Derek Coutee v. Rapides Healthcare System, L.L.C.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 19-577

DEREK COUTEE

VERSUS

RAPIDES HEALTHCARE SYSTEM, LLC, ET AL.

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 256,413
HONORABLE PATRICIA KOCH, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett,
and Shannon J. Gremillion, Judges.

AFFIRMED.

Brian Caubarreaux & Associates
Eugene A. Ledet, Jr.
Brian Caubarreaux
Brock H. Duke
Laura B. Knoll
2204 MacArthur Drive
Alexandria, LA 71303
(318) 442-0900
COUNSEL FOR PLAINTIFF/APPELLANT:
Derek Coutee

Brandon A. Sues
Gold, Weems, Bruser, Sues & Rundell
Post Office Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
COUNSEL FOR DEFENDANT/APPELLEE:
Rapides Healthcare System, LLC

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PICKETT, Judge.

The son of a patient who died while hospitalized sued the hospital, seeking

to recover damages for his father’s death. On February 11, 2019, the trial court

signed a judgment dismissing the son’s claims in accordance with the jury’s

verdict.

FACTS

On January 2, 2014, Charles Coutee was admitted to Rapides Regional

Medical Center where he had been transported after he experienced dizziness and a

possible fainting episode. In the emergency room at Rapides, he was diagnosed as

having suffered fainting/loss of consciousness. At noon on January 3, Mr. Coutee

was moved from the emergency room to the telemetry floor of the hospital where

he was continuously monitored for heart rate and rhythm changes. On admission

to the telemetry floor, Dr. Parameswara Krishna Kaimal, a cardiologist, examined

Mr. Coutee and ordered that metoprolol, a beta blocker that affects the heart and

blood circulation, be administered to him. Dr. Kaimal further ordered that Mr.

Coutee was to ambulate. The nurses on duty were to contact Dr. Kaimal if Mr.

Coutee’s heart rate or rhythm required his consultation.

Beginning at 7:00 p.m. January 3, Cynthia Standish, R.N., became Mr.

Coutee’s assigned nurse. At approximately, 11:50 p.m., Mr. Coutee experienced

an irregular heartbeat, atrial fibrillation, and his heart rate dropped into the 30s, but

did not remain that low. Nurse Standish informed Dr. Kaimal of this event. Dr.

Kaimal instructed her to discontinue administering metoprolol. He did not instruct

Nurse Standish to make any other changes to his original instructions.

At approximately 6:00 a.m. on January 4, at his request, Nurse Standish and

Norma Richardson, a patient care technician (PCT), assisted Mr. Coutee to the

bathroom to have a bowel movement. Nurse Standish and PCT Richardson then

left Mr. Coutee in the bathroom unattended. Shortly thereafter, which Nurse

Standish approximated as three minutes, members of telemetry staff responded to a

loud noise in Mr. Coutee’s room; they found him unconscious on the floor with no

heartbeat and not breathing. Emergency efforts to restart Mr. Coutee’s heart were

successful; however, he never regained consciousness and died on January 7.

In December 2014, Derek Coutee, Mr. Coutee’s only child, filed a petition

with the Patient Compensation Fund seeking a review of the medical treatment

Rapides and Dr. Kaimal provided to Mr. Coutee. A medical review panel

composed of three cardiologists reviewed Derek’s complaints and concluded that

neither Rapides’ treatment nor Dr. Kaimal’s treatment of Mr. Coutee was negligent

and/or fell below the standard of care applicable to each of them. Thereafter, in

July 2016, Derek, individually and on behalf of his father, filed suit against

Rapides and Dr. Kaimal, asserting the same claims he presented to the medical

review panel. He later dismissed his claims against Dr. Kaimal.

