30,429 La.App. 2 Cir. 4/8/98, Brister v. Continental Ins. Co.

Decision Date08 April 1998
Parties30,429 La.App. 2 Cir
CourtCourt of Appeal of Louisiana — District of US

Hesse & Butterworth by Michael O. Hesse, St. Francisville, for Plaintiff-Appellant.

John Haas Weinstein, Opelousas, Gold, Weems, Bruser, Sues & Rundell by Sam N. Poole, Jr., Alexandria, for Defendants-Appellees Nursing Home Management Co., Inc.; Parkview Care Center, Inc.; and Continental Ins. Co.

Hailey, McNamara, Hall, Larmann & Papale by Frederic Theodore LeClercq, Metairie, for Plaintiff-Appellee Home Ins. Co. Carmouche Law Firm by David R. Frohn, Lake Charles, for Defendant-Appellee Century Mfg. Co.

Before BROWN, WILLIAMS and STEWART, JJ.

[30,429 La.App. 2 Cir. 1] STEWART, Judge.

Vaudie Brister filed this action against Parkview Care Center, Inc., Continental Insurance Company (Parkview's insurer), Century Manufacturing Company, and The Home Insurance Company (Century's excess insurer). After Mrs. Brister's death, her children were substituted as plaintiffs. The jury rendered a verdict awarding general damages in the amount of $7500 as a result of the July 9, 1992 accident, finding that medical expenses incurred for the July 13 through July 29, 1992 hospitalization were not a result of the accident, and finding that the accident was not a substantial factor in the death of Mrs. Brister. The Bristers appeal. We affirm.

FACTS

On July 9, 1992, while a resident at Parkview, Mrs. Brister fell from a lift seat used to transfer her from a whirlpool bath to her wheelchair and struck her head on the tile floor. Mrs. Brister was treated at the local emergency room for a lacerated forehead and was diagnosed with a concussion. After returning to Parkview, Mrs. Brister complained of headaches the next day. On July 12, 1992, Mrs. Brister was treated at the emergency room for dehydration and returned to the nursing home.

The following morning, July 13, 1998, she was again admitted to Humana Hospital where she remained until July 29, 1992. Dr. Leonard Collier treated Mrs. Brister for a urinary tract infection with a temperature of 106.1 degrees. She also exhibited symptoms of sluggishness, drooling and slowness in responding. Dr. Collier was concerned that Mrs. Brister had sustained a subdural or epidural hematoma when she fell but also noted that her symptoms were indicative of a cardiovascular attack or a stroke. On July 17, 1992, Mrs. Brister suffered a transient ischemic attack which was resolved within 24 hours. On July 29, 1992, she was discharged to Autumn Leaves Nursing Home.

[30,429 La.App. 2 Cir. 2] After discharge from the hospital, Mrs. Brister's health continued to deteriorate. Approximately a year after her fall, Mrs. Brister was admitted to Charter Forest Hospital in Shreveport, Louisiana, for evaluation by Dr. Louis Cenac. Dr. Cenac consulted with Dr. Paul Ware, a neurologist, who examined Mrs. Brister during her admission to Charter Forest.

Mrs. Brister's death on January 5, 1994, was attributed to multiple organ disease after she experienced a myocardial infarction. Dr. Collier signed the death certificate.

After the July 9, 1992 accident, Mrs. Brister instituted this litigation. Upon her death, her children were substituted as plaintiffs. Following jury trial on December 2 through December 4, 1996, the jury returned a verdict awarding damages in the amount of $7500 for injury resulting from the July 9, 1992 fall and finding that the accident did not cause medical expenses incurred between July 13 and July 29, 1992 nor did it contribute to Mrs. Brister's death. A final judgment in accordance with the jury verdict was signed on January 16, 1997. Hearing on the Bristers' post-trial motions seeking judgment notwithstanding the verdict, additur or, alternatively, new trial was held on March 12, 1997. A judgment denying the Bristers' motions was signed on March 24, 1997. On April 13, 1997, the Bristers filed a motion for appeal. The trial court signed the order granting the appeal on April 28, 1997. The Bristers assign two errors.

DISCUSSION

First, the Bristers assign as error the trial court's denial of the motion for new trial. That motion was based upon the allegedly improper ex parte communication between Dr. Ware and defense counsel which the Bristers' contend is a violation of the patient-physician privilege and the consequent testimony of Dr. Ware at trial. Second, [30,429 La.App. 2 Cir. 3] the Bristers assign as error the trial court's denial of the motion for judgment notwithstanding the verdict contending that the jury verdict was clearly contrary to the law and evidence "since the overwhelming preponderance of evidence presented established that the original Plaintiff, Vaudie Brister, suffered a concussion which led to a medical condition for which she was treated between the dates of July 13, 1992, and July 29, 1992 ..."

A trial court's denial of motions for judgment notwithstanding the verdict and new trial is an interlocutory order, not a final, appealable judgment. In Hayes v. Hayes, 607 So.2d 3, 5 (La.App. 2nd Cir.1992), this court explained:

... denial of a motion for new trial is an interlocutory judgment which does not cause irreparable injury and is therefore nonappealable.

However, where the motion for appeal refers to a specific judgment denying a motion for new trial, but the appellant exhibits the clear intention (from his brief and argument) to appeal instead from an adverse judgment on the merits, then the appeal should be considered.

Although the Bristers' motion for appeal refers to the March 24, 1997 judgment denying their motion for judgment notwithstanding the verdict, additur or, alternatively, new trial, an examination of the Bristers' appellate brief indicates that they seek relief from judgment on the merits. Therefore, we find this matter appropriate for decision on the merits despite the language in the motion for appeal.

