Tamla Pierre and Chris Taylor v. Myriad Genetics, Inc., and Gregory Abel

TAMLA PIERRE AND CHRIS * NO. 2024-CA-0236
TAYLOR
*
VERSUS COURT OF APPEAL
*
MYRIAD GENETICS, INC., FOURTH CIRCUIT
AND GREGORY ABEL *
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-07027, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Rosemary Ledet
******
(Court composed of Judge Rosemary Ledet, Judge Tiffany Gautier Chase, Judge
Rachael D. Johnson)

Michael E. Lillis
LILLIS LAW FIRM
338 Lafayette Street
New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLANT—CHRIS TAYLOR

Scott R. Bickford
Lawrence J. Centola, III
Jason Z. Landry
MARTZELL, BICKFORD & CENTOLA
338 Lafayette Street
New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLANT—TAMLA PIERRE

Michael C. Mims
Cherrell S. Taplin
Brady M. Hadden
LISKOW & LEWIS, APLC
701 Poydras Street, Suite 5000
New Orleans, LA 70139

Mary S. Johnson
Ingrid Kemp Laurendine
JOHNSON GRAY McNAMARA, LLC
21357 Marion Lane, Suite 300
Mandeville, LA 70471

COUNSEL FOR DEFENDANTS/APPELLEES—MYRIAD GENETICS,
INC., AND GREGORY ABEL

AFFIRMED
September 16, 2024

RML This is a negligence case arising out of the sale of genetic testing1 to a

TGC healthcare provider-patient—Tamla Pierre. The defendants are Myriad Genetics,

RDJ Inc. (“Myriad”), a molecular diagnostic company; and its former account executive

(sales representative), Gregory Abel (collectively “Defendants”). The plaintiffs are

Ms. Pierre and her former husband, Chris Taylor (collectively “Plaintiffs”).

This is Plaintiffs’ second appeal to this Court in this case. The issue in the

prior appeal was whether the trial court erred in granting Defendants’ summary

judgment motion, based on prescription, and dismissing this case. Pierre v. Myriad

Genetics, Inc., 21-0320 (La. App. 4 Cir. 12/15/21), 366 So.3d 386, writ denied, 22-

00212 (La. 3/22/22), 334 So.3d 753 (“Myriad One”). In Myriad One, this Court

held that Plaintiffs “raised a genuine issue of material fact as to when Ms. Pierre

acquired constructive notice sufficient to trigger the running of prescription.” 21-

0320, p. 17, 366 So.3d at 396. Accordingly, this Court reversed the trial court’s

judgment and remanded. Id.

1 Myriad’s genetic testing evaluates a patient’s risk for hereditary cancer. Medical providers can

use the genetic testing results to manage the patient’s treatment. Myriad’s genetic tests are not
“direct-to-consumer” tests; rather, a health care provider is required to order the tests for its
patients. For this reason, if a provider’s patient undergoes genetic testing, Myriad sends the test
results to the provider, not the patient.

1

On remand, a five-day jury trial was held. At the close of Plaintiffs’ case, the

trial court granted Myriad’s motion for directed verdict on Plaintiffs’ direct

negligence claim against it. At the close of the evidence, the jury rendered a verdict

finding Mr. Abel was negligent but that his negligence was not a proximate cause

of Plaintiffs’ injuries (the “No-Causation Finding”). On September 28, 2023, the

trial court rendered judgment in Defendants’ favor, dismissing all of Plaintiffs’

claims against them. From the September 28, 2023 judgment, Plaintiffs appeal.

FACTUAL AND PROCEDURAL BACKGROUND

In 2008, Ms. Pierre—a licensed nurse practitioner—opened A Woman’s

Place—a woman’s health care clinic in New Orleans East. Ms. Pierre’s extensive

medical background included not only a nurse practitioner’s license, but also a

master’s degree in nursing, a license to write controlled substance prescriptions,

and a certification in women’s health.

In 2013, Mr. Abel started working for Myriad as an account executive—

Myriad’s title for its sales representatives. The only qualification Myriad required

its account executives have was a college degree; it did not require them to have

any medical training. Mr. Abel met Myriad’s requirement—he had a college

degree but lacked any medical training. The training Myriad provided to Mr. Abel

in 2013 was two-fold. First, it provided him with home-study materials. Second, it

required that he attend a two to three week, in-person training session at Myriad’s

corporate headquarters in Salt Lake City, Utah. Mr. Abel’s sales territory included

the New Orleans area, which was where he grew up. The product that Mr. Abel

marketed and sold for Myriad was its genetic testing.

In 2016, Ms. Pierre began sharing office space at A Woman’s Place with

another nurse practitioner, Monique Barconey; they both practiced from that

2

location. Also in 2016, Ms. Pierre met Mr. Abel through a mutual acquaintance.

Starting in October 2016 (breast cancer awareness month), Ms. Pierre and Ms.

Barconey began ordering Myriad’s genetic testing for their patients at A Woman’s

Place.

At various times from 2016 to 2019, Mr. Abel was the Myriad account

executive assigned to A Woman’s Place. While handling the account, Mr. Abel

came to A Woman’s Place once or twice a week during lunchtime, dressed in

scrubs. He trained both Ms. Pierre and Ms. Barconey on Myriad genetic testing;

provided them with Myriad literature; helped them with various Myriad

paperwork; and connected them with Myriad’s medical services team, when

necessary.

In December 2016, Ms. Pierre underwent Myriad genetic testing herself

because of her strong family history of cancer, which included three relatives:

(i) her mother, Brenda Thomas, a breast-cancer survivor; (ii) her aunt, who also

had breast cancer; and (iii) her brother, who died of thyroid cancer. Ms. Barconey,

who Ms. Pierre saw as a patient, ordered Ms. Pierre’s genetic testing based on her

strong family history. Ms. Pierre’s situation was unique in that she was both a

patient and a provider with whom the Myriad account executive, Mr. Abel,

interacted as part of his job.

In February 2017, Myriad issued Ms. Pierre’s test results in a report to her.

Ms. Pierre’s results read, in relevant part: “NEGATIVE - NO CLINICALLY

SIGNIFICANT MUTATION IDENTIFIED.” This text was at the top of the page,

highlighted in green.2 Additional text in this section read: “Note: ‘CLINICALLY

2 Green indicated negative test results; whereas, red indicated positive test results.

3

SIGNIFICANT,’ as defined in this report, is a genetic change that is associated

with the potential to alter medical intervention.” Underneath this text, the results

stated that a variant of uncertain significance (“VUS”) was identified. The text

further stated that “uncertain clinical significance” means that “[t]here are currently

insufficient data to determine if these variants cause increased cancer risks.” The

report explained:

Details About Non-Clinically Significant Variants: All individuals
carry DNA changes (i.e., variants), and most variants do not increase
an individual’s risk of cancer or other diseases. When identified,
variants of uncertain significance (VUS) are reported. Likely benign
variants (Favor Polymorphisms) and benign variants (Polymorphisms)
are not reported and available data indicate that these variants most
likely do not cause increased cancer risk. Present evidence does not
suggest that non-clinically significant variant findings be used to
modify patient medical management beyond what is indicated by the
personal and family history and any other clinically significant
findings.

Variant Classification: Myriad’s myVision™ Variant Classification
Program performs ongoing evaluations of variant classifications, in
certain cases, healthcare providers may be contacted for more clinical
information or to arrange family testing to aid in variant classification.
When new evidence about a variant is identified and determined to
result in clinical significance and management change, that information
will automatically be made available to the healthcare provider through
an amended report.

The report additionally advised as follows:

Any discussion of medical management options is for general
information purposes only and does not constitute a recommendation.
While genetic testing and medical society guidelines provide important
and useful information, medical management decisions should be made
in consultation between each patient and his or her healthcare
provider.” Lastly, the report closed with a statement to “contact Myriad
Medical Services at 1-800-469-7423 X 3850 to discuss any questions
regarding this result.

At some point in February or March 2017, Mr. Abel contacted Ms. Pierre to

discuss her test results. Mr. Abel admitted having this conversation with Ms.

Pierre, but his version of the conversation differed from hers. Ms. Pierre’s version

4

was that Mr. Abel received her test results before she did; whereas, Mr. Abel’s

version was that this was not possible. He represented that he never received

patients’ test results.

Ms. Pierre testified that, during the conversation, Mr. Abel told her that she

had the same gene (VUS) as both her mother3 and his wife—Kelly Abel—who

chose to undergo a mastectomy. In contrast, Mr. Abel testified that his wife did not

obtain genetic testing until 2018 (after Ms. Pierre underwent a mastectomy); that

his wife’s testing did not show a VUS; and that his wife never underwent a

mastectomy.

Ms. Pierre also testified that, during the conversation, Mr. Abel showed her

a chart to indicate that her risk of developing cancer was between 80% and 90%.

Ms. Pierre testified that, based on Ms. Abel’s disquieting representations, she

believed that she would develop cancer and that she would need an oncologist’s

care. Ms. Pierre also discussed her test results with her provider, Ms. Barconey,

who referred Ms. Pierre to a surgical oncologist—Dr. Alfred Colfry.

In March 2017, Ms. Pierre first presented to Dr. Colfry to discuss the

possibility of a prophylactic mastectomy. Dr. Colfry’s notes from that office visit

stated as follows:

Ms. Tamla Pierre Taylor is a very pleasant 44 year old with a strong
family history of breast cancer and a positive genetic test result for a
variant of uncertain significance of the BRCA 1 gene. 45 minutes were
spent in face-to-face consultation with the patient. Greater than 50% of
the time was spent counseling the patient on her current diagnosis and
treatment plan moving forward. Benign clinical exam. High risk patient
with a significant probability of developing breast cancer during her
lifetime. We discussed the meaning of VUS in the BRCA 1 gene. We

3 In 2012, Ms. Pierre’s mother, Ms. Thomas, underwent Myriad genetic testing. Neither Ms.

Pierre nor Ms. Thomas was aware of Ms. Thomas’ 2012 Myriad testing until sometime after
October 2016.

5

discussed that it is odd that her mother has the same variant and was
diagnosed with breast cancer. She is very motivated for risk reducing
prophylactic mastectomy.

In May 2017, Dr. Colfry performed the double mastectomy procedure.

Immediately following the mastectomy procedure, Dr. Alireza Sadeghi performed

an autologous breast reconstruction, which involved using tissue from the patient’s

thigh as opposed to implants (collectively the “2017 Surgery”). Although Ms.

Pierre had numerous complications following the 2017 Surgery, she believed the

surgery was necessary to save her life.

Approximately two years later, in April 2019, Myriad issued an amended

report to Ms. Pierre. The amended report re-stated her negative result of no

clinically significant mutations, but it reclassified the variant as one of no clinical

significance. The amended report stated that although Ms. Pierre still carried the

variant, the variant had been determined not to be a pathogenic mutation. When

she received the amended report, Ms. Pierre started questioning Mr. Abel’s

disquieting representations and the necessity of the 2017 Surgery.

In July 2019, Plaintiffs commenced this negligence suit. In their petition,

they averred that, in February and March 2017, Myriad through its sales

representative, Mr. Abel, made negligent representations to Ms. Pierre about her

genetic test results. They further averred that Mr. Abel’s negligent representations

caused Ms. Pierre to undergo an unnecessary surgery. They still further averred

that Myriad was directly negligent in failing to adequately train, supervise, and

oversee Mr. Abel.4

4 Plaintiffs also filed a variant misclassification claim against Myriad, averring that “[t]he

Defendants had a duty to Plaintiff to accurately test for the BRCA gene mutations, to
appropriately interpret the test results, and to appropriately report the test results in order to
properly inform [Ms.] Pierre of the consequences of the test results.” The trial court granted
Defendants’ summary judgment motion on that claim. Plaintiffs did not challenge the dismissal

6

Defendants denied the averments in the petition and filed multiple pre-trial

motions, including a summary judgment motion based on prescription. The trial

court granted the summary judgment motion. In Myriad One, this Court reversed

and remanded. Summarizing our holding in Myriad One, we observed that “the

information Mr. Abel conveyed, as a company employee, could reasonably have

been interpreted as an enhancement of Ms. Pierre’s written results, rather than

notice sufficient to excite her attention of possible wrongdoing.” Myriad One, 21-

0320, p. 17, 366 So.3d at 396.

On remand, Defendants filed a no-duty summary judgment motion, which

the trial court denied on August 28, 2023. In its reasons for judgment, the trial

court observed there were genuine issues of material fact on both the issue of duty

and scope of duty; the trial court observed:

The Defendants claim that the Plaintiff has failed to produce any expert
testimony on what the standard of care is for a sales representative in a
genetic testing company and as such, there is no evidence that the
Defendants owed any duty to the [P]laintiff. The Court finds that this is
not a professional negligence case and as such, the Plaintiff is not
required to have expert testimony on what the standard of care is. The
sales representative did not require any special training to hold his
position and the Court finds that a jury should be able to infer whether
a duty exists or not based upon the evidence and circumstances of this
case. Additionally, even if the Defendant owed no duty due to his
position as a sales representative, the Court finds that there is a genuine
issue of material fact as to whether he assumed a duty due to his alleged
acts in assisting the Plaintiff.5

of that claim.
5 The trial court also observed the following regarding the scope of duty:

The Defendant also claims that the Plaintiff’s injury does not fall under the
Defendant’s scope of duty because there is no ease of association between the
Defendant’s role as a sales representative and the Plaintiff’s decision to get a
mastectomy. Here, the Court finds that in consideration of the Defendant’s alleged
statements to the Plaintiff and the relationship he allegedly had with the Plaintiff,
there is at least a genuine issue as to whether it was reasonably foreseeable for the
Plaintiff to get treatment as a result of the Defendant’s allegedly negligent actions.
While it is true that the medical providers that the Plaintiff saw indicated that they
likely would have recommended treatment for her even absent the genetic test

7

Both parties also filed motions in limine, seeking pre-trial evidentiary

rulings. Only one of those motions in limine is pertinent to this appeal—Plaintiffs’

motion to exclude testimony and opinions that the 2017 Surgery was a potentially

life-saving surgery (the “Motion in Limine”), which the trial court denied.6

In September 2023, a five-day jury trial was held. At the close of Plaintiffs’

case-in-chief, Defendants moved for a directed verdict, seeking dismissal of all

allegations of direct negligence as to Myriad. Defendants contended that there was

insufficient evidence in the record to support such claims. The trial court granted

Defendants’ directed verdict motion.7 Two days later, at the close of the evidence,

the jury returned a verdict in Mr. Abel’s favor, answering only the first two

questions on the verdict form, which were as follows:

1. Do you find, by a preponderance of the evidence, that [Mr.] Abel
was negligent in his dealings with [Ms.] Pierre?

[Jury checked “YES”] . . .

2. Do you find, by a preponderance of the evidence, that any
negligence by [Mr.] Abel was the proximate cause of [Ms.] Pierre’s
injuries?

[Jury checked “NO”8].

If you answered “NO,” please have your foreperson sign and date
this form and return to the courtroom.

results, it may also be true that the Plaintiff would not have consulted these doctors
if she had not met with the Defendant beforehand. In any case, the Court finds that
this is a fact-based issue that requires a credibility determination that is not
appropriate for summary judgment.
6 Both the Motion in Limine and the directed verdict motion are discussed in detail elsewhere in

this opinion, as those two motions are the basis of Plaintiffs’ two assignments of error.
7 Defendants re-raised the prescription exception at this junction, but the trial court denied it.
8 Again, this is referred to in this opinion as the No-Causation Finding.

8

Thereafter, the trial court rendered judgment in Defendants’ favor, dismissing all

of Plaintiffs’ claims against them. This appeal followed.

DISCUSSION

On appeal, Plaintiffs assign as error the trial court’s grant of Defendants’

directed verdict motion and denial of Plaintiffs’ Motion in Limine. We separately

address each issue.

Grant of Defendants’ Directed Verdict Motion

Standard of Review and Principles Governing Directed Verdict Motions

A directed verdict motion is a legal sufficiency of the evidence challenge;

hence, it is subject to the de novo standard of review applicable to all legal issues.

See Hall v. Folger Coffee Co., 03-1734, p. 10 (La. 4/14/04), 874 So.2d 90, 99. The

governing statutory provision is La. C.C.P. art. 1810, which provides:

A party who moves for a directed verdict at the close of the evidence
offered by an opponent may offer evidence in the event that the motion
is not granted, without having reserved the right so to do and to the
same extent as if the motion had not been made. . . . A motion for a
directed verdict shall state the specific grounds therefor. The order of
the court granting a motion for directed verdict is effective without any
assent of the jury.

This Court, in Daspit v. Barber, 00-1221, 00-1222 (La. App. 4 Cir. 4/11/01),

786 So.2d 962, outlined the pertinent principles governing review of a directed

verdict motion as follows:

• A motion for directed verdict may be granted when, after considering
all of the evidence and making all reasonable inferences therefrom in
the light most favorable to the mover's opponent, it is clear that the facts
and inferences are so in favor of the movant that a reasonable person
could not arrive at a contrary verdict.

• Thus, if there is substantial evidence such that reasonable jurors
exercising impartial judgment could reach a different decision, a
motion for directed verdict should be denied.

9

• Furthermore, the trial court is given much discretion in the decision to
grant a directed verdict.

• Thus, the standard of review on appeal is whether, viewing the evidence
contained in the record, the court determines that reasonable people
could not reach a different verdict.

• The propriety of granting a directed verdict must be reviewed in light
of the substantive law underpinning the motion.

Id., 00-1221, 00-1222, p. 3, 786 So.2d at 966 (internal citations omitted and

reformatted).

Application of Principles to Defendants’ Directed Verdict Motion

At the close of Plaintiffs’ case, Defendants filed a directed verdict motion,

re-urging the same arguments they raised in their no-duty summary judgment

motion. In support of the motion, Defendants’ counsel argued:

The evidence shows there was plenty of training that Mr. Abel
underwent. We have not heard testimony about what additional training
should have happened. This goes back to the expert issue that we keep
raising on failure to train. It is just like a negligence claim. You look to
what would a reasonable person or company do under the
circumstances. That is certainly an industry standard question. What
sort of training should a diagnostic laboratory provide for it sales staff.
We have not heard any evidence about how a jury could possibly
answer that question. As to the directed verdict we are just looking at
dismissal of direct negligence of Myriad, not talking about dismissing
the whole case. There is still vicarious liability.

Agreeing with Defendants, the trial court granted the directed verdict motion.

On appeal, Plaintiffs contend that the trial court erred in granting

Defendants’ directed verdict motion and in finding that they failed to submit

sufficient evidence to support their direct negligence claims against Myriad.

According to Plaintiffs, they entered into the record ample proof supporting a

finding that Myriad was directly negligent regarding its training, oversight, and

supervision of Mr. Abel. Plaintiffs contend that a reasonable jury could have

10

reached a verdict in Plaintiffs’ favor as to the direct negligence claims against

Myriad for three reasons:

• The jury could have reasonably concluded that Myriad failed to adequately
train [Mr.] Abel as to the meaning of VUS, the purpose behind its internal
policies, and the foreseeable consequences of his violations;

• The jury could have reasonably concluded that Myriad negligently trained
[Mr.] Abel to mislead by selling diagnostic tests through fear, uncertainty, and
doubt and story-telling;9 and

• The jury could have reasonably concluded that Myriad failed to supervise and
oversee [Mr.] Abel.

For these reasons, Plaintiffs contend that they were entitled to have their direct

negligence claim against Myriad decided by the jury. Plaintiffs further contend that

the trial court’s rulings denying Defendants’ no-duty summary judgment motion

and granting Defendants’ directed verdict motion were inconsistent given the same

evidence was before the trial court when it ruled on both motions.

Defendants counter that the trial court’s denial of the no-duty summary

judgment motion did not preclude it from granting a directed verdict. Defendants

further counter that the trial court properly granted Myriad’s motion for directed

verdict after Plaintiffs: (i) failed to retain any expert to testify as to Myriad’s

alleged liability; (ii) failed to introduce the article 1442 deposition testimony of

Myriad, and (iii) failed to introduce evidence of any direct negligence by Myriad

related to the alleged failure to train Mr. Abel.

Regardless, Defendants contend that the No-Causation Finding meant that

there was no basis for the jury to conclude that Myriad providing more or a

different type of training to Mr. Abel would have prevented Plaintiffs’ injuries. In

9 The 2013 home-study materials and in-person training that Myriad provided to Mr. Abel

included such sales-training topics.

11

their appellee brief, Defendants argue that given the No-Causation Finding,

“Plaintiffs could not have succeeded in proving causation as to any direct

negligence by Myriad” and that Plaintiffs failed “to address this logical fallacy

underpinning their appeal.”

In addressing this issue, we first clarify, as Defendants contend, that the trial

court’s interlocutory ruling on the no-duty summary judgment motion did not

preclude it from granting a subsequent directed verdict motion. As this Court has

observed, “a trial court may grant a re-urged motion for summary judgment, even

when no new evidence has been submitted.” Serou v. Touro Infirmary, 15-0747,

pp. 7-8 (La. App. 4 Cir. 4/13/16), 191 So.3d 1090, 1095 (internal citation and

quotations omitted). The same principle applies to a subsequent directed verdict

motion. Nonetheless, the trial court’s ruling on the directed verdict motion is

procedurally and substantively problematic.

Procedurally, the ruling is problematic in that it grants a partial directed

verdict on a single theory of recovery against Myriad. The governing statute—La.

C.C.P. art. 1810—is silent on whether such a partial directed verdict is allowed.

See 1La. CIV. L. TREATISE, CIVIL PROCEDURE § 11:8 (2d ed. 2021) (observing that

“[i]t is not clear whether the judge can grant a partial directed verdict, dismissing

one of the plaintiff’s theories of recovery or elements of damage” and citing

Hawthorne v. Southeastern Fidelity Ins. Co., 387 So.2d 26 (La. App. 3d Cir.

