Carpenter v. Besco Corp.

• Court: Court of Appeal of Louisiana
• Writing for the Court: GRISBAUM; WICKER; WICKER
• Citation: Carpenter v. Besco Corp., 521 So.2d 421 (La. App. 1988)
• Decision Date: 08 February 1988
• Docket Number: No. 87-CA-599,87-CA-599
• Parties: Jewel CARPENTER v. The BESCO CORPORATION, Magnolia Chemical Company, Vulcan Chemicals, and PPG Industries. 521 So.2d 421

Page 421

521 So.2d 421

Jewel CARPENTER v. The BESCO CORPORATION, Magnolia Chemical Company, Vulcan Chemicals, and PPG Industries.

No. 87-CA-599.

521 So.2d 421

Court of Appeal of Louisiana Fifth Circuit.

Feb. 8, 1988.

Rehearing Denied March 17, 1988.

Writs Granted April 29, 1988.

James B. Irwin, Paul M. Lavelle, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, for plaintiff-appellant.

William G. Tabb III, H.F. Foster III, Celeste Brustowicz, Bienvenu, Foster, Ryan & O'Bannon, New Orleans, Stephen N. Elliott, Mickey S. deLaup, Bernard, Cassisa, Saporito & Elliott, Metairie, for defendant-appellee.

Before GRISBAUM, WICKER and GOTHARD, JJ.

GRISBAUM, Judge.

This appeal arises out of a personal injury claim. The plaintiff, Mr. Jewel Carpenter, while in the employ of Celotex Corp., accidentally splashed himself with an industrial solvent (composed primarily of 1-1-1 trichloroethane) used by the electricians to degrease parts and clean electrical contacts. Within a year of the accident, he found himself blind and is now seeking tort/products liability recovery from the bulk manufacturers of the solvent and the wholesale and consumer distributors. After a lengthy trial on the merits before a jury, his demands were rejected, and he now appeals. We set aside the judgment of the trial court and remand the matter for a new trial.

We are called upon to determine whether a number of evidentiary rulings constituted an abuse of discretion with respect to qualification of experts and the reception of their expert opinion into evidence. The general rule is set out by Jennings v. Allstate Ins. Co., 273 So.2d 534, 536 (La.App. 1st Cir.1973), quoting Judge (subsequently Justice) Tate in Carvell v. Winn, 154 So.2d 788, 791 (La.App. 3d Cir.1963), writ denied, 245 La. 61, 156 So.2d 603 (La.1963) as follows:

[W]hether or not a witness meets the qualifications to testify as an expert is largely within the discretion of the trial judge. In our opinion, it is also largely within the discretion of the trial judge to determine the competency of expert witnesses to testify to specialized areas on inquiry not necessarily within ... [their] general competency to give an opinion as an expert, or at least not shown to be so by the facts of the record. That is, the trial court is not under a mandatory duty to permit an expert witness to testify to any matter upon which the expert himself says he is qualified to given an expert opinion; the court must have some discretion to limit the witness's testimony as an expert to the actual field of his expertise and as applicable to the facts of the particular litigation, then before it (subject of course to a showing that the court abused its discretion in this regard, State v. Carter, 217 La. 547, 46 So.2d 897 [ (La.1950) ].) [sic]

"Thus referring to the ability of a witness to testify as an expert based upon his 'experiential capacity', [sic] Dean Wigmore noted that 'The capacity is in every case a relative one, i.e., relative to the topic about which the person is asked to make the statement * * *. His fitness, then, is a fitness to answer on that point. He may be fitted to answer about countless other matters, but that does not justify accepting his views in the matter in hand.' 2 Wigmore on Evidence (3rd ed., 1940), Section 555(1) at p. 634. 'In most jurisdictions it is repeatedly declared that the decision upon the experiential qualifications of witnesses should be left to the determination of the trial court', [sic] referring to 'the fact of the possession of the required qualification by a particular witness.' Ibid, Section 561, p. 641. Cf. LSA-R.S. 15:466; State v. Mills, 229 La. 758, 86 So.2d 895 [ (La.1956) ] (syllabus 8)."

The question, therefore, narrows itself to whether the trial judge abused his discretion in maintaining the defense's objections, thus preventing the expert from expressing his opinion as to why the accident happened.

The specific rulings herein give rise to the following issues:

(1) Whether, where two treating ophthalmologists seek to testify as to a possible cause of the plaintiff's medical condition (blindness), such testimony is inadmissible as not being rendered in terms of a reasonable medical certainty or, at least, a probability, and

(2) Whether a medical expert may premise part of his testimony on the reported data of researchers who are not themselves available to testify and whether, on the present record, Dr. Alexander demonstrated "no experience" with respect to the question of causation so as to preclude the reception of his opinion.

ANALYSIS--ISSUE ONE

Our jurisprudence provides certain directives for proof of causation by a tort plaintiff. The Fourth Circuit in Morales v. Houston Fire and Casualty Co., Inc., 342 So.2d 1248, 1250 (La.App. 4th Cir.1977), writ denied, 345 So.2d 49 (La.1977) stated that "[c]ausation, ... like any other fact, need not be proved by direct evidence and may be shown by circumstantial evidence. The ultimate question is the preponderance of all evidence." The Second Circuit in IMC Exploration Co. v. Henderson, 419 So.2d 490, 495 (La.App. 2d Cir.1982), writs denied, 423 So.2d 1149, 1150 (La.1982), quoting Braud v. Kinchen, 310 So.2d 657 (La.App. 1st Cir.1975), succinctly defined a preponderance of the evidence to mean " 'evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.' " That court went on to state, "[P]roof that something is possible is of little probative value as to an ultimate issues of fact unless it is established with reasonable certainty that all other alternatives are impossible." IMC Exploration at 495 (emphasis supplied), citing Lutheran Church of the Good Shepherd of Baton Rouge v. Canfield, 233 So.2d 331 (La.App. 1st Cir.1970), writ denied, 256 La. 360, 236 So.2d 497 (La.1970). The First Circuit in Johnson v. Wilson, 97 So.2d 674, 682 (La.App. 1st Cir.1957), aff'd in part and rev'd in part, 239 La. 390, 118 So.2d 450 (La.1960), concluded that medical testimony as to a " 'definite possibility' " of the existence of a condition, although it does not meet the alleged test of proving something with a reasonable certainty, nonetheless goes to the weight rather than to the admissibility of the evidence, the preponderance standard applying to the plaintiff's whole case, not to its constituent pieces. See also the rationale of Robertson v. Douglas Steamship Co., 510 F.2d 829 (5th Cir.1975) at 833-34, en banc reh'g denied, 515 F.2d 510 (5th Cir.1975).

The record shows Dr. Ralph Nix, an ophthalmologist specializing in diseases and surgery of the retina, was accepted by the court as an expert in ophthalmology. His records indicate that, beginning March 23, 1978, he saw Mr. Carpenter on consultation from Dr. Moel, who had been the plaintiff's treating eye physician. Dr. Nix saw the plaintiff in response to complaints of blurred vision in his right eye for the previous three days. Carpenter explained that in March of 1977 he had splashed "trichloroethylene" in his left eye. Upon testing, Dr. Nix concluded that vision in the right eye was 20/70 with correction and the left eye could perceive light projection only (i.e., light and the direction from which it was projected). He found evidence that the central retinal vein of the right eye was obstructed and that "the nerve in back of the eye was severely swollen." The left eye "showed evidence of an old central retinal vein occlusion."

Because he did not consider that "this was ... primarily an eye disease, but possibly a systemic disease or a neurological disease that caused the vein to be obstructed secondary to the primary disease," Dr. Nix ordered hospitalization and tests, which were done in late March 1978. Despite Dr. Nix' efforts, "There was a gradual deterioration of the condition in the right eye," with evidence of total occlusion of the central retinal vein appearing. Dr. Nix diagnosed a central retinal vein occlusion. As to causation, he observed, "it is still my feeling that it is not ... primarily an eye disease but it is secondary to something else. I have not reached a conclusion ... as to what the specific ... medical disease is, or neurological disease."

On cross-examination, Dr. Nix says the plaintiff told him he did not splash any chemical in his right eye. In the right eye, Dr. Nix found some evidence of arteriosclerosis, the most common cause of central retinal vein occlusion. Dr. Nix found no evidence of ulceration of the cornea or of any direct penetration through the cornea of the left eye. He clarifies his conclusion as to causation by stating, "my conclusion was that it was the swelling of the optic nerve that compressed the central retinal vein to the extent of causing ... it to obstruct." Dr. Nix concedes that many cases of central retinal vein occlusion arise from unknown cause. He went on to state that he commonly sees central retinal vein occlusions in his practice; however, "it's not commonly seen in both eyes." It usually occurs suddenly. As to whether chemical fumes could affect the optic nerve, he states, "It's in the realm of possibility but I've never seen it."

On redirect, counsel for the plaintiff asks how an internal accumulation of chemical or a drug could affect the optic nerve. However, upon defense's objection, Dr. Nix is not allowed to answer because the court is of the opinion that the applicable criterion is "probability, to a degree of medical certainty." Dr. Nix suspects Mr. Carpenter's problem may be connected to arteriosclerosis, but this conclusion is reached primarily because he can isolate no other cause. The doctor repeats that, in the last analysis, the cause is unknown. When asked if a fat-soluble chemical can penetrate and proceed through the cornea, Dr. Nix replies, "Theoretically it could." He found no evidence of this having...