Rickey Clark v. Louisiana Medical Mutual Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-634

RICKEY CLARK

VERSUS

LOUISIANA MEDICAL MUTUAL INS. CO., ET AL.

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. C-2006-1115
HONORABLE HERMAN I. STEWART, JR., DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Marc T. Amy, Judges.

AFFIRMED.

John E. Bergstedt
The Bergstedt Law Firm
P. O. Box 1884
Lake Charles, LA 70602
Telephone: (337) 436-4600
COUNSEL FOR:
Defendants/Appellees - Louisiana Medical Mutual Ins. Co. and Dan
Butler, M.D.

Joseph Anthony Delafield
P. O. Box 4272
Lake Charles, LA 70606-4272
Telephone: (337) 477-4655
COUNSEL FOR:
Intervenor Appellee - Texas Property & Casualty Insurance
Guaranty Assoc.

R. Scott Iles
P. O. Box 3385
Lafayette, LA 70502
Telephone: (337) 234-8800
COUNSEL FOR:
Plaintiff/Appellant - Rickey Clark

THIBODEAUX, Chief Judge.

This case involves a medical malpractice suit brought by the plaintiff-

appellant, Rickey Clark, Sr., against the defendants-appellees, Dr. Dan Butler and his

malpractice carrier, Louisiana Medical Mutual Insurance Company (Medical Mutual).

The jury found that Dr. Butler had not breached the applicable standard of care in his

treatment of Mr. Clark and entered a verdict to that effect. Mr. Clark’s motion for

a judgment notwithstanding the verdict and for a new trial was denied. Mr. Clark

filed this appeal. We affirm the judgment of the trial court.

I.

ISSUES

We must decide:

(1) whether the trial court erred under La.C.E. art. 609
in admitting evidence of the plaintiff’s guilty plea to
aggravated incest in 2000; and

(2) whether the trial court manifestly erred in denying
the plaintiff’s requests for a judgment
notwithstanding the verdict and a new trial.

II.

FACTS AND PROCEDURAL HISTORY

Rickey Clark, Sr. sustained a work-related injury in Texas in June 2004

when he slipped off of a cross tie being used as a catwalk a couple of feet above the

ground. He twisted and injured his right foot, ankle, and heel. The radiology report

on the date of the injury demonstrated a comminuted fracture of the calcaneus, or

heel. The fracture line extended into the subtalar joint, which is the joint beneath the

ankle joint.

Mr. Clark began seeing Dr. Dan Butler, an orthopedist in DeRidder,

Louisiana, a week after the injury. He arrived on crutches and in a cast boot with

complaints of throbbing pain in the right heel, not relieved by the Lortab that he was

taking for pain. Upon examination, Dr. Clark noted bruising on the heel and through

the mid-foot area. He warned Mr. Clark not to bear weight until further treatment.

Dr. Butler diagnosed a calcaneal fracture of the right foot and ordered a CT scan. The

June 2004 CT scan identified a severely comminuted fracture of the calcaneus and a

chip fracture arising from the posterior aspect of the talus. Dr. Butler planned to

perform surgery on the heel. However, when it was determined that Dr. Butler was

not on the physician list of the workers’ compensation carrier, Mr. Clark was

transferred from Dr. Butler to Dr. Dale Bernauer, an orthopedist in Lake Charles.

Dr. Bernauer first saw Mr. Clark in July 2004, three weeks after the

injury. His history stated that the patient slipped off a catwalk and caught his weight

on his right ankle and was painful at the heel. His x-rays showed a fractured

calcaneus with mild flattening. The fracture had started to heal. Dr. Bernauer opined

that Mr. Clark’s condition would have to be accepted like it was, and that Mr. Clark

might develop arthritic changes after the healing. Dr. Bernauer treated Mr. Clark

conservatively for six months. During that time, he ordered an MRI. The MRI report

referenced a history of right ankle pain medially and laterally. In addition to the heel

fracture, the MRI report described bone bruising, and a small tibiotalar (ankle joint)

subtalar effusion. By December 2004, Dr. Bernauer noted no improvement and

explained to Mr. Clark that he might benefit from a subtalar fusion. He referred him

to pain management for evaluation and possible treatment.

Unhappy with Dr. Bernauer’s conservative treatment, Mr. Clark

requested a change of treating physician, asking to return to Dr. Butler who was now

on the workers’ compensation physician list. Mr. Clark stated in the request that Dr.

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Butler would do the proper surgery to his ankle and heel that would enable him to

return to work.

Dr. Butler began seeing Mr. Clark again in late December 2004. He

noted the MRI results and current x-rays of the heel showing that it had shortened and

had lost the Boehler’s angle. He reported that Mr. Clark continued to complain of

pain with weight bearing and that at some point he would need a subtalar fusion. Dr.

Butler’s impression was malunion of the right calcaneus, tobacco abuse, and

osteoarthritis of the MP joint of the right great toe, due to a crush injury in the 1980s.

He ordered a bone scan in January 2005. The report stated that there was a rather

pronounced increased uptake of radiographic material at the right ankle and described

the condition as chronic and degenerative and related to repetitive stress. The

impression was that the abnormalities were most severe at the right ankle.