1980)).

Substantively, the ruling is problematic in that there is a strong argument

that the evidence Plaintiffs presented in their case-in-chief was sufficient to

preclude granting a direct verdict. Moreover, as Plaintiffs point out, their direct

negligence claim against Myriad includes allegations of not only negligent

12

training, but also negligent oversight and supervision. Although Plaintiffs did not

retain an expert to testify on their failure to train claim, Plaintiffs’ claim against

Myriad sounds in ordinary, not professional (malpractice), negligence. Thus, an

expert’s testimony was not required. And, although Plaintiffs did not call Myriad’s

1442 deposition representative as a witness, Plaintiffs called Susan Manley—

Myriad’s Senior Vice-President of Medical Services and former regional sales

team leader. Ms. Manley confirmed that no one from Myriad’s corporate office in

Salt Lake City came to New Orleans periodically to monitor Mr. Abel.

Regardless, we find it unnecessary to decide whether the trial court erred,

procedurally or substantively, in granting the partial directed verdict. As

Defendants correctly point out, the No-Causation Finding precludes Plaintiffs from

successfully proving causation as to any direct negligence by Myriad. Put

differently, given the No-Causation Finding, there was no basis to conclude that

Myriad providing additional or a different type of training to Mr. Abel would have

prevented Plaintiffs’ injuries. Accordingly, the trial court’s error, if any, in granting

a partial directed verdict on Plaintiffs’ direct negligence claims against Myriad was

harmless. Hence, Plaintiffs’ argument regarding the trial court’s grant of the partial

directed verdict motion is unpersuasive.

Denial of Motion in Limine

Standard of Review and Principles Governing Motions in Limine

In ruling on evidentiary matters, including motions in limine, a trial court is

afforded broad discretion; and its determination is not to be disturbed on appeal

absent a clear abuse of that discretion. George v. Progressive Waste Sols. of La,

Inc., 22-1068, p. 5 (La. 12/9/22), 355 So.3d 583, 587 (citation omitted).

The governing statutory provision is La. C.E. art. 403, which provides:

13

Although 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 considerations of
undue delay, or waste of time.

“Expert testimony based on speculation, conjecture and mere possibilities cannot

support a judgment.” Lott v. Lebon, 96-1328, 96-1329, p. 8 (La. App. 4 Cir.

1/15/97), 687 So.2d 612, 618 (citation omitted).

An appellate court employs a two-part test in reviewing a trial court’s

evidentiary ruling. First, the appellate court must determine whether the

evidentiary ruling was erroneous. Second, if the ruling was erroneous, the appellate

court must determine whether the error affected a party’s substantial right; if not,

reversal is not warranted. Hays v. Christus Schumpert N. Louisiana, 46,408, p. 7

(La. App. 2 Cir. 9/21/11), 72 So.3d 955, 961. “The determination is whether the

error, when compared to the record in its totality, has a substantial effect on the

outcome of the case.” Palmer v. UV Ins. Risk Retention Grp., Inc., 18-404, p. 12

(La. App. 5 Cir. 12/19/18), 262 So.3d 1006, 1015 (citation omitted).

The party alleging prejudice resulting from a trial court’s evidentiary ruling

has the burden of proof. Freeman v. Phillips 66 Co., 16-0247, p. 5 (La. App. 4 Cir.

12/21/16), 208 So.3d 437, 441-42 (citations omitted). “Cumulatively, errors in

evidentiary rulings, coupled with other improper circumstances occurring at trial,

may be so prejudicial as to deprive the parties of a fair trial, and thus may

constitute reversible error, even if none of the errors considered alone would be

sufficient to rise to the level of reversible error.” Lovecchio v. Romain, 19-0779,

19-0864, 19-0865, pp. 7-8 (La. App. 4 Cir. 3/25/20), 364 So.3d 202, 209 (internal

citations and quotations omitted).

Application of Principles to Plaintiffs’ Motion in Limine

14

Before trial, Plaintiffs filed the Motion in Limine in anticipation of

Defendants eliciting testimony from their surgical-oncologist expert—Dr. Peter

Beitsch—that the 2017 Surgery was “potentially a life-saving surgery.” Simply

stated, Plaintiffs sought to exclude Dr. Beitsch from expressing that four-word

opinion. In support, they quoted Dr. Beistch’s expert report, which stated:

[The 2017 Surgery] was not “unnecessary”—in fact, if [Ms.] Pierre
never underwent that surgery, today she would remain at high-risk of
developing breast cancer during her lifetime. For these reasons, the
2017 mastectomy was potentially a life-saving surgery.

