Glenda Schexnayder v. Gary L. Mathews, M.D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1421

GLENDA SCHEXNAYDER, ET AL.

VERSUS

GARY L. MATHEWS, M.D., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20026522
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
Marc T. Amy, Judges.

AFFIRMED.

James R. Shelton
Shawn A. Carter
Jacques Emil deMoss
Durio, McGoffin, Stagg & Ackermann
P. O. Box 51308
Lafayette, LA 70505-1308
Telephone: (337) 233-0300
COUNSEL FOR:
Defendants/Appellees - St. Paul Fire & Marine Insurance Company
and Gary L. Mathews, M.D.

Deborah Ellen Lavender
Benjamin Paul Mouton
McGlynn, Glisson & Koch
P. O. Box 1909
Baton Rouge, LA 70821
Telephone: (225) 344-3555
COUNSEL FOR:
Plaintiffs/Appellants - Glenda Schexnayder, Clarence Schexnayder,
Amy Schexnayder, and Angela Schexnayder

THIBODEAUX, Chief Judge.

In this medical malpractice case, plaintiffs, Glenda Schexnayder, her

husband and two major daughters, appeal the jury verdict in favor of defendant, Dr.

Gary L. Mathews. The jury concluded that he did not breach the standard of care in

his treatment of Mrs. Schexnayder. Mrs. Schexnayder alleges that Dr. Mathews

misread and/or improperly interpreted screening mammogram films, which led to a

delay in the diagnosis of breast cancer. For the following reasons, we affirm.

I.

ISSUES

We will consider whether:

1) during voir dire, in light of a Batson/Edmonson
challenge, the trial court erred in its ruling allowing
peremptory challenges of jurors to stand;

2) the trial court erred in allowing the Medical Review
Panel Opinion into evidence; and,

3) the trial court erred in allowing an expert witness to
testify when a PowerPoint presentation was not
produced.

II.

FACTS

On January 21, 1999, Mrs. Schexnayder had a screening mammogram

performed. The mammogram films were reviewed by Dr. Mathews, and he concluded

they were “normal” with no significant changes from a 1994 mammogram screening.

After another mammogram screening in April, 2000, Mrs. Schexnayder was

diagnosed with breast cancer, which later metastasized to various other locations of

her body.

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Mrs. Schexnayder sought to prove that the January 21, 1999

mammogram film show asymmetrical density in the left breast which should have

prompted Dr. Mathews to investigate further. Plaintiffs believe that this would have

led to an earlier diagnosis and a better prognosis for Mrs. Schexnayder.

A medical review panel convened as a result of this allegation and

rendered a decision in favor of Dr. Mathews. Subsequently, the Schexnayders filed

suit in district court, which was tried to a jury. Prior to trial, plaintiffs sought to

exclude radiologist, Dr. Eva Rubin, head of breast imaging at the University of

Alabama at Birmingham, for failure to provide her PowerPoint presentations for

review. Plaintiffs also sought to exclude the Medical Review Panel Opinion (MRP

Opinion) on the basis that defendants did not call any panel members to testify at trial

to lay a foundation to admit the panel’s opinion into evidence. Lastly, plaintiffs made

a Batson/Edmonson challenge during jury selection following defendant’s use of

peremptory strikes.

The jury rendered a verdict in favor of Dr. Mathews. Plaintiffs seek

reversal of the judgment and a new trial based on the perceived errors in the trial

court’s ruling on the issues set forth above.

III.

LAW AND DISCUSSION

Batson/Edmonson Challenge

In these proceedings, the jury venire consisted of twenty-four persons.

Five members of the jury venire were black. Defendant used five of six peremptory

challenges on black potential jurors, thus eliminating all blacks from potential

service. The trial court upheld a Batson challenge on two jurors, Ms. Karen Lambert

and Ms. Marlena Ann Arceneaux, and placed them back on the jury after a successful

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Batson challenge. The trial court upheld the peremptory challenges of Ms. Beverly

Marie Johnson and Mr. Caffery Levine in light of the non-pretextual explanations

offered by counsel for Dr. Mathews.