By February 2005, Mr. Clark was taking MS Contin, which is morphine,

and asking for something stronger. He complained of throbbing pain. Dr. Butler’s

report indicates that his impression was severe osteoarthritis of the right ankle and

heel and that his plan was to perform a total ankle fusion. Mr. Clark was admitted to

Beauregard Memorial Hospital, and Dr. Butler performed a two-joint subtalar and

tibiotalar fusion on February 24, 2005. Following surgery, Mr. Clark continued to

complain of pain, calling Dr. Butler regularly for pain medication, and going several

times to the emergency room of Beauregard Memorial Hospital for pain shots and

pain medication. On two separate office visits in March 2005, Dr. Butler reported

drug addiction and Lortab addiction, which he thought was the reason that Mr. Clark

was not getting relief from pain. Again, on two separate visits in June 2005, Dr.

Butler notes drug-seeking behavior.

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Dr. Butler noted that Mr. Clark had continuing complaints of pain, even

though he was not getting out of bed and putting weight on the foot. He expressed

his concerns over the fact that Mr. Clark was not walking, which would not help the

fusion to occur. Additionally, Mr. Clark did not clean his wound with the

antibacterial solution recommended but used Epsom salts instead. Dr. Butler also had

concerns regarding Mr. Clark’s continued smoking in spite of having been told early

on that his smoking would interfere with the fusion. In mid-April 2005, when Mr.

Clark went to the emergency room for pain medication, blood work was taken and he

was told that he had an infection. When he saw Dr. Butler a couple of days later, Dr.

Butler noted no signs of infection. By the next visit, Dr. Butler had received the

results of the blood work done at the emergency room which reflected an elevated

white blood cell count indicating infection. Dr. Butler subsequently scheduled Mr.

Clark for admission to the hospital and removed the fusion hardware.

Mr. Clark left the care of Dr. Butler in June 2005 and began treatment

with Dr. Clark Gunderson. Dr. Gunderson tried to control the staff infection and

attempted, unsuccessfully, to revise the ankle fusion performed by Dr. Butler.

Ultimately, in June 2007, Dr. Gunderson performed a below the knee amputation of

Mr. Clark’s lower right leg and foot. Mr. Clark was fitted with a prosthesis and was

reportedly doing well. However, he still complained at trial of phantom pain, and his

pain management physician indicated that he would likely need pain medication on

an ongoing basis.

III.

LAW AND DISCUSSION

An appellate court should not disturb reasonable evaluations of

credibility and reasonable inferences of fact made by a jury when the record as a

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whole reveals a reasonable basis for the finding in the trial court. Arceneaux v.

Domingue, 365 So.2d 1330, 1333 (La.1978). An appellate court may not set aside a

trial court’s findings of fact in absence of manifest error or unless it is clearly wrong.

Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). Where there are two

permissible views of the evidence, the fact finder’s choice between them cannot be

manifestly erroneous or clearly wrong. Sistler v. Liberty Mut. Ins. Co., 558 So.2d

1106 (La.1990).

Mr. Clark asserts that Dr. Butler, whom he specifically sought out to

perform surgery on his ankle and foot, committed malpractice in his care and

treatment of the plaintiff, before, during, and after the ankle fusion surgery in 2005.

Mr. Clark’s position is that he never complained of ankle pain to Dr. Butler, that Dr.

Butler never physically examined his ankle, that the doctor only made one follow-up

call to Mr. Clark’s residence, and that he ignored evidence that Mr. Clark had a post-

operative infection that ultimately led to the below-knee amputation. Mr. Clark

presented evidence of this alleged negligence via his wife’s supporting testimony.

He attempted to prove a negative by pointing to the absence of language in Dr.

Butler’s charts, which did not specifically state that he had manipulated, touched,

twisted or otherwise physically examined the plaintiff’s leg and ankle.

The jury heard live testimony and trial deposition testimony of many

medical experts and specifically asked, during deliberations, for the medical records

of the three treating physicians, Dr. Butler, Dr. Bernauer, and Dr. Gunderson. The

jurors also asked for the medical review panel opinion of the three orthopaedic

surgeons who testified that there was no breach of the standard of care. The records

reveal that, while Dr. Butler was somewhat cryptic in his charting dictation, he did

occasionally preface his notes with “upon examination.” We also note that, by

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comparison, Dr. Bernauer’s charts are at least as cryptic as Dr. Butler’s and likewise

do not contain evidence of hands-on manipulations, except that he prefaced his

reports with the sentence “I examined this 40-year-old white male on [current date].”

Dr. Bernauer then reported, just as Dr. Butler had done, the patient’s complaints on

that date. In fact, Dr. Butler’s charts contain significantly more details in the

history/physical sections of the charts than those of Dr. Bernauer. Contrary to the

plaintiff’s assertions that Dr. Butler never testified that he physically examined Mr.

Clark, the record reveals that Dr. Butler clearly testified that he did.

Further contrary to the plaintiff’s assertions, Dr. Butler’s charts are

replete with notes and message slips documenting numerous phone calls between his

office and the plaintiff or his wife. Not only did Dr. Butler write and call in pharmacy

prescriptions several times a month at Mr. Clark’s request, his office also placed

various follow-up calls to Mr. Clark after his surgery. Further, the record contains

evidence that Rickey Clark complained of whole leg pain and ankle pain. Dr.

Butler’s charts contain several workers’ compensation forms with Rickey Clark’s

handwritten complaints of ankle pain, particularly the full page handwritten request

of Rickey Clark asking to change from Dr. Bernauer back to Dr. Butler because he

believed that Dr. Butler would perform the surgery that he needed on his ankle.

Ankle pain or injury is referenced on many of the reports of the diagnostic images.

Rickey Clark told Dr. Bernauer on the first visit to him that he had caught his weight

on his ankle when he fell. This report became a part of Dr. Butler’s records as well.

Ultimately, the malpractice issue in this case turned on the type of

surgery that Dr. Butler performed on Mr. Clark. Unable to perform the fixation of the

heel that he intended to do right after the injury in June 2004, Dr. Butler was faced

with doing a fusion eight months later. He chose to do a tibiotalar and subtalar

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fusion, fusing the ankle joint and the joint beneath it. Mr. Clark asserts that it was

malpractice to include the tibiotalar joint (ankle joint) in the fusion because there was

nothing wrong with the ankle.

When negligence is alleged against a medical specialist, only those

qualified in that specialty may offer expert testimony and evidence of the applicable

standard of care. Fox v. Our Lady of Lourdes Regional Medical Center, 550 So.2d

379 (La.App. 3 Cir. 1989), writs denied, 556 So.2d 1263 and 556 So.2d 1264 (La.

1990). There was conflicting expert testimony among the orthopaedic surgeons who

testified in this case regarding the reasonableness of fusing both joints. The three

orthopedic surgeons who served on the medical review panel, Dr. Christopher Hebert,

Dr. Stephen Nason, and Dr. Barry Henry, stated in their formal opinion that the

choice of procedure was the basic issue in the case. The panel relied upon symptoms,

original films, x-rays, bone scan, and MRI. Their opinion stated that the bone scan

showed an increased uptake in the ankle, and the MRI showed posterior medial tibio

talar arthrosis (ankle degeneration) which justified the procedure performed by Dr.

Butler. The panel members found that the procedure performed met the applicable

standard of care, as did the subsequent procedures. They characterized the injury as

a severe extremity injury that unfortunately resulted in a salvage procedure.

Dr. Dale Bernauer, the orthopaedist who treated Mr. Clark

conservatively between July and December 2004, testified that there was no

justification for the ankle fusion. When asked by the plaintiff’s counsel whether it

was outside the standard of care for Dr. Butler to do an ankle fusion based upon the

patient’s continued pain in the lower extremity, Dr. Bernauer stated, “I wasn’t there.

I don’t know what Dr. Butler saw. But, just based on what I see, I don’t think that

there’s an indication to do an ankle fusion just because of pain.” Then Dr. Bernauer

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was shown Dr. Butler’s bone scan for the first time, along with the post-op films. He

responded only to the description of the surgery itself and opined only that he saw no

justification for fusing the ankle.

Dr. Clark Gunderson is the orthopaedic surgeon who treated Mr. Clark

for post-operative infection beginning in June 2005. Dr. Gunderson attempted

unsuccessfully to revise the fusion and subsequently performed the amputation of Mr.

Clark’s lower right leg in June of 2007. When given x-rays to review at his trial

deposition, he testified that, in looking at Dr. Bernauer’s x-rays from 2004, and one

x-ray he was given from Dr. Butler’s records, that Mr. Clark did not have severe

arthritis of the right ankle. Dr. Gunderson said that he agreed with Dr. Bernauer’s

opinion that there was no case for the ankle fusion. Gunderson stated that he, and

“most people would operate on the joints where they thought the pain was coming

from which would be the subtalar joint,” the joint below the ankle joint.

On cross-examination, Dr. Gunderson testified that the calcaneus

fracture is a very difficult injury to treat. He further testified that he was not

indicating to the jury that a post-operative infection that started two to three months

after surgery was in and of itself a breach of the standard of care. He stated that

postoperative infections are complications of any surgery. Dr. Gunderson further

admitted that he had not seen the MRI or the bone scan, the two diagnostic films that

the medical review panel described in their opinion; nor had he seen the medical

review panel opinion. On redirect by plaintiff’s counsel, Dr. Gunderson was shown

the MRI and bone scan for the first time, and he stated that he would not fuse the

ankle just based upon the bone scan.

Dr. David DeLapp, the orthopaedist hired by the workers’ compensation

carrier to perform an independent medical examination of Mr. Clark first testified that

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after treating a fracture nonoperatively, “It is very common from there to get

traumatic arthritis so severe that you end up doing a fusion which is what

subsequently Dr. Bernauer [Butler] had done. So . . . up through that point,

everything seemed to be . . . within the acceptable standards of care.” Dr. DeLapp

was initially under the impression that Dr. Bernauer had done the ankle fusion. He

later testified that on the radiographic findings he saw very little evidence, if any, to

support an ankle fusion, particularly on the MRI, which he said showed minimal

disease of the ankle joint. He further testified that the hardware used by Dr. Butler

to do the subtalar and tibiotalar joint fusion represented “a perfectly acceptable way

to do those fusions” and also opined that Dr. Butler’s treatment of the infection, by

administering antibiotics and removing the hardware, was appropriate.

Dr. Mark Perlman, a California orthopedic surgeon testifying on behalf

of the plaintiff, stated that, based upon the films that he was given, he did not see the

logic for the ankle fusion. He reviewed the x-ray taken in Texas on the day of the

accident and identified the heel fracture with extension into the subtalar but thought

the ankle looked near normal to him at that time except for a small spur that might be

projectional. He looked at the MRI and identified a significant amount of bony

edema with the calcaneus but thought the ankle was well preserved. However, he did

testify that one of the big problems with fusion of the subtalar joint is that over time

there is more stress placed on the ankle, and ankle arthritis can develop. He stated

that one of the reasons the surgeon tries to align things perfectly is to stave off the

development of ankle arthritis. He then stated that the morbidity of the fusion of the

tibiotalar and subtalar joint is much greater than the morbidity of the subtalar fusion.

On cross examination, Dr. Perlman stated that the instrumentation used

in the tibiotalar subtalar fusion was not an unreasonable choice. He further indicated

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that infection is the first risk he discusses with a patient contemplating surgery. As

to the postoperative care provided by Dr. Butler, he stated that it was not the most

aggressive postoperative care of an infection that he had ever seen, but it was not

below the standard of care and was within the realm of what is reasonable. He further

indicated that the patient’s personal hygiene and wound care can certainly be factors

in the risk of infection, and that smoking escalates the risk of non-union of a fusion

and can lead to wound healing problems which can lead to infection.

Dr. Perlman had not previously seen the CT scan or the bone scan, nor

the medical review panel opinion prior to his trial deposition. In reviewing the CT

and bone scan reports for the first time, he indicated that neither was specific enough

without the actual films to review. However, the bone scan report described a total

body scan indicating a hot spot at the bottom of the foot and ankle. He stated that if

the camera was good, and the films were of good resolution, and if the report

accurately portrayed what was seen on the bone scan, then it did provide a reason to

re-examine the patient and do further work-ups; then if the bone scan were integrated

into all of the other information, and the surgeon “truly ruled in the ankle joint as a

cause of pain,” then there would be justification for a two-joint fusion.

The medical review panelist, orthopaedic surgeon Dr. Barry Henry,

testified that the bone scan was, in his mind, the most significant reason for Dr.

Butler’s choice of the two-joint surgery. Dr. Henry stated that when he looked at the

bone scan film he saw that there was a hot area showing more activity in the bone

above the calcaneal fracture and even above the subtalar joint. He indicated that an

orthopedist looks at the whole picture in front of him. He described Mr. Clark as a

patient who was almost eight months post-injury with trouble managing his pain and

trouble ambulating, and even though the x-rays did not show much arthritis, the bone

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scan showed activity. He said that Dr. Butler would have considered all of this along

with the MRI and other diagnostic studies, the patient’s complaints, the doctor’s

examinations, the fact that there was a drop, and an impact on the foot that was

transmitted throughout the leg.

When cross-examined by the plaintiff’s counsel about Dr. Butler’s

reference to severe osteoarthritis of the ankle, Dr. Henry stated that he would not

agree with that statement. However, he explained that it was a clinical statement by

the treating physician, not a radiologist, and that orthopedic surgeons look at

radiographs as part of the treatment of the patient’s clinical scenario. When

argumentatively pressed by plaintiff’s counsel to compare Dr. Bernauer’s

conservative treatment to Dr. Butler’s decision to perform surgery, Dr. Henry pointed

out that the two physicians did not treat Mr. Clark at the same time. Dr. Henry further

pointed out that Mr. Clark came back to Dr. Butler, after the conservative treatment

of Dr. Bernauer, because he was in a lot of pain and was seeking care from the

physician who had previously offered him surgery. He also pointed out that the third

party administrator for the workers’ compensation carrier approved the surgery by Dr.

Butler. That approval is a part of Dr. Butler’s records and was reviewed by the jury

during deliberations.

Medical review panelist, orthopaedic surgeon, Dr. Stephen Nason,

explained why the fracture sustained by Mr. Clark was so difficult to treat. He

testified that the calcaneus, or heel, is a weight bearing bone that must bear the entire

body’s weight in walking, and the fracture often, as in this case, includes fractures

that go into the joint surfaces that join with other bones in the foot and typically

injure the joints themselves, resulting in painful joints and arthritis involving the

joints, even in the face of successful healing of the fracture. Dr. Nason indicated that

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there are different treatment modalities for such fractures and that conservative plans

and more aggressive plans involving surgery can both be within the standard of care.

Dr. Nason explained the function and purpose of the bone scan ordered

by Dr. Butler prior to Mr. Clark’s surgery, explaining how the amount of injected

radiographic material taken up by the bone reflects the processes going on in a bone

or joint. The result is a localized picture of areas with significant problems. He

testified that in Mr. Clark’s case, the bone scan showed various aspects of take-up of

the radioactive material in the areas that would be normal in the body, but also

showed abnormal uptake, most severe in the right ankle joint. Dr. Nason and the

other panel members studied the original bone scan films and formed the unanimous

opinion that the bone scan, along with the MRI showing ankle degeneration, the other

evidence, including x-rays and symptoms, justified the procedure performed by Dr.

Butler.

When examined by the plaintiff’s attorney, Dr. Nason agreed that

particular x-rays shown to him at that time did not indicate severe osteoarthritis, but

stated that the MRI and other films depicted a condition of the ankle joint for which

the two-joint fusion was one possible option. When asked why a total ankle fusion

was a possible option, Dr. Nason stated, as Dr. Perlman had, that fusing the subtalar

joint alone would produce additional stresses and forces on the ankle joint itself,

causing expected progressive deterioration of the ankle joint. Therefore, a decision

to fuse the ankle joint along with the subtalar joint is a practical option.

Medical review panelist, orthopedic surgeon Dr. Christopher Hebert,

testified that the information that would allow Dr. Butler to choose ankle fusion

surgery for Mr. Clark would have been first and foremost the physical exam, his

clinical evaluation on what the patient was presenting with, where he hurt, whether

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there was deformity on exam leading him to believe that the ankle was in danger. Dr.

Hebert stated that the MRI in particular showed an effusion, fluid at the tibiotalar

joint; and the bone scan showed increased uptake at the subtalar joint and at the ankle

joint. He stated that while the panel was at a disadvantage in not being able to see all

that Dr. Butler saw, based upon the evidence, there was a problem at the ankle which

made the subtalar and ankle fusion appropriate and within the standard of care. With

regard to Mr. Clark’s delayed post-operative staff infection, Dr. Hebert stated that

infection is probably the most common orthopedic post-operative complication. The

bacteria tend to migrate and live adjacent to the hardware, and in many cases, the only

way to eradicate the infection is to remove the hardware, as Dr. Butler did.

Upon examination by the plaintiff’s counsel regarding Dr. Butler’s

impression of severe osteoarthritis, Dr. Hebert testified that he does not treat the x-

ray; he treats the patient. He stated that a physician draws in all of the information

from the clinical examination, the MRI, the bone scan, the physical examination, and

whether the patient exhibits deformity when standing. He then stated that the x-ray

under discussion showed mild arthritis, but the appropriateness of the fusion comes

from considering all of the information as a whole. Dr. Hebert then indicated that the

x-ray did show a loss of height of the calcaneus, and with that there is dorsi flexion

of the talus, which he had seen in many, many patients who have had malunions of

the calcaneus resulting in ankle pain. Dr. Hebert indicated that these experiences

helped him to put the fusion in perspective as a reasonable option and an option that

falls within the standard of care.

A major issue created by the plaintiff’s counsel throughout the testimony

was his perceived failing of Dr. Butler to specifically state in his examination reports

that the “throbbing pain” described by Mr. Clark was within the tibiotalar joint. As

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indicated above, it is true that both Dr. Butler and Dr. Bernauer were somewhat

cryptic in their reports of physical examinations of the plaintiff. When Dr.

Christopher Hebert was questioned on this issue, he responded that he thought that

most orthopedists like himself with busy practices do not dictate everything they

observe and that Dr. Butler should not be condemned for not dictating everything.

As an example, he stated that there was no dictation regarding deformity, but there

was deformity indicated in the films showing loss of height in the calcaneus. Dr.

Butler himself testified that he did not dictate every thing he saw or every question

he asked, such as whether the patient had more problems ambulating on certain kinds

of terrain.

Our jurisprudence holds that the law does not require perfection in

medical diagnoses and treatment. Rather, a doctor’s professional judgment and

conduct must be evaluated in terms of reasonableness under the then existing

circumstances, not in terms of results or in light of subsequent events. When the

experts’ opinions contradict one another regarding compliance with the applicable

standard of care, the trial court’s conclusions must be granted great deference. It is

the sole province of the fact finder to evaluate the credibility of the experts and their

testimony. Johnson v. Lake Charles Memorial Hosp., 96-1178 (La.App. 3 Cir.

3/5/97), 692 So.2d 514 (citations omitted).

In this case, where the expert witnesses gave conflicting opinions, and

the parties gave conflicting testimony that made credibility a major issue in this case,

the jury studied the evidence and returned a verdict stating that Dr. Butler had not

breached the standard of care in his treatment of Mr. Clark. The plaintiff asserts that

this happened only because the jury was inflamed by one question and answer

regarding the name and date of a crime that Mr. Clark pled guilty to in 2000. Mr.

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Clark contends that, in finding for the defendant, the jury ignored expert testimony

of substandard care because the trial court erroneously admitted prejudicial evidence

that Mr. Clark had previously been convicted of the crime of aggravated incest. We

can find no merit in this assertion.

Admissibility of Evidence of Criminal Convictions

During Mr. Clark’s testimony, the attorney for Dr. Butler asked him if

he had ever pled guilty to or been convicted of a crime. Prior to Mr. Clark’s

answering, his attorney objected and asked for counsel to approach the bench. The

trial court had the jury escorted out of the courtroom. Mr. Clark’s attorney objected

to the question on the grounds set forth in Louisiana Code of Evidence Article 609.

The trial court asked for the article and read the main provisions into the record

outside of the presence of the jury. That article provides in pertinent part as follows:

Art. 609. Attacking credibility by evidence of conviction
of crime in civil cases

A. General civil rule. For the purpose of attacking
the credibility of a witness in civil cases, no evidence of
the details of the crime of which he was convicted is
admissible. However, evidence of the name of the crime of
which he was convicted and the date of conviction is
admissible if the crime:

(1) Was punishable by death or imprisonment in
excess of six months under the law under which he was
convicted, and the court determines that the probative
value of admitting this evidence outweighs its prejudicial
effect to a party; or

(2) Involved dishonesty or false statement,
regardless of the punishment.

B. Time limit. Evidence of a conviction under this
Article is not admissible if a period of more than ten years
has elapsed since the date of the conviction.

....

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After reading Article 609, the trial court stated that he needed to know

what the crime was in order to rule on its admissibility. Mr. Clark’s attorney

responded that it was “a drug charge” and that evidence of the crime was not

admissible under the ten-year rule of Article 609(B). Mr. Clark then testified that he

had served time for distribution of cocaine in 1992 or 1993. Accordingly, the drug

charge was ruled inadmissible by the trial judge. However, Dr. Butler’s attorney

indicated that there was evidence of two other crimes, and he requested an instanter

subpoena to obtain the disposition dates that he did not have. The trial court refused

to delay the trial but signed the subpoena on the condition that the evidence be in his

chambers by 1:30 that afternoon.

Shortly thereafter, court reconvened, still out of the presence of the

jurors, and the trial court explained into the record that he had reviewed evidence in

chambers of the crime of aggravated incest in 2000. He indicated that he would

overrule the objection to admissibility. The trial judge further indicated that he had

instructed the defense attorney as to the parameters of a single question that could be

asked of Mr. Clark when the jurors were returned to the courtroom. Plaintiff’s

counsel further objected on the record to the admissibility of the crime of aggravated

incest on the grounds that its probative value was outweighed by its prejudicial effect.

Defense counsel then argued the probative value of the crime as two-fold.

Earlier in the trial, a witness for the plaintiff, Glen Hebert, a

rehabilitation specialist, testified before the jury that Rickey Clark had “never had any

problems with the law” and that he was a “pretty clean-cut individual,” which was in

direct contradiction to the record. Defense counsel further explained that credibility

was a very important issue in this case based upon the testimony of Rickey Clark and

his wife, Donna Clark, regarding their relationship with Dr. Butler. The Clarks’

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accusations of malpractice included, among other things, their sworn testimony that

Clark did not complain of ankle pain to Dr. Butler and that Dr. Butler never

conducted an examination of Clark’s ankle. Defense counsel argued that the criminal

conviction was appropriate impeachment evidence on the issue of credibility.

In response to the arguments on the admissibility of the evidence of the

felony,1 the trial court stated that the conviction of Rickey Clark, which occurred on

April 17, 2000, met the requirements of admissibility because it was within the last

ten years and carried a sentence of over six months. With regard to the probative

value versus the prejudicial effect, the trial court acknowledged that the evidence was

of a prejudicial nature but stated that credibility was a critical issue in this case. He

further indicated that defense counsel had correctly described the probative value as

being twofold wherein a prior witness had testified as to Mr. Clark’s clean record, and

wherein the crime was one of “considerable moral turpitude” that could well weigh

against credibility.

After further discussion, the trial judge asked that the jurors be returned

to the courtroom. Defense counsel asked the plaintiff one question: “Mr. Clark, did

you plead guilty to aggravated incest in Beauregard Parish on April 17, 2000?” Mr.

Clark’s response to the question was, “Yes.” At that time, Mr. Clark’s attorney rested

1
La.R.S. 14:78.1. Aggravated incest:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with
a person who is under eighteen years of age and who is known to the offender to be related to the
offender as any of the following biological, step, or adoptive relatives: child, grandchild of any
degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.

....

D. (1) A person convicted of aggravated incest shall be fined an amount not to exceed fifty
thousand dollars, or imprisoned, with or without hard labor, for a term not less than five years nor
more than twenty years, or both.

....

17

his case. Pursuant to evidence Article 609(A), no details were divulged to the jury,

only the name and date of the crime.

The annotated cases interpreting La.Code Evid. art. 609 indicate that

prior felony convictions, not misdemeanors, not arrests, but convictions for felonies,

are usually admissible to attack a party’s credibility if they are within the ten year rule

and carry a sentence of over six months. This is true because a conviction for a

serious crime committed in the relatively recent past is relevant and probative on the

issue of credibility. More specifically, the COMMENTS to Article 609 provide in

pertinent part as follows:

(a) This Article is generally based on Federal Rule
of Evidence 609 and thereby substantially modifies
Louisiana law in civil cases. It continues the practice of
admitting evidence of convictions as well as the practice of
excluding evidence of arrest, indictment, or prosecution, to
attack the credibility of a witness.

(b) Under prior Louisiana law evidence of a
conviction of any crime was admissible on the issue of
credibility regardless of the nature of the crime or when it
occurred. This Article changes that rule, limiting
admissibility to crimes that because of their seriousness or
nature are particularly relevant to the issue of character
for truthfulness. The one year limitation of the
corresponding federal rule has been reduced to six months.
It should be observed that the balancing test of Article
609(A)(1) is phrased in terms slightly different from the
balancing test of Article 403. (Emphasis added)

Louisiana Code of Evidence Article 403 provides that, “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.”

In Williams v. United Fire and Cas. Co., 594 So.2d 455 (La.App. 1 Cir.

1991), evidence of an insured’s conviction for attempted cocaine possession was

admissible impeachment evidence where the insurer claimed that the insured had

18

materially misstated his theft losses with the intent to defraud and deceive the insurer.

The trial court stated that recent felony convictions may be used to attack credibility,

even if the conviction occurred since the incident in question, because the witness’s

current credibility, as well as his credibility at the time of the incident, are at issue.

The court further articulated that Article 609(A) does not state that felony convictions

used to attack credibility must involve false statements or dishonesty.

In Breitenbach v. Stroud, 06-0918 (La.App. 1 Cir. 2/9/07), 959 So.2d

926, testimony regarding a motorist’s prior conviction for possession of a schedule

II narcotic was found admissible for impeachment purposes in her personal injury

action arising out of a motor vehicle accident. The question regarding the felony

conviction was asked after the plaintiff testified that she did not do a lot of drugs; the

felony was punishable by more than six months; and the court found that the

probative value of the testimony was not substantially outweighed by the danger of

any potential unfair prejudice toward the plaintiff. The court cited La.Code Evid.

arts. 609 and 403.

In Hughes v. Gulf Intern, 593 So.2d 776 (La.App. 4 Cir.), writ denied,

595 So.2d 658 (La.1992), the appellate court determined that evidence of a

defendant’s prior prostitution convictions was not prejudicial in an assault and battery

action brought against a movie theater and its employees. After finding evidence of

older crimes inadmissible, the trial court permitted the plaintiff to impeach the theater

employee with evidence of her prostitution convictions, which were approximately

four years old.

Mr. Clark attempts to analogize the case of Gage v. Potts, 94-1542

(La.App. 1 Cir. 4/7/95), 653 So.2d 1183. There, evidence of the plaintiff’s conviction

in Texas in 1982 for aggravated sexual assault was found inadmissible, minimally

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probative, and unfairly prejudicial, in his case against a motorist who rear-ended him

and his pregnant wife. In that case, the conviction was over ten years old at the time

of trial and was found inadmissible under the clear limits of Article 609(B). As the

trial court explained, the ten year limitation in Article 609 (B) recognizes that

convictions over ten years old generally have little probative value. Moreover,

credibility was barely mentioned in Gage v. Potts; there was no discussion of

competing expert testimony; and impeachment was not an issue. At trial, the

defendants argued that the reference to the prior conviction was relevant to the

plaintiff’s claim for future wages. The appellate court reasoned that Mr. Gage’s

intervening work history was significant, and that any effect that his conviction had

on his employability was slight.

Further distinguishing Gage v. Potts from the present case are the facts

that the jury found the defendants liable for rear-ending the Gages but awarded zero

damages to Mr. Gage and only $1,000.00 to Mrs. Gage. A finding of liability where

there was evidence of causation and injuries, but no award of damages, would tend

to support the appellate court’s finding of unfair prejudice against Mr. Gage. We find

no support for Mr. Clark’s position in Gage v. Potts.

Mr. Clark asserts that the case of Porter v. Namir, 900 S.W.2d 376 (Tex.

Civ.App. - Austin 5/3/95), provides the best perspective in weighing the probative

value of a sex crime against its prejudicial effect. We disagree. Once again, Mr.

Clark takes a court’s language regarding the inflammatory effect of sexual crimes out

of the context of the surrounding facts and circumstances of the case giving rise to the

opinion. There, a patient and his wife sued an alcohol abuse counselor for the

counselor’s sexual assault of the patient’s wife. Evidence of the counselor’s prior

conviction for sexual abuse of his step-son was excluded by the trial court as being

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unfairly prejudicial. The plaintiffs contended that the sexual abuse evidence was

relevant to the issues because both incidents involved sexual assaults of people who

were in a position of trust with the defendant. Under Tex.R.Civ.Evid. 403, which

provides that relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, the appellate court concluded that the

trial court could reasonably have determined that the probative value of the evidence

was substantially outweighed by the danger of unfair prejudice.

The appellate court in Porter contrasted the counselor’s sex acts with the

child, who was incapable of consent, and who was admittedly forced, to the sex act

of adult masturbation with the patient’s wife, a grown woman whose consent was

hotly disputed at trial. She was described as a woman who invited the counselor to

her home while her husband was out of town, and who did not believe that she had

been sexually assaulted until her own counselor and therapy group convinced her of

it at a later time. The appellate court affirmed the trial court’s finding that the former

incident was not significantly probative of the latter, but “the danger of unfair

prejudice was particularly great because the extraneous conduct involved sexual

abuse of a child.” Porter v. Namir, 900 S.W.2d at 382. It is this language and the

following language from the Porter case that Mr. Clark advances in support of his

position:

As the court noted in Montgomery v. State, 810 S.W.2d
372 (Tex.Crim.App.1990), an indecency with a child case:
“Both sexually related misconduct and misconduct
involving children are inherently inflammatory. . . .
[T]here was a grave potential for decision on an improper
basis, as jurors may have lost sight of specific issues they
were called upon to decide and convicted appellant out of
a revulsion against his parental demeanor.” Id. at 397. The
trial court did not abuse its discretion in determining that
the danger of unfair prejudice substantially outweighed the
probative value of the evidence.

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Porter, 900 S.W.2d at 382.

While the court in Porter quoted language from Montgomery, a criminal

case, the Porter court refused to apply the evidence standards of Montgomery to its

civil cases because of the stringent standards the case developed for determining

when evidence must be excluded. In general, the Montgomery test was a four-part

test requiring that the probative value of the extraneous misconduct must be

particularly compelling to avoid exclusion. The Porter court stated in its rationale

that the Montgomery test made sense in a criminal case where the defendant risks loss

of liberty if an extraneous offense is erroneously admitted. However, the Porter court

opined that a similar danger did not exist in civil cases, and the court expressed its

fear that such an application might require the exclusion of highly relevant evidence

in many civil cases.

The Porter case does nothing to support Mr. Clark’s contention because

it is misapplied. The language relied upon is completely out of context where it

derives from Texas criminal cases that use different criteria for determining probative

and prejudicial values, even in Texas’ own civil cases. The Porter case also involved

the admissibility of a sexual crime that was far more morally blameworthy than the

sexual allegations at issue in Porter. Hence, it could be said that, at least in Porter,

the more similar the offenses, the more prejudicial the effect because the jury is more

likely to focus on the similarity and fail to distinguish the lesser offense from the

prior greater offense.

Motion for Judgment Notwithstanding the Verdict and New Trial

In this case, the trial court denied the plaintiff’s motion for a judgment

notwithstanding the jury’s verdict (JNOV) and for a new trial. Mr. Clark asserts that

the trial court erred in so doing. The authority for a JNOV is La.Code Civ.P. art.

22

1811, which provides also that it may be joined with a motion for a new trial or pled

in the alternative. A JNOV is warranted only when the facts and inferences point so

strongly and overwhelmingly in favor of one party that the court believes that

reasonable jurors could not arrive at a contrary verdict. However, if fair-minded men

in the exercise of impartial judgment might reach different conclusions, the motion

should be denied. Davis v. Wal-Mart Stores, Inc., 00-0445 (La. 11/28/00), 774 So.2d

84.

Mr. Clark’s motion for a new trial in this case is brought under La.Code

Civ.P. art. 1972, with an assertion that the verdict and judgment appear contrary to

the law and evidence. It is also brought under La.Code Civ.P. art. 1973 which

provides the court with discretionary authority to grant a new trial in any case if there

are good grounds for a new trial.

At the hearing on the motions, Mr. Clark focused primarily on the court’s

admission of the plaintiff’s guilty plea in 2000 to aggravated incest. The court

suggested that the door in this case seemed to have been opened to the criminal

record because one of the plaintiff’s witnesses had specifically testified that Mr. Clark

had never had any problems with the law and was a clean-cut individual. After

discussing the assertion by Mr. Clark that Dr. Butler had never conducted an

examination of him, the court articulated that the felony and guilty plea were highly

relevant on the issue of overall credibility of Mr. Clark, indicating more weight on the

probative side of the equation.

We find that the admission of the guilty plea to the felony in 2000 was

proper under La.Code Evid. art. 609 because it occurred less than ten years prior to

trial, and it carried a sentence of over six months. Moreover, the trial court reviewed

the criminal record in chambers and allowed no discussion in front of the jury,

23

allowing only a single question in their presence regarding the name and date of the

crime as required by Article 609. In weighing the probative value and prejudicial

effect of the admission, the trial judge’s assessment of the probative value of evidence

carries great weight, such that in the absence of a clear abuse of discretion, the ruling

of the trial judge will not be reversed on appeal. Billings v. State ex rel. Dept. of

Transp. and Development, 01-0131 (La.App. 3 Cir. 6/13/01), 826 So.2d 1133. We

find no legal error under the technical provisions of Article 609, and we find no abuse

of discretion in the trial court’s evaluation of the prejudicial effect and the probative

value of the felony evidence on the issue of credibility.

Regarding the claims of malpractice, the trial court found that there was

sufficient evidence that the jury could have returned a verdict favorable to the

plaintiff, but there was also substantial evidence to the contrary. The trial judge

referred to the conflicting expert testimony in the case and the plaintiff’s argument

that no competent physician would have proceeded with the surgical procedure that

Dr. Butler performed because there was no arthritis in the ankle. The trial court

pointed out that it was not established at trial that there was no arthritis in the ankle,

and there were physicians who agreed that Dr. Butler could have reasonably

proceeded in the way that he did. In conclusion, the trial judge stated that there was

“sufficient evidence that the jury could, as they did, conclude that there was no

malpractice.” We agree.

IV.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court

pursuant to a jury verdict and affirm the trial court’s denial of the plaintiff’s motion

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for a JNOV and for a new trial. All costs of the appeal are to be borne by the

plaintiff, Rickey Clark, Sr.

AFFIRMED.

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