Harry A. Marroy, Individually and As Administrator of The Estate of The Minor Collin Andrew Marroy, and Angele D. Marroy VS Peter H. Hertzak, M. D.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 0403 HARRY A MARROY INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF THE MINOR COLLIN ANDREW MARROY AND ANGELE D MARROY C VERSUS PETER H HERTZAK M D Judgment Rendered SEP 1 4 2011 On Appeal from the Twenty Second Judicial District Court In and for the Parish of St Tammany State of Louisiana Docket No 2003 13718 Honorable William J Knight Judge Presiding Stevan C Dittman Counsel for PlaintiffsAppellants Todd J Bialous Angele Marroy Individually New Orleans Louisiana and as Administrator of the Estate of the Minor Collin Andrew Marroy Pamela L Hershey James R Strain Jr Slidell Louisiana Counsel for DefendantAppellee Dr Peter Hertzak BEFORE PETTIGREW MCCLENDON AND WELCH JJ McCLENDON 3 In this medical malpractice case the D plaintiff Angele Marroy individually and as the administrator of the estate of her minor child Collin Andrew Marroy appeals from the judgments of the trial court following a jury verdict that rejected her claim against the defendant Peter H Hertzak M D and denied her motion for judgment notwithstanding the verdict NOV or alternatively for a new trial For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY This case arises from the obstetric care provided by Dr Hertzak to Ms Marroy during her pregnancy which resulted in the birth of her second child Collin Andrew Marroy at Northshore Regional Medical Center in Slidell Ms Marroy asserts that Dr Hertzak negligently induced delivery of her premature baby on the evening of June 25 2000 resulting in respiratory and other complications requiring Collin hospitalization for several weeks in the pediatric s intensive care unit She further contends that Collin continued to require care and treatment thereafter Ms Marroy became a patient of Dr Hertzak in 1993 delivered a full term healthy baby girl to Ms Marroy In 1995 he On November 22 1999 Ms Marroy again pregnant presented to Dr Hertzak and reported her last menstrual period to be on October 15 1999 Based on this information an estimated due date of July 23 2000 was calculated At an office visit on March 20 2000 Dr Hertzak performed a routine ultrasound The ultrasound established an estimated due date of July 21 2000 Ms Marroy pregnancy progressed without any problems until May 18 s 2000 when Ms Marroy reported decreased fetal activity to Dr Hertzak Dr Hertzak ordered an ultrasound and biophysical profile which were performed at the hospital The ultrasound indicated no fetal distress at the time it was taken and based on the ultrasound the radiologist estimated a due date of June 27 1 The child father Harry A Marroy was originally named as a petitioner in this matter but he s and plaintiff later divorced Thereafter plaintiff was appointed curator and tutrix of the minor child and Mr Marroy was dismissed from this action on February 22 2010 2 2000 At an office visit on June 6 2000 Ms Marroy again reported decreased fetal activity Dr Hertzak ordered another ultrasound which was again taken at the hospital and reported as normal with an estimated due date of June 26 2000 Dr Hertzak also placed an order for June 9 2000 for nonstress testing to monitor the fetus heart tones s On that date the nurse reported two incidences of variable decelerations On June 18 2000 Ms Marroy reported another episode of decreased fetal movement and that evening Dr Hertzak decided to try to induce labor ultimately terminated That induction was unsuccessful and was He scheduled another induction for the evening of June 25 2000 which resulted in Collin birth on June 26 2000 s Collin developed severe respiratory distress and was taken to the neonatal unit where he remained for a month Ms Marroy claims were presented to a medical review panel s On June 19 2003 the panel rendered a unanimous adverse opinion finding that Dr Hertzak failed to comply with the applicable standard of care as charged in the complaint Specifically the panel concluded that it was a deviation from the standard of care to change a fairly well established due date based on a third trimester ultrasound and that the baby suffered significant damage due to its premature delivery Thereafter on August 7 2003 this lawsuit was filed The trial of this matter began on February 22 2010 and at the conclusion of a fourday trial the jury returned a verdict on February 26 2010 finding that Ms Marroy had not established by a preponderance of the evidence the standard of care ordinarily practiced by physicians with the medical specialty of obstetrics and gynecology that pertains to the conduct of the defendant Peter Hertzak M D The jury additionally found that it was not proven by a preponderance of the evidence that defendant Peter Hertzak M breached or D violated the applicable standard of care concerning the treatment of Angele Marroy and Colin Marroy In response to the jury verdict Ms Marroy filed s Plaintiff Motion for A Judgment Notwithstanding the Verdict Alternative for a New Trial or in the The trial court denied the motions for NOV and 3 new trial and Ms Marroy filed this appeal In her appeal she makes the following assignment of errors 1 The trial court erred in having the jury determine the existence of a legal duty or a medical standard of care 2 The jury verdict that plaintiff had not proven the existence of an s applicable standard of care by a preponderance of