Opinion
22-C-58
02-17-2022
BONNY G. BARRIOS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND SAMUEL E. SCHUDMAK IN RE BONNY G. BARRIOS
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH F JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE R. CHRISTOPHER COX, III, DIVISION "B", NUMBER 783-129
Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.
WRIT GRANTED IN PART, AND DENIED IN PART
Relator/Plaintiff, Bonny G. Barrios seeks this Court's supervisory review of the trial court's February 14, 2022 denial of her Motion in Limine seeking to exclude areas of evidence and questioning of her treating physician/expert Dr. Samer Shamieh. During a February 2, 2022 video deposition, the attorney for the respondent, Samuel Schudmak, cross-examined Dr. Shamieh regarding his practice's referral sources and billing procedures. He also inquired into the witness' knowledge of a criminal probe into "allegedly staged automobile accidents for which allegedly fraudulent personal injuries claims were made by various plaintiffs and personal injury attorneys in the New Orleans area." The relator's attorney objected based on relevance. The respondent argued that he sought to establish bias, credibility, and motive of Dr. Shamieh due to RICO pleadings alleging that he "treated and performed surgery for people who were never involved in accidents, or the accidents were staged, but surgeries were performed anyway." The trial judge was called and ruled that the respondent's attorney was entitled to continue this line of questioning.
On February 11, 2022, the relator filed a motion in limine which sought to exclude the following issues from the trial:
• All evidence, inference, and questioning as to the unrelated federal RICO proceedings.
• All evidence, inference, and questioning as to Dr. Samer Shamieh exercising his right to have counsel present during questioning.
• All evidence, inference, and questioning as to attorney referrals to treating Physicians.
• All evidence, inference, and questioning as to the number of patients treated by Dr. Samer Shamieh and/or Dr. Patrick Waring that were represented by Dudley DeBosier Injury Lawyers.
• All evidence, inference, and questioning as to Dr. Samer Shamieh and/or Dr. Patrick Waring giving medical presentations to law firms.
• All evidence, inference, and questioning as to discounts or reductions of medical charges by Dr. Samer Shamieh and/or Dr. Patrick Waring specifically for personal injury patients.
The relator requests that these matters should be redacted from the deposition prior to the presentation and introduction of the video to a jury at trial. The relator argues these matters should be excluded on the basis of relevance, lack of probative value, prejudice, hearsay, and lack of predicate to support an attack on credibility or bias. The trial court denied the motion in limine in its entirety.
An objection may be made at the trial to receiving in evidence any part of a deposition for any reason which would require the exclusion of the evidence if the witness were then present and testifying. La. C.C.P. art. 1451. Objections to the competency, relevancy, or materiality of testimony are not waived by failure to make them during the taking of the deposition. La. C.C.P. art. 1455. The standard of review for a trial court's evidentiary ruling is abuse of discretion, meaning the ruling will not be disturbed unless it is clearly erroneous. Ramos v. Alexander, 18-355 (La.App. 5 Cir. 12/19/18), 262 So.3d 1000, 1003. The determination of the scope of cross-examination is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Chi. Prop. Interests, L.L.C. v. Broussard, 15-299 (La.App. 4 Cir. 10/21/15), 177 So.3d 1074, 1083, writ denied, 15-2117 (La. 1/25/16), 185 So.3d 748.
La. C.E. art. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The credibility of a witness may be attacked with extrinsic evidence of "bias, interest, corruption." La. C.E. art. 607(D)(1). Other extrinsic evidence contradicting the witness' testimony is admissible to attack credibility "unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice." La. C.E. art. 607(D)(2).
Federal RICO Proceedings
The trial court allowed cross-examination of Dr. Shamieh and the introduction of extrinsic evidence, the RICO complaint, to explore Dr. Shamieh's credibility. The respondent's counsel inquired whether Dr. Shamieh was aware that "some of these plaintiffs in these allegedly staged accidents were sent by their attorneys to certain doctors who recommended and in some cases performed spine surgery on them for injuries which allegedly never occurred because the accidents were not legitimate." Counsel for the respondent prefaced his question with "I'm not making any assertions as to whether any of these assertions are true or have veracity. I'm simply asking you about information contained in the public records." Counsel for the relator and Dr. Shamieh objected to this line of questioning.
When the attorneys called the trial judge for a ruling, the respondent's counsel stated that he was "attempting to ask Dr. Shamieh about publicly available federal pleadings in a RICO suit - - I think we all know what that means - -alleging that Dr. Shamieh was one of several doctors who treated and performed surgery for people who were never involved in accidents, or the accidents were staged, but surgeries were performed anyway."
While the respondent claims that these questions and evidence are relevant to Dr. Shamieh's credibility, there does not appear to be a reasonable basis to support the allegations of any bias, credibility, motive, or prior bad act of the witness. Dr. Shamieh is not named a party to the pending civil RICO lawsuit, and he has not been accused of any wrongdoing in the complaint. The complaint does not allege that Dr. Shamieh performed unnecessary procedures on the accused former patients, or even that his patients did not have injuries. Furthermore, the questions as phrased by the respondent's counsel imply that Dr. Shamieh was involved in fraudulent acts. La. C.E. art. 608(B) provides that "[p]articular acts, vices, or courses of conduct of a witness may not be inquired into or proved by extrinsic evidence for the purpose of attacking his character for truthfulness other than conviction of crime." It does not be appear that there is a relevant basis for this line of questioning and extrinsic evidence. Even relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or waste of time." La. C.E. art. 403. In this case, there is a danger of unfair prejudice to the plaintiff and confusion of the issues by inquiring into accident staging when there is no allegation that the relator is part of any conspiracy to defraud in the RICO complaint.
Therefore, we find that the admission of this evidence and any questioning or inference into Dr. Shamieh's involvement in the RICO proceedings should be excluded from the trial, and the trial court abused its discretion by denying the motion in limine as to this subject matter.
The Presence of Dr. Shamieh's Counsel
The presence of Dr. Shamieh's counsel was first addressed by Dr. Shamieh when he stated that "part of the reason that [his] attorney, is on this Zoom call. . .[is he] want[s] to make sure that what we're doing is absolutely the right way to do things" regarding his billing practicing and policies. Later in the cross-examination, the attorney for the respondent asked if he typically has an attorney present to represent him during depositions or court testimony. He was directed not to answer the question by his own attorney. Later, when asked whether he has brought a lawyer to represent him when he previously testified at a trial, Dr. Shamieh stated that he has. The counsel for respondent asked him "So you would have no way of knowing whether it's common for doctors treating patients to have lawyers representing them one way or the other?" Both the relator's and Dr. Shamieh's attorneys objected.
The respondent has not offered a relevant basis for commenting on the presence of Dr. Shamieh's counsel at his deposition. Without a showing that it makes the existence of any fact of consequence more or less probable, we fail to find the relevance of Dr. Shamieh exercising his right to seek representation at a legal proceeding beyond his initial statement.
Attorney Referrals
Dr. Shamieh testified in the deposition that all referrals come from patients themselves through his advertising efforts or other medical providers. During cross-examination, when asked if the relator was sent to Dr. Shamieh by her lawyers, the relator's counsel objected based on relevance. Dr. Shamieh stated that he did not recall how the patient was referred to him, but he was under the assumption that her physician, Dr. Waring, sent her to him. The respondent's attorney stated that the doctor's records did not show any referral, but "[f]rom the records we see, Doctor, it looks like Ms. Barrios's Dudley DeBosier attorneys just decided to send her to you on their own. And do you have any ability to know that from where you sit today one way or the other?" Dr. Shamieh denied that he did.
