Kenneth Soutullo Versus Lammico ( 2024 )

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
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DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
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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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