Opinion
CIVIL ACTION NO. 02-2365 SECTION: "R" (5)
April 13, 2004
ORDER AND REASONS
Before the Court is the motion in limine of plaintiff Todd Siegrist to exclude certain testimony. For the following reasons, the Court grants in part and denies in part plaintiff's motion.
I. Background
Plaintiff Todd Siegrist filed a complaint with the Louisiana Patient's Compensation Fund alleging that Drs. Claudio Guillermo and Thomas Kleinpeter committed malpractice in the treatment of his ulcerative colitis condition, increasing the chance that he would ultimately need a colectomy. A medical review panel unanimously held that (1) defendants did not breach the appropriate standard of care and (2) any delay in the scheduling of plaintiff's colonoscopy did not cause the medical problem that ultimately led to the removal of the patient's colon. Plaintiff filed suit in this Court. In an Order and Reasons dated May 30, 2003, the Court granted summary judgment in favor of Dr. Guillermo and denied Dr. Kleinpeter's motion for summary judgment.
Under the Louisiana Medical Malpractice Act (the "MMA"), LA.R.S. § 1299.41 et seq., a qualified health care provider's liability is limited to $100,000. LA.R.S. § 1299.42(B)(2). Any judgment or settlement that exceeds the total liability of all liable health care providers is paid from the Patient's Compensation Fund ("PCF" or "Fund"), up to a limit of $500,000 plus interest and cost, exclusive of future medical costs. LA.R.S. § 1299.42(B)(1), (B)(3)(a). The procedure for such payment is described in La.Rev.Stat. 40:1299.44(C). If the insurer of a health care provider or a self-insured health care provider "has agreed to settle its liability on a claim against its insured and claimant is demanding an amount in excess thereof from the patient's compensation fund for a complete and final release," then the procedures described in La.Rev.Stat. 40:1299.44(C) must be followed. See LA.R.S. § 40.1299.44(C). Under La.Rev.Stat. 40:1299.44(C)(1), the claimant must file a petition that seeks approval of the agreed settlement and demands payment of damages from the PCF with the court in which the action is pending against the health care provider.
In this case, Dr. Kleinpeter agreed to settle his liability on plaintiff's claim for $75,000. As required by La.Rev.Stat. 40:1299.44(C)(1), plaintiff filed a petition with this Court that sought approval of the settlement and demanded payment of damages from the Fund. The Court approved the settlement. Dr. Kleinpeter remains in the case as a nominal defendant, but plaintiff's remaining claims are against only the PCF.
Rec. Doc. 44, Joint Petition for Court Approval of the Settlement of a Medical Malpractice Claim.
Rec. Doc. 48, Judgment.
Plaintiff now moves to exclude certain testimony. Siegrist asserts that Dr. Kleinpeter's deposition testimony affirmatively established the controlling medical standard of care applicable in this case, and his testimony constitutes a judicial admission that is binding on the PCF. Siegrist also moves the Court to limit the testimony of various doctors identified by the PCF to avoid duplicative opinion testimony.
II. Discussion
A. Judicial Admission
The Fifth Circuit defines a judicial admission as "a formal concession in the pleadings or stipulations by a party or counsel that is binding on the party making them." Martinez v. Bally's Louisiana, Inc., 244 F.3d 474, 476 (5th Cir. 2001). A judicial admission is conclusive and withdraws a fact from contention. See id. Further, a statement by counsel during the course of trial may qualify as a judicial admission if counsel intended to release the opponent from proof of fact. See id. An ordinary evidentiary admission, on the other hand, is "merely a statement of assertion or concession made for some independent purpose,' and it may be controverted or explained by the party who made it." Id. (quoting McNamara v. Miller, 269 F.2d 511, 515 (D.C. Cir. 1959)). The Seventh Circuit has held that "[w]hen a party testifying at trial or during a deposition admits a fact which is adverse to his claim or defense, it is generally preferable to treat that testimony as solely an evidentiary admission." Keller v. United States, 58 F.3d 1194, 1199 (7th Cir. 1995).
The deposition statement by Dr. Kleinpeter is an evidentiary admission, not a judicial admission. There is no indication that he made the statement as a formal concession with the intention of relieving plaintiff of the burden of proving the standard of care. Further, Dr. Kleinpeter's statement is not a statement by the PCF. As noted above, judicial admissions are binding "on the party making them." Id. The PCF did not make the statement at issue. Indeed, Dr. Kleinpeter testified in his deposition on April 18, 2002, well over a year before the PCF was even a party in this action. Dr. Kleinpeter's testimony can hardly be said to be a "formal concession in the pleadings" by the PCF, when it was not a party to the action at the time.
In his reply memorandum, plaintiff asserts that Dr. Kleinpeter's statements foreclose the Fund from calling an expert because the Fund is not a separate party defendant in this action. In Williams v. Kushner, 449 So.2d 455 (La. 1984), the Louisiana Supreme Court noted that "the only party defendant contemplated by the medical malpractice act is the health care provider." Id. at 458. The Williams Court noted that after a settlement between the claimant and the health care provider, the status of the Fund "is more in the nature of a statutory intervenor rather than a party defendant." Id.; see also Stuka v. Fleming, 561 So.2d 1371, 1374 (La. 1990). Although the Fund is not specifically considered a party defendant in this action, it is still a party that is separate and distinct from the health care provider. Thus, the Fund's status as a party that is akin to an intervenor does not alter the Court's conclusion that plaintiff may not foreclose the Fund from producing evidence on the standard of care by virtue of the statement made by Dr. Kleinpeter.
The Court notes that under Louisiana Revised Statute 40:1299.44 (C)(5)(a), after the claimant settles with the health care provider and asserts a claim for damages against the Fund, the Fund may request a jury trial even if neither the claimant nor the health care provider requested one. This further supports the conclusion that the Fund is an separate party in the action and is not bound by the statements of the health care provider.
The MMA does establish a situation in which the PCF may be bound by a health care provider's admission. Louisiana Revised Statute 40:1299.44(C)(5)(e) provides:
In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the trier of fact shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.
Thus, the Fund may be bound by a health care provider's admission of liability if the provider's insurer pays the claimant the maximum liability amount of $100,000. This is clearly not the situation here, however. Dr. Kleinpeter settled Siegrist's claim against him for $75,000. Thus, his settlement does not mean that liability must be treated as admitted by the PCF. See Russo v. Vasquez, 94-2407, 648 So.2d 879, 884 (La. 1/17/95). In Taylor v. Tulane Univ. of La., 97-0977, 699 So.2d 1117 (La.App. 4 Cir. 9/17/97), the health care provider settled its liability with the claimant for less than $100,000, and the settlement agreement contained a stipulation of liability intended to qualify as a judicial admission of liability. Id. at 1118. The Taylor court held that the admission of liability was not binding on the PCF because permitting the admission to bind the PCF would circumvent the Fund's "absolute right to contest the liability of the health care provider" when the provider settles for less than the maximum amount of $100,000. Id. at 1119. Here, the Court finds that Dr. Kleinpeter's statements likewise do not preclude the PCF from contesting liability through the use of expert testimony.
To support his argument that Dr. Kleinpeter's statements about the applicable medical standard of care foreclose the PCF from calling an expert on this issue, plaintiff cites cases that hold that a plaintiff may rely on the standard of care as established by the defendant physician to meet his burden of proof on that element of his claim. See Christiana v. Sudderth, 02-1080, 841 So.2d 911, 915 (La.App. 5 Cir. 2/25/03) (citing Pfiffner v. Correa, 94-0924, 643 So.2d 1228, 1233 (La. 10/17/94)). These cases establish that a plaintiff need not present independent expert testimony on the applicable standard of care, but may instead rely on the standard as described by the defendant physician. These case do not, however, hold that the defendant physician's testimony conclusively establishes the standard of care or that the defendant and/or the PCF may never rebut this standard of care. Accordingly, these cases also fail to persuade the Court that Dr. Kleinpeter's statements are binding on the PCF.
In addition, plaintiff argues that testimony from multiple expert witnesses on the applicable standard of care will confuse the jury, and therefore the PCF should be limited to the standard of care as established by Dr. Kleinpeter. This argument would require the exclusion of experts in virtually every case. Juries regularly consider conflicting expert testimony on complex issues, including medical ones. For all of the foregoing reasons, the Court finds no grounds for excluding the Fund's expert on the standard of care.
In light of the Court's denial of plaintiff's motion to exclude the testimony of the Fund's expert, the Court will, upon a motion by plaintiff, consider relaxing the expert report deadlines if plaintiff needs additional time to retain its own expert.
B. Cumulative Evidence
Plaintiff also moves the Court to limit the PCF's opinion witnesses. Under Rule 403, the Court may exclude relevant evidence when its probative value is outweighed by considerations of the "needless presentation of cumulative evidence." Fed.R.Evid. 403; see also Aetna Cas. Sur. Co. v. Guynes, 713 F.2d 1187, 1193 (5th Cir. 1983) (noting that " [i]t is well within the discretion of a district court to limit the number of expert witnesses who testify at trial"). Defendant indicates that it intends to call at most two expert witnesses. Defendant expects Dr. Robert Hammer will testify about whether Dr. Kleinpeter committed medical malpractice, and his testimony will encompass the issues of the applicable standard of care, whether Dr. Kleinpeter breached it and medical causation. Defendant also asserts that the second expert witness would be one of the members of the Medical Review Panel that considered plaintiff's claim. Any testimony by the Medical Review Panel on the issues of the standard of care and medical causation will be cumulative of Dr. Hammer's testimony. Further, the Fund can admit the Medical Review Panel's report without the testimony of a panel member. See Fed.R.Evid. 803(8). Accordingly, any testimony by one of the review panel members would be strictly cumulative, and the Court excludes such testimony.
Defendant asserts that the remaining physicians identified in its witness list are treating physicians whom it may call to testify about their treatment of plaintiff. Plaintiff concedes that the testimony of fact witnesses is relevant. These has been no showing that these witnesses will give cumulative testimony. The Court does not exclude these witnesses at this time.
III. Conclusion
For the foregoing reasons, the Court grants in part and denies in part plaintiff's motion to exclude certain testimony. The Court denies the motion to exclude the testimony of Dr. Robert Hammer, grants the motion to exclude the testimony of the Medical Review Panel members, and denies the motion to exclude testimony from plaintiff's treating physicians.