La. C.E. art. 607(B) allows for the questioning of a witness "as to his relationship to the parties, [and] interest in the lawsuit." A party may attack a witness' credibility "intrinsically" and "examine him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony." La. C.E. art. 607(C). La. C.E. art. 613 provides that extrinsic evidence of bias, interest, or corruption, or prior inconsistent statements is admissible after "the proponent has first fairly directed the witness' attention to the statement, act, or matter alleged, and the witness has been given the opportunity to admit the fact and has failed distinctly to do so."
The referral of the relator to Dr. Shamieh by her attorneys may be relevant to his interest in the lawsuit. Louisiana federal courts have found that "evidence of a special relationship between an expert witness and legal counsel is relevant to demonstrate the possible bias of the expert witness." Butler v. Rigsby, CV A. 96-2453, 1998 WL 164857, *2 (E.D. La. Apr. 7, 1998); Rogers v. Crosby Tugs, Inc., CV 12-2453, 2016 WL 9406114, at *1 (E.D. La. Jan. 22, 2016).
However, the respondent's cross-examination did not properly impeach Dr. Shamieh with an inconsistent statement. If Dr. Shamieh denies knowledge of the source of the relator's referral, the respondent should direct his attention to the alleged matter and give him an opportunity to admit the fact before any extrinsic evidence may be admitted. Therefore, we find that it would be error to include questioning beyond Dr. Shamieh's response that he did not recall how that patient was referred, and the trial court abused its discretion in denying the motion in limine as to any additional questions regarding this subject matter
The Number of Patients Treated by Dr. Samer Shamieh and/or Dr. Patrick Waring Represented by Dudley DeBosier Injury Lawyers & Dr. Samer Shamieh & Dr. Waring's Medical Presentations to Law Firms
Counsel for the respondent asked Dr. Shamieh on cross-examination, how many other patients he treated that were represented by the relator's law firm. Dr. Shamieh stated that he did not know. He was asked if he had given presentations to the personal injury attorneys at the relator's law firm, and he answered that he did give presentations twice in ten years to provide information on what procedures are performed at his hospital system.
These issues have been found relevant to explore the relationship between the witness and legal counsel. Louisiana courts have "recognized the need for allowing discovery to obtain the information necessary to develop a witness' bias on cross-examination at trial." Fauria v. Dwyer, 02-2320 (La.App. 4 Cir. 9/24/03), 857 So.2d 1138, 1147; Francois v. Norfolk S. Corp., 01-1954 (La.App. 4 Cir. 3/6/02), 812 So.2d 804, 806. Therefore, we find no abuse of discretion in the trial court's admission of these questions relating to the witness' relationship to the relator's counsel and his interest in the lawsuit under La. C.E. art. 607(B).
Discounts or Reductions of Medical Charges by Dr. Samer Shamieh and/or Dr. Patrick Waring for Personal Injury Patients
During the deposition, Dr. Shamieh was asked if he "sometimes discount[s] or reduce[s] your medical bills or your medical charges specifically for personal injury attorneys in these types of cases." Dr. Shamieh answered that his director of operations would have that information.
The respondent alleges that the relator's billing records show "many examples of attorney 'discounts' and 'adjustments' in favor of the plaintiffs Dudley DeBosier law firm" which they claim is relevant, probative, and admissible as to bias and financial motive. We find no abuse of discretion in the trial court's denial of the motion to exclude these questions which may be relevant to the witness' interest in the lawsuit under La. C.E. art. 607(B).
Accordingly, on the showing made, we grant this writ in part to deny the introduction of portions of the deposition relating to the civil RICO proceedings and the presence of Dr. Shamieh's counsel. Concerning attorney referrals, we grant this writ in part to exclude any questioning beyond Dr. Shamieh's response that he did not recall how the relator was referred to him for treatment. We deny the parts of this writ which seek to exclude the testimony relating to Dr. Shamieh's relationship with Dudley DeBosier law firm through presentations or referrals, and any discounts/reductions offered to its clients.
JJM
JGG
RAC