1 IN THE FIRST JUDICIAL DISTRICT COURT
2 PARISH OF CADDO
3 STATE OF LOUISIANA
4
5 CUTHBERT O. SIMPKINS, M.D.
6
7 VERSUS DOCKET NO.: 516,764
8
9 BOARD OF SUPERVISORS OF
10 LOUISIANA STATE UNIVERSITY
11 AND AGRICULTURAL AND MECHANICAL
12 COLLEGE, et al
13
14
15 APPEARANCES:
16 ON BEHALF OF THE PLAINTIFF:
17 MR. BARRY COBURN
18 MR. KOBIE FLOWERS
19 MR. LARRY ENGLISH
20
21 ON BEHALF OF THE DEFENDANT:
22 MR. THOMAS R. PEAK
23
24
25 PROCEEDINGS HAD in the above-entitled matter before the
26 Honorable SCOTT J. CRICHTON, Judge of the First Judicial
27 District Court, in and for the Parish of Caddo, State of
28 Louisiana, 16 November 2009.
29
30
31 Reported by:
32 Teresa Procell
1 P R O C E E D I N G S
2 THE COURT: For the court reporter, this is number
3 516,764, Cuthbert Simpkins, M.D. versus Board of
4 Supervisors of Louisiana State University. I would like
5 the lawyers to please one by one stand and give your name
6 and your representation for the court reporter so that
7 our record is complete.
8 MR. PEAK: Thomas Peak, Taylor, Porter, Brooks and
9 Phillips, here for the Defendants.
10 MR. ENGLISH: Larry English, on behalf of Cuthbert
11 Simpkins.
12 MR. FLOWERS: Kobie Flowers, on behalf of Dr.
13 Simpkins.
14 MR. COBURN: Good morning, Your Honor. Barry Coburn,
15 for the Plaintiff as well.
16 THE COURT: All right. Are there any preliminary
17 matters that we can take up? I understand that there
18 were going to be some dismissals of certain parties; is
19 that correct? Do you want to take that up now? We have
20 a number of motions, of course, to address, it doesn't
21 matter to me how we do it as long as we're efficient.
22 MR. COBURN: Absolutely, Your Honor. Can I bring the
23 mic over?
24 THE COURT: Sure, that's fine.
25 MR. COBURN: You're absolutely right, Your Honor.
26 There were to be some dismissals of individuals and
27 essentially what we're asking the Court to do is dismiss
28 all of the individuals except for Dr. Richard Turnage
29 and, of course, the Institutional Defendant. I don't
30 believe there's any objection on the part of Mr. Peak to
31 that request and that would probably be an appropriate
32 preliminary matter to do first.
1 THE COURT: Well, of course there's not any
2 objection, is there, Mr. Peak?
3 MR. PEAK: There is no object to dismissing Dr. Clay
4 and Dr. Li, Dr. Sittig was previously dismissed.
5 Obviously, I don't agree that Dr. Turnage should still be
6 an individual defendant but that's not part of the Motion
7 To Dismiss.
8 THE COURT: All right. One minute, we need to make
9 sure that the Deputy Clerk gets back because that will
10 need to be entered into the minutes. Let's just be on
11 standby.
12 (The Clerk entered the courtroom.)
13 THE COURT: Deputy Clerk is with us and for the
14 record counsel for Dr. Simpkins, Plaintiff counsel, has
15 orally moved to dismiss Dr. Roy Clay and Mr. Benjamin Li;
16 is that correct?
17 MR. COBURN: Yes, Your Honor, it is.
18 THE COURT: All right. The Court will order that the
19 Deputy Clerk make a minute entry in this suit number that
20 Dr. Roy Clay and Dr. Benjamin Li have both been dismissed
21 from these proceedings. Any other preliminary matters we
22 can take up before we actually launch into the various
23 motions that are before the Court?
24 MR. COBURN: I can't think of anything, Your Honor.
25 I should just let Your Honor know that in terms of the
26 issue of witnesses which we discussed informally just
27 before we started, Dr. Huntoon is in the courtroom.
28 There are two motions relating to Dr. Huntoon, I just
29 wanted to let Your Honor know that. We think it's
30 appropriate for him to remain and don't have any
31 objection, obviously, to him doing so and just wanted to
32 make sure it was on the record and Your Honor knew about
1 it.
2 THE COURT: All right.
3 MR. PEAK: Your Honor, the only other thing that is
4 kind of a preliminary matter that's not one of the actual
5 motions that are pending but we had indicated to the
6 Court we would attempt to give some guidance on the peer
7 review record in-camera inspection. That is not before
8 the Court in the form of a motion right now but the Court
9 had indicated that it wished to hear from us to some
10 extent, any helpful suggestions we could give with regard
11 to that.
12 THE COURT: Well, I'm going to suggest that the
13 lawyers visit about that during the early part of the
14 afternoon or at least as soon as we get through with all
15 of the motions before the Court. I have a couple of
16 boxes here and I think while everybody is together and
17 present it would be time well spent for the lawyers to
18 talk about the contents of these two boxes.
19 I understand, Mr. Peak, you're not providing copies
20 or anything of that nature but while you're here it may
21 be time well spent to address that issue among yourselves
22 and perhaps if necessary, Mr. Peak, you can make
23 reference to some of the items in these boxes.
24 Ultimately I'm going to need to have some guidelines
25 of exactly what I'm looking for as opposed to just two
26 big boxes because I don't have time, quite frankly, to go
27 through these records without some direction as to
28 exactly what I'm looking for and what I should focus on.
29 I mean I do have other cases other than this one, I know
30 you all are all surprised to know that, but this is not
31 the only case that I have and so I'm going to need some
32 help because I don't have three or four or five days to
1 spend on a box full of stuff.
2 It doesn't matter to me again which motion we
3 address first. If you want to address the motion with
4 respect to Dr. Huntoon that's fine since he's here and
5 present, it's up to you all. Is that what you want to do
6 first?
7 MR. COBURN: Yes, Your Honor.
8 THE COURT: Let me get everything in front of me so
9 if I need to look at it. What I have before me in
10 particular is Defendants' Article 1425 Motion with
11 respect to Lawrence Huntoon, M.D., filed by the
12 Defendants and that was filed October 9, 2009. I also
13 have before me a Motion In Limine To Exclude Testimony Of
14 Lawrence Huntoon, M.D., filed by the Defendants on
15 November the 9th, 2009. And then I received Plaintiff's
16 Memorandum of Points and Authorities In Opposition To
17 Defendants' Motion to Exclude the Testimony of Dr.
18 Huntoon previously.
19 MR. COBURN: Just to let Your Honor know, there's
20 actually two oppositions. There's the one to exclude him
21 pursuant to 1425 and we filed a brief in opposition to
22 the Motion In Limine.
23 THE COURT: Let's make sure that the record is
24 crystal clear and I am crystal clear. Give me the
25 dates. Mr. Peak, let me suggest that you do that and I
26 want to make sure that we accomplish two things. One is,
27 I want to make sure that I read every single thing that's
28 been presented and I also want to make sure that the
29 record, in the event this hearing is ever reviewed by an
30 Appellate Court, I want to make sure the record is
31 complete and it's clear.
32 MR. PEAK: Your Honor, let me apologize. The reason
1 there are two motions, I would have done it as a single
2 motion and I would have done it as a single motion
3 potentially with regard to this now that the trial has
4 been moved to February. The problem that I ran into with
5 the 1425 is that's a recent change in the Code Of Civil
6 Procedure that requires those things to be filed purely
7 on the issue of whether or not an expert qualifies under
8 the Daubert 4A 702 type inquiry separate and apart from
9 the issue of whether an expert's testimony might be
10 excluded under Articles 400 through 402, so there's two
11 different things.
12 I had to file them separately due to the time
13 constraint, that's why we were agreeable to having them
14 heard at the same time. I think all four documents, the
15 two motions that I filed and the oppositions as far as
16 I'm concerned, and I'm sure as far as Barry is concerned,
17 the Court can read them all together because I think--
18 the bottom line is, had I been able to file it as a
19 single document I would have.
20 THE COURT: All right.
21 MR. PEAK: But the dates that you need on that is the
22 first one was the 1425, my records indicate that was
23 approximately October the 9th I think is the Clerk's
24 date.
25 THE COURT: That's the filing date, October 9th,
26 2009.
27 MR. PEAK: The response to that was I think filed
28 October the 6th-- I mean November the 6th by the
29 Plaintiffs. And then we filed subsequently on October
30 the 9th would have been the filing date, was actually
31 sent out prior to that but it was received here I think
32 on October the 9th and filed the Motion to Exclude Dr.
1 Huntoon's Testimony--
2 THE COURT: That would be November 9th.
3 MR. PEAK: November the 9th, I'm sorry, November the
4 9th. And it's my understanding the document you may be
5 looking for is the opposition which was e-mailed to me
6 late Friday afternoon about four something from Kobie
7 Flowers, which I'm not sure if it's in your copy of the
8 record right now or if it may be in the Clerk's Office.
9 THE COURT: I'm not sure if it's in the Clerk's
10 Office, I received it by e-mail this weekend.
11 MR. PEAK: I did receive that Friday afternoon at
12 four something, is my recollection.
13 MR. FLOWERS: That would be November 13th.
14 MR. PEAK: November 13th.
15 THE COURT: All right. So we agree, then, that we're
16 looking at the dates of October the 9th, 2009 for the
17 Defendants' Article 1425 Motion. November the 6th, 2009
18 for the Defense Motion In Limine To Exclude The Testimony
19 of Dr. Huntoon. And then for record purposes we're
20 talking about November the 9th, 2009 a Memorandum in
21 Opposition, correct?
22 MR. COBURN: I think two of those dates got
23 transposed, Your Honor, if I'm not mistaken. I think it
24 was November 6th that we filed our opposition to the 1425
25 Motion, and November 9th when Mr. Peak filed his Motion
26 In Limine.
27 THE COURT: You're right.
28 MR. COBURN: Which he was perfectly right to do that,
29 that was the deadline for it, and then we opposed it at
30 the end of that week on the 13th.
31 THE COURT: One minute, please. Is there any
32 evidence to be taken up in connection with this motion?
1 MR. COBURN: We're not sure about the answer to that
2 question. We thought it was prudent, Your Honor, given
3 that it's essentially a Daubert Kumho Tire type motion to
4 have our witness here. If Mr. Peak wanted to examine
5 him, I don't think we would have any objection. It's
6 conceivable, given the way the argument goes, that we
7 might seek to elicit some testimony from him in order to
8 amplify some of the issues so Your Honor can have more
9 information available to make the decision.
10 But in all candor, given the time pressure that we
11 have today with so many motions on I personally don't
12 think the issue is that close. I don't know that Your
13 Honor absolutely has to hear him but he is here if it
14 turns out to be appropriate for him to testify.
15 THE COURT: All right. This is your motion, Mr.
16 Peak.
17 MR. PEAK: Yes, Your Honor, it is. We move to
18 exclude Dr. Huntoon's testimony, first of all, because
19 the area which he is being offered to testify as an
20 expert in is the field of sham peer review which is an
21 area which Dr. Huntoon has identified as being a
22 problem. He has traveled the country addressing groups
23 about his perception that there is an epidemic of sham
24 peer review. Our problem in this particular case is, and
25 as much a problem obviously that the Plaintiffs have
26 conceded in their memorandum, that this is not the
27 traditional peer review expert scientific type inquiry
28 that would normally take place under Daubert, this is
29 more of a Kumho Tire type of potential expert.
30 The real problem we have in this case, Your Honor,
31 is it's our position that Dr. Huntoon is functioning more
32 akin to an advocate as opposed to an expert and it's our
1 position that if he testifies at this trial he is going
2 to potentially-- the prejudicial effect of his testimony
3 has the very strong probability of outweighing any
4 probative value that that testimony would have. Again,
5 this is an area where Dr. Huntoon has looked at what he
6 perceives to be a trend and has come to the conclusion
7 that institutions are using peer review to target and
8 remove people and then hide behind the immunity that's
9 set forth under the peer review statutes for actions of
10 peer review committees.
11 In this particular case, the other thing that we
12 kind of draw back to this particular case is we're really
13 talking about a peer review committee that reviewed Dr.
14 Simpkins' privileges issue. And as the Court is well
15 aware, because this case has been submitted in terms of a
16 Motion For Summary Judgment and extensively briefed, what
17 happened with regard to Dr. Simpkins that involved a peer
18 review action was at some point after Dr. Simpkins had
19 been there awhile his privileges came up for renewal
20 and/or modification. Dr. Turnage, who was the Chair of
21 the department, made a recommendation to LSU Credentials
22 Committee with regard to what he believed would be
23 appropriate conditions to be placed temporarily on Dr.
24 Dr. Simpkins' privileges.
25 That went to the Credentials Committee. The
26 Credentials Committee, which is a peer review body at
27 LSU, took testimony or heard from Dr. Simpkins and from
28 Dr. Turnage, considered what was presented to it, and
29 after considering that presentation elected to recommend
30 to a subsequent higher level peer review committee, The
31 Clinical Board, that Dr. Simpkins' privileges be granted
32 in full with certain conditions.
1 Again, the documents are already in the record and
2 throughout the record. The conditions that were placed
3 were that due to an episode of unprofessional conduct
4 that was noted there was a requirement that Dr. Simpkins
5 get screened for drugs and also that he submit to a
6 psychiatric evaluation just to see if those things might
7 have had anything to do with unprofessional conduct.
8 Additionally, there were certain limitations on Dr.
9 Simpkins doing certain things like performing
10 thoracotomies on the ward floor in the absence of
11 providing the Clinical Board with proof that that was the
12 appropriate standard of care. There were also some
13 requirements that he get a neurological consult if there
14 was a gunshot type issue to the head. That he admit
15 patients to the trauma service only when they were really
16 trauma patients to avoid the problems of potentially
17 admitting someone that might be a toxicology type,
18 pharmacology situation and a situation that really wasn't
19 a trauma issue.
20 These were things which were characterized in later
21 reports as being simply general standards of practice at
22 the institution which were made part of the renewal of
23 his privileges simply because there had been discussions
24 with Dr. Simpkins before about doing certain things and
25 short of feeling like having it in writing those things
26 they wanted to make sure were going to be done. Again,
27 these were temporary conditions.
28 The Clinical Board after it heard from the
29 Credentials Committee adopted these temporary
30 conditions. Dr. Simpkins subsequently had the right and
31 did appeal the decision of the Peer Review Committee at
32 the Clinical Board level to the Chancellor, Dr. McDonald,
1 of the Institution, and at that point there was an
2 evidentiary hearing, he was represented by counsel. Dr.
3 McDonald reviewed those decisions and adopted or approved
4 or affirmed, I guess would be the best word, the decision
5 of the Clinical Board.
6 So what we had were temporary conditions that were
7 placed on Dr. Simpkins' privileges. After that he came
8 up for renewal again while he was still employed there.
9 On the subsequent renewal after he had complied with the
10 conditions he took a professionalism I think CD study
11 program or whatever else. There had been some
12 monitoring. He was afforded full credentials by the same
13 committees that had placed the temporary conditions, the
14 same committees subsequently afforded him full privileges
15 without any restrictions or conditions which were the
16 privileges he had at the time he left.
17 There is going to be testimony if we get on this
18 issue of privileges, the question is whether in my mind
19 if some of these things are adverse employment actions,
20 but in any event there will be testimony concerning how
21 this process occurred. Dr. Huntoon is being offered as
22 an expert to suggest that this whole thing was nothing
23 but a sham.
24 The problem that I have is that while the statute
25 and the Code of Evidence does say that the fact that an
26 expert offers an opinion on an ultimate issue this does
27 not automatically exclude his testimony, the problem I
28 have is the same problem with the cases I've cited to
29 Your Honor reflect which is Dr. Huntoon will testify that
30 this was a sham review even if every step required under
31 the statute was followed and even if it's a situation
32 where, you know, the jury needs to be the one to make
1 that decision based on its opportunity to evaluate
2 testimony at a trial.
3 Dr. Huntoon is going to sit there and tell a jury
4 this is a sham peer review and at this point all Dr.
5 Huntoon has to go on for that opinion if he has that
6 opinion today is what he's heard about this case from Dr.
7 Simpkins and what he has learned from reading any of the
8 depositions that are in the record.
9 As of right now there is not a lot of evidence on
10 which that decision is based and certainly our position
11 is the fact that these were temporary conditions which
12 were subsequently removed argue strongly against this
13 being a sham peer review. The fact that Dr. Simpkins was
14 given the opportunity to be heard at each step of this
15 process argues strongly against this being a sham peer
16 review. And the fact that, again, these temporary
17 conditions were subsequently removed and he was afforded
18 full privileges argues strongly against this being a sham
19 peer review.
20 In any event, our concern is that if the jury is
21 faced with listening to an expert testify that he has
22 looked at it, he's an expert on this and by God this is
23 sham peer review that that is going to tend to unduly
24 weight their evaluation of the facts and evidence which
25 would be offered at trial and interfere with their
26 ability as the trier of fact to make that determination.
27 It's going to tend to color it more than it should be
28 colored simply because we have someone that is out there
29 in the community saying that we have an epidemic of sham
30 peer review.
31 There is no evidence that I'm aware of that Dr.
32 Huntoon has ever made an investigation specifically at
1 LSUHSC Shreveport to see if there is some continuing
2 problem with sham peer review there. There isn't any
3 indication that this is an epidemic here. This is
4 something that he feels is an epidemic nationally and our
5 biggest concern, Your Honor, is, quite frankly, it is
6 sham peer review in his mind because he says it is.
7 He hasn't been on a credentials committee, that I'm
8 aware of. He has not been in these positions and yet
9 he's going to give testimony-- he's going to give opinion
10 testimony that we feel like will potentially prejudice
11 the jury and unduly affect the outcome of this trial when
12 it is not firmly rooted in the facts.
13 THE COURT: What about blistering cross-examination
14 by Tom Peak?
15 MR. PEAK: Well, Your Honor, we will do the best job
16 that we possibly can on that count but I'm a little
17 concerned just by the virtue of him being anointed as an
18 expert by the Court. And if his bottom line conclusion
19 is it's sham peer review that's going to be a very
20 difficult thing to overcome in the eyes of a jury who
21 admittedly is not going to be a true peer of Dr. Simpkins
22 or it's not going to be a panel, I would imagine, of
23 medical practitioners sitting there.
24 It's going to be a bunch of people that work at
25 blue-collar type jobs and other positions for a living
26 who are going to want to defer to somebody with
27 impressive academic credentials and titles behind their
28 name and Dr. Huntoon is just the sort of people that I'm
29 afraid they're going to defer to and he's going to carry
30 an undue weight with them.
31 THE COURT: What consideration should I give to the
32 Third Circuit writ ruling?
1 MR. PEAK: The Third Circuit's decision-- first of
2 all, I'm not sure exactly what level of a fight was put
3 up as to his being accepted as an expert in that Court.
4 The Third Circuit's ruling, as Mr. Coburn has pointed out
5 or Mr. Flowers, whoever did the briefs, in several cases
6 he's argued about the fact that since the Second Circuit
7 hasn't ruled on one of the other motions before the Court
8 that the Court isn't bound by any of these other circuits
9 anyway. So our position would be at least with regard to
10 the Third Circuit's decision, the fact that the Third
11 Circuit chose to accept him as an expert does not
12 necessarily mean that this Court should choose to accept
13 him. There are other cases-- other Courts that have
14 looked at him and have rejected his testimony as an
15 expert.
16 THE COURT: Louisiana courts?
17 MR. PEAK: Not Louisiana courts, Your Honor, I'll be
18 frank. Quite frankly, there are not a whole lot of
19 cases. I have found cases, and I'll be frank again,
20 there have been some cases where, and I can't remember if
21 there was one in Texas that was one of the ones that Dr.
22 Huntoon's organization and journal and I think in some
23 other things have touted as being one of these victories
24 for sham peer review and that decision I think out of
25 Texas was subsequently overturned but I cannot recall if
26 he was accepted as a witness in that case or not, I don't
27 believe that came through clearly. Thank you, Your
28 Honor.
29 THE COURT: Well, I guess to more bluntly answer my
30 question, I don't have to give any consideration to the
31 Third Circuit ruling for all the reasons that you said.
32 Number one, it's not the Second Circuit which covers this
1 jurisdiction. Number two, and more importantly, it's not
2 the Louisiana Supreme Court. Number three, we don't know
3 how hard fought it was. Certainly it was fought, though,
4 we know that.
5 MR. PEAK: Somebody did raise an issue about it, Your
6 Honor, that's pretty clear.
7 THE COURT: Wouldn't you think that would be a pretty
8 big issue to raise?
9 MR. PEAK: Your Honor, first of all, I felt like I
10 had to raise the issue from the standpoint of it's my
11 obligation to do so. There are some aspects of what--
12 certainly to the extent that I had been successful in
13 some of the Summary Judgment Motions that I had filed or
14 that might have borne on this it might have been a bigger
15 or lessor issue considering the fact of how those rulings
16 would have happened.
17 Part of the thing I've got in this case too, Your
18 Honor, is in addition to my concerns about Dr. Huntoon
19 there are a number of things, including any areas that he
20 may be testifying about which is this whole privileges
21 issue, where there are some other, for lack of a better
22 term, I don't want to say legal outs but there are other
23 legal reasons why some of the things that are the actual
24 underlying causes of action that his testimony may shed
25 some light on there's some serious legal problems in my
26 mind with some of those other things.
27 So while I truly believe that Dr. Huntoon will not
28 be helpful to this jury, and I particularly believe that
29 because I don't even think based on his criteria that he
30 set forth when he submitted his report which was used in
31 opposition to the Motion For Summary Judgment that the
32 Plaintiffs submitted, many of the things that he has
1 touted as being hallmarks of sham peer review did not
2 occur in this case. And this is certainly not a case
3 where an individual had actions taken with regard to his
4 credentials where he was not afforded-- I know that the
5 Plaintiffs like to cite a decision that I was involved
6 in, the Driscoll case, this is not the Driscoll case.
7 The Driscoll case there was no hearing whatsoever with
8 regard to what the body chose to do with regard to the
9 recommendation to the boards with regard to a resident's
10 board certification.
11 In this particular case, Your Honor, they dotted
12 their i's and crossed their t's. They actually took this
13 up to the Credentials Committee. I think the record is
14 going to show, and there's testimony in Dr. Sittig's
15 deposition which is already in evidence, that the
16 Credentials Committee had Dr. Simpkins-- gave him an
17 opportunity to meet with them and talk to them before it
18 made its decision on his credentials what their
19 recommendation was going to be. In fact, the first time
20 that they had scheduled for him to meet Dr. Simpkins did
21 not show up and they rescheduled the meeting to make sure
22 that they heard from him so that he would have the
23 opportunity to address them. That does not smack to me
24 of sham peer review.
25 If this was going to be a sham peer review it would
26 have been pretty easy for a committee to say, whoops,
27 this was your opportunity to be here and testify and talk
28 to us about this, you elected not to be here even though
29 this was scheduled, therefore, we're going forward with
30 it. But even then once the Credentials Committee acted
31 it had to go to the Clinical Board and at the Clinical
32 Board level again Dr. Simpkins had the opportunity to be
1 heard. There is nothing in this that smacks of a sham
2 peer review. Every step that's required where the
3 federal statute is applicable, every step required under
4 the federal statute was followed in this case and
5 everything that's required under the state statute to
6 support a finding of immunity was followed in this case.
7 Now, if the Court found that there was immunity in
8 this case as we asked in the Summary Judgment Motion this
9 would be a little bit less meaningful to me because at
10 that point Dr. Huntoon's testimony whether or not he
11 thought there was appropriate peer review as long as the
12 Court agreed that every step was followed and we were
13 entitled to immunity we might not be having an issue with
14 regard to his testimony. But this is not a sham peer
15 review case. I am concerned that the mere fact that
16 someone says it is is going to be something that a jury
17 is going to be affected by and that's why we've raised
18 the issue about it.
19 THE COURT: All right. Response.
20 MR. COBURN: Thank you, Your Honor. Tom Peak is
21 right, first of all, that the issue that Your Honor is
22 addressing right now does dovetail with a couple of the
23 other motions that he filed. There is a Motion In Limine
24 filed, I believe four or five Motions In Limine, and one
25 of them is a Motion In Limine To Exclude Evidence as to
26 defamation in this case and that's something that I
27 anticipate Your Honor will take up later in the day, but
28 basically our principal point with respect to that motion
29 which also, as he points out, relates to this motion is
30 that that's essentially just asking Your Honor to
31 re-address what Your Honor very carefully and
32 comprehensively addressed months ago on Summary
1 Judgment. The only basis for that motion, and Mr. Peak
2 just refers to it now, in order to buttress his
3 contentions concerning Dr. Huntoon because Dr. Huntoon's
4 testimony does relate to the defamation counts.
5 But the only basis that he urges for what he
6 captions a Motion In Limine, which from our point of view
7 is not a Motion In Limine at all but rather just an
8 attempt to ask Your Honor to reconsider what Your Honor
9 already very carefully and, like I said, comprehensively
10 decided on Summary Judgment, because the only basis in
11 the Motion In Limine as to defamation is the contention
12 that we don't state a claim.
13 He reargues the prescriptive period allegations that
14 appeared in the Motion For Summary Judgment and reargues
15 whether or not there was publication and reargues whether
16 or not there was qualified privilege or malice and so on,
17 and from our point of view those are all issues that are
18 Summary Judgment issues, they're not Motion In Limine
19 issues. And they're all briefed very carefully and
20 comprehensively in Tom's Motion For Summary Judgment
21 earlier this year and our opposition which Your Honor, we
22 think, very carefully and correctly resolved.
23 In terms of just kind of what the nature of the
24 defamation claim is here because again Tom addressed that
25 and it does relate to some degree to Dr. Huntoon's
26 testimony I should tell Your Honor, first of all, that
27 this issue of privileges, what LSU calls the conditions,
28 they kind of insist on that term, the conditional
29 limitations on Dr. Simpkins' privileges that were imposed
30 back in I believe 2006 that's not the only incidence of
31 alleged what you could call sham peer review that we've
32 alleged in this case.
1 There is a sequence of level threes and level fours
2 and so on, other things that happened during the course
3 of the peer review process, that are in-- that reference
4 in Dr. Huntoon's report and so there are kind of a litany
5 of things that happened in this case which we claim
6 constitute sham peer review, it's not just the imposition
7 of the conditional limitations.
8 And, Tom, of course, being the skilled lawyer that
9 he is, sort of tries to minimize it during the course of
10 his argument today that these are just temporary and they
11 didn't really mean that much and they're obviously not
12 defamatory because they got lifted later on and so on.
13 But not to put too fine a point on it, Your Honor, I mean
14 these conditional limitations on Dr. Simpkins'
15 privileges, and I mean I'm not just saying this we're
16 going to prove it, they utterly destroyed his career.
17 They are one of the key centerpieces of our allegations
18 in this case.
19 It is because of the imposition of those conditional
20 privileges that Dr. Simpkins, who is seated before Your
21 Honor to my left right now, is not currently practicing
22 medicine, he can't. And the reason he can't, and the
23 reason he might not ever again practice the profession
24 that he cares so deeply about is principally because of
25 the existence-- because of the imposition of these
26 conditional privileges.
27 Because, again, not to put too fine a point on it,
28 as we argued, and I think Your Honor will well recall me
29 because it was kind of like I said, a centerpiece of the
30 Motion For Summary Judgment in our opposition, I mean
31 basically what these limitations on his privileges say to
32 a prospective employer is, A, Dr. Simpkins has mental
1 health problems because he was ordered to go see a
2 psychiatrist. B, that Dr. Simpkins is an abuser of
3 illegal drugs because he was ordered to have drug tests.
4 C, that Dr. Simpkins is incompetent because of the other
5 limitations that were placed on his privileges. And
6 again, Your Honor, this is not just me speculating here,
7 I'm not making this up, I mean we can prove that it is
8 because of the existence of these conditional limitations
9 regardless of whether they were lifted later.
10 Anyplace Dr. Simpkins applies for privileges he
11 isn't going to get them. I mean we have evidence in this
12 case which again relate directly to the defamation counts
13 that Dr. Simpkins tried to get a job at the VA at Overton
14 Brooks Medical Center and we've got testimony from the
15 physician that reviewed that application, I think he is
16 the Chief of Staff there, Dr. Mulligan, or Milligan, I
17 can't recall, Milligan, we deposed him and he testified
18 in detail about this issue and he made it just as
19 crystal-- if I could just-- if I could even just convey
20 verbally to Your Honor the look on his face when he
21 described this.
22 But it was basically along the lines of no way would
23 any doctor who had limitations like that imposed on his
24 privileges ever work at this facility, ever. And, again,
25 it's not just me making that up it's right in the record
26 and we cited it and attached all that to our opposition
27 Of Summary Judgment and there's going to be testimony to
28 that effect during the course of this trial, I
29 anticipate, if Your Honor allows it.
30 So Dr. Simpkins' career is over, at least for the
31 moment, it's over. And he's basically-- I know there are
32 going to be issues about mitigation of damages, we can
1 debate those later, but this is not a small thing, I mean
2 this is the termination of a physician's career so it's
3 in that context among others. And as I indicated there
4 are various other acts of sham peer review that we're
5 alleging in this case that Dr. Huntoon's testimony is so
6 important.
7 In terms of Tom's point that Dr. Huntoon's field is
8 the field of sham peer review, I mean I don't know
9 whether that's putting it exactly right. I don't know
10 that that's kind of a field of study, the field of sham
11 peer review. That that's something you could-- that
12 somebody gets a chair in that or something at a
13 university but that's what his opinion relates to in
14 terms of just what are the indicia of sham peer review.
15 It is a phenomenon that's been observed, and I'm
16 going to talk a little bit about that in a few minutes if
17 I've not gone on too long, but he is going to opine about
18 that. But I think it's more correct to say that the
19 field is the field of privileges, credentialing
20 privileges and peer review of those privileges in medical
21 institutions. That's where his expertise is and that's
22 what he would, if Your Honor allows him, that's what he
23 would testify about.
24 Now, Tom says that we conceded, was the word that he
25 used, that this testimony isn't in the field of science.
26 I don't think that's the right word actually because the
27 word conceded kind of implies that somebody who comes
28 into Court, this courtroom or any other, and testifies
29 about something that is not "scientific", in other words,
30 it's not specifically within the realm of Daubert vs.
31 Merrell Dow Pharmaceuticals, that that suggests they are
32 somehow lessor; that's not the law.
1 You know, an expert can be a scientist and then they
2 have to qualify under Daubert. An expert can be somebody
3 who has expertise acquired in another way, the word
4 experiential tends to get used, and that's somebody who
5 qualifies under Kumho Tire, that line of cases.
6 One is not superior or inferior to the other and
7 there's nothing wrong or kind of unsavory or otherwise
8 kind of incidental about an expert who provides
9 experiential testimony versus somebody who happens to be
10 a scientist. And, of course, Dr. Huntoon is a scientist,
11 he's a neurologist, but his testimony in terms of sham
12 peer review is entitled to the same weight and gets the
13 same sort of analysis as somebody who comes in and
14 testifies as an expert scientist.
15 And that's something that Your Honor referred to, of
16 course the Pittman case, which is sort of a centerpiece
17 of our argument here. This is Marcus Pittman, for the
18 record, M.D., versus Howard M. Rigg, III, M.D., et al,
19 and this was an opinion or an order rather from the Third
20 Circuit Court of Appeals here in Louisiana.
21 By the way, I should note that the fact that this
22 opinion is not referenced in Tom's filing that's just
23 because I don't think he really focused on it or knew
24 about it. There's no way that he would have
25 intentionally not mentioned it, but it is critical. It's
26 critically important from our point of view because, as
27 Your Honor points out, I mean it is an Appellate Court in
28 this state and that Court addressed exactly this issue.
29 So I'm not saying that--
30 THE COURT: And it's gospel even though it's not the
31 Circuit that is directly over this area, right?
32 MR. COBURN: I'm not falling for that one. It's not
1 gospel and the Court is not bound by it but it is
2 persuasive, highly persuasive from our point of view,
3 because it's the same issue.
4 THE COURT: I believe it is persuasive, that is
5 exactly the right term, persuasive, not necessarily
6 authoritative.
7 MR. COBURN: I agree with that a hundred percent, I
8 think that's exactly right. But, you know, I mean it's
9 obviously contested because it's a reversal. I mean the
10 Court says we find the trial court abused its discretion
11 when it granted the motion to exclude Huntoon and then
12 there's a very interesting observation here in this very
13 brief order about Daubert.
14 The Court notes that it's not a list of requirements
15 that have to be met in each instance of expert testimony
16 or even a list of factors that are necessarily applicable
17 to all types of expert testimony, and that's the point I
18 was trying to make. Probably not as effectively in terms
19 of this being a Kumho Tire expert, not a Daubert expert,
20 and that's exactly what the Court is observing here.
21 It says here since the expert testimony to be
22 offered by Dr. Huntoon regarding sham peer review does
23 not constitute traditional scientific evidence, the
24 Daubert requirement of strict compliance of scientific
25 methodology is unnecessary. That couldn't be clearer and
26 it's a hundred percent right. Not just under the law of
27 Louisiana but under Supreme Court case law 4A and the
28 other cases in Louisiana have adopted.
29 And it says explicitly is qualified to testify on
30 the subject of sham peer review and his testimony would
31 assist the trier of fact, see Louisiana Code Article 702,
32 which is the exact thing of course that Tom cites for his
1 motion, therefore, it's reversed, the Motion In Limine is
2 denied and so on, so I think that's-- I mean it's pretty
3 powerful.
4 And Your Honor I think kind of got right to the
5 point and asked whether there's ever been a contrary
6 decision in the State of Louisiana and the answer to that
7 question is no, so I won't really spend a whole lot of
8 time on the particular standard that needs to be applied
9 here because Your Honor knows better than me what that
10 is. But it's really a question of intellectual rigor,
11 that term has been used in the Louisiana cases, it's not
12 just a subjective belief or unsupported speculation,
13 requires some kind of technical or specialized knowledge
14 of the type analyzed in Kumho Tire. The gatekeeping role
15 that the Court performs in these kinds of decision making
16 separates expert opinion evidence based on "good grounds"
17 from subjective speculation masquerading as knowledge or
18 experience.
19 So I mean when we look at all of this, and I'm going
20 to talk in a little bit more detail in a second, if I
21 may, but can we really say that what Dr. Huntoon is going
22 to do here is is this subjective speculation. I mean the
23 one thing that Tom cites, and of course from his point of
24 view his right to cite it, is the Massachusetts case, the
25 Tuli case, and I'm sure the Court in that case tried to
26 look hard at this issue. The problem was that it was
27 simply I have to just say without meaning to be unduly
28 critical of another lawyer but it was really poorly
29 briefed honestly in that case. That's a case out of
30 state but I mean just in terms of-- and I can prove this,
31 I mean this is easy to see in terms of the observations
32 that the Judge in the Tuli case makes about Dr. Huntoon.
1 This is the kind of most dangerous situation that an
2 expert witness can run into in these kind of cases
3 because the expert doesn't get to defend himself, he is
4 just kind of at the mercy of the lawyer who hired him and
5 if the lawyer doesn't argue it carefully or right or
6 doesn't furnish the judge with the materials that the
7 judge needs to see then the judge is going to reach the
8 wrong decision, that's what happened in the Tuli case.
9 The key quote that Tom relies on in the Tuli case
10 and that, you know, is right obviously in the heart of
11 that little bit of the Court's opinion is the Judge says
12 that Huntoon "created the field based on his own concerns
13 about sham peer review." Now, this observation,
14 obviously with the greatest respect to another Court, but
15 that observation is dead wrong. Like I said, I can prove
16 that.
17 I mean if you take a look at the term sham peer
18 review all that's necessary to do basically is put the
19 term in quotes and put it into Westlaw or Alexis. What
20 you come up with is twenty-four reported cases and that's
21 not counting the unreported cases. The many, many cases,
22 obviously, where these decisions get made in a trial
23 court and it doesn't result in a reported opinion.
24 There are twenty-four reported cases and the dates
25 of these cases are significant because Dr. Huntoon, and
26 this is all a matter of record, it's conceded and agreed
27 by both parties, he gets involved in this field back in
28 2004. Because the organization that he's part of, I
29 think it's the AAPS, whenever he becomes the chairman of
30 a committee that's devoted to looking at the sham peer
31 review and that's kind of when he starts functioning
32 essentially as an expert and his testimony comes later
1 than that and he's still a practicing neurologist, by the
2 way.
3 Since he gets involved in 2004 and since the cases
4 citing this term, and I'm not talking about some
5 analogous term, cases referring to sham peer review start
6 in the year 1992, twelve years before Dr. Huntoon utters
7 his first word about sham peer review. I mean it's
8 perfectly obvious, couldn't be more obvious, that the
9 judge's observation in the Tuli case that Dr. Huntoon
10 created this field is, and again I say it with the
11 greatest respect, dead wrong.
12 There is a case, and this is just one example and I
13 can give this list to Your Honor if it would be of any
14 value, I mean I could read just a few of these into the
15 record. There's Santaval v. Malaber(ph), this is a state
16 case in Pennsylvania, 603 8d 695, February 7th, 1992,
17 relating to the alleged sham peer review of Dr. Malaber.
18 Then there's another case a year later, June 25th, 1993.
19 This is a case in Federal Court and the opinion, the case
20 obviously started earlier because the opinion in Federal
21 Court in the Eleventh Circuit in Florida is from 1993,
22 eleven years before Dr. Huntoon ever uttered his first
23 word about sham peer review. This case is interesting,
24 it is Boczar, if I'm pronouncing it right, B-o-c-z-a-r,
25 versus Manatee Hospitals and Health Systems, June 25th,
26 1993, Eleventh Circuit case.
27 Here's what the Eleventh Circuit says back in 1993.
28 I won't read much of this, Your Honor, but just in terms
29 of sham peer review it's analyzed in that case under
30 federal law under the Sherman Act and the Court concludes
31 that Dr. Boczar presented sufficient evidence that the
32 hospital conspired with others to restrain her practice
1 of medicine. And it cites an earlier case, Bolt v.
2 Halifax Hospital Medical Center, 891 F2d 810, page 819,
3 another Eleventh Circuit case, this one goes back to
4 1990, so we're talking fourteen years before Dr. Huntoon
5 uttered his first word about sham peer review.
6 And the parenthetical here in this Eleventh Circuit
7 opinion is that that case, the Bolt case, held that
8 hospitals may be found liable for conspiring with members
9 of medical staff and that evidence of pretextual "sham
10 peer review proceedings presented a jury question whether
11 hospitals conspired with peer review committees in
12 violation of the Sherman Act." So I mean, you know, the
13 notion that he created this field it just has no
14 substance to it, he didn't.
15 The notion of it, the concept of it, the observation
16 of it was around long before he ever got into the field
17 and, frankly, there are numerous other people that refer
18 to it. There is a website which we refer to in our
19 papers, the Semmelweis Society, S-e-m-m-e-l-w-e-i-s,
20 Society, it's founded by a gentleman by the name of Dr.
21 Verner Waite, W-a-i-t-e. That Society started in 1986 so
22 we're talking now almost two decades before Dr. Huntoon
23 said his first word about it so far as anyone knows.
24 It's devoted to an exploration of sham peer review, there
25 are other websites also that are similar, not just the
26 Semmelweis Society.
27 There are the long list of articles in Dr. Huntoon's
28 report concerning Dr. Simpkins and I'm not going to take
29 up the Court's time by reading these to Your Honor
30 because they're right in the record but I mean just to
31 direct the Court's attention they're in footnote one and
32 footnote eight and a lot of these things are things that
1 he didn't write.
2 He cites the Semmelweis Society, an article by
3 William K. Reid, R-e-i-d, M.D. I mean this is like
4 three-quarters of a page single spaced of a footnote in
5 Dr. Huntoon's report, footnote number eight, in which he
6 goes through one article after another after another
7 after another relating to cases in which sham peer review
8 has been found to have been proven. And articles, you
9 know, among others there's a reporter Steve Twep who has
10 been writing about this for years and years. I mean
11 numerous, numerous commentators, doctors, others.
12 Kenneth Westuhues, W-e-s-t-u-h-u-e-s, at the University
13 of Waterloo in Canada, I believe 2006. No, I'm sorry,
14 that's in California, not Canada, and he's been writing
15 about this for I believe decades.
16 All this tends to go to whether or not the Kumho
17 Tire standard is satisfied and in terms of whether there
18 are good grounds and whether there's kind of rational
19 decision making or whether it's just kind of a subjective
20 personal opinion and, obviously, from our point of view
21 it's not.
22 I mean there are other things also, Your Honor. I
23 know I'm going on kind of long here but there is a long
24 litany of medical-- this is all attached to our papers,
25 but there are many medical associations that have
26 recognized Dr. Huntoon's work, medical societies that
27 he's spoken to that have honored him, that have invited
28 him.
29 Just like we get CLE credit, people get medical
30 continuing education credit for going to his lectures.
31 His organization and he have been authors of amicus
32 briefs in the Supreme Court and various other courts. He
1 has given many, many lectures before many, many groups.
2 He has submitted material to a Congressional Forum in
3 2006. He has submitted a-- was invited to I believe and
4 did submit a statement to the Congressional Subcommittee
5 on Labor And Education Work Force Protections.
6 Attached to Tom's papers is an article from the
7 Louisiana Medical News, that is the most mainstream
8 medical periodical in this state so far as I know, and it
9 is not a critical article. From my reading of it it
10 seems to refer quite favorably to Dr. Huntoon's work.
11 There are wide varieties of other publications like
12 that. I referred already to Professor Westuhues at the
13 University of Waterloo who has talked about sham peer
14 review and says that it's like what he calls incidents of
15 university mobbing, m-o-b-b-i-n-g, this is a phrase that
16 apparently is used in terms of tenure review in
17 universities. I refer to a variety of articles by a
18 reporter Steve Twep. And this organization, by the way,
19 that Dr. Huntoon speaks for, the AAPS, was founded back
20 in 1943, has a panel of sixty physicians.
21 There's an AMA memo which again is attached to Tom's
22 submission entitled, "Should Do Process Rights Be Part Of
23 Hospital Peer Review". This memo has eighteen citations
24 in it to cases and other periodicals and it refers, from
25 my reading, again quite favorably to the notion that sham
26 peer review is a serious problem and needs to be examined
27 and addressed. There are various other experts who have
28 written on this.
29 There's a gentleman by the name of Livingston,
30 there's another one by the name of Scheutzow, this is all
31 in our papers, S-c-h-e-u-t-z-o-w. There have been
32 articles in the AMA Voice, the American Medical
1 Association Voice, the American Medical News, that's the
2 key kind of newspaper that the AMA publishes.
3 In one of these documents, again, it's attached to
4 our submission, a long list of proven cases of sham peer
5 review, I believe that's in this article. I can get it
6 to Your Honor, it is attached to what we submitted. I
7 mean there's a list, a lengthy list of cases in which
8 sham peer review has been held to be proven. I believe
9 this is in an AMA publication and I guess I could-- Tom
10 didn't mention this but I should just maybe talk briefly
11 because it's in his papers about he says that there is
12 this website called Quack Watch which doesn't like Dr.
13 Huntoon or his organization.
14 But I mean if we're going to talk about something
15 that is subjective and just kind of like somebody's
16 subjective opinion, Quack Watch is a website which so far
17 as I can tell doesn't relate to an organization like the
18 AAPS, it's run by one person and his name is Dr. Steven
19 Barrett. And he has this line, I was looking at his
20 website last night, Your Honor, he's got this line on his
21 website where he says I consider these publications
22 untrustworthy and he talks about the AAPS publication, he
23 thinks it's untrustworthy, and this is something that is
24 cited in LSU's submission, but he also says that AARP's
25 magazine is untrustworthy, he says the Huffington Post is
26 untrustworthy and he has some things that he recommends.
27 He recommends NetFlix and Amazon books. And these
28 are other things that he calls questionable, this is a
29 quote, "questionable, dubious or dangerous." Alternative
30 medicine, chiropractors, dietary supplements, embryonic
31 stem cell clinics, genetic diagnosis, organic foods, Dr.
32 Linus Pauling, who by the way won I think two Nobel
1 Prizes or maybe just one, and the National Institute of
2 Health Center For Alternative and Complimentary Medicine.
3 So basically, Your Honor, I mean, like you said, I
4 think Your Honor hit the nail right on the head in your
5 question to Tom which is what about aggressive
6 cross-examination from Tom Peak. And LSU is blessed with
7 a really tremendously able lawyer at the other end of
8 this table and he can just go ahead and skewer Dr.
9 Huntoon on cross-examination if he thinks that he can and
10 if he succeeds in doing it he might destroy our entire
11 case. That's not a basis for excluding him under Kumho
12 Tire, there is no basis for excluding him is my
13 respectful submission to the Court.
14 THE COURT: All right. Brief rebuttal by Mr. Peak.
15 MR. PEAK: Very briefly, Your Honor. There is a
16 reference in Dr. Huntoon's report of level threes and
17 fours, those are the documents that are in those peer
18 review documents that you have before you again that
19 reference the level threes and fours is not based upon
20 any review of what LSU has done in similar factual
21 circumstances. Dr. Simpkins simply says he felt like he
22 got more than other people have gotten when he shouldn't
23 have gotten them, that's a subjective type thing.
24 The reason, and I appreciate Barry's defense of my
25 inability to find this Third Circuit case, I was being
26 frank, I didn't find it because when I typed it in the
27 Westlaw it did not come up. I'm not sure it's a reported
28 writ granted reverse so I'm not sure if it was recorded
29 or picked-up or not, but Westlaw didn't pick it up when I
30 ran the sham peer review and Dr. Huntoon. So to the
31 extent that was out there, and it's obviously before I
32 filed my stuff, I do apologize for not having brought it
1 to the Court's attention because I would have.
2 The one thing I will say is, while I appreciate Your
3 Honor's position that it is persuasive, if you'll check
4 it does refer to the 702 grounds, that it is persuasive
5 as to 702. It does not address the other aspect that I
6 have raised which is the prejudicial effect under 402
7 aspect and the Third Circuit decision does not reference
8 that at all.
9 I'm not taking the position-- and I did cite the
10 case and I quoted the language that said that Dr. Huntoon
11 had created this field. I am certain, and I did not mean
12 to imply that no one had ever claimed to have been
13 subject to adverse peer review, that it was a sham or
14 said the word sham peer review in context. I have no
15 doubt that that has been referenced at some point since
16 peer reviews started happening that someone's taken the
17 position it's a sham, so to the extent the Court felt
18 that I was characterizing this as being something that he
19 has simply dreamed-up and nobody has ever made this
20 argument before that isn't my position at all.
21 Now, Dr. Huntoon is now, as he says, a man on a
22 mission and he is going around testifying about these
23 things and deriving income about it. My real concern is
24 is whether this is going to unduly impede upon the jury's
25 ability to weigh evidence, to consider credibilities of
26 witnesses and everything else without it being unduly
27 colored by Dr. Huntoon's testimony if the Court garbs him
28 in the rob of an expert.
29 THE COURT: Don't you have more faith in our jurors?
30 MR. PEAK: I have a lot of faith in jurors, Your
31 Honor. But, again, we have jurors decide a lot of cases
32 that are dealing with issues that if it were me on a jury
1 I would be a little bit uncomfortable about. A lot of
2 times they do come to very good common sense decisions
3 with regard to some of those things but there are times
4 that if you ask me as a juror, despite my having been to
5 law school, if you ask me to have an opinion about
6 something I'm going to have to defer in some of those
7 cases to someone that the Court tells me is an expert.
8 And my concern in this case is making that
9 subjective decision as to whether a sham has taken place
10 or not, that's something that they're going to have to
11 come to that conclusion. The fact that Dr. Huntoon tells
12 them that he thinks it's sham peer review I don't want
13 that prejudicing their ability to reach that conclusion.
14 THE COURT: All right. This particular issue will be
15 submitted, I will rule on this later this week by a
16 written judgment. Now, I don't mind talking about any
17 other brief motion before the Court. I would like to
18 stop no later than 1:00 o'clock so do we need to stop now
19 for a short lunch break or--
20 MR. PEAK: Your Honor, there is one I think I can
21 handle very briefly depending on what Barry's position is
22 going to be with regard to it. I can tell you flat out,
23 the one that I think is the most cut and dried thing is I
24 had filed a Motion In Limine To Exclude Documents,
25 Policies And Procedures From LSUHSC in New Orleans and
26 that deals with, as the Court is aware, there is a
27 Louisiana State University, the Board of Supervisors of
28 Louisiana State University and the System that's an over
29 arch of the entity. Inside that body there are various
30 campuses.
31 Plaintiff has evidenced or indicated an intention to
32 introduce into evidence certain policies, procedures and
1 forms which were applicable to the New Orleans campus
2 which had no force and effect or application whatsoever
3 to the Shreveport campus, they are two totally separate
4 entities. One of the forms that I actually attached to
5 my Motion was a form where the New Orleans campus
6 actually went to the Board of Supervisors, asked for
7 permission and got approval to postpone tenure review as
8 a result of Katrina to allow professors who wish to avail
9 themselves of this the ability to apply for and affect a
10 stopping of the clock due to the fact that the Medical
11 Center down in New Orleans was under water and Katrina
12 slammed it and those professionals were all relocated and
13 disrupted and everything else, there's a form in there
14 that deals with that.
15 That is a very unique situation to New Orleans, not
16 just the fact that it's about a different campus but it's
17 about-- it's a different campus which is my position plus
18 it's also about New Orleans and it's about a situation
19 that existed as a result of Katrina which was not the
20 case here in Shreveport.
21 So our position simply is anything that is not a
22 permanent memorandum that is a system document or a bylaw
23 and regulation which is a system document that affects
24 all the campuses, anything that is specific to the New
25 Orleans campus and not specific to the Shreveport campus
26 doesn't apply to the Shreveport campus and those things
27 shouldn't come into evidence. I think to the extent they
28 will, they will confuse and prejudice the jury.
29 THE COURT: One minute, please, let me make sure I
30 have everything in front of me here. Just so that the
31 record is clear, once again, what we're talking about
32 moving on now to the second motion to be addressed by the
1 Court, this motion is also filed November the 9th, 2009
2 by the Defendants and it's titled, Motion In Limine To
3 Exclude Documents, Policies and Procedures From Louisiana
4 State University Health Sciences Center New Orleans, and
5 there is an opposition filed by the Plaintiffs I believe
6 dated November the 12th. Is that correct?
7 MR. FLOWERS: It's actually November the 13th, Your
8 Honor.
9 THE COURT: And I believe that is Plaintiff's
10 Opposition To Defendants' Motion In Limine To Exclude
11 Documents, Policies and Procedures from LSU Health
12 Sciences Center. And I believe you've also, Mr. Flowers,
13 electronically re-sent that document to me. That's not a
14 new document, is it?
15 MR. FLOWERS: No, it's not, Your Honor.
16 THE COURT: It's the same document filed November
17 13th. I have those documents in front of me.
18 MR. FLOWERS: Thank you, Your Honor. Just briefly.
19 The issue here, Your Honor, is in this case there's going
20 to be a lot of testimony. We anticipate there will be a
21 lot of testimony about what is the peer review process,
22 what is the credentialing process so we argue that
23 certainly under 401 this evidence is very much relevant
24 because again the material issue or the material fact at
25 issue is what exactly is this credentialing process, what
26 is this peer review process.
27 As Tom has already kind of well explained, it is
28 rather complicated. You've got kind of a Credentials
29 Committee which then goes up to a Clinical Board and then
30 there's another appeal up to Dr. McDonald, if possible,
31 so the policies and what they mean and what they say are
32 very, very important. And if there's a policy in New
1 Orleans or a policy in Shreveport those policies the jury
2 ought to be able to have access to to try to kind of
3 figure out what these policies mean. And the Court is
4 well aware that one of our counts is that LSU did not
5 follow due process and so the process is extremely
6 important and those policies help to kind of flesh out
7 what the process is. What Tom Peak's argument gets at
8 really goes more to the weight of the evidence and not
9 the relevance of the evidence again under 401, 402 and
10 403 of the Louisiana Code of Evidence.
11 The other issue we bring to the Court's attention is
12 the fact that the Plaintiff sued LSU, that's the party.
13 The Plaintiff did not sue LSU at Shreveport or LSU in New
14 Orleans or LSU in Baton Rouge, the Plaintiff sued LSU so
15 these policies certainly come in as admissions against
16 the party.
17 Again, Mr. Peak with his skill and experience
18 certainly can bring out whether a policy goes to New
19 Orleans or whether a policy goes to Shreveport, but
20 certainly our position is that given the complexity of
21 this case, given that we're going to have to educate the
22 jury about things such as credentialing and privileges
23 and tenure we ought to have access to everything that LSU
24 has said and has put out there and certainly that issue
25 is relevant because it is one of the counts in our
26 petition. Certainly that issue is relevant because what
27 Mr. Peak says is the procedures and policies we quite
28 frankly disagree. And, again, Mr. Peak can certainly
29 through cross-examination, through other witnesses bring
30 out the differences between the various policies.
31 I submit to the Court that that will not confuse the
32 jury because we quite frankly lose if we don't-- we quite
1 frankly lose if we're unable to kind of explain clearly
2 what these policies say and what they don't say. And the
3 very important point, Your Honor, is whether LSU at large
4 followed that policy in this case.
5 MR. PEAK: Your Honor, bottom line, the Plaintiff was
6 employed at the LSU Medical Center in Shreveport. The
7 fact that there may be policies and procedures at the LSU
8 Ag Center, which is part of the LSU system, there may be
9 policies and procedures at LSU Eunice, there may be
10 policies and procedures at LSU Shreveport, none of those
11 policies and procedures have one thing to do with this
12 case. If there was a policy and a procedure at the LSU
13 Dental School in New Orleans that said that someone is
14 entitled to full privileges if they can hop on one foot,
15 hold their breath and whistle Dixie at the same time that
16 wouldn't have anything to do with this case either.
17 Our problem is that if every potential policy at
18 every campus in this LSU system could conceivably get
19 thrown in front of a jury for a jury to shift through and
20 sort out not only is this trial going to take not just
21 three weeks or four weeks but we may be trying this case
22 for the better part of a year.
23 But they're going to be totally confused because Dr.
24 Simpkins never worked at LSUHSC New Orleans, he never
25 worked at the LSU Ag Center, he never worked at the LSU
26 Dental School. The policies and procedures that were in
27 effect at LSUHSC Shreveport are admittedly relevant in
28 this case and the policies, procedures, bylaws and
29 regulations that apply system wide at the system level
30 are admittedly relevant in this case. But policies and
31 procedures that are campus specific to a campus at which
32 Dr. Simpkins never worked have nothing to do with this
1 case, they will only prolong this trial, complicate this
2 trial and confuse the jury.
3 THE COURT: I need to get a little bit better handle,
4 Mr. Flowers, on exactly what you're talking about from
5 LSU Health Sciences Center in New Orleans. I'm not sure
6 exactly what you're-- can you tell me what's in their
7 documents, policies and procedures that aid you in
8 presenting relevant evidence on behalf of your client?
9 And relevant I think is the key word.
10 MR. FLOWERS: Without question, Your Honor. Let me
11 explain it this way. LSU has several kind of policies
12 and procedures and they find themselves in several kind
13 of different iterations. There is what Tom has brought
14 out, which I think is kind of a very narrow example of
15 what's going on in LSU at New Orleans, but there's an
16 entire faculty handbook. There are policies that just
17 apply to, for instance, Dr. Turnage, as the Chairman, and
18 all the Plaintiff is arguing is that we ought not be
19 precluded from explaining to the jury, unlike what Mr.
20 Peak has said, kind of in a very cogent and clear form,
21 what it means, for example, to have tenure.
22 The tenure policy applies to the entire university
23 at LSU so if there is information which is housed at New
24 Orleans that goes to the entire tenure policy then that
25 certainly is relevant because Dr. Simpkins had his
26 tenure, was not granted tenure based on, we believe, not
27 following the appropriate policy.
28 So, Your Honor, this is not a way for us to try to
29 get every single policy before the jury, not at all.
30 It's simply the fact that these procedures with respect
31 to credentials and privileging, the procedures with
32 respect to tenure are difficult and we ought to be able
1 to explain to the jury exactly where those procedures
2 come into play whether that be from an LSU policy. If it
3 doesn't apply, we're not going to put that before the
4 jury.
5 However, for instance, the LSU faculty handbook
6 applies to the entire school whether you're in Shreveport
7 or in New Orleans so those are things that we ought to be
8 able to explain to the jury because, again, the
9 procedures are just more difficult to understand. And so
10 if there is a policy we could show here, for example, the
11 Defendant did not follow the procedure, for example, with
12 the Impaired Physician's Policy.
13 There's an Impaired Physician's Policy which says if
14 you are going to restrict a physician's credentials
15 because they are using drugs or because they have a
16 mental health problem, well, there's a policy for that
17 and we would like to be able to show to the jury that in
18 this case dealing with Dr. Simpkins they did not follow
19 that policy.
20 THE COURT: Well, is that policy different from the
21 LSU systems policy or the LSU Health Sciences Center
22 Medical Center of Shreveport policy? I mean I'm having a
23 hard time. Is the New Orleans policy in that respect
24 regarding substance abuse issues, is that going to be
25 different from the systems policy and if it is-- I'm
26 having a hard time understanding how that might be
27 relevant to this case involving Dr. Simpkins with respect
28 to his claims against the LSU system here and what
29 happened to him in Shreveport.
30 MR. FLOWERS: Right, and I'm not being very clear so
31 forgive me, Your Honor. The policy that deals with the
32 drug case from my understanding just is a policy that is
1 campus wide for all doctors. So if there is an issue
2 with respect to limiting or restricting or putting on
3 conditions, choose your word, on someone's privileges,
4 there is a policy that must be followed. That policy
5 from my understanding applies campus wide to all
6 doctors.
7 We simply want to be able to if there is another
8 policy that deals with another issue that is not in the
9 LSU Shreveport Policy Manual we think that that policy if
10 it was followed that we can just demonstrate that it was
11 followed or not followed ought to be brought before the
12 jury to again show whether the procedures and policies
13 were followed.
14 I really don't believe, Your Honor, that we're going
15 to be dealing with policies for campuses in Baton Rouge
16 or other far places. I mean we're here because of what
17 happened at Shreveport, but to the extent that there are
18 gaps in the Shreveport policy, to the extent that other
19 policies help explain what happened in the Shreveport
20 policy we ought not be precluded, certainly as a
21 relevance matter, from introducing those policies to
22 fill-in those gaps.
23 So that's the Plaintiff's position. I don't know
24 again if I've made myself clear but certainly would
25 entertain any of the Court's questions.
26 THE COURT: All right. Response.
27 MR. PEAK: Your Honor, just quite briefly. There is
28 a faculty handbook or something like a staff manual for
29 New Orleans that applies to New Orleans. There is a
30 faculty handbook, staff manual that applies to
31 Shreveport. What the faculty, staff manual in New
32 Orleans says has absolutely nothing to do-- it was
1 adopted by different people at different times than the
2 one in Shreveport. None of the ones from away from
3 Shreveport apply to Dr. Simpkins at all.
4 Now, there are also cases, Your Honor, that talk
5 about this as a different matter. The fact that faculty
6 handbooks and all are not contractual and there's all
7 those issues about that from the standpoint of tenure and
8 other issues but we're not here to fight that fight. My
9 real concern here is is anything that does not have
10 system wide application which would typically be
11 characterized as a PM in the LSU system, a permanent
12 memoranda such and such, or anything that does not have
13 campus application that was adopted at Shreveport for
14 Shreveport, anything from New Orleans, for example, that
15 deals with the New Orleans campus that's not a system
16 policy and is not relevant to this case and that's our
17 position.
18 MR. FLOWERS: Your Honor, with the Court's indulgence
19 if I could just consult with my client very quickly.
20 THE COURT: Sure.
21 MR. FLOWERS: Thank you, Your Honor, for the brief
22 caucus. The bottom line is this I think, Your Honor, and
23 that is this. That we ought to be able to compare kind
24 of what happened at LSU Shreveport with respect to how
25 they follow their campus wide policies or did not follow
26 their campus wide policies and how say LSU New Orleans or
27 LSU at some other place followed the system wide policies
28 such that the jury will have a basis with which to say
29 the procedures and policies at Shreveport with respect to
30 Dr. Simpkins were not followed. Well, how do we know
31 that? We know that because when we look at the
32 procedures and policies at, for instance, LSU New
1 Orleans, well, they were followed. So that's the kind of
2 comparing and contrasting that needs to happen and that's
3 kind of point A, if you will.
4 Point B is again what I've explained, perhaps not
5 artfully so, that where there are gaps in the LSU
6 Shreveport policy if you can look at New Orleans and see,
7 well, this is how the LSU New Orleans policy was
8 implemented then that will inform you and tell you how it
9 should have been done at Shreveport. At the end of the
10 day LSU is still the entity, it's still the party again
11 that we have sued in this case and so their policies and
12 procedures are kind of classic party admissions which in
13 courts across the country are typically brought into
14 play.
15 Of course when those policies and procedures come
16 actually in at trial Mr. Peak is at the liberty to go
17 ahead and object and you can sustain the objection and we
18 move on. But to kind of cutoff those policies at this
19 early stage as if to say there will be absolutely no kind
20 of comparison between what happened at Shreveport and
21 what happened at New Orleans or another campus with
22 respect to credentials or tenure is to take away from the
23 jury the ability to see what happened with Dr. Simpkins
24 and compare him to how things happened at other
25 hospitals.
26 Ultimately, as this Court is very well aware, in
27 this case we have issues of racial discrimination, we
28 have issues of whistleblower retaliation, we have issues
29 of due process and in all three of those counts there has
30 to be some level of comparison to other similarly
31 situated people so that's why I think at this early stage
32 in the litigation, with respect to the trial at least, it
1 would be improper under Louisiana Code Of Evidence 401
2 through 403 to exclude those policies.
3 THE COURT: Well, I guess the problem I have wrapping
4 my brain around this issue is that you're talking in the
5 abstract, you're not giving me any specific concrete
6 examples that I can really grab hold of.
7 MR. FLOWERS: I could, Your Honor. It's Mr. Peak's
8 motion, so.
9 THE COURT: I understand that but he makes a pretty
10 good argument, okay, and that's why I'm calling on you to
11 tell me in specific terms, concrete terms, what you're
12 talking about specifically. I'll give you the lunch
13 break to think about it further. Mr. Peak, anything
14 further? I tell you what, let me just suggest this.
15 It's 1:00 o'clock now. I know you're in a hurry to get
16 back to Baton Rouge just like you were last time, right,
17 Mr. Peak?
18 MR. PEAK: Your Honor, it is my birthday so I would
19 like to spend some of it with my family.
20 THE COURT: I was just going to ask you, did you
21 bring your overnight bag. I think we can stop for
22 lunch. Mr. Flowers, what I want you to do is to visit
23 with your colleagues and your client and bring me one or
24 two concrete examples of exactly what you're talking
25 about so I can wrap my brain around it because right now
26 all we're doing is talking sort of in generalities and
27 what I'm picturing is documents, policies and procedures,
28 a volume of documents, policies and procedures and
29 probably in the best case scenario only 1% may have
30 anything to do with this case. I'm not really sure, I'm
31 having a hard time understanding the response.
32 I understand it's Mr. Peak's burden because it's his
1 motion but at some point I suggest to you that he may
2 carry his burden and all of a sudden the burden shifts to
3 you to say something to convince me otherwise, so that's
4 where we are.
5 MR. PEAK: Your Honor, I gave you the Katrina form as
6 an example and that was one of the things that was in
7 their Pretrial Order.
8 THE COURT: And when he talks about the Katrina order
9 that clearly doesn't have anything to do with this case
10 and that would-- that just seems like an Exhibit A text
11 book example of how irrelevant this stuff is. And I know
12 that's not want you want to introduce is any Katrina
13 anything pertaining to LSU Health Sciences Center in New
14 Orleans.
15 But, again, I'm having a hard time getting a grasp
16 on it. We can take a lunch break. Unfortunately, I've
17 got a couple of cases at 2:00 o'clock, sorry, and I'm not
18 going to be able to-- the earliest point I will be able
19 to begin this case is 2:30.
20 MR. COBURN: We appreciate all the time Your Honor is
21 giving us.
22 MR. ENGLISH: Yes, thank you, Your Honor.
23 THE COURT: So that gives you time, Mr. Flowers, to
24 visit with your colleagues and we can take up there and
25 finish up the rest of these after lunch. I intend to
26 finish all of these today.
27 MR. FLOWERS: Thank you, Your Honor.
28 MR. PEAK: Thank you.
29 (A lunch recess was had.)
30 (Other unrelated matters were heard by the Court.)
31 THE COURT: Running back to 516,764, Simpkins versus
32 LSU. All right. I believe when we stopped earlier today
1 we were addressing the issue of the documents, policies
2 and procedures stuff from Louisiana State University
3 Health Center in New Orleans.
4 MR. COBURN: I think Your Honor is absolutely right
5 about that. Mr. Flowers will speak to it with the
6 Court's permission, but I think we have a resolution to
7 propose which I think the parties have agreed to.
8 There's also, if Your Honor just wanted to get it out of
9 the way, the issue that Your Honor raised a little
10 earlier this morning about the documents that need to be
11 reviewed and the methodology for limiting the Court's
12 time in doing that. I think we have a proposal on that
13 as well, whenever is a convenient time.
14 THE COURT: Okay.
15 MR. FLOWERS: That's absolutely correct, Your Honor.
16 Mr. Peak and I have come to an agreement that if it's
17 amenable to the Court that we would use only the LSU
18 policies which are system wide and then the LSU policies
19 that just apply to Shreveport and so I think that was
20 actually what Mr. Peak had suggested in his wisdom and
21 has persuaded us.
22 THE COURT: All right. So since there was an
23 agreement reached I would assume then your Motion In
24 Limine, Mr. Peak, is mute?
25 MR. PEAK: Granted or mute. The agreement of the
26 parties is that any document, and certainly we weren't
27 raising an issue with regard to system wide applicable
28 policies, we plan on introducing some of those, the
29 problem that we had was that based upon the Pretrial
30 Order there were policies of the New Orleans entity which
31 is a different entity. It's my understanding that
32 there's an agreement now with counsel that those policies
1 which are LSUHSC New Orleans specific are no longer going
2 to be a part of the trial, so we're good with that.
3 MR. COBURN: So long as they don't apply to
4 Shreveport, that's right.
5 MR. PEAK: And I think that my understanding with
6 Kobie is none of the LSUHSC policies apply to Shreveport,
7 the only ones that do I told him those. Part of the
8 confusion may have stemmed from the fact that I think
9 LSUHSC New Orleans actually has recreated a system wide
10 policy they've recopied but they've said LSUHSC New
11 Orleans and then they put PM-23 which I think is the
12 PM-23 that's the system policy, and if that's the case
13 that document would actually apply because it's the
14 system policy they've just restated it. But if it's a
15 LSUHSC New Orleans policy applicable to LSUHSC New
16 Orleans it's my understanding the agreement is that will
17 not be referenced here.
18 MR. COBURN: Can I make a suggestion to Your Honor?
19 I think we can just work out a stipulation on this and if
20 Your Honor is amenable to that and Mr. Peak is we can
21 just sit down and just hammer it out.
22 THE COURT: Well, we can do it one or two ways.
23 Either I can grant the Motion In Limine filed by
24 Defendants and Mr. Peak can prepare a Judgment and that
25 is a Judgment that not only orders the Motion In Limine
26 granted but also specifies with a little bit more detail
27 the agreement. Or, you can have a separate stipulation.
28 It doesn't matter to me, I just want the record to be
29 clear.
30 MR. COBURN: I agree with that objective and I would
31 vote for option two, Your Honor. Just without actually
32 taking the Court's time now to kind of go through the
1 motion and see whether there are things that he's asked
2 for in there that we disagree with I think we can just
3 hammer it out between us and not take up the Court's
4 time.
5 THE COURT: Well, I'm all for not taking up the
6 Court's time but I'm not sure if you're getting what I'm
7 saying. There needs to be something in the record
8 dealing with this and either I can deem it mute because
9 there's an agreement and a written stipulation that will
10 be entered or, option number two, I can order the Motion
11 In Limine filed by the Defendant, again Motion In Limine
12 regarding the documents, policies and procedures from
13 LSU-NO, I can order that granted and Mr. Peak can prepare
14 a judgment on that motion that specifies, number one,
15 that it's granted but also provides a little bit of
16 belaboration that all of you would have to agree with
17 before it is submitted for a decision.
18 MR. COBURN: I think the option of the stipulation
19 and deeming it as mute is safer. And I think we need to
20 just protect Mr. Peak's option too if for some unexpected
21 reason we run into a glitch and we have some
22 disagreement, which I don't think will happen, we have no
23 objection to him bringing it back. But rather than
24 granting the motion, because as I stand here right now,
25 Your Honor, candidly I just don't remember everything
26 that's in it and precisely what the implications would be
27 of just saying "granted". It's safer, I think, to just
28 deem it mute for the moment preserving all of his
29 rights. Let us reach a stipulation, which we're going to
30 reach, and then we'll end the issue that way.
31 MR. PEAK: I actually prefer the judgment method but
32 I'll defer to the Court. If the Court would prefer the
1 stipulation method, that's fine. I think that the other
2 side of that is is my past experience with Motions In
3 Limine is that sometimes even if the Court grants a
4 Motion In Limine circumstances change and the parties can
5 make a compelling case to the Court as to why the Court
6 may need to revisit it. So I think that with the
7 protection of me having to run the judgment by them with
8 the specification that it is not going to-- this is not
9 talking about system wide applicable policies, this is
10 simply talking about policies and procedures of a
11 different campus, I don't know whether we would have a
12 problem with that.
13 MR. COBURN: The potential problem is just that I
14 think we just kind of sort of unstated it in the way we
15 just argued it to Your Honor. What if there's a factual
16 issue out there that there's an LSU New Orleans policy
17 and there's some ambiguity about whether it applies to
18 Shreveport. Let's say like, for example, the example
19 that Mr. Peak just gave you. There's a PM. It says PM
20 which the P stands for permanent and we have some reason
21 to believe that despite the fact that it's a LSU New
22 Orleans policy since it says PM on it it's applicable to
23 us and he takes the position, well, no, it's not, and
24 that's my concern about just granting the motion. I
25 think if we enter into the stipulation we can eliminate
26 that concern.
27 MR. PEAK: And, Your Honor, my position on that is
28 even if LSUHSC New Orleans styled something a PM it would
29 not be applicable. What I think happened with the
30 document he's specifically talking about because I've
31 seen it is that they chose to regurgitate a system policy
32 and I think that when they check it it's going to be the
1 same. The system policy is applicable. If they have an
2 LSUHSC PM-23 that differs from the system version which
3 is applicable to everybody my position would clearly be
4 we're not bound by their version of PM-23 we're only
5 bound by the system which is on the LSU website.
6 So I mean I'm not sure that there's a big-- to the
7 extent that's the kind of case we're worried about, if
8 it's an LSUHSC New Orleans policy it doesn't apply to
9 Shreveport. If it's a system policy I'm not going to
10 dispute the fact that that has application in Shreveport.
11 MR. COBURN: And that's where the rub is, that's
12 where the problem is. It was totally in good faith but
13 this morning or earlier this afternoon before we broke
14 for lunch Tom indicated that if it says PM it's system
15 wide. Now I understand there may be some question about
16 that and some ambiguity about it and the representation
17 he just made is made in total good faith, but before Your
18 Honor grants the motion I think it would be worthwhile
19 for the parties to sit down and just hammer out some
20 language that everybody is happy with.
21 THE COURT: This will be the order of the Court. I
22 will defer ruling on the Motion In Limine To Exclude
23 Documents, Policies And Procedures From LSUHSC-NO pending
24 the lawyers preparing a stipulation to be attached to a
25 Consent Judgment. And Mr. Peak when he gets back to
26 Baton Rouge and celebrates his birthday and does whatever
27 else he's going to do he can prepare that judgement and
28 maybe a Proposed Stipulation.
29 What I am envisioning is a judgment with an
30 attachment, the attachment being the stipulation. The
31 judgment would be granted as outlined in the stipulation,
32 just so the record is clear. This case, by the time
1 we're done, is going to have more than just three volumes
2 and ultimately down the line maybe reviewed by an
3 Appellate Court and maybe the Supreme Court so, again,
4 what we do here today is important on different levels.
5 One is it's important for the record so that we're
6 all crystal clear and the Appellate Courts will be
7 crystal clear on exactly what's taking place, that's why
8 I care about all this. So that will be the order of the
9 Court and we can now move on. And, by the way, I would
10 like to get that sometime fairly soon, within fifteen
11 days.
12 MR. COBURN: Absolutely, Your Honor.
13 MR. PEAK: Yes, Your Honor.
14 THE COURT: One minute, let me make sure my notes are
15 complete before we move to the next argument. All right,
16 what would we all like to take up next?
17 MR. COBURN: Your Honor, there's a Motion In Limine
18 pending with respect to patient records, I think, and if
19 Mr. Peak is okay with that we can do that one.
20 MR. PEAK: We can go to that one next, Your Honor.
21 We filed a Motion In Limine and, again, the opposition to
22 that would have been filed by the Plaintiffs on the 13th
23 of November. Our Motion would have been filed, let me
24 find the right volume.
25 THE COURT: I believe it was filed November 9th.
26 MR. PEAK: That's correct, Your Honor, we filed that
27 on November the 9th.
28 THE COURT: Let's make sure the record is clear about
29 what we're talking about. We're talking about a Motion
30 In Limine To Exclude Medical Records And Patient/Family
31 Member Testimony filed by the Defendants, Board of
32 Supervisors of LSU and Richard Turnage, and we're also
1 talking about the Plaintiff's opposition that was filed
2 on November 13th, just this past Friday.
3 MR. PEAK: Yes, sir. Your Honor, our position with
4 regard to those medical records, and part of this problem
5 we're in is obviously we were at a deadline to file
6 Motions In Limine. There are some issues involved in
7 this case concerning whistleblowing activity as the
8 primary-- the 23967 deal. Our position with regard to
9 these medical records is is that unless the medical
10 record in the abstract, because I do not have the
11 concrete medical records, as far as I know as of this
12 point the Plaintiffs have not specifically decided which
13 of these medical records and which of these patients'
14 testimony would be testimony that they would try to put
15 on.
16 My problem was we had a deadline for a Motion In
17 Limine to be filed. My concern is is that I don't want
18 this case to wind up being a bunch of mini malpractice
19 trials or a case which is geared toward smearing LSU or
20 other doctors who are not parties to this case unless
21 there is a very, very clear showing that that particular
22 medical record or that particular plaintiff testimony
23 proves that there was a violation of state law which ties
24 to a report by Dr. Simpkins to LSU where he advised LSU
25 that there was a violation of state law or it ties to a
26 report or a complaint by Dr. Simpkins that he wasn't
27 going to be involved, for example, in the treatment of a
28 given patient because he thought that what was going on
29 there was a violation of state law.
30 I don't want, and I'm concerned about having a
31 bunch-- we're going to have a jury sitting here made up
32 of people that despite my best efforts in voir dire is
1 potentially going to include people as jury members who
2 have received care at LSUHSC Shreveport and may include
3 people who have received care at LSUHSC Shreveport who
4 either weren't satisfied with their care or who have
5 heard of other people who weren't satisfied with their
6 care, and that isn't the issue before the Court.
7 The issue before the Court is the issues concerning
8 whistleblower retaliatory charge or racial
9 discrimination. Those are the issues before the Court,
10 not whether Dr. X gave appropriate care or, worse case
11 scenario, malpractice with regard to patient Y. And my
12 concern is is that we've got a broad gamut of potential
13 testimony that could come in and if we're going to sit
14 here and try each of these issues and have me bring in
15 the doctor that was involved to justify what he did in
16 that given case, again, at the end of the day maybe that
17 doctor convinces the jury that the care was appropriate,
18 maybe he doesn't or she doesn't convince the jury the
19 care was appropriate.
20 My problem is is that there has to be something that
21 ties all that medical testimony, all those patient
22 records to specific adverse employment action that was
23 taken against Dr. Simpkins and ties it to conduct on the
24 part of Dr. Simpkins which rises to the level of
25 protective whistleblowing under 23967.
26 I guess the other option, and Barry may point this
27 out when he stands up and argues about it, is I guess
28 theoretically to the extent that there is evidence that
29 Dr. Simpkins had adverse action taken against him for the
30 same type of conduct that was involved in one of these
31 other cases where no adverse action was taken against
32 that doctor.
1 For example, let's say that Dr. X who did that case,
2 that theoretical case we're talking about, maybe that
3 doctor got a written warning about it. Maybe Dr.
4 Simpkins had the same exact thing happen with patient Z
5 and Dr. Simpkins got a suspension without pay type
6 situation. That would be probative of discrimination,
7 something like that would be probative of
8 discrimination.
9 To the extent, however, that it's not shown that
10 there is a tie to the discrimination claims and it's not
11 shown to the whistleblowing, that there's a tie to the
12 whistleblowing claims because Dr. Simpkins will have had
13 to have actually said I'm reporting this, this is a
14 violation of state law, that type of behavior, otherwise,
15 what we're going to have is we're going to have a lot of
16 attempts to poison the well and get bad feelings toward
17 LSU about treatment of various patients that really don't
18 have anything to do with what happened to Dr. Simpkins.
19 And I'm concerned that the effect of that type of
20 testimony, absent such a showing of relevancy, is going
21 to truly have a prejudicial effect upon the jury.
22 And, again, I apologize, I'm talking in abstracts
23 because at this point I don't yet know exactly which
24 records will be the records or which witness would be the
25 witness that they're about to put on but I felt it was
26 necessary to file this as a Motion In Limine instead of
27 simply waiting to trial and tying us up when the first
28 witness hits the stand and going through all this. I was
29 hoping for some guidance from the Court and the
30 possibility of a ruling that unless it's specifically
31 tied it isn't coming in.
32 THE COURT: Well, let me say I am concerned under
1 article 403 of the Code Of Evidence with regard to what
2 you've referenced as mini medical malpractice trials.
3 And I do think that, and I will hear from defense in just
4 a minute in detail, but I want to make sure that the
5 evidence is tied to the relevant factual allegations of
6 this case. Let me also point out another thing.
7 What you said earlier, Mr. Peak, about some jurors
8 may have had bad experiences at LSU or may have family
9 members who had bad experiences, all that is going to be
10 covered on voir dire. So anybody that had a bad
11 experience at LSU Heath Sciences Center Shreveport to the
12 extent that such an experience would impair their ability
13 to be fair and impartial to both sides in this case
14 they're going to be eliminated so I'm not worried about
15 them so you can exclude that from your argument.
16 But I am concerned about the launching into a series
17 of medical, which you refer to as mini medical
18 malpractice trials under 403, and a waste of time and all
19 that so the Plaintiffs can respond to that.
20 MR. FLOWERS: Thank you, Your Honor. I think that
21 the Plaintiffs can allay both the Court's concerns and
22 Mr. Peak's concerns. As Mr. Peak and the Court are both
23 aware, in our Response to Mr. Peak's Motion In Limine
24 that's exactly what we said. That is, the only reason
25 that we will use patient medical records and/or patient
26 witness testimony is if it is tied, as Mr. Peak has
27 explained, to the whistleblower count. Specifically, as
28 the Court is well aware, the whistleblower count has five
29 elements to it and the first element speaks about whether
30 the employer violated the law through a prohibitive
31 workplace practice.
32 Well, if there are medical records and/or a patient
1 who can talk about this is what happened and this is how
2 it violated some law, I am an eyewitness to that actual
3 violation, that is the context in which we will be using
4 the patient medical records. And, as Mr. Peak, and I
5 think that the Court also is aware, to the extent that
6 there is disparate treatment. In other words, if there
7 is a patient witness who received one type of treatment
8 from Dr. Simpkins and Dr. Simpkins is written-up or
9 treated differently by LSU and then for the exact same
10 treatment another doctor engaged in that treatment and
11 that doctor is treated more favorably, well, in that
12 regard we would also be using patient witnesses and
13 medical records.
14 So I hope that allays both the Court's concerns and
15 Mr. Peak's concerns. Again, that is what we argued in
16 our papers.
17 THE COURT: All right. Response.
18 MR. PEAK: Your Honor, the only other point, and I
19 agree with what Mr. Flowers said about that there is an
20 element that there must be a proof of a violation of
21 law. One of my concerns is is that even if there were
22 proof of violation of a law--
23 THE COURT: Well, but wait a second. When we're
24 talking about a violation of law we're talking about
25 violation of civil law, criminal law, any state law civil
26 or criminal.
27 MR. PEAK: For the most part, yes. Normally it
28 involves criminal conduct but it could be a civil law as
29 well.