the evidence was manifestly erroneous 3 The trial court erred in not granting Plaintiff Motion for a Judgment s Notwithstanding the Verdict or in the Alternative for a new Trial inasmuch as the jury verdict was manifestly erroneous given the s evidence introduced at trial STANDARD OF REVIEW An appellate court may not set aside a jury finding of fact absent s manifest error or unless it is clearly wrong Sistler v Liberty Mut Ins Co 558 2d So 1106 1111 In La 1990 order to reverse a fact finder s determination of fact an appellate court must review the record in its entirety and meet the following twopart test 1 find that a reasonable factual basis does not exist for the finding and 2 further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous Stobart v State Through Dep of Transp t Dev 617 So 880 882 La 2d 1993 The issue to be resolved by a reviewing court is not whether the trier of s fact was right or wrong but whether the factfinder conclusion was a reasonable one Where there is conflict in the testimony reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even though the appellate court may feel that its own evaluations and inferences are as reasonable Rosell v ESCO 549 So 840 844 La 1989 2d Where there are two permissible views of the evidence the factfinder choice s z Although the judgment denying the motions for JNOV and new trial was signed on April 27 2010 and plaintiff filed her motion for appeal on May 26 2010 a judgment rendered in accordance with the jury verdict was not signed until February 14 2011 GI between them cannot be manifestly erroneous or clearly wrong Id Further when findings are based on determinations regarding the credibility of witnesses the manifest error clearly wrong standard demands great deference to the trier of fact findings for only the factfinder can be aware of the variations in s demeanor and tone of voice that bear so heavily on the listener understanding s and belief in what is said Id Nevertheless when the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court it is required to re determine the facts de nova from the entire record and render a judgment on the merits Id 549 So at 844 n 2d 2 DISCUSSION In a medical malpractice action LSAR 9 provides that the S 2794A plaintiff shall have the burden of proving 1 The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians dentists optometrists or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians dentists optometrists or chiropractic physicians within the involved medical specialty 2 That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence along with his best judgment in the application of that skill 3 That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred Thus according to LSAR 9 any medical malpractice claimant must S 2794A establish by a preponderance of the evidence 1 the defendant standard of s care 2 the defendant breach of that standard of care and 3 a causal s connection between the breach and the claimant injuries Pfiffner v Correa s 94924 94963 94992 La 10 643 So 1228 1233 94 17 2d k In her first assignment of error Ms Marroy argues that in the first interrogatory the jury was improperly asked to determine the existence of a legal duty which resulted in legal error that interdicted the factfinding process requiring a de novo review of the record She also asserts that because the jury found that a standard of care was not proven but then determined that the standard of care was not breached by Dr Hertzak in the second interrogatory the jury findings were logically inconsistent s In this matter the relevant part of the jury verdict form provided as follows 1 Do you find that plaintiffs Angele Marroy and Colin Marroy established by a preponderance of the evidence that standard of care ordinarily practiced by physicians with the medical specialty of obstetrics and gynecology that pertains to the conduct of the defendant Peter Hertzak M D No Yes 2 Do you find by a preponderance of the evidence that defendant D Hertzak M breached or violated the applicable standard of care concerning his treatment of Angele Marroy and Colin Marroy Peter No Yes If your answer to this question is No then sign and date this form and return it to the baiiiff If your answer to this question is Yes then proceed to question No 3 The jury answered both interrogatories in the negative Initially we find that Ms Marroy cannot be heard on correctness of the jury interrogatories because she did not object at any time at the trial court level so as to preserve her right to appeal No objection was made during the court s jury charge conference or thereafter Objections were made to several of the jury instructions but there is nothing in the record to indicate that any objection was made to the jury interrogatories prior to this appeal As a result the trial court never had an opportunity to take remedial action while the jury was present or otherwise rule on the question as provided by LSA C arts 1812 P and 1813 See Johnson v Terrebonne Parish Sheriffs Office 951180 App La 1 Cir 2 669 So 577 583 writ denied 960727 La 96 23 2d 1 96 26 4 672 So 907 2d See also Metz v Howard 93 726 La 5 Cir App 94 25 1 631 So 1248 125051 Bourque v Gulf Marine Transportation 2d Inc 480 So 337 340 La 3 Cir 1985 2d App However even were we to address this issue we cannot say that the jury verdict form constituted reversible error A verdict form may not be set aside unless the form is so inadequate that the jury is precluded from reaching a verdict based