual and not legal.” Furthermore, one of the hospital’s trial witnesses was an orthopedic surgeon who served as a member of the medical review panel. Although the trial court ruled that the witness could not, during testimony, state what the panel’s (redacted) conclusion was, the witness “made it clear in his testimony that his opinion and that of the panel were based on factual findings.” Thus, despite the trial court’s attempt to shield the report’s impermissible conclusions from the jury, its members were “fully informed” about how the panel’s opinion was reached and that it had concluded the hospital did not violate the standard of care. The court held that the trial court’s improper admission of the medical review panel’s redacted opinion and the surgeon’s direct testimony about the inner workings of the panel “tainted the integrity of the trial.” Accordingly, the court determined that a de novo review of the record was required.