In January 2019, Derek tried his claims against Rapides to a jury. At trial,

Derek argued that the actions/inactions of its hospital staff—specifically, Nurse

Cynthia Standish—in rendering treatment to Mr. Coutee on January 4, 2014, were

negligent and fell below the standard of care applicable to nurse/nurses on a

telemetry ward. Derek cross-examined Nurse Standish as his first witness. He

also presented his testimony, the expert testimony of a pulmonologist/hospitalist

and registered nurse who works in and teaches nursing students in the telemetry

ward of a teaching hospital, and the testimony of a telemetry technician who had

been on duty when Mr. Coutee’s emergency occurred. Rapides presented the

testimony of Nurse Standish, Linda Futrell, another nurse on duty in the telemetry

ward the morning of January 4, a cardiologist, and a nursing expert. After

deliberating, the jury returned a verdict in favor of Rapides. Thereafter, the trial
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court signed a judgment dismissing Derek’s claims against Rapides. Derek

appealed.

ASSIGNMENTS OF ERROR

On appeal, Derek assigns error with four evidentiary rulings made by the

trial court:

1. The Trial Court committed legal error in allowing defense counsel to
question Dr. [David] Goldstein regarding Dr. Kaimal’s letter, which
was undeniably inadmissible hearsay as acknowledged by the Trial
Court itself.

2. The Trial Court committed legal error in allowing the defendant to
testify to and embellish upon conversations she had with the decedent
in crucial time periods before he died over plaintiff’s repeated hearsay
objections.

3. The Trial Court committed legal error in allowing defendants to
introduce the Medical Review Panel opinion to the Jury despite the
fact that it was an opinion by three cardiologists, none of whom
professed any expertise or ability to opine on nursing standard of care.

4. The Trial Court committed legal error in refusing to instruct the Jury
on the adverse presumption which accompanies spoliation of evidence
due to Rapides’ failure to produce or adequately explain the absence
of crucial telemetry strips which would have revealed exactly what
Mr. Coutee’s heart beat was doing at crucial points in his treatment
and in the moments directly leading up to his death.

STANDARD OF REVIEW

As a general rule, trial courts are afforded great discretion concerning the

admission of evidence, and their decisions to admit or exclude evidence should not

be reversed on appeal in the absence of an abuse of their discretion. Medine v.

Roniger, 03-3436 (La. 7/2/04), 879 So.2d 706. When reviewing such alleged

errors, we must determine whether the complaining party has shown that the ruling

complained of “was erroneous and whether the error prejudiced the defendant’s

cause, for unless it does, reversal is not warranted.” State in Interest of A.S., 19-

248, p. 8 (La.App. 1 Cir. 9/4/19), __ So.3d__, 2019 WL 4199898 (citing La.Code

Evid. art. 103). “Prejudicial error ‘affects the final result of the case and works
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adversely to a substantial right of the party assigning it.’” Johnson v. Tucker,

51,723, p. 11 (La.App. 2 Cir. 11/15/17), 243 So.3d 1237, 1243, writs denied, 17-

2075 (La. 2/9/18), 236 So.3d 1262; 17-2073 (La. 2/9/18), 236 So.3d 1266 (quoting

Buckbee v. United Gas Pipe Line Co. Inc., 561 So.2d 76, 85 (La.1990)). Reversal

is warranted only if the complaining party shows that when “compared to the

record in its totality,” the alleged error had “a substantial effect on the outcome of

the case.” State in Interest of A.S., __ So.3d at __, __. De novo review of the

record is not required unless prejudicial error of law is shown to exist. Id.

Dr. Kaimal’s Letter

In his first assignment of error, Derek argues that the trial court erred in

allowing counsel for Rapides to use a hearsay document to cross-examine his

expert, Dr. David Goldstein, a pulmonologist and hospitalist, during the doctor’s

trial deposition. He urges that this error requires reversal of the jury’s verdict and

a de novo review by this court. Counsel for Rapides cross-examined Dr. Goldstein

regarding the position paper Dr. Kaimal submitted to the medical review panel in

his defense. Counsel for Derek objected to the questions, but the parties proceeded

with the deposition over Derek’s continuing objection. Counsel for Derek noted

on the record that counsel for Rapides had stipulated Rapides was not calling Dr.

Kaimal to testify at trial.

Before trial, Derek filed a motion in limine seeking to have any questions

and responses posed to Dr. Goldstein pertaining to Dr. Kaimal’s position paper

stricken from Dr. Goldstein’s deposition. He argued that the position paper was

hearsay; therefore, counsel’s questions and Dr. Goldstein’s responses were

inadmissible. Rapides countered that the line of questioning was admissible

because experts are allowed to consider inadmissible hearsay in forming their

opinions. The trial court held that the position paper was inadmissible hearsay but,
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citing La.Code Evid. art. 703(3), determined that Rapides’ use of the position

paper during its cross-examination of Dr. Goldstein was admissible. Derek now

urges that the trial court’s determination constitutes reversible error.

Louisiana Code of Evidence Article 703 (emphasis added) states:

The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made
known to him at or before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be admissible in
evidence.

Rapides cites Trueman v. City of Alexandria, 01-1130 (La.App. 3 Cir.

5/15/02), 818 So.2d 1021, writ granted, 02-2166 (La. 11/15/02), 829 So.2d 410, as

support for the trial court’s ruling. In Trueman, this court concluded that the trial

court erred in excluding the testimony of a treating physician with regard to the

findings and opinions of a physician who performed an independent medical

examination (IME) of the plaintiff because the treating physician answered

questions regarding the findings and opinions documented by the IME physician,

who did not testify at trial. The IME report was included in the plaintiff’s certified

medical records maintained by his treating physician.

In Trueman, the plaintiff’s counsel posed numerous questions to the

plaintiff’s treating physician as to whether his opinions were similar to the

opinions stated in the IME report. The expert treating physician testified as to his

own opinions and compared his opinions to the IME physician opinions. Derek

argues that because Dr. Goldstein did not consider or rely on Dr. Kaimal’s position

paper in forming his opinions, Trueman does not apply here.

In State In Interest of J.S., 17-908 (La.App. 4 Cir. 2/7/18), 238 So.3d 600,

writ denied, 18-375 (La. 4/16/18), 240 So.3d 923, the fourth circuit acknowledged

that an expert may rely on a number of sources, including inadmissible hearsay, to

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form her opinion but determined that an expert’s testimony cannot be used to elicit

inadmissible hearsay evidence. The issue in J.S. was out-of-court statements made

by a fact witness who testified at trial. The state sought to impeach some of the

witness’s statements by having its expert witness testify about contrary out-of-

court statements the witness made to her. The court concluded that the testimony

the state sought to elicit from its expert witness was hearsay regarding facts, not

opinion testimony based on “her specialized knowledge and training to aid the trial

court in understanding the evidence or to determine a factual issue.” Id. at 604.

Consequently, the court held that the trial court properly sustained the defendant’s

objection to the State’s attempt to elicit inadmissible hearsay testimony.

More on point is the case of Bobb v. Modern Products, Inc., 648 F.2d 1051

(5th Cir.1981), rev’d on other grounds, Gautreaux v. Scurlock Marine, Inc., 107

F.3d 331 (5th Cir. 1997), where the trial court granted a defense motion and

refused to admit a physician’s deposition testimony supporting the plaintiffs’ case

because it was untimely and cumulative. The defense counsel attempted to get the

content of a report prepared by the physician whose deposition was excluded by

cross-examining its own expert on the report. On appeal, the court observed that

while wide latitude is generally allowed during cross-examination, “cross-

examination which attempts to impeach by slipping hearsay evidence into the trial

will not be permitted[.]” Id. at 1055. The court determined that the trial court

judgment erred in allowing the cross-examination because it allowed the defense to

“utilize[] the improper hearsay question as substantive evidence supporting the

defendant’s own witness.” Id. at 1056. The court rejected claims that use of the

deposition testimony was proper, explaining, “Until defendant established that

plaintiff had relied on the report of the other doctor, it was improper for the

defendant to read from that report in cross-examining plaintiff’s witness.” Id.
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Rapides chose not to call Dr. Kaimal as a witness at trial. Instead, counsel

attempted to present Dr. Kaimal’s hearsay statements of the facts and his medical

opinions to the jury by reading statements from his position paper when cross-

examining Dr. Goldstein. Dr. Goldstein did not rely on Dr. Kaimal’s position

paper and had not read it before being cross-examined in his trial deposition.

Accordingly, the trial court erred in allowing Rapides to use the position paper

during its cross-examination of Dr. Goldstein.

If Dr. Goldstein’s testimony regarding Dr. Kaimail’s position paper was the

only basis for the jury’s verdict, admission of that evidence would be reversible

error. That is not the case, however. Mr. Coutee presented the expert opinions of

cardiologist Dr. Goldstein and Janice Beerman, R.N. Rapides presented the expert

opinions of cardiologist Dr. Elizardi and Luanne Trahant, R.N. The experts’

opinions were thoroughly fleshed out by the parties. Derek’s experts opined that

Rapides’ care of Mr. Coutee fell below the standard of care citing a number of

issues, including: its personnel did not maintain all the telemetry strips generated

during Mr. Coutee’s stay in the hospital; Mr. Coutee’s sudden cardiac event could

have been prevented if Nurse Standish had been more attentive to him; Nurse

Standish should have, but did not, take Mr. Coutee’s vital signs before she assisted

him to the bathroom; Nurse Standish should have, but did not, contact Dr. Kaimal

before allowing Mr. Coutee to go to the bathroom because she felt he was unsteady

on his feet; and Nurse Standish should have, but did not, keep her eyes on Mr.

Coutee while he was in the bathroom. Dr. Goldstein testified that the episode of

atrial fibrillation and drop in Mr. Coutee’s heart rate at 11:50 p.m. January 3 was a

predictor of his 6:00 a.m. January 4 cardiac event.

Rapides countered with fact and expert testimony that identified factual

errors with Dr. Goldstein’s testimony, such as Mr. Coutee having been found on
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the bathroom floor with his head between the toilet and the shower, which was not

the case, and he was not aware that Mr. Coutee had previously been diagnosed

with sleep apnea, which can cause one’s oxygen level and heart rate to drop. Dr.

Lizardi testified that based on prior medical records, Mr. Coutee, who was sixty-

two years old and weighed 392 pounds, was chronically ill at the time of his

admission to Rapides and had experienced episodes similar to the fainting/passing

episode that led to hospitalization without serious consequences. Dr. Lizardi

further opined that Mr. Coutee had an unexpected, unpredictable, and totally

unpreventable sudden cardiac arrest syndrome the morning of January 4 and that

nothing that occurred during his hospitalization prior to the cardiac arrest was a

predictor of that event. Rapides’ experts further testified that the nursing care

provided by Nurse Standish and other Rapides staff met the standard of care, the

response by Rapides’ nursing staff and personnel to Mr. Coutee’s sudden cardiac

event in the bathroom was reasonable, and Rapides’ documentation of Mr.

Coutee’s hospital stay was reasonable and did not fall below the applicable

standard of care. Additionally, the evidence established that on January 3, Derek

assisted his father to the bathroom for a bowel movement without incident, just as

Nurse Standish and the PCT did on January 4. Having reviewed the entire record,

we cannot conclude that the erroneous admission of portions of Dr. Kaimal’s

position paper through the cross-examination of Dr. Goldstein affected the jury’s

final determination.

Mr. Coutee’s Statements to Nurse Standish

Derek next asserts that the trial court erred in allowing Nurse Standish to

testify regarding statements Mr. Coutee made to her after he requested to go to the

bathroom. In response to questions posed by counsel for Derek, Nurse Standish

testified that Mr. Coutee rejected her suggestions that he use a bedpan or portable
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toilet instead of going to the bathroom. She further testified that she did not stay in

the bathroom with Mr. Coutee because he rejected her offer to do so. Derek argues

that the trial court erred in allowing Nurse Standish to testify to Mr. Coutee’s

statements because they are hearsay.