on correct law and facts Ford v Beam Radiator Inc 962787 App La 1 Cir 2 708 So 1158 1160 Jury interrogatories must fairly 98 20 2d and reasonably point out the issues to guide the jury in reaching an appropriate verdict If the verdict form does not adequately set forth the issues to be decided by the jury i omits an applicable essential legal principle or is e misleading and confusing such interrogatories may constitute reversible error Abney v Smith 090794 La 1 Cir 2 35 So 279 283 writ App 10 8 3d denied 10 0547 La 5 34 So 864 10 7 3d There is nothing in the first two jury interrogatories that misstates or misapplies the law In the case of a particular medical specialty the medical malpractice act requires that the plaintiff shall have the burden of proving t he degree of care ordinarily practiced by physicians within the involved medical specialty LSAR 9 The first jury interrogatory asked whether Ms S 2794A 1 Marroy established by a preponderance of the evidence the applicable standard of care It did not require the jury to determine the existence of a legal duty as suggested by Ms Marroy Additionally the trial court in ruling on the motion for a JNOV or new trial determined that this case was similar to the third circuit case of Ardoin v McKay 060171 La 3 Cir 9 939 So 698 writ denied 062606 App 06 27 2d La 1 948 So 126 07 8 2d We agree The trial court recognized that in Ardoin the jury interrogatories were similar to those in this matter Also like this instant case the jury answered both interrogatories in the negative Further as in the Ardoin case the jury in this matter in responding to the interrogatories could have stopped after answering the first interrogatory in the 7 negative A negative answer to the first interrogatory essentially terminated the litigation and eliminated the need to answer the second interrogatory Also as in Ardoin there was no instruction after the first interrogatory to sign and date the form and return it to the bailiff if the answer to the question was No but to proceed if the answer was Yes See Ardoin 939 So at 702 Nonetheless 2d by also answering the second interrogatory in the negative the jury was very clear as to what it believed was established by the evidence In its ruling the third circuit stated In any event whatever the jury confusion may have been s as to the first interrogatory there can be no doubt it understood the second This interrogatory asked for the jury verdict on the s heart of the case whether Dr McKay breached the standard of care applicable to his treatment of Mr Ardoin The jury answer to that s question and its compliance with the parenthetical instruction following that interrogatory leave no doubt concerning the jury s belief on this issue Ardoin 939 So at 703 Likewise in this matter despite any confusion as to 2d the first interrogatory there is no doubt that the jury understood the second jury interrogatory and responded accordingly This assignment of error is without merit However Ms Marroy next argues that if the first jury interrogatory was proper then the jury verdict regarding the interrogatories was manifestly erroneous Ms Marroy asserts that the evidence clearly established the applicable standard of care as well as a breach of that standard In support of her position she presented the testimony of several expert witnesses Dr Martha J Brewer an expert in the field of obstetrics and gynecology testified by video deposition taken on February 8 2010 on behalf of Ms Marroy Dr Brewer who was a member of the medical review panel testified that there is an accepted national standard of care 3 She testified that in the Ardoin is more like the instant case than that of Newsom v Lake Charles Memorial Hosp 061468 La 3 Cir 4 954 So 380 writ denied 070903 La 6 958 App 07 2d 07 15 2d1198 So cited by Ms Marroy In Newsom although the jury also answered in the negative a similar interrogatory regarding the standard of care the jury stopped there and did not address the remaining issues Accordingly we find Newsom distinguishable 4 We note that the jury in this matter asked for clarification regarding the first interrogatory 5 Collin pediatrician also testified at trial as did Ms Marroy s practice of obstetrics one of the most important things to be done in terms of prenatal care is to establish an accurate gestational age She stated that as a general rule the earlier the ultrasound is taken the better it is to determine an accurate age Dr Brewer testified that it looked like Dr Hertzak changed the due date after the later ultrasounds were taken Dr Brewer further stated that there is a pretty clearcut standard of care about establishing a gestational age and not getting away from it without a really good reason Furthermore in her opinion there was no medical justification for either of Ms Marroy inductions s She did not agree with the decision to induce labor based on a history of two episodes of decreased fetal movement that were not current Dr Brewer testified that it was not clear to her that it was established that the baby had cord compression Additionally she stated that it was common for mothers to complain about little or no fetal movement In conclusion Dr Brewer testified that the medical review panel was of the opinion that this situation looked like one where there was an elective induction without an established maternal or fetal indication and that the baby got sick as a premature infant can and one was the proximate cause of the other She further