Citing La. C.E. art. 403, Plaintiffs argued that Dr. Beitsch’s anticipated testimony

that the 2017 Surgery was “potentially a life-saving surgery” should be excluded

because its probative value was substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury.

Defendants countered that they retained Dr. Beitsch to rebut Plaintiffs’

averment in their petition that Ms. Pierre suffered damages in the form of an

“unnecessary double mastectomy”—the 2017 Surgery. According to Defendants,

Dr. Beitsch was prepared to render the following three opinions at trial:

• Before the 2017 mastectomy, risk models showed that Ms. Pierre had a
46.3% lifetime risk of breast cancer;

• Today, in light of the mastectomy, Ms. Pierre’s lifetime risk of breast
cancer is less than 5%; and

• The 2017 mastectomy was potentially life-saving surgery, because in
the absence of the surgery, today, Ms. Pierre would still be at high risk
of breast cancer.

By filing the Motion in Limine, Plaintiffs sought to preclude Dr. Beitsch from

rendering the third opinion. Defendants argued that the requirements for invoking

La. C.E. art. 403 were not met here. Dr. Beitsch’s opinions directly refuted a key

element of Plaintiffs’ alleged damages. Further, Dr. Beitsch’s opinions would

15

assist, not confuse or mislead, the jury on the issue of whether the 2017 Surgery

achieved Ms. Pierre’s stated goal of reducing her cancer risk. Agreeing with

Defendants, the trial court denied the Motion in Limine.

On appeal, Plaintiffs contend that to sufficiently rebut their allegations that

the 2017 Surgery was unnecessary and to qualify as a relevant admissible opinion

testimony legally sufficient to support a judgment, Dr. Beitsch’s opinion testimony

was required to be expressed as “more likely than not” or “probably” true.

According to Plaintiffs, Dr. Beitsch carefully opined that the 2017 Surgery was a

potentially life-saving surgery due to Ms. Pierre’s increased risk. He, however,

failed to offer any evidence to prove that Ms. Pierre more likely than not would

have developed breast cancer in her lifetime, which Plaintiffs claim was required to

establish that the 2017 Surgery was likely necessary or lifesaving. Indeed,

Plaintiffs emphasize Dr. Beitsch’s calculation was that Ms. Pierre's life-time risk of

developing cancer was 48%, foreclosing any opinion that she would have more

likely than not developed cancer in her lifetime. Plaintiffs, thus, contend that Dr.

Beitsch could not say to a level of medical probability that the 2017 Surgery saved

her life. As a result, Plaintiffs contend that Dr. Beitsch’s testimony was speculative

and irrelevant.

Plaintiffs further contend that, even assuming Dr. Beitsch’s testimony was

relevant and admissible evidence under La. C.E. art. 401, in the context of this

case, the probative value of his testimony was substantially outweighed by its

prejudicial effect. Plaintiffs contend that his testimony mislead the jury into

believing that Ms. Pierre suffered no injuries at all; thus, they contend that this

evidence should have been excluded under La. C.E. art. 403.

16

Defendants counter that Plaintiffs waived their objection to Dr. Beitsch’s

testimony. In support, they cite Plaintiffs’ failure to make a contemporaneous

objection at trial to this testimony. Alternatively, Defendants contend that the trial

court did not abuse its vast discretion in denying the Motion in Limine. Defendants

emphasize that Plaintiffs cite no authority for their contention that, in order to

qualify as a relevant admissible opinion testimony legally sufficient to support a

judgment, Dr. Beitsch’s rebuttal testimony was required to be expressed as “more

likely than not” or “probably” true. Regardless, Defendants point out that Dr.

Beitsch did testify, with reasonable scientific certainty, that Ms. Pierre received

substantial benefit from the 2017 Surgery in the form of a reduced risk of cancer,

rebutting Plaintiffs’ unnecessary surgery allegation. Dr. Beitsch appropriately

testified that he had calculated Ms. Pierre’s lifetime risk of breast cancer before the

2017 Surgery at 48% and that after the surgery, her lifetime risk had decreased to

less than 5%. Thus, his testimony was properly used to rebut Plaintiffs’ allegation

that the 2017 Surgery was wholly unnecessary.

Defendants further counter that Plaintiffs’ argument that the trial court’s

admission of Dr. Beitsch’s testimony had a substantial effect on the outcome of the

trial is belied by Ms. Pierre’s testimony that she initially viewed the 2017 Surgery

as life-saving, coupled with Dr. Colfry’s characterization of Ms. Pierre as “a high-

risk patient” based on her family history and his description of the 2017 Surgery as

a “risk-reducing prophylactic mastectomy.”

We conclude that the trial court did not abuse its discretion in denying the

Motion in Limine. The Motion in Limine was based on Dr. Beistch’s anticipated

opinion testimony that the 2017 Surgery was “potentially a life-saving surgery.”

As Defendants contend, Plaintiffs opened the door to a discussion of the potential

17

benefits of the 2017 Surgery by alleging in their petition that the 2017 Surgery was

an unnecessary surgery. Likewise, as Defendants’ contend, Plaintiffs’ argument

that Dr. Beistch’s testimony was subject to a “more likely than not” standard is

without any cited support.

The substance of Dr. Beitsch’s opinion testimony that the 2017 Surgery was

“potentially a life-saving surgery” was that, absent the surgery, Ms. Pierre would

still be at high risk of breast cancer. Dr. Beitsch’s opinion testimony was, in

essence, that the 2017 Surgery was a risk-reducing one. This same opinion was

voiced at trial by Ms. Pierre’s own doctor, Dr. Colfry. The jury, as Defendants

point out, heard Dr. Colfry testify, in his video deposition that was played at trial,

that the 2017 Surgery was a risk-reducing surgery. Dr. Beitsch’s description of the

2017 Surgery as a potentially life-saving surgery was no different. As Defendants’

attorney pointed out at oral argument before this Court, the language Dr. Beitsch

used to describe the 2017 Surgery—a “potentially life-saving surgery”—was not

very different from the language Ms. Pierre’s own doctor, Dr. Colfry, used—a

“risk reducing prophylactic mastectomy.” Both doctors’ descriptions of the 2017

Surgery expressed the same opinion—but for the 2017 Surgery, Ms. Pierre’s risk

of developing breast cancer would have been higher. Accordingly, we find no

abuse of discretion in the trial court’s denial of the Motion in Limine.

Given our finding that the trial court did not abuse its discretion, we

pretermit Defendants’ waiver argument. See Joseph v. Williams, 12-0675, p. 13,

n.10 (La. App. 4 Cir. 11/14/12), 105 So.3d 207, 216 (pretermitting the procedural,

waiver issue).10 We also pretermit Plaintiffs’ argument regarding the cumulative

10 Nonetheless, we quote our observations regarding the waiver issue set forth in Joseph, 12-

0675, p. 13, n.10, 105 So.3d at 216:

18

effect of evidentiary errors. Hence, Plaintiffs’ argument regarding the trial court’s

denial of the Motion in Limine is unpersuasive.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

Insofar as the lack of a contemporaneous objection, the Louisiana Code of Evidence
(La. C.E. art. 103), unlike the Federal Rules of Evidence, is silent on whether a
party is required to renew an evidentiary objection on which a definite ruling is
obtained pre-trial by motion in limine in order to preserve that claim for appeal.
The federal rules of evidence expressly provide that “[o]nce the court rules
definitively on the record—either before or at trial—a party need not renew an
objection or offer of proof to preserve a claim of error for appeal.” Federal Rules
of Evidence Rule 103(b). As a commentator points out, this provision, which was
added to the federal rule in 2000, eliminates the procedural trap asserted here
because it “apparently eliminates the need for a party to make continuous
objections, or to make an objection ‘general’ to a line of questioning.” Frank L.
Maraist, 19 LOUISIANA CIVIL LAW TREATISE, EVIDENCE AND PROOF §
2.7 (2012 ed.). The commentator further points out that before the 2000 amendment
“federal courts adhered to the rule that a motion in limine is insufficient to preserve
error in the admission of evidence where the contemporaneous objection
requirement of Rule 103 is not met.” Id. The commentator still further points out
that “[i]f evidence is deemed admissible on a motion in limine, the opponent
probably should reurge the objection when the evidence is offered at trial.”

Id.; but see Maldonado v. Kiewit Louisiana Co., 12-1868, 12-1869, p. 15 (La. App. 1 Cir.
5/30/14), 152 So.3d 909, 923 (citing Lafleur v. John Deere Co., 491 So.2d 624, 632 (La. 1986),
and rejecting a waiver argument).

19