30 THE COURT: I mean it could be a breach of the
31 standard of care, couldn't it, wouldn't that be--
32 MR. PEAK: Well, if it's a standard of care there's
1 no real statute about that. If we're proving negligence
2 that's something that's entirely different. My problem
3 is, and I guess it begs the question of the issue of
4 whether there was a violation, that doesn't beg the
5 question but whether or not there was a violation of
6 state law we could have a trial about a given case and
7 there may have been a violation of law involved in that
8 case, however, if Dr. Simpkins either did not report that
9 to anybody, he didn't refuse to participate in it, he
10 didn't threaten to disclose it, the fact that there may
11 have been an underlying violation of state law even if it
12 were proven is not-- it's no longer a material fact
13 because he can't prove the other essential aspect of his
14 whistleblower claim.
15 So to the extent that their position is this is part
16 of their whistleblower claim, one of the problems is it
17 can be but it needs to be tied to specific whistleblowing
18 activity. The mere fact that an underlying violation of
19 state law without the whistleblowing activity doesn't get
20 you into the whistleblowing case so there needs to be
21 some-- and my concern is is that rather than simply throw
22 out a bunch of things that are contended to be violations
23 of state law there needs to be something that ties that
24 to a report by Dr. Simpkins that says that I'm either
25 threatening to disclose this violation of state law or
26 I'm reporting this violation of state law to you or I'm
27 refusing to participate in the further violation of state
28 law and if that didn't happen it's not part of this case
29 and shouldn't be relevant to be placed before the jury.
30 THE COURT: Well, the statute that I read to every
31 jury in every single medical malpractice case pertains to
32 the standard of care applicable, the breach of the
1 standard of care, and causation. A causation between
2 that breach and damages to that plaintiff sitting there.
3 Isn't that a violation of state law, the violation of the
4 standard of care?
5 Again, I'm trying to get a grip on what you all are
6 talking about. There is a state law regarding breach of
7 the standard of care, I read it every single time I have
8 a jury trial so it seems to me under the state law theory
9 and pertaining to civil state law if Dr. Simpkins reports
10 something that he believes is a breach of the standard of
11 care, something that LSU is doing or something that a
12 colleague is doing, and there's retaliation as a result
13 of that is that what we're talking about?
14 MR. PEAK: Your Honor, if there was a report and
15 there was retaliation then all of the elements would be
16 met, I agree with you there. My concern is that, again,
17 this mini malpractice trials. If we had-- let's say
18 fifty cases were identified by Dr. Simpkins and if we had
19 ten of them or five of them or one of them that was
20 actually a malpractice case but Dr. Simpkins did not say
21 anything about that or report that in a specific report
22 to LSU and there was no adverse action then we've used
23 court time to determine whether or not there was
24 malpractice in a case which couldn't have had anything to
25 do, because none of the other elements are met, with his
26 claim of retaliation or whistleblowing activity.
27 So my concern is is that if we have a wide open
28 avenue that we can review every case that's passed
29 through LSU for the last fifty years and identify each
30 and every case where there may have been a malpractice
31 out of that whole period of time the bottom line problem
32 is is that while that might serve to inflame a jury or
1 not inflame a jury, it may make the jury love LSU because
2 maybe it's such a small incidence and they're very
3 thrilled about it, but if it's not tied specifically to
4 whistleblowing then we have wasted a lot of the Court's
5 time.
6 And bottom line, it doesn't make any difference
7 toward his claim because even if a malpractice occurred
8 in a given case unless that specific case is-- there was
9 a report about that case to LSU where it's either a
10 report that there was a violation of law, there is a
11 refusal to participate in a violation of law, one of
12 those things.
13 And the other problem, and this is going to come up
14 in the defamation case, it has to have been something
15 that happened within a year of when the lawsuit was
16 filed. Because to the extent that it might have been a
17 report about something that was done the first month that
18 Dr. Simpkins was there and he may have reported it two
19 years, three years later if he decides to sue about it
20 that can't be the basis for a viable whistleblower claim
21 because it's a prescribed claim. And do we want to have
22 mini malpractice trials on an element of a nonviable
23 claim, that would be my question.
24 THE COURT: Mr. Flowers.
25 MR. FLOWERS: Very briefly, Your Honor. I really do
26 think that we're on the same page here and we're arguing
27 about an issue that we ought not to be arguing about.
28 Our only intention--
29 THE COURT: If that's the case then, of course, you
30 would want to do that same stipulation thing with respect
31 to this Motion In Limine that we are now talking about,
32 right?
1 MR. COBURN: We might just do that, Your Honor.
2 THE COURT: I mean really and truly would it be worth
3 your time to visit in the conference room? I know you're
4 in a hurry, Mr. Peak, but would it be worthwhile to visit
5 in the conference room and perhaps talk about the notion
6 of having a stipulation attached to a Consent Judgment on
7 this motion?
8 MR. FLOWERS: I think that's--
9 THE COURT: Quite frankly, I think actually you all
10 are both right and I think that you probably are on the
11 same page. Again, this motion, like the other one, I'm
12 having a hard time getting a grip on it. It's a little
13 bit too abstract without any real examples. I don't know
14 what you all are talking about, quite frankly, in terms
15 of the specifics. I understand generally, but you're all
16 over the place and I think probably this is one you could
17 agree on as well.
18 MR. PEAK: Your Honor, I guess the other thing, now
19 that the trial is in February we have time to do that.
20 Again, the deadline being what it was I didn't have
21 enough of the specifics at that point to be able to give
22 you more specifics so I do agree that I think we can
23 probably work out a stipulation on that.
24 THE COURT: Well, certainly with respect to having a
25 signed Pretrial Order which I recognize came after your
26 motion was filed, I believe, didn't it?
27 MR. COBURN: Before.
28 MR. PEAK: Just before.
29 THE COURT: In any event.
30 MR. PEAK: But, again, we're talking about some
31 medical records, for example, that as of right now
32 Plaintiffs don't even have because that was the
1 contradictory hearings we were going to have today so we
2 are somewhat dealing in an abstract. They know some
3 information about some of these things but the actual
4 medical records that are the subject of this motion, part
5 of the subject of this motion, some of them are documents
6 that we're waiting on a court order after either they've
7 given me written consent to release those records or the
8 Court ordering, after the opportunity for someone to come
9 here and object to it, to release those records.
10 Again, it was a timing issue. I had to file it when
11 I had to file it but at that point, I have to be honest,
12 they don't even have the underlying medical records yet
13 that may be the subject of what may or may not come in.
14 We may want to simply work out a stipulation but we may
15 want to even pretermit this thing or something to
16 somewhere a little bit farther down the road because what
17 I'm assuming is going to happen today is the Court is
18 going to release certain or tell me to give them certain
19 medical records and at that point they'll be able to
20 identify specifically which ones they would plan on or
21 believe they're going to be producing.
22 THE COURT: How about this. Why don't we pretermit
23 ruling on the Motion In Limine To Exclude Medical Records
24 And Patient/Family Medical Testimony with the
25 understanding that both sides will try to hammer out a
26 judgment attached to a stipulation.
27 MR. FLOWERS: Your Honor, the only small point I want
28 to make sure that Mr. Peak is aware of and the Court is
29 aware of is that we talked a lot about the whistleblower
30 count in the petition. Well, these medical records and
31 patient witness testimony could also apply, as Mr. Peak
32 explained, to the discrimination count to the extent that
1 we can show disparate treatment. Also to the defamation
2 counts again to the extent that because of what a witness
3 saw at LSU then use that information to defame Dr.
4 Simpkins.
5 The only point, it's a simple point, and I think
6 this is where we agree. We are not here to have a bunch
7 of medical malpractice trials. We intend to put on a
8 very concise case where everything is tied to an element
9 and the evidence comes in in that regard. So that's the
10 only small point that I just want to make sure that the
11 Court and Mr. Peak were aware of.
12 THE COURT: All right. Is it agreed, then, that the
13 Court will pretermit on this motion pending all of you
14 all talking and perhaps reaching a stipulation on this?
15 And I think that would have to come after I rule on some
16 other motions.
17 MR. FLOWERS: Yes, Your Honor.
18 THE COURT: So that's what we'll do, I'll put this in
19 the mute or pretermit stack. So far I only have one
20 thing to decide.
21 MR. COBURN: We're probably about to turn to number
22 two, Your Honor.
23 THE COURT: Okay.
24 MR. PEAK: Well, we may or may not be, Your Honor.
25 Let me suggest something on this one. The last one that
26 we had as far as a Motion In Limine was a Motion In
27 Limine with regard to the defamation claims, evidence
28 concerning certain defamation claims, I think most of the
29 specified defamation claims that were given and we've
30 given reasons.
31 I have read the opposition that counsel has provided
32 and the bottom line of their opposition is pretty much
1 the Court has ruled on Summary Judgment and, therefore,
2 what I'm really wanting is for the Court to reconsider
3 its ruling on Motion For Summary Judgment and there is
4 some truth in that. Here's the reason, Judge. I went
5 back and pulled the actual Judgment on the Motion For
6 Summary Judgment and Plaintiffs are correct that the
7 Motion, the Judgment does say the motion is denied in all
8 respects with regard to the Board of Supervisors of the
9 Louisiana State University and Agricultural and
10 Mechanical College but there's a footnote at the bottom
11 that talks about the fact that the claims as to LSU are
12 not ripe or appropriate for Summary Judgment, which I
13 read to mean that the Court felt that on a number of
14 those claims it simply was not in the posture yet for a
15 Motion For Summary Judgment.
16 The problem that I now have with regard to these
17 defamation claims is that we have the Pretrial Order
18 which indicates what the Plaintiff's position is with
19 regard to some of these. Some of the specific defamation
20 claims there is-- they said that presumably things were
21 communicated outside of LSU. Well, presumably being
22 communicated and having evidence that something was
23 published outside of LSU that's two different things.
24 My position with regard to some of those defamation
25 claims, and I've outlined it in the memo and I'm probably
26 wasting the Court's time to go into great detail on any
27 of them, is that in a number of cases it's pretty clear
28 based on their choice of their wording in their Pretrial
29 Order that the date that things happened was outside the
30 one year prescriptive period.
31 The other thing that's clear with regard to some of
32 them is that the communications, the publication for
1 defamation purposes, I cited the Court to cases that say
2 that communications among employees of LSU is not
3 publication. I mean that's LSU talking to LSU, that's
4 not publication to support a defamation claim.
5 And certainly with regard, for example, to the
6 tenure review packet that went up. The normal course of
7 that is it gets passed from, for example, there's a
8 packet that's being compiled by the Dean on the academic
9 side and it's going through steps. It goes to the
10 Department, from the Department it goes to the next step
11 which is the Chair. It goes to Faculty, to Chair, then
12 it goes to a Promotional Tenure Committee. There are
13 various steps along the process inside LSU that people
14 are looking at that. Well, there isn't any evidence, for
15 example, with regard to the tenure denial that that was
16 ever publicized outside of LSU by LSU.
17 With regard to the privileges. There is no evidence
18 other than the copy of the decision of the Clinical Board
19 with regard to the Overton Brooks VA which was sent after
20 receiving a request for information. There isn't pretty
21 much any evidence that anybody at LSU within the year
22 prior to the suit being filed communicated that, and in a
23 lot of cases there is no evidence that it was
24 communicated to anybody else.
25 So I think we've got a big problem and if the Court
26 would entertain or allow me to, a way to possibly address
27 that is to ask the Court to reconsider its Denial Of
28 Summary Judgment with regard to the defamation claims.
29 And/or if the Court were amenable to it I also wouldn't
30 mind filing one with regard to the whistleblower claims,
31 for example.
32 But that being said, that's kind of where the
1 defamation claims are. Kind of one other somewhat curve
2 ball with regard to that is, there is one specific
3 defamation claim that deals with an anonymous employee
4 supposedly contacting DHH and making allegations about
5 Dr. Simpkins. Our position with regard to that is is
6 that without having an identified, named employee that we
7 can make a determination as to whether that person was
8 acting within the course and scope of their employment,
9 or that that action was ratified or authorized by LSU, I
10 don't want a jury hearing about some anonymous person
11 that they can't identify and I can't identify who
12 supposedly said something to DHH where there isn't any
13 evidence whatsoever that LSU blessed that, ratified it,
14 authorized it.
15 In fact, Dr. Clay talked about that. They came up
16 and asked him about it, he told them there was nothing to
17 it so there was a statement by someone with LSU that
18 pretty much shot down this anonymous complaint. So that
19 was a little bump because that's the problem with that
20 defamation claim, is my position, is LSU cannot be
21 responding-- cannot have liability under responding that
22 a superior for someone that there is no showing that that
23 person was in the course and scope of their employment.
24 I may be missing another one but I've got that issue with
25 a couple of the defamation claims.
26 A lot of the defamation claims our problem is is
27 that as of right now there is no copy of a letter,
28 there's no copy of a memo within the prescriptive period
29 where this information that's allegedly defamatory has
30 been communicated to someone outside of LSU with the
31 exception of the Clinical Board's decision was sent to
32 Overton Brooks VA when an application was made, and I
1 addressed that in my brief.
2 I'm sure that this may tie into the argument about
3 the Plaintiffs wanting to-- wanting you to reconsider
4 your granting my Motion To Amend in which I did
5 specifically state a privilege defense with regard to
6 some of the defamation claims. Now, my position on that
7 is I do wish to have my answer amended and the Court did
8 allow me to amend my answer to raise the privilege
9 defense but I think there may be some confusion because
10 it's my position that the privilege defense doesn't
11 really even apply in a situation where it is
12 communications within LSU and there's no showing that it
13 was communicated outside. That's not a privilege issue
14 that's a no publication issue so I think that's a little
15 bit different. But, in any event, to make a long story
16 short, I would really appreciate the opportunity to ask
17 the Court to reconsider the Summary Judgment Motion.
18 With regard to certain claims now that we have, the
19 Pretrial Order, I can now see exactly what they have
20 produced and in addition to what they produced in
21 opposition to the Summary Judgment that we originally
22 filed somewhat in the dark to be able to get rid of some
23 claims that may be legally insufficient and among those I
24 believe are these defamation claims.
25 MR. COBURN: Thank you, Your Honor. I appreciate
26 Tom's candor in acknowledging that this is not actually a
27 Motion In Limine and it's not. Basically the arguments
28 in the motion parallel almost exactly, and in some cases
29 verbatim, what was stated in the Motion For Summary
30 Judgment which was, if memory serves, filed back in
31 2009. Mr. Peak is right that we are seeking
32 reconsideration of something else with respect to his
1 Amended Answer but that we think is different and I'll
2 address that in a moment, if I may.
3 What we're talking about from my point of view is
4 essentially it's the law of the case. I mean we have a
5 situation here where defamation is a really critical
6 aspect of our case. As I indicated this morning, the
7 limitations on it or the conditions, as LSU likes to say,
8 that were placed on our client's privileges are the
9 reason why he can no longer function as a doctor so it's
10 critically important and because it is so critically
11 important we devoted an enormous amount of resources,
12 time, resources, and kind of a lot of heart and soul into
13 briefing that issue when LSU initially raised it in its
14 Motion For Summary Judgment at the close of discovery.
15 Your Honor read what was really probably getting
16 into the thousands of pages of material on Summary
17 Judgment and this was, of course, subject of a lot of
18 argument here in this courtroom and Your Honor we think
19 disposed of that motion absolutely correctly. I don't
20 think Tom's reading that footnote correctly.
21 I don't have the order in front of me but I don't
22 think that there was a proviso that the Court placed on
23 the Denial of the Motion For Summary Judgment with
24 respect to what we're talking about here. Now, of
25 course, it's always possible to say more. This is a
26 complicated case and every issue could always be left
27 open and could be reargued and, obviously, there are
28 going to be rulings during the course of this case that
29 both sides are going to be unhappy about. We think we
30 should probably win everything we argue in favor of and
31 Tom does too with respect to his point of view and we
32 probably would like to argue and reargue everything into
1 infinity but we can't and nor can the Defendants in this
2 case.
3 You know, the Law Of The Case Doctrine which is
4 recognized here in Louisiana is therefore reason and part
5 of the reason is because as I've sat here during the
6 course of the day I've seen Your Honor you just finished
7 a civil matter that was defaulted with respect to a very
8 horrible violent offense and there have been kind of a
9 dozen other matters that the Court has disposed of today
10 and the Court has got time issues and resource issues
11 like every court and we have time issues and resource
12 issues too.
13 We're about to go to trial in this case on February
14 1st and I just don't think it's right, honestly, given
15 the resources that this Court has devoted to the Summary
16 Judgment issue and that we've devoted to it. We've got a
17 client whose got his own limitations in terms of his
18 resources and I don't think we should have to revisit
19 that now. I think that ship has sailed and for better or
20 for worse I don't think it should be reopened and,
21 obviously, it doesn't leave LSU without a remedy.
22 We can put on our case and we can fall flat on our
23 faces with respect to defamation and then when the time
24 comes at the close of the Plaintiff's case Tom can stand
25 up and he can say I want a directed verdict on all those
26 defamation claims and Your Honor can grant it if we
27 fail. But I don't think we should have to go around the
28 Summary Judgment thing again in this case. I think the
29 Law Of The Case Doctrine is there for a good reason.
30 And in terms of a prescriptive period and whether
31 there was publication and whether or not we sufficiently
32 identified the nature of the defamation in each of the
1 claims of defamation we made, that's all what was
2 thoroughly briefed and argued and decided by Your Honor
3 already and I just don't think it should have to be done
4 by this Court or by the parties again.
5 THE COURT: Final word.
6 MR. PEAK: Yes, Your Honor. I mean the decision that
7 the Court reached on its Motion For Summary Judgment as
8 the Court is well aware a lot of times Summary Judgments
9 are denied because of the existence of genuine issues and
10 material fact, no question about that. The problem that
11 I have here is is that Plaintiff is correct, I can raise
12 by a dispositive motion an involuntary dismissal,
13 directed verdict type motion at trial, issues concerning
14 legally insufficient claims, that is correct.
15 My concern is, and the reason I did this from the
16 standpoint of a Motion In Limine, which I have done in
17 other cases and I have had favorable rulings sometimes,
18 because in looking over things again sometimes the Court
19 says you know what, at this point now I do believe that
20 there isn't anything that shows that a defamation
21 occurred within a year, this is a clearly prescribed
22 claim based on every document that is presently before me
23 and a jury does not need to hear about a claim that is
24 not legally viable.
25 I mean we could put on evidence about a lot of not
26 legally viable claims and, yes, the Court could then
27 instruct the jury or not instruct the jury about them, it
28 could be handled that way. My concern is is that I do
29 think that Your Honor was faced with a plethora of
30 claims. We filed a very, very detailed Motion For
31 Summary Judgment that addressed all of those claims and
32 if I do recall the Court's discussions with counsel post
1 that ruling or at the time you made the ruling your
2 concern was there were a lot of those claims that were
3 questionable and that the Plaintiffs needed to look at
4 whether or not they wanted to streamline it to get to
5 kind of the central claim in the case which that was said
6 as well. I could not have appealed your ruling on
7 Summary Judgment as a true appeal of a Final Judgment
8 because it's a not a Final Judgment at that point on that
9 issue.
10 I could have sought writs on it arguably and I did
11 not do that and I will concede I did not seek writs on it
12 at that time. I do think, however, now in light of the
13 specific evidence and the documents that have been
14 identified subsequent to that filing and what was put
15 forth into the Pretrial Order that there are certain
16 claims which are flat out not viable and it's going to be
17 a waste of the Court's time and it's going to be
18 confusing to the jury if we address those claims.
19 I mean if it's a claim, for example, if Plaintiffs
20 know right now that the communication to the American
21 College of Surgeons occurred more than a year prior, and
22 again that's another one that I recall that there is no
23 specific statement as to who made the representation to
24 the American College of Surgeons, but to the extent that
25 everybody sitting at this table knows that that occurred
26 more than a year out and is not a viable defamation claim
27 because it's prescribed then it is a waste of the Court's
28 time to put on evidence concerning that claim and I
29 really think that's where I am.
30 MR. COBURN: I agree with that. I'm sorry, may I
31 speak for just another--
32 THE COURT: Sure.
1 MR. COBURN: Just ten seconds. I agree with the last
2 thing Tom said completely. And if we get to that point
3 where we conclude that one aspect or another of some kind
4 of less important defamation claim is prescribed based on
5 additional documents that we've looked at that would be
6 the, pardon me, I mean that would be the dumbest tactical
7 thing we could do basically because we would just be
8 shooting ourselves right in foot to put on evidence on
9 that and we will not. That's different from asking the
10 Court to revisit the Summary Judgment issues, Your Honor.
11 THE COURT: All right. Anything else?
12 MR. COBURN: No, Your Honor.
13 MR. PEAK: No, Your Honor.
14 THE COURT: All right. The Motion In Limine To
15 Exclude Testimony And Evidence Concerning Plaintiff's
16 Defamation Claims will be submitted for decision and I'm
17 going to think about this a little bit further. I will
18 issue a ruling this week.
19 MR. PEAK: Thank you, Your Honor.
20 THE COURT: What's next, amended answer or leave of
21 court issue?
22 MR. FLOWERS: Yes, Your Honor. We filed a motion to
23 reconsider the Court's Order granting Mr. Peak's Motion
24 For Leave To File An Amended Answer and I recognize--
25 THE COURT: Haven't you all just finished arguing law
26 of the case and about wasting the Court's time, etc.,
27 etc.? But this is different, right, because you didn't
28 have a chance to be heard on it.
29 MR. FLOWERS: Your Honor, you make-- I should just
30 sit down. Your Honor, that is in deed the argument, I
31 will really keep it brief.
32 THE COURT: I just had to make that observation. But
1 in truth I think this matter is something that we need to
2 talk about because I granted this without giving
3 Plaintiff counsel the opportunity to be heard and I did
4 it because for some reason, I'm not sure why, but for
5 some reason I thought that it was not objected to in
6 light of the Third Supplemental Petition being filed and
7 I just sort of inferred from where I sit that probably it
8 was all right and, therefore, I didn't set it up as a
9 Rule To Show Cause.
10 MR. FLOWERS: Your Honor, actually, I think that's
11 quite reasonable kind of given where the case has come
12 and where the case is. The Court is absolutely correct
13 that there are three amended petitions and those were
14 granted by the Court. The difference here, obviously, is
15 that those petitions were granted when discovery was
16 still open and it wasn't-- we weren't basically on the
17 heels of a trial and that is why--
18 THE COURT: Of course you're not quite so much on the
19 heels of a trial now although we do have a Scheduling
20 Order that is presently in effect. Of course I've talked
21 to you on the telephone last week I believe during our
22 conference call regarding the issue of a Revised
23 Scheduling Order in light of the fact that the trial date
24 is now February 1st, 2010, as opposed to December 7,
25 2009.
26 MR. FLOWERS: You are absolutely correct, Your
27 Honor. And the issue that we bring up is, as the Court
28 is well aware, Mr. Peak now puts forth three defenses,
29 two of which were already considered by this Court in the
30 Motion For Summary Judgment. The defamation, the
31 privilege defense and also the immunity defense for
32 defamation were both considered by the Court and our
1 position is that the Court very clearly, after an
2 extensive record, denied those defenses. And the Court
3 will recall that the Plaintiffs argued those defenses
4 were inappropriate because they were affirmative defenses
5 which should have been pled back in March when the
6 defense filed its Answer. Those were not actually pled
7 and that's one of the-- I think our strongest argument as
8 to why now it is just simply too late.
9 And I understand that there is a later court date
10 and certainly the Plaintiffs are in a better position now
11 than we were when the Amended Complaint was first filed
12 as far as going out and talking to other witnesses, but
13 the fact still remains that discovery is closed, we
14 cannot use the tools of discovery to gather evidence and
15 witnesses and as the Court is well aware we went ahead in
16 our pleading and explained what we would have done had we
17 known that now this defense would be viable.
18 With respect to defamation defense of privilege, you
19 know we mention the fact that we would have went and
20 spoken to more people at, for instance, Overton Brooks to
21 find out exactly what they were told by the people from
22 LSU. On one level I suppose we could go speak to them
23 but we can't depose them, obviously, and use the other
24 kind of tools of discovery.
25 With respect to the immunity claim, to find out and
26 define exactly what the Defendants' scope of
27 responsibility was, what the Defendants' scope of
28 employment was to determine and draw a very clear line
29 whether they were working within that scope of employment
30 and, therefore, immunity would apply or whether they were
31 working outside of that scope of employment and where
32 immunity would not apply. We now really can't do that.
1 I mean we can certainly ask Mr. Peak for those records
2 and for those witnesses and as kind a gentleman as Mr.
3 Peak is I don't think he's going to give that to us.
4 Again, Your Honor, it's the immunity defense, the
5 privilege defense and there's a final defense of a
6 failure to mitigate damages which as the Court knows and
7 we kind of spoke about this on the phone, all the counsel
8 spoke about this on the phone, that part of that issue
9 there is just the simple fact that Dr. Simpkins would
10 like to go back to work but LSU has told him he can't go
11 back to work and now LSU is filing a defense to say that
12 he failed to mitigate his damages.
13 Again, a late defense. A defense that had we known
14 it was going to be filed earlier we certainly would have
15 done more to preserve the documents illustrating all of
16 the work that Dr. Simpkins has done to try to get work.
17 But because of the privileges, which my colleague Mr.
18 Coburn explained I think very well, that once you call
19 someone who is a doctor you say that he has a mental
20 health problem or you have that implicit in the
21 restrictions or conditions, as LSU would say, and you say
22 that this doctor has a drug problem that doctor is
23 blackballed, that doctor can't just go and get another
24 job. And Dr. Simpkins, I proffer to the Court, has tried
25 mightily, mightily, to secure employment in this town and
26 he's been let loose from LSU.
27 So, again, that's the defense that was late filed.
28 Had we had that information in the discovery period we
29 certainly would have been on notice and would have acted
30 accordingly. So for those reasons, Your Honor, we
31 respectfully request for the Court to reconsider its
32 Order granting the Amended Answer.
1 MR. PEAK: Your Honor, with regard to-- actually, the
2 immunity modification modified a defense that was already
3 there it just clarified it and it really only now applies
4 to one-- the immunity argument really only applies to one
5 individual because as of this date, since the Court
6 hasn't ruled yet on Dr. Turnage as far as individual
7 liability is concerned, he is the last person that's
8 potentially in this case. And we did, we have raised his
9 immunity and qualified immunity in a very broad deal.
10 But what I wanted to specify was, there is case law
11 that indicates that as long as someone does their actions
12 as a state employee in their official capacity as opposed
13 to their individual capacity there's an issue as to
14 whether they have liability. They have taken Dr.
15 Turnage's deposition, they're not prejudiced in any way.
16 They had the opportunity to talk to him about what he
17 did, when he did it, how he did it, there will be
18 testimony at trial, that's just a clarification.
19 With regard to the privileges, the privilege defense
20 with regard to defamation. They did raise an issue that
21 we had not specifically pled privilege but what that
22 really refers to is, and the main thing I can see there
23 being a privilege argument about in this case is
24 potentially the communications either between LSU and
25 DHH, which would be a communication with a state agency
26 which could be a privilege communication. Same way when
27 you send stuff to the Unemployment Compensation people,
28 that is not considered to be defamation when you send
29 them stuff because that's subject to a privilege.
30 Privilege in that context is different from the
31 issue which I think they are reading privilege as being
32 which is if the LSU people are talking to the LSU people
1 in connection with these things that's not a privileges
2 issue that is a no publication issue. And we have stated
3 in our Original Answer that the claim-- that the petition
4 or the claim the complainant did not state a cause of
5 action for defamation. That's an underlying part of
6 their case, that's not really an affirmative defense.
7 Privilege is, and we have raised it, we would like
8 to raise it, it is not something-- either something that
9 is going to be privileged as a matter of law or it's
10 not. It's not going to necessarily require a lot of
11 additional discovery or even a lot of questions on some
12 of these things because I think it's different from the
13 publication issue.
14 But the failure to mitigate damages, they're going
15 to have to prove their case that Dr. Simpkins has not
16 been able to get work as a result of these things. That
17 was not in there, I've added it. I'm not sure that-- I
18 have a duty if I'm going to take a position that he has
19 failed to mitigate his case to at least ask him questions
20 about what he's done. That testimony can come in, that's
21 not going to interfere with the having of this trial the
22 fact that I have simply stated as a defense he has not
23 mitigated his damages.
24 Now, part of the problem in this case was--
25 THE COURT: Let me make sure I'm clear about the
26 failure to mitigate damages, which is the 1005
27 affirmative defense, right?
28 MR. PEAK: Right.
29 THE COURT: And they're saying that's the coup de
30 grace, LSU basically fired him and now LSU is arguing
31 that he failed to mitigate his damages. Isn't that what
32 you're arguing?
1 MR. FLOWERS: Very well stated.
2 THE COURT: At least in part.
3 MR. PEAK: And that's kind of where I was going, Your
4 Honor.
5 THE COURT: And then you hadn't asserted that before.
6 MR. PEAK: Here's kind of the deal. As you will
7 recall, this case was filed while Dr. Simpkins was still
8 working there. It was originally scheduled for trial
9 during the time when Dr. Simpkins was still working
10 there. At the time when we were filing the Original
11 Answers and everything else he was fully mitigating his
12 damages because of the fact that he had maintained
13 employment during that whole period of time, he was
14 working full-time for LSU.
15 Subsequent to that at the very tail end, and I
16 forget the exact corresponding date, but the last time
17 that the Plaintiffs amended their Petition, which is a
18 bigger deal in my mind than amending an Answer, they
19 amended their Petition pretty darn close, within like
20 weeks maybe of the discovery cutoff and pretty close to
21 when these things were going to get set for trial, it was
22 pretty close.
23 And in that case, as is normally the case when a
24 party seeks to amend its Answer or its Petition, back in
25 the old days, I think prior to 2003 or 2005, you didn't
26 have to give leave to amend your Answer with the Court.
27 But, in any event, there was a situation here where we've
28 had an amendment at that point. There was no
29 contradictory hearing. The Court granted their petition
30 to amend or their Motion To Amend Their Petition just
31 because you looked at it and you decided to allow it. We
32 objected to it but there was no hearing, they're not
1 normally necessary.
2 THE COURT: How did you object to it?
3 MR. PEAK: I did object to it, it was represented.
4 THE COURT: How did you object to it?
5 MR. PEAK: That I had not consented to it. They
6 represented to the Court that I had not consented to it.
7 THE COURT: Okay, that was in their Motion For
8 Leave?
9 MR. PEAK: It was in their Motion To Amend Their
10 Petition and I put that language in the actual Motion To
11 Amend My Answer, I pointed out the fact that they had not
12 consented to it. I don't think there's any prejudice to
13 the Plaintiff. I was doing a lot of housecleaning more
14 than anything else. We do have time between now and
15 trial, I don't feel that there's any prejudice and I
16 think the amendment ought to be allowed.
17 And, again, with regard-- because they took the
18 position that I had not raised certain aspects of my
19 defamation failure to state a claim I just wanted to be
20 more specific and so I feel like there isn't any
21 prejudice and that the amendment should be allowed and we
22 will proceed on from there.
23 THE COURT: Anything else, Mr. Flowers?
24 MR. FLOWERS: Thank you, Your Honor, just very
25 briefly. I just want to bring to the Court's attention
26 that Mr. Peak filed his Answer To Our Third Amended
27 Complaint on March 19 of 2009. Dr. Simpkins was
28 terminated from LSU on or about February 15, February 16
29 of 2009. Mr. Peak had a month in which he could have
30 filed, first of all, all of these affirmative answers and
31 particularly with respect to the mitigation claim. He
32 knew that Dr. Simpkins was no longer working as early as
1 February of '09, did not file his answer to our Third
2 Amended Petition until March of 2009 and I think that is
3 just kind of indicative of what we have here.
4 The fact of the matter is that Mr. Peak, LSU, could
5 have filed these affirmative defenses seven, eight months
6 ago and allowed us to, as Plaintiffs, while discovery was
7 still open, use the tools of discovery to really get down
8 and figure out whether, for instance, Dr. Turnage what he
9 was doing such that the Defendants believed he now has
10 immunity. Our position, obviously, is that he doesn't
11 have immunity because he was working outside the scope of
12 his employment. Would have appreciated deposing the head
13 of personnel at LSU. Would have appreciated getting a
14 record request for the personnel records for Dr. Turnage
15 to show exactly what his employment is. Now we cannot do
16 that. So that's again really the reason, Your Honor,
17 that we are prejudiced by these claims.
18 I'm not going to go ahead and address this issue of
19 whether an intra employee's communication, whether that
20 qualifies for defamation or not. The law from our
21 position is that that still can qualify as a defamatory
22 claim if it is not done in good faith. Even intra
23 employees, there is Louisiana law that's right on point.
24 Now, I understand that Mr. Peak is going to disagree
25 with that and say, well, no, no, there was no
26 publication, but I do want to bring to the Court's
27 attention that there is Louisiana law and we would be
28 more than happy to brief that for the Court if the Court
29 is concerned which again says that you can have an intra
30 employee defamation case.
31 And I think that's what I'll just go ahead and rest
32 on, just very, very quickly, Your Honor, is that we are
1 prejudiced because we do not have now the time to use the
2 discovery tools to really kind of smoke out these
3 defenses and provide the best case possible for Dr.
4 Simpkins.
5 MR. PEAK: The one thing that I would appreciate the
6 Court would check because I tried to find it and I
7 haven't been able to, but if you will look at when the
8 Plaintiffs filed their Amended Petition and when we filed
9 our Answer. I believe if you look at the Scheduling
10 Order that was then in effect at that point in the case
11 that I would hazard a guess that in all likelihood that
12 that occurred on the very eve, if not-- it happened
13 roughly contemporaneously with the close of discovery.
14 So our position would be, you know, at the point at
15 which they made their amendment and we had the delays to
16 answer we were pretty much done with discovery and been
17 going on with discovery for a long time prior to that.
18 I just would appreciate it if the Court would check
19 those dates to see. And, again, my position is that
20 there is no prejudice and the amendment should be allowed
21 to stand.
22 MR. COBURN: We join in that last request about
23 checking the dates because when we check them it's going
24 to turn out that it was longer than the discovery period.
25 THE COURT: All right.
26 MR. COBURN: Kobie was not on the case at that point
27 but I mean there was a lot of discovery after we amended
28 on the whistleblower claims.
29 THE COURT: All right. What's next? For the record,
30 let me just say this. The Plaintiff's Motion To
31 Reconsider The Court's Order Granting Defendants' Motion
32 For Leave Of Court To File Amended Answer To Third
1 Amended Petition will be submitted for decision and I'll
2 rule this week by a brief opinion.
3 THE COURT: Mr. Peak is ready to go.
4 MR. PEAK: Your Honor, the only other two things I
5 think that were before the Court was we had come up with
6 kind of an idea as to possibly approach you for some
7 guidance on your in-camera review of the medical
8 records.
9 The other thing is not really something that I'm
10 involved in, it's the contradictory hearing for witnesses
11 whose medical records have been requested and as of right
12 now I'm not sure but I don't see anybody here, whether
13 anybody is going to show or not, that may be a hearing
14 that's not actually going to take place. I think those
15 are the last two things that we actually have on our
16 table.
17 THE COURT: All right, sir.
18 MR. COBURN: I think Tom is right about that, Your
19 Honor. On the first one in terms of providing some
20 guidance to the Court so Your Honor doesn't have to go
21 through two large boxes of documents and just trying to
22 divine what might be of value to us and what might not
23 which is, obviously, a totally unreasonable task for the
24 Court to try to undertake here's what we have proposed to
25 do.
26 We think that we pretty well know at this moment the
27 names of the particular patients whose quality assurance
28 records we need. And what we would propose to do, Your
29 Honor, and I think we can do this within that time, maybe
30 even shorter, but if we could have that same fifteen day
31 time limit that Your Honor imposed for the first
32 stipulation what we can do is furnish the Court with a
1 list of particular patients about whom we think we need
2 records and a brief statement of why and, obviously,
3 we'll give that to Mr. Peak also and so Your Honor can
4 just limit your review to those particular patients. You
5 can determine whether or not using whatever criteria are
6 appropriate whether or not we're entitled to those
7 records.
8 With respect to the other various miscellaneous
9 records that are in those boxes I don't think Your Honor
10 needs to be concerned with them. I think that will
11 greatly streamline the task facing the Court.
12 MR. PEAK: One thing I probably need to clarify, Your
13 Honor. It's my recollection that the actual peer review
14 documents you have may not have the patient identifier
15 names. So once they identify them to me I will have to
16 get copies that still have those names on it if that's
17 the ones they're interested in. Our position, and I will
18 need to give them within the same time frame or in
19 response to their submittal to you I would like the
20 opportunity to respond because my position is, quite
21 frankly, that under the Goutreaux case, which the Second
22 Circuit cited, as long as you see those documents are
23 truly peer review QI documents within the meaning of
24 13:3715.3 it's my position that that ends your inquiry.
25 Because it's my position that the cases talk about
26 the fact that there are other documents in there besides
27 that, that it appears that the hospital is trying to just
28 lump it all under that and keep from producing it that's
29 one thing. But if they are truly quality improvement
30 documents where there is an analysis of care provided to
31 a given patient with self critical analysis and providing
32 that it either met or did not meet the standard of care,
1 it either had or did not have the potential to cause
2 patient harm then my basic position is it goes no
3 farther, it doesn't leave the Court after the in-camera
4 review.
5 With that being said, I would also let them respond
6 in their cases because, for example, what the Court would
7 see if it looked at the documents is, and as I apologize
8 to the Court, the Surgery Department documents are
9 actually broken out into what they describe as levels
10 one, two, three and four, and they are segregated
11 accordingly by levels. The documents that we sent you
12 for the Emergency Department when they sent them to me
13 they had numbered the documents but they had not broken
14 them into those categories.
15 So what I'm going to do once they give me the names
16 is I'm going to have somebody at my office pull the ones
17 that are applicable with the patient names or whatever
18 for you to specifically look at those and that will be
19 fine. But it will be hard for you to tell that from the
20 documents that you have before you because I don't think
21 they say who the patient is and they are not organized
22 that way.
23 THE COURT: I think that's exactly right. When I
24 attempted to launch into one of the boxes that's the
25 problem I had.
26 MR. COBURN: Absolutely. I think Tom's suggestion
27 about coordinating with him in terms of cross-referencing
28 so Your Honor knows which records refer to which patients
29 is a very good idea. I think also he's right that he has
30 a right to respond. Like if we indicate we need a
31 particular patient's records and we say why he's got a
32 right to say why not.
1 We think he is actually incorrect with respect to
2 the notion that if the records kind of seem to be like
3 introspective and really incorporate a review that that
4 ends the inquiry. We don't think it ends the inquiry at
5 all but we would be happy to brief that issue in more
6 detail if that would help Your Honor.
7 THE COURT: Well, I think it needs to be briefed. I
8 think there's more work that you all need to do on that
9 and ultimately it needs to be briefed and we probably
10 need to have another hearing date, for example, in
11 December.
12 MR. PEAK: That would be fine.
13 MR. COBURN: Yes.
14 MR. PEAK: But I think, Your Honor, it would probably
15 serve for us to see whether we can at least limit it
16 because we may be able to take a whole lot of the need
17 for the hearing off the table based on what they send to
18 me and what I respond to.
19 THE COURT: All right. Hold on just a second. I
20 think we need to, while we're all together, probably look
21 at the idea of another pretrial hearing date to address
22 whatever else comes up, including these two latter items
23 that we are now talking about, and we're going to either
24 do it in late December or we can do it the first week of
25 January, but you all can get back to me on that.
26 MR. COBURN: Absolutely, Your Honor.
27 THE COURT: What else?
28 MR. FLOWERS: Your Honor, we have just the final
29 issue I think is the issue of the contradictory hearing.
30 As the Court will recall, we set today for the
31 contradictory hearing under the Louisiana Statute
32 13:3715.1 B-5. Just to be clear for the record, that's
1 13:3715.1 B-5. Under that statute, as the Court is well
2 aware, a third-party or rather a litigant can request the
3 medical records of a third-party and that third-party has
4 a right to come before the Court and explain to the Court
5 why they do not want their records released to the
6 litigant. By way of information, the Plaintiffs have
7 sent out several subpoenas and the vast majority of those
8 subpoenas, as Mr. Peak does not get notice, the majority
9 of those witnesses are actually cooperating with us and
10 have actually signed medical release forms so that we are
11 able to get their medical records without taking up the
12 Court's time.
13 There are, however, a couple of witnesses who we
14 were able to subpoena but we have not-- they're not here
15 even though we went ahead and subpoenaed them and we have
16 not had any contact with them. There's case law in
17 Louisiana which states that once you have made an effort
18 as a litigant to try to get the medical records and you
19 sent a subpoena and you've given them notice and they
20 don't comply with any of those things then the litigant
21 can have access to those medical records.
22 So that's why we wanted to make sure we had the
23 hearing, make sure that the subpoenas were issued such
24 that we could have access to those medical records for,
25 as the Court knows and as Mr. Peak knows, there's the
26 whistleblower complaint, there's the discrimination
27 complaint. I'm sorry, the whistleblower count and
28 discrimination count and also even with respect to the
29 defamation count those medicals will help Dr. Simpkins
30 prove up his case.
31 As I've indicated, it does bear a need to be
32 repeated, the vast majority, we sent out fourteen
1 subpoenas and we've gotten cooperation from eight, maybe
2 nine of those witnesses. I've got the last couple of few
3 witnesses here that we sent subpoenas to but we haven't
4 heard anything back and so our position is that we should
5 have access to those records and Mr. Peak should provide
6 those records to Plaintiff's counsel.
7 THE COURT: All right. Do you agree with that under
8 the 3715?
9 MR. FLOWERS: Yes, Your Honor.
10 MR. PEAK: Your Honor, I would tend to agree with
11 that. The only thing I do not know, because I'm not sure
12 how the-- I think that I probably for the protection of
13 counsel as well as my client, to the extent that a
14 subpoena was issued and there's actually proof that it
15 was received either by certified mail or something else,
16 I think we need to close the loop to show that these
17 people had notice and an opportunity to be here but chose
18 not to in which case I totally agree with Mr. Flowers.
19 The Court can then say you had the opportunity to be
20 heard, you didn't avail yourself of it, therefore, I am
21 ordering that those particular records for those
22 particular people be produced.
23 I don't know if Kobie yet has given Your Honor the
24 information that shows-- for example, I could send a
25 subpoena out, it's kind of like serving the people on the
26 other hearing we had today, I could ask for service but
27 service may not have ever happened. And I'm a little
28 hesitant to release someone's medical records where they
29 have not consented to it or given written authorization
30 short of some showing that they actually got a subpoena
31 about it and notice to appear, that they were ordered to
32 appear here and by their own choosing chose not to appear
1 here and be heard.
2 If the Court tells me to do it I'm going to do it
3 and I'm going to take the position I'm protected because
4 you told me to do it. But at the same time I do think,
5 from even their standpoint, there ought to be something
6 in the record to show which witnesses we're talking about
7 that were subpoenaed and evidence that they did, in fact,
8 receive those subpoenas so that we can take that position
9 that they simply didn't show.
10 THE COURT: Again, for the record we're talking about
11 Revised Statute 13:3715.1 and actually B-2 under that
12 statute, as I understand it. I think Mr. Peak is right,
13 there needs to be a comprehensive list of exactly who
14 you're talking about, whether or not they have signed
15 some document consenting to the release, and on those
16 that have not signed a document consenting to it the fact
17 that they have been served and they have chosen not to
18 come forward to object to their records being provided in
19 this litigation.
20 MR. FLOWERS: Yours Honor, that is not a problem at
21 all, we can provide that. We actually have the return
22 for most of the subpoenas here but we'll get them
23 altogether. And we can get together the medical release
24 form which Mr. Peak is actually very well aware of
25 because the initial medical release form we had sent out
26 and witnesses actually signed and sent back LSU decided
27 there needed to be an extra paragraph there before they
28 would release the records.
29 Point being is now we have a LSU approved Medical
30 Release Form which has been signed by the patient
31 witnesses and we have the return of the subpoenas which
32 we can submit to the Court. And I think Mr. Peak is
1 actually right, we need to prove up that we actually did
2 have notice and that certainly is not going to be a
3 problem for the Plaintiffs.
4 MR. PEAK: Your Honor, I have no problem with you
5 holding the record open for them to make that submittal
6 to you and for whatever order the Court would then issue
7 with regard to those people that those records would be
8 produced as well, I'm fine with that. Rather than if
9 it's not all here, I'm not worried about that, as long as
10 it gets to you and you're satisfied and the order issues
11 I think we're all protected.
12 THE COURT: I think that's right. Anything else
13 pending I need to address?
14 MR. COBURN: Not for us, Your Honor, thank you so
15 much.
16 MR. PEAK: No, sir.
17 THE COURT: I do want to remind all of you that for
18 purposes of jury trial each side is going to need to have
19 an exhibit notebook, an extensive exhibit notebook. I
20 want you all to agree on-- first of all, of course, you
21 need to see all the exhibits that the other side intends
22 to introduce I'm assuming through the discovery process
23 including doing the Pretrial Order, you've already done
24 that. In any event, it will serve you well to have an
25 exhibit notebook that is well indexed with the page
26 numbers and a table of contents and all that business.
27 The days of approaching a witness and showing the
28 witness Exhibit Number 200 and asking that witness to
29 identify it and having one sheet of paper, those days are
30 sort of gone. So, therefore, you either do it by
31 agreement on those exhibits that don't have to be-- that
32 can be agreed upon where there's no authenticity problems
1 and you don't anticipate any foundation problems or you
2 could agree subject to foundation and testimony being
3 provided, that's fine, but I want an exhibit notebook.
4 And on some of those there may be some documents and
5 some items where you do want to reserve your right to
6 complain about those and object to those in which case
7 those may not be in the exhibit notebook. But I always
8 tell the jurors not to turn to a tab in the exhibit
9 notebook until directed to do so and they always follow
10 my instructions on that.
11 Sometimes I end up having to take out a couple of
12 items in an exhibit notebook. The lawyer trying to seek
13 admission of that exhibit did not properly lay the
14 foundation or there was some objection for some other
15 reason and that document has to be removed and the jury
16 hadn't seen it so there's no problem. So you might be
17 thinking about your exhibit notebooks.
18 I also told you earlier that in this particular case
19 I want the lawyers to sit down and work out all the jury
20 instructions and the verdict form. And I understand that
21 you're going to have some disagreements about certain
22 aspects of the law, but at least I want a good faith
23 effort and a draft and I want you to agree on as much as
24 you can. I mean what you're doing is just basically
25 agreeing on the law. That ought to be easy, right? I
26 mean I wouldn't ask you to agree on the day of the week
27 or anything like that.
28 All right. Anything else while we're all together
29 and having a great time?
30 MR. COBURN: There actually is just one other thing
31 Your Honor raised on the phone when we were talking
32 briefly, an administrative matter, but it had to do with
1 making sure that the fee for the jury trial was paid and
2 that's something that we will do.
3 THE COURT: All right.
4 MR. PEAK: I think you said you were going to revisit
5 that because of the difference now in the estimated
6 length as to--
7 THE COURT: Who asked for the jury trial?
8 MR. COBURN: We asked for the jury trial.
9 THE COURT: The Plaintiffs, okay. Tom Peak doesn't
10 have enough faith in the jury system apparently to--
11 MR. PEAK: I have faith in you, Your Honor.
12 THE COURT: Well, it's generally $3,200 a week. It's
13 a lot of money, I realize, but if you want a jury trial
14 the one asking for it must be ready to pay for it so
15 that's just our policy. Is there anything else you can
16 think of?
17 MR. COBURN: Not a thing, Your Honor.
18 THE COURT: I will issue rulings on all the motions
19 before me, I'll try to get them all done this week and
20 I'll send them off to you. Thank you.
21 MR. FLOWERS: Thank you, Your Honor.
22 MR. COBURN: Appreciate it very much, Your Honor.
23 MR. PEAK: Thank you.
24 (Whereupon, the above matter concluded).
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1 STATE OF LOUISIANA:
2 516,764
3 PARISH OF CADDO:
4
5 I, Teresa Procell, Official Court Reporter of the First
6 Judicial District Court, in and for the Parish of Caddo at
7 Shreveport, Louisiana, hereby certify that the foregoing (89)
8 pages comprise an accurate transcript of the proceedings in
9 the above-numbered case, before the Honorable Scott J.
10 Crichton, Judge of the First Judicial District Court, Caddo
11 Parish, Louisiana.
12 Subscribed and sworn to on this the 28th day of January
13 2010.
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27 _________________________
28 Teresa Procell
29 Official Court Reporter
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