testified that it was the medical review panel opinion that Dr Hertzak breached the applicable standard s of care On cross examination Dr Brewer acknowledged that she did not believe that there is an absolute guideline on this particular issue There are guidelines for practice but they are not absolute standards because there can be exceptions She stated that it is an accepted standard that a doctor does not perform inductions of labor on infants less than term unless there is an established medical indication Dr Brewer admitted that there are instances where the neonatal environment is healthier for the infant than the in utero environment but she did not believe that this was one of them She also testified that the risk of respiratory distress in a child in this situation was only about five percent X61 Dr Sheryl Rowland accepted at trial as an expert in the field of pediatrics was Collin treating pediatrician after his birth She testified that she first saw s Collin on June 27 2000 having been called in because he was having difficulty breathing Dr Rowland testified that she agreed with the 35 week gestational age assessment given to Collin after his birth by the nurse in the delivery room She stated that a term baby is 37 to 38 weeks She testified that Collin was dusky at delivery indicating respiratory distress which can be an indication of prematurity Dr Rowland admitting diagnosis was of a 35 week preterm baby s with respiratory distress Dr Judy Zatarain accepted as an expert in the field of neonatology and pediatrics testified at trial that she was one of two neonatologists at the hospital when Collin was in the neonatal intensive care unit Dr Zatarain first saw Collin about 24 to 36 hours after his birth and he was critically ill respiratory distress which developed into pulmonary hypertension He was in Given Ms s Marroy history and the ultrasounds it was Dr Zatarain opinion that the 35 s week gestational age assessment was accurate She also stated that anything less than 37 weeks is premature Dr Zatarain testified that she later found out that the hospital nurse practitioner assessed the baby at 37 weeks in contrast s to the 35 week gestational age given by the delivery room nurse If she had known of the discrepancy Dr Zatarain would have asked for a reassessment Dr Zatarain admitted to discrepancies in the charting of Collin medical records s However in her opinion it was more likely than not that the medical issues suffered by Collin were because of prematurity The defense also presented expert testimony Dr Victor Lunyong an expert in the field of neonatology reviewed the medical records in this matter He testified that it was his opinion that the gestational age at birth was at least 37 to 38 weeks and not 35 to 36 weeks calling that a physical impossibility He believed that the health care providers in this matter ignored the baby s 6 On cross examination Dr Zatarain testified that the nurse practitioner has more training than regular nurses and she is the one who trains the delivery room nurses on how to do the assessment exam after birth 10 overall weight head circumference and length It was his opinion that they did not pay attention to all the details Dr Lunyong stated that the baby head s circumference was above the 97th percentile for a 35 week old gestational age baby and that was not possible unless something else was wrong which was not the case here Dr Jason Collins an expert in the field of obstetrics and gynecology also testified in this matter for Dr Hertzak Dr Collins testified that his review of the records showed two documented episodes of decreased fetal movement and another possible undocumented episode In his opinion the baby was signaling that something was bothering him and these complaints had to be taken seriously Dr Collins further testified that there are many different styles of practice from institution to institution and that there are different schools of thought as to how to evaluate a fetus with such symptoms He stated that there is not one national standard of care regarding these issues and probably not one standard of care for the New Orleans area When discussing variable decelerations Dr Collins testified that most physicians use three decelerations in a row as an indicator of when to intervene Dr Collins testified that in Collin case cord compression was consistent with s what he found in the medical records He saw clear cord compression patterns on the fetal heart rate during the second induction It was Dr Collins opinion s that if the baby had not been delivered when it was he would have been a lot sicker a week or two later Cord compression over time could have caused more lung damage or even death He believed that Dr Hertzak was prudent in delivering on June 26 2000 and that it would have been imprudent not to deliver at that time When Dr Collins was corrected that the delivery was vaginal and not by caesarian section he stated that the correction did not change his opinion The last medical expert to testify was the defendant Dr Hertzak Initially called on cross examination by Ms Marroy Dr Hertzak testified that he calculated Ms Marroy due date using her last menstrual period of October 15 s 11 1999 and the obstetrical calendar to arrive at the date of July 23 2000 He testified that 40 weeks is the distinction between a term pregnancy and post term pregnancy Dr Hertzak testified that term is anywhere from 37 to 40 weeks and Collin delivery was three days short of 37 