Kenneth Soutullo Versus Lammico

KENNETH SOUTULLO, ET AL NO. 24-C-441

VERSUS FIFTH CIRCUIT

LAMMICO, ET AL COURT OF APPEAL

STATE OF LOUISIANA

October 28, 2024

Linda Wiseman
First Deputy Clerk

IN RE KENNETH SOUTULLO AND SHARON SOUTULLO

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE RAYMOND S.
STEIB, JR., DIVISION "A", NUMBER 821-396

Panel composed of Judges John J. Molaison, Jr.,
Scott U. Schlegel, and Timothy S. Marcel

WRIT GRANTED

In their writ application, plaintiffs Kenneth and Sharon Soutullo, seek

review of the trial court’s August 20, 2024 judgment, which granted defendants’

Daubert Motion and Motion in Limine, prohibiting plaintiffs’ infectious disease

expert, Bobson Lutz, MD, from testifying at trial.1 The trial court excluded Dr.

Lutz’s testimony in its entirety on the grounds that it is cumulative. For reasons

explained below, we grant the writ application, reverse the trial court’s judgment

and remand for the trial court to consider the issues raised in the motion in limine

regarding Dr. Lutz’s qualifications to testify as an expert.

This matter arises from plaintiffs’ medical malpractice claims alleging that

orthopedic surgeon, Dr. Wesley Clark, failed to diagnose and treat a spinal

infection. In their motion in limine, defendants explained that Dr. Lutz provided

1
The motion in limine was filed by defendants LAMMICO, Wesley Clark, MD, L. Thomas Cashio, MD, Mark
Juneau, Jr. MD, and APC d/b/a Jefferson Orthopedic Clinic.

an affidavit containing his expert opinions on causation issues. However, they

contend that during his deposition, Dr. Lutz expanded his opinions and addressed

issues relating to an alleged breach of the standard of care. Defendants argued in

their motion in limine that Dr. Lutz is not qualified to testify regarding the standard

of care or breach of the standard for orthopedic surgery, and further argued that in

the alternative that if Dr. Lutz is qualified to testify on these elements, his

testimony would be cumulative to plaintiffs’ two other experts, Dr. Hershman

(orthopedic surgery) and Dr. Cohen (anesthesiology/pain management).

Defendants further argued that Dr. Lutz’s causation opinions in his affidavit and

deposition testimony regarding infectious disease issues should be excluded

because Dr. Lutz is not qualified to testify as an infectious disease expert.

According to the transcript from the evidentiary hearing, Dr. Lutz testified

and was cross-examined regarding his experience in the field of infectious disease.

Defendants did not offer any of the exhibits attached to their motion in limine into

evidence. Following the hearing, the trial court ruled that it was excluding the

entirety of Dr. Lutz’s expert testimony based on its finding that his testimony

would be cumulative to testimony of plaintiffs’ other experts.

In their writ application, plaintiffs argue that the trial court erred in

excluding Dr. Lutz’s testimony as cumulative because: 1) defendants did not

introduce any evidence to support this argument; 2) defendants did not argue in

their motion that Dr. Lutz’s opinions on causation issues would be cumulative; 3)

the ruling is premature because plaintiffs may decide to call Dr. Lutz as their

primary expert witness; and 4) the testimony is not cumulative because Dr. Lutz is

the plaintiffs’ only infectious disease expert.

A trial court is afforded broad discretion in its consideration of evidentiary

matters, including motions in limine, which are not to be disturbed on appeal

absent a clear abuse of that discretion. George v. Progressive Waste Solutions of

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

As discussed above, the transcript indicates that the only evidence presented

at the hearing on the motion in limine was Dr. Lutz’s testimony. Defendants did

not introduce any evidence regarding the content of the other experts’ opinions or

testimony to establish the cumulative nature of Dr. Lutz’s testimony regarding the

standard of care and breach of the standard. See DePhillips v. Technology

Insurance Company, 19-329 (La. App. 5 Cir. 10/2/19), 2019 WL 4866777 (finding

that the trial court erred by granting a motion in limine based on an expert report

that was not admitted into evidence). In addition, defendants only argued that Dr.

Lutz’s testimony on the standard of care and breach of the standard should be

excluded as cumulative. Defendants did not move to exclude Dr. Lutz’s causation

opinions as cumulative.

Accordingly, we find that the trial court abused its discretion by granting the

motion in limine to exclude the entirety of Dr. Lutz’s testimony based on the

ground that it is cumulative. We grant this writ application, reverse the trial

court’s judgment and remand the matter for consideration of the issues raised in the

motion in limine regarding Dr. Lutz’s qualifications to testify as an expert. If Dr.

Lutz is qualified to testify, defendants may re-urge their arguments regarding the

cumulative nature of the proposed testimony at trial or in accordance with any

scheduling order issued by the trial court.

Gretna, Louisiana, this 28th day of October, 2024.

SUS
JJM
TSM

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 10/28/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-C-441
E-NOTIFIED
24th Judicial District Court (Clerk)
Hon. Raymond S. Steib, Jr. (DISTRICT JUDGE)
Bryan J. Knight (Respondent) T. Carey Wicker, III (Relator)

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