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Jury verdict for patient overturned on appeal because the patient’s expert gave surprise testimony at trial

A patient died of meningitis caused by an ear infection, and his widow sued for medical malpractice.  Up until trial, there was no allegation in the pleadings or by the patient’s experts during their pre-trial depositions that the defendant doctor had been negligent by giving the patient samples of Levaquin, an antibiotic. However, during the trial, two of the patient’s expert witnesses testified for the first time that they believed that the doctor had been negligent by giving Levaquin.  The package insert from Levaquin was also admitted into evidence over the defendants’ objection, and the plaintiff reemphasized the Levaquin issue during closing arguments.  The jury found for the plaintiff, and the defendants appealed, arguing that they had been unduly prejudiced by the surprise Levaquin evidence and arguments. The Fifth District Court of Appeal agreed and reversed, holding that the surprise testimony and other evidence had prejudiced the defendants, because they had not been able to conduct discovery on various related issues that might have helped their defense.  The Court found that the trial court compounded the error by allowing the package insert into evidence.  Doctors Company v. Plummer, 210 So. 3d 711 (5th DCA 2017).

McMillen Law Firm Comment:  There may not be enough information in the court’s written opinion to understand what really happened here.  Obviously, the Court felt that the patient’s side had withheld information in an unfair and prejudicial manner, or it would not have overturned the jury’s verdict for the patient.   But sometimes the problem is that the defense lawyers just don’t ask the patient’s experts enough questions, or the right questions, during their depositions. 

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