Rapides counters that the statements at issue are not hearsay because

Derek’s counsel elicited the statements with his questions and did not object to her

answers. Rapides further asserts that the statements are not hearsay because they

were not offered to prove the truth of the matter asserted and they were made for

the purpose of obtaining medical treatment.

“Hearsay evidence is not admissible except as otherwise provided by [the

Code of Evidence] or other legislation.” La.Code Evid. art. 802. Hearsay is

defined as “an oral or written assertion . . . other than one made by the declarant

while testifying at the present trial . . . offered in evidence to prove the truth of the

matter asserted.” La.Code Evid. arts. 801(A)(1); (C).

In Bordelon v. Henderson, 604 So.2d 950 (La.1992), the plaintiffs sued their

father’s physician, claiming that the physician’s treatment fell below the applicable

standard of care because the physician failed to perform certain x-rays on their

father. At trial, the plaintiffs objected to the physician testifying that their father

refused to be x-rayed. The supreme court reversed its earlier ruling to the contrary,

explaining:

[T]he physician’s account of decedent’s statement of refusal of the x-
ray[] is not hearsay. The declarant’s statement is not offered to prove
the truth of the matter asserted. LSA–C.E. Art. 801(C). It is offered to
prove the statement was made for the purpose of its legal effects or
consequences. The legal effect of the statement becomes operative
regardless of the credibility of the declarant or the truthfulness of the
statement.

Id. at 951. The plaintiffs further urged that the physician’s testimony was

unreliable because he did not note the father’s refusal to take the x-ray in the
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father’s medical records and the physician did not cross-examine their father on the

issue during his perpetuation deposition. The supreme court held that these issues

go to the credibility and weight of the statements made and that it is the jury’s

duty, not the court’s, to make credibility determinations. The supreme court

explained: “While the proposed testimony may be detrimental to plaintiffs’ case, it

is highly relevant to the central issue in the case which plaintiffs intend to support

by use of the decedent's perpetuation deposition, and it cannot be said to be

‘unfairly’ prejudicial so as to justify exclusion under LSA–C.E. Art. 403.” Id.

Rapides also argues that Nurse Standish’s testimony as to Mr. Coutee’s

statements to her are not hearsay because they were made to a health care provider

in conjunction with the diagnosis and treatment of Mr. Coutee’s medical condition.

See La.Code Evid. art. 803(4). This exception “has been interpreted to limit the

scope of this exception to the kind of statements that are usually relied upon by

physicians in their diagnosis and treatment of patients.” Comment (b) to La.Code

Evid. art. 803(4). This court determined in Weeks v. Byrd Medical Clinic, Inc., 05-

1310, p. 4 (La. App. 3 Cir. 4/5/06), 927 So.2d 594, 598, that statements like those

Mr. Coutee made to Nurse Standish do not fall with the ambit of the exceptions

provided in La.Code Evid. art. 803(4) because the patient’s statements to her

physician “as to how she fell have nothing to do with the diagnosis or treatment of

her condition and are therefore inadmissible.” The same is true here.

Reed v. Thomas, 355 So.2d 277 (La.App. 2 Cir.), writ denied, 357 So. 2d

1153 (La. 1978), however, addressed a situation more similar to the one presented

here. In Reed, the issue was whether a landowner knowingly sold the land at issue,

not just the standing timber thereon. The landowner’s descendants sought to have

a tax sale transferring ownership of the land declared invalid on the basis that their

deceased ancestor in title had been misled into signing the deed transferring title.
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They sought to use the testimony of the attorney who previously represented their

ancestor in title to satisfy their burden of proof. The defendants objected to the

prior attorney’s testimony, arguing that it did not satisfy any exception to the

general hearsay rule. The trial court allowed the testimony. On appeal, the second

circuit affirmed, stating:

[Attorney] Brown’s testimony as to what he said and did as Mrs.
Ellis’ attorney in 1937, was admissible. His testimony as to Mrs. Ellis’
statements to him, even if objected to as hearsay, were admissible to
show the fact of the utterances and to explain his acting on her
utterances as her attorney. McCormick on Evidence, s 246 (2nd Ed.
1972); State v. Launey, 335 So.2d 435 (1976).

Id. at 280-81.

Rapides also argues this assignment lacks merit because Derek’s attorney

“opened the door” for Nurse Standish’s testimony as to Mr. Coutee’s statements to

her. In State v. Winfrey, 97-427, p. 26 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, 78,

writ denied, 98-264 (La. 6/19/98), 719 So.2d 481, the court held “Defense counsel

opened the door for the inadmissible hearsay report by questioning on cross-

examination [a witness] extensively from the report.”

Derek called Nurse Standish on cross-examination as his first witness.

During the course of the examination, Derek’s counsel asked her, “Was Mr.

Coutee insisting on going to the toilet?” Nurse Standish responded, “He said that

he could not use the bedpan.” Counsel did not object to Nurse Standish’s

response. Nonetheless, Derek’s counsel did object to similar answers elicited by

counsel for Rapides during direct examination of Nurse Standish. Applying the

above precepts, the trial court did not err in allowing Nurse Standish’s responses.

Medical Review Panel Opinion

In this assignment of error, Derek argues the trial court erred in allowing

Rapides to introduce the medical review panel opinion into evidence. He contends

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the opinion has no application here because none of the panel members were

nursing experts and one of the panel members was not allowed to testify at trial

because he could not show that he had sufficient knowledge of the facts.

Louisiana Revised Statutes 40:1231.8(H) specifically provides that medical

review panel expert opinions “shall be admissible as evidence in any action

subsequently brought by the claimant in a court of law, but such expert opinion

shall not be conclusive and either party shall have the right to call, at his cost, any

member of the medical review panel as a witness.” If, however, the opinion

exceeds its statutory authority by determining a material issue of fact, the opinion

is inadmissible. McGlothlin v. Christus St. Patrick Hosp., 10-2775 (La. 7/1/11), 65

So.3d 1218.

Derek has not shown that the medical review panel exceeded its authority in

its opinion. We further note that the trial court refused to allow one of the panel

members to testify at trial because he was not adequately prepared to testify, which

the trial court observed could lead to confusion of the jury. The trial court did not

err in allowing its opinion to be introduced into evidence.

Spoliation of Telemetry Strips

In his last assignment of error, Derek asserts that the trial court erred in

determining that Rapides’ failure to maintain all of his father’s telemetry strips did

not constitute spoliation of evidence that warrants the imposition of an adverse

presumption and a jury instruction on the issue. Rapides argues its employees did

not intentionally destroy evidence that it knew Derek would request in his case. It

further argues that Derek waived his right to present this assignment on appeal

because he did not object to the trial court’s denial of his motion in limine on the

issue. As to the latter argument, we find that the trial court’s denial of Derek’s

motion in limine after the issues were fully briefed and argued to the trial court and
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Derek’s reminder to the trial court at the conclusion of the evidence that the issue

needed to be addressed preserved his right to present the issue on appeal. See

Maldonado v. Kiewit La. Co., 12-1868, 12-1869 (La.App. 1 Cir. 5/30/14), 152

So.3d 909, writ denied, 14-2246 (La. 1/16/15), 157 So.3d 1129. Accordingly, we

will address this assigned error.

The first circuit addressed spoliation of evidence in Carter v. Hi Nabor

Super Market, LLC, 13-529, pp. 6-8 (La.App. 1 Cir. 12/30/14), 168 So.3d 698,

703-04, writ denied, 15-190 (La. 4/17/15), 168 So.3d 399, where it explained:

Spoliation of the evidence is an evidentiary doctrine that refers
to an intentional destruction of evidence for the purpose of depriving
the opposing parties of its use in pending or anticipated litigation. . . .

A trial court has the authority to impose sanctions on a party for
spoliation of evidence and other discovery misconduct under both its
inherent power to manage its own affairs and the discovery articles
provided in the Louisiana Code of Civil Procedure. Under La. C.C.P.
art. 1471, when a party refuses or is unable to comply with a
discovery order, the trial court in a pending action “may make such
orders in regard to the failure as are just,” thereby granting the trial
court broad discretion to impose a range of sanctions. La. C.C.P. art.
1471(A); see also Fed.R.Civ.P. 37. Even without a discovery order,
La. C.C.P. art. 191 authorizes trial courts to impose sanctions for
spoliation of the evidence, since the destruction of evidence clearly
interferes with the court’s ability to fairly administer justice.
Specifically, La. C.C.P. art. 191 provides that a trial court “possesses
inherently all of the power necessary for the exercise of its jurisdiction
even though not granted expressly by law.”

Courts have long held that as a general rule, “[w]here a litigant fails to

produce evidence available to him and gives no reasonable explanation, the

presumption is that evidence would have been unfavorable to his cause.” Salone v.

Jefferson Parish Dep’t of Water, 94-212, p. 6 (La.App. 5 Cir. 10/12/94), 645 So.2d

747, 750 (quoting Boh Bros. Const. Co. Inc. v. Luber-Finer, Inc., 612 So.2d 270,

274 (La.App. 4 Cir.1992), writ denied, 614 So.2d 1256 (La. 3/2693)). Conversely,

if a valid explanation for failing to produce the evidence is provided, the

presumption does not apply. Id.
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The trial court considered Derek’s claims that Rapides intentionally failed to

retain copies of all the telemetry strips generated during Mr. Coutee’s stay in the

telemetry wing in light of the dates of Mr. Coutee’s hospitalization, the dates on

which Rapides would likely have had notice of Derek’s intention to pursue a claim

for his father’s death, Rapides’ written procedure for maintaining telemetry strips,

and the testimony of Rapides’ personnel including Nurse Standish, Nurse Futrell,

and Ms. Holmes, regarding Rapides’ actual practices with regard to printing and

maintaining of telemetry strips. Rapides’ written procedure provides, in pertinent

part:

2. Once a clear signal is established, an initial telemetry strip is
printed and placed on the patient’s chart.

3. Telemetry strips are printed on each nursing unit, and placed in
the patient chart every shift.

Ms. Holmes was asked if she had to notify a nurse and print a telemetry strip

every time “an arrhythmia occurred . . . whether it was sustained, prolonged, [or]

very short in nature?” She answered, “Yes.” As to printing the strips, she

clarified:

[S]ometimes the nurse would say I’m looking at it or I’ve been down
there or maybe a strip didn’t need to be printed because maybe they
were going in and out of rhythms . . . . So I can’t say that a strip has to
be printed every time, any kind of arrhythmia.

The trial court determined the evidence did not establish that Rapides’ personnel

intentionally discarded or failed to preserve Mr. Coutee’s telemetry strips. Nothing

in the evidence controverts this conclusion. Accordingly, the evidence does not

establish the trial court abused its discretion in reaching this conclusion and

denying Derek’s request for adverse presumption and attendant jury instruction to

that effect.

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Contrary to Derek’s claims, this case is not comparable to the case of Sayre

v. PNK (Lake Charles), LLC, 15-859, pp. 9-10 (La. App. 3 Cir. 3/23/16), 188

So.3d 428, 436, writ denied, 16-696 (La. 6/28/16), 192 So.3d 780, where “the

defendant had not only entrenched across-the-board policies requiring employees

to take a series of specific steps when an accident occurred, those policies

demanded a permeating and continuing control of the evidence to the exclusion of

all others.” This court concluded that because “the defendant selectively adhered

to some of its operating procedures but failed to adhere to others,” the plaintiff was

entitled to an adverse presumption that evidence the defendant failed to produce

would have been unfavorable to it. Id. That is not the case here.

DISPOSITION

For the reasons discussed herein, the trial court’s judgment is affirmed. All

costs are assessed to Derek Coutee.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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