A Houma couple suing a local surgeon for a gallbladder procedure they claim went awry have won a new trial.
The state Supreme Court ruled Friday in the couple's favor, ending more than two years of appeals.
In their lawsuit, Richard and Carrie Logan claim that in 2010, Dr. Donald Schwab of Houma cut the wrong connecting structure between Richard Logan's gallbladder and liver during a standard gallbladder removal procedure. The suit, which sought unspecified damages, claims the error caused bile to leak from the liver and damage the organ.
Former state District Judge Timothy Ellender Sr. of Houma dismissed the suit in 2013 after a jury decided there was insufficient evidence to prove medical malpractice.
An appellate court rejected the couple's appeal for a new trial earlier this year.
In its ruling, however, the state Supreme Court says Ellender's actions during the trial resulted in a “miscarriage of justice."
The vote came down to 4-3, with justices Bernette Johnson, Greg Guidry, Jeanette Theriot Knoll and Jefferson Hughes III concurring.
“In my view, it is undisputed that Judge Ellender engaged in bizarre and disturbing behavior during the jury trial of this matter such that the jury's verdict cannot be allowed to stand,” Johnson wrote.
Ellender, according to court documents, moved around the courtroom, sat in various chairs, sat in the jury box while eating candy and greeted the defense's medical expert with a handshake and an embrace.
Supreme Court Justices John Weimer, Scott Crichton and Marcus Clark filed separate dissents but all agreed there was insufficient evidence of Ellender's alleged misbehavior.
“In the trial record, there is nothing to substantiate the plaintiffs' allegations of inappropriate behavior,” Weimer, of Thibodaux, wrote.
The only evidence came from the jury foreperson, who in an affidavit did not state that Ellender was biased against the Logans, Weimer added.
“Most significantly, there is not even an objection in the trial record for any of the allegations leveled against the judge,” he wrote.
Crichton acknowledged that claims of judicial misbehavior were problematic but disagreed with the majority opinion.
“I fear that this judge's institutional history of untoward behavior has perhaps influenced the majority's decision today, which should instead be focused on the evidence presented in this record in this case,” Crichton wrote.
Ellender was suspended twice during his 23-year tenure as district judge in Terrebonne Parish. In 2004, he was suspended for one year, with six months deferred, for wearing blackface and a prison jumpsuit at a Halloween party. In 2009, he was suspended for about a month without pay for acting in a condescending and demeaning manner toward a woman applying for domestic abuse protection.
Ellender retired in late 2014 after being termed out because of age restrictions.
“The fact of the matter is, Dr. Schwab committed malpractice by cutting the wrong anatomy,” New Orleans attorney Pierre Gremillion said on behalf of the Logans. “The fundamental rule of surgery is, you have to know what the anatomy is before cutting it. Unfortunately, the judge undermined the process by turning it into a vaudeville show.”
State District Judge Juan Pickett, who replaced Ellender on the bench, is scheduled to preside over the new trial.
But Gremillion said he will likely request to have it moved to another jurisdiction, citing Schwab's well-known status in the community.
“We're trying to get a fair trial,” he added.
Schwab's attorney, J.D. Schoonenberg of Houma, said he disagrees with the Supreme Court ruling.
“I further note that the court had nothing bad to say about the actions of Dr. Schwab in the case,” Schoonenberg said. “The decision is based solely on the conduct of the trial judge during the trial.”
Schoonenberg said he plans to file a motion for a rehearing before the state Supreme Court within two weeks after consulting with Schwab.