Testimony of Dr. Paul Ware

The Bristers assert that the ex parte communication between Dr. Ware and defendants violated the doctor-patient privilege, that Dr. Ware's trial testimony should have been excluded due to this violation, and that the introduction of Dr. Ware's testimony constitutes prejudicial error, citing Boutte v. Winn-Dixie Louisiana, Inc., 95-1123 (La.App. 3rd Cir. 4/17/96), 674 So.2d 299. However, in that case, the issue presented to the appellate court was "whether defendant's illicit introduction of [30,429 La.App. 2 Cir. 4] privileged evidence and plaintiff's timely objection mandate reversal." Boutte v. Winn-Dixie Louisiana, Inc., 95-1123 at p. 9, 674 So.2d at 305.

In the instant case, the Bristers failed to timely object to the introduction of alleged privileged evidence. At the pre-trial conference held on June 25, 1996, defense counsel hand delivered to counsel for the Bristers a copy of defendants' pretrial memorandum, which indicated that defendants intended to call Dr. Ware as an expert witness. The pretrial order signed by the trial court on June 25, 1996, established deadlines of November 4, 1996, for filing motions in limine, and October 15, 1996, for completion of discovery depositions. A supplemental pretrial memorandum, filed by Century on September 18, 1996, also listed Dr. Ware as a medical expert witness. Although aware that defendants intended to call Dr. Ware as an expert witness, the Bristers did not file a motion in limine to exclude or limit the testimony of Dr. Ware, nor did they depose Dr. Ware prior to trial.

At trial, Dr. Ware was qualified as an expert without objection by the Bristers and testified without objection by the Bristers. The trial transcript is devoid of any objection by the Bristers to Dr. Ware's testimony and of any request by the Bristers for a status conference regarding the issue of ex parte communication between Dr. Ware and defense counsel.

Failure to contemporaneously object constitutes a waiver of the right to complain on appeal. Zellinger v. Amalgamated Clothing, 28,127 (La.App. 2nd Cir. 4/3/96), 683 So.2d 726; Martinez v. Schumpert Medical Center, 27,000 (La.App. 2nd Cir. 5/10/95), 655 So.2d 649. See also Territo v. Schwegmann Giant Supermarkets, Inc., 95-257 (La.App. 5th Cir. 9/26/95), 662 So.2d 44, and Chauvin v. Jefferson Parish School Board, 595 So.2d 728 (La.App. 5th Cir.1992). The Bristers' failure to contemporaneously object to the testimony of Dr. Ware during trial constitutes a [30,429 La.App. 2 Cir. 5] waiver of their right to complain on appeal that Dr. Ware's testimony was prejudicial error. This assignment is without merit.

Jury verdict

The Bristers assert in their second assignment of error that the jury verdict was clearly contrary to the law and evidence.

An appellate court may not set aside a trial court's findings of fact in the absence of clear or manifest error. Lewis v. State, Through DOTD, 94-2730 (La.4/21/95), 654 So.2d 311; Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989); Thompson v. Coates, 29,333 (La.App. 2nd Cir. 5/7/97), 694 So.2d 599. To reverse a trial court's factual determinations, a court of appeal must find, based on the record, that no reasonable factual basis for the findings exists and that the findings are clearly wrong or manifestly erroneous. Mart v. Hill, 505 So.2d 1120 (La.1987); Thompson v. Coates, supra. The issue to be resolved by the appellate court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Lewis v. State, Through DOTD, supra; Stobart v. State, Through DOTD, supra; ...

To continue reading

Request your trial
16 cases
  • VaSalle v. Wal-Mart Stores, Inc., 2001-C-0462.
    • United States
    • Supreme Court of Louisiana
    • November 28, 2001
    ...is an interlocutory order. See La. C.C.P. art. 1914(C). See also Brister v. Continental Ins. Co., 30,429 (La.App. 2 Cir. 4/8/98), 712 So.2d 177; Ehrman v. Holiday Inns, Inc., 94-0312 (La.App. 4 Cir. 6/30/94), 639 So.2d 1204; Suarez v. Modica, 609 So.2d 1013 (La.App. 5 Cir. 1992). As an inte......
  • Nicholas v. Allstate Ins. Co., 30,735-CA.
    • United States
    • Court of Appeal of Louisiana (US)
    • May 28, 1999
    ...and to accept or reject any part of a witness' testimony. Brister v. Continental Insurance Company, 30,429 (La. App.2d Cir.4/8/98), 712 So.2d 177. Credibility determinations, including the evaluation of expert testimony, together with the ultimate issue of whether a plaintiff has satisfied ......
  • Custom-Bilt Cabinet v. Quality Built Cab.
    • United States
    • Court of Appeal of Louisiana (US)
    • December 8, 1999
    ...fact should not be disturbed upon review by the appellate court. Brister v. Continental Insurance Company, 30,429 (La.App.2d Cir.4/8/98), 712 So.2d 177. In the present case, we find that Peters failed to show that he informed anyone connected with credit matters at Custom—Bilt that he was r......
  • State v. Hampton
    • United States
    • Court of Appeal of Louisiana (US)
    • October 7, 2015
    ...underlying judgment on the merits, then the appeal should be considered. Brister v. Continental Ins. Co., 30,429 (La.App. 2 Cir. 4/8/98), 712 So.2d 177 ; Lozier v. Estate of Elmer, 10–754, pp. 3–4 (La.App. 5 Cir. 2/15/11), 64 So.3d 237, 239, writ denied, 2011–0529 (La.4/25/11), 62 So.3d 93.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT