Opinion
22-C-48
02-10-2022
BONNY G. BARRIOS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND SAMUEL E. SCHUDMAK IN RE BONNY G. BARRIOS
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE R. CHRISTOPHER COX, III, DIVISION "B", NUMBER 783-129
Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and John J. Molaison, Jr.
WRIT DENIED; MOTION TO STRIKE GRANTED
Relator, Bonny G. Barrios, seeks expedited review of the Twenty-Fourth Judicial District Court's February 3, 2022 oral ruling permitting the defense to elicit testimony from her expert and treating surgeon, Dr. Khader Samer Fayez Shamieh, regarding a pending RICO lawsuit brought by a trucking company alleging the surgeon's former patients committed fraud in their claims against the trucking company. Ms. Barrios' case involves injuries allegedly sustained as a result of a July 15, 2017 accident; a car wreck involving her Toyota Camry and Samuel E. Schudmak's Ford F-150 pickup truck at the intersection of U.S. 90 and U.S. 90 Business. Trial is currently scheduled to begin on Monday, February 14, 2022. For the following reasons, we deny the writ application.
Mr. Schudmak died on November 6, 2019. Relator filed a First Amending and Supplemental Petition to name his estate as a defendant on January 26, 2021.
During the February 2, 2022 video deposition of Dr. Shamieh, Attorney Matthew A. Mang, counsel for Respondent, State Farm Mutual Insurance Co. and Mr. Schudmak, drew objections from Dr. Shamieh's attorney and Ms. Barrios' attorney when he asked "Are you aware, Doctor, of the ongoing Louisiana Federal Criminal Probe into allegedly staged automobile accidents for which allegedly staged automobile accidents for which allegedly fraudulent personal injuries claims were made by various plaintiffs and personal injury attorneys in the New Orleans area?". Dr. Shamieh's attorney also advised him not to answer the question. Relator's attorney, Kenneth M. Miller, explained that his objection was "simply a relevance objection".
The video recording was suspended after Attorney Mang called the judge on the record to rule on the objection, as the parties intend to show the video deposition to the jury. Atty. Mang maintained that he should be able to question the doctor about "publicly available federal pleadings in a RICO suit . . . alleging that Dr. Shamieh was one of several doctors who treated and performed surgery for people who were never involved in accidents, or the accidents were staged, but surgeries were performed anyway, many of which many of which have plead guilty to various criminal offenses" to establish "bias, credibility and motive under the Code of Evidence". Atty. Miller argued that the line of questioning was completely prejudicial and had no relevance regarding Dr. Shamieh's credibility and that Dr. Shamieh is not a named defendant in the RICO lawsuit. The judge then ruled that Atty. Mang was entitled to continue questioning Dr. Shamieh and that Atty. Miller could ask any questions he wished to ask on cross-examination (sic).
In her writ application, Ms. Barrios argues that the evidence regarding the RICO lawsuit is inadmissible hearsay and its admission was manifestly erroneous and an abuse of discretion. In its Opposition, Respondents argue that Ms. Barrios' alleged injuries were not caused by the subject accident, but are the result of longstanding degenerative disease, and that future medical treatment is not required. Respondents also aver that the alleged "lack of credibility and the apparent bias and financial motive of Dr. Shamieh" in treating personal injury ligitigants is critical to their defense. In its Oppostion asserting that the trial court's ruling should be upheld, Respondents argue that 1) Ms. Barrios' writ is procedurally improper; 2) the RICO questioning is relevant and admissible; 3) Ms. Barrios filed to preserve an objection based on lack of foundation, and no such foundation was required; and 4) Ms. Barrios failed to preserve any hearsay objections; and the RICO questioning is not hearsay.
This Court has previously observed that the deposition of a treating physician for purposes of perpetuation, under La. C.C.P. art. 1421, is subject to the express stipulations of the parties. Genovese v. Ferrygood, 98-1348 (La.App. 5 Cir. 6/1/99), 734 So.2d 977, 982, writ denied sub nom. Genovese v. Coyle Ferry Good, 99-2390 (La. 11/12/99), 750 So.2d 199. The application before us shows that, before the start of the deposition at issue, the parties entered into a stipulation wherein "all objections, except those as to the form of the question and/or responsiveness of the answer, are hereby reserved until such time as this deposition or any part thereof may be used in evidence."
The deposition transcript shows that an objection was made regarding the relevance of a line of questioning directed to Dr. Shamieh. The parties contacted the trial judge during the deposition to determine whether Dr. Shamieh could answer those questions. Typically, if an objection has been made merely to admissibility, the deponent must answer the question and the objection will be preserved and ruled on, if and when the deposition is presented. La. C.C.P. art. 1451; MTU of N. Am., Inc. v. Raven Marine, Inc., 475 So.2d 1063, 1068 (La. 1985). To the extent that the trial judge did permit the examination of Dr. Shamieh to continue, a trial court has wide discretion concerning the admissibility and relevancy of evidence, and a trial court's ruling will not be disturbed on appeal absent a clear abuse of discretion. Succession of Davisson, 50, 830 (La.App. 2 Cir. 12/22/16), 211 So.3d 597, 604, writ denied, 17-307 (La. 4/7/17), 218 So.3d 111.
This case is currently in a pre-trial posture. The admissibility of Dr. Shamieh's deposition has not yet been placed at issue. If and when the deposition is sought to be introduced into evidence, the parties agreed that any objections can be raised at that time, pursuant to La. C.C.P. art. 1451: Subject to the provisions of R.S. 13:3823 and Article 1455, an objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (Emphasis added.) Thus, the issue presented here is premature. Accordingly, the writ application is denied. Relator's motion to strike filed on February 8, 2022 is granted.
MEJ
RAC
JJM