On review of the Batson challenge, the composition of the jury was

accepted by the Schexnayders and, therefore, the objection to the jury’s constitution

was waived. After reinstating Ms. Lambert and Ms. Arceneaux, plaintiffs’ counsel

responded, “[W]e have our jury and an alternate.” (Emphasis added). Co-counsel

for the Schexnayders, Ms. Lavender, added, “[A]nd I think that on the whole, any real

person would say that’s a pretty good jury, a pretty good cross section of human

being.” Following that remark, the court reporter noted the “end of jury selection.”

After reviewing the record, we find the objection to the jury’s composition was

waived in light of the acquiescence by the Schexnayders’ counsel. See generally

LaHaye v. Allstate Ins. Co., 570 So.2d 460 (La.App. 3 Cir. 1990), writ denied, 575

So.2d 391 (La.1991); Simms v.Progressive Ins. Co., 38,804 (La.App. 2 Cir. 9/29/04),

883 So.2d 473.

Medical Review Board Opinion

The Schexnayders asserts that the introduction of the MRP Opinion was

improper because a doctor from the panel was not called upon to lay a foundation for

its introduction into evidence. In addition, they assert that the presence of a doctor

from the panel is needed to determine if the opinion and written reasons in the MRP

Opinion were relevant and reliable.

Louisiana Revised Statutes 40:1299.47(H) directly speaks to the

introduction of the MRP Opinion and sets out that it “shall be admissible”; the MRP

Opinion is not to be considered conclusive; and either party may call a panel member

as a witness. Louisiana Revised Statutes 40:1299.47(H) is specific statutory

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authorization and, therefore, governs the ability of the MRP Opinion to be admitted

into evidence. Like the trial court, we find Subsection (H) of the statutory scheme

clearly provides for the introduction of the opinion in this instance. Several cases

have allowed for the MRP Opinion to come into evidence with or without a panelist

testifying. See Taylor v. Sauls, 99-1436 (La.App. 3 Cir. 9/6/00), 772 So.2d 686, writs

denied, 00-2802, 00-2805 (La. 12/8/00), 776 So.2d 461; see generally Medine v.

Roniger, 03-3436 (La. 7/2/04), 879 So.2d 706; Galloway v. Baton Rouge Gen. Hosp.,

602 So.2d 1003 (La.1992). The statute does not require a supporting foundation.

Also, we note that either party is allowed to call a member of the panel as a witness

pursuant to La.R.S. 40:1299.47(H) or La.Code Evid. art. 611(B). The Schexnayders

failed to exercise this opportunity to examine any of the members to address the

concerns mentioned earlier. Their arguments lack merit.

Dr. Eva Rubin’s Expert Testimony

The Schexnayders filed a motion in limine to exclude the expert

testimony of Dr. Eva Rubin and suggest that the trial court should have granted the

motion on the basis of Dr. Rubin’s failure to provide any PowerPoint presentations

for review. There is no merit to this assertion. The record indicates that, although it

was mentioned in a previous deposition, Dr. Rubin did not plan to utilize a

PowerPoint presentation during her testimony. In addition, Dr. Rubin and counsel

for Dr. Mathews informed the court that the PowerPoint presentation dealt with breast

ultrasound rather than assymetric breast densities upon which this dispute focused.

Based on the record, we find no manifest error by the trial court in allowing Dr.

Rubin to testify.

We also note that under La.Code Civ.P. art. 371, an attorney “shall not

knowingly make any misrepresentation, or otherwise impose upon or deceive the

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court.” This is an adequate safeguard in trusting that Dr. Mathews’ lawyers truthfully

explained that no PowerPoint presentations existed regarding this issue.

IV.

CONCLUSION

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

costs of this appeal are assessed against the Schexnayders as plaintiffs-appellants.

AFFIRMED.

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