weeks s Dr Hertzak testified that he did not change any due dates but had established a window for delivery based on the date of Ms Marroy last menstrual period as well as her s ultrasounds Dr Hertzak stated that the window was between June 26 2000 and July 23 2000 He testified that he did not induce a premature child On direct examination Dr Hertzak also testified that when Ms Marroy reported her last menstrual period of October 15 1999 he used that as the starting point He testified that during her regular visit in July 1999 Ms Marroy was given a new prescription for birth control pills Dr Hertzak stated that going on and off birth control pills can cause havoc hormonally and dysfunctional bleeding Dr Hertzak further stated that Ms Marroy called him on the evening of May 18 2000 reporting decreased fetal movement and an ultrasound was performed There was another complaint on June 6 2000 Dr Hertzak testified that a second episode is significant He stated that the mother was healthy so he believed that something was going on with the baby particularly when the baby was previously kicking and active and then one day that activity suddenly decreases Dr Hertzak testified that such a decrease could be indicative of cord compression The fetal monitor strip from the non stress test on June 9 2000 showed two variable decelerations which told him that the umbilical cord was compressed on two occasions during the test With another episode on June 18 2000 Dr Hertzak testified that he opted for the first induction He testified that by the date of Ms Marroy last period the baby had a gestational age of 35 s weeks At that age survivability was more than ninety percent and the chance for severe respiratory distress was down to ten to fifteen percent Dr Hertzak testified that he did not think they should take any more risks If the lungs were premature he stated the nursery could treat that but could not treat a dead baby Dr Hertzak testified that the previous induction was stopped for several 12 reasons After approximately eleven hours Ms Marroy was not dilated and there were no signs of acute fetal distress Dr Hertzak planned for another induction on June 25 2000 He stated that by the date of Ms Marroy last period she was 36 weeks and four days s and that he began to breathe easier as the baby was on the threshold of term Dr Hertzak testified that he based his decision on everything available to him Some of the measurements were well into term and the average of all of them indicated 37 weeks Because there was clear evidence of intermittent and repetitive cord compression he had no doubt about inducing at that time According to Dr Hertzak the ultrasound indicated that the baby weight was s seven pounds and seven ounces so there was only a five percent chance of moderate to severe respiratory distress He testified that he weighed this information against the odds of a possible stillbirth Dr Hertzak testified that he would not have done anything differently Considering the evidence presented at trial Ms Marroy argues that she clearly established the applicable standard of care Therefore according to Ms Marroy the jury answer to the first interrogatory was manifestly erroneous s and because the jury was clearly wrong as to this interrogatory we should ignore the jury response to the second interrogatory and throw out the entire s verdict Upon our review of the record we find that there was substantial evidence presented at trial regarding the applicable standard of care and the s jury finding in this regard was manifestly erroneous However we also find that the record contains sufficient evidence for the jury to conclude that Dr Hertzak did not breach the standard of care required of him Dr Brewer testified in accordance with the medical review panel opinion Dr Zatarain and Dr Rowland were of the opinion that Collin was delivered prematurely However Dr Hertzak testified that he never changed Collin due s date and that he did not deliver a premature baby Dr Lunyong and Dr Collins testified that they did not believe that Collin was premature The jury could have reasonably believed the testimony of Dr Hertzak and his witnesses over the 13 testimony of the witnesses presented by Ms Marroy Thus the jury was faced with two different but permissible views of the evidence and its choice between them cannot be clearly wrong See Rosell 549 So at 844 Therefore upon 2d a thorough review of the record we can find no manifest error in the jury s determination that Dr Hertzak did not breach the applicable standard of care Lastly Ms Marroy assigns as error the trial court failure to grant her s motion for JNOV or alternatively for a new trial Ms Marroy contends that the jury verdict was clearly wrong considering the evidence presented at trial A JNOV is a procedural device authorized by LSAC art 1811 where P C the trial judge may correct a legally erroneous jury verdict by modifying the s jury finding of fault or damages or both Davis v WalMart Stores Inc 000445 La 11 774 So 84 89 A JNOV is warranted when the facts 00 28 2d and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions not merely when there is a preponderance of evidence for the mover If there is evidence opposed to the motion that is of such quality and weight that reasonable and fair minded men in the exercise of impartial judgment might reach different conclusions the motion should be denied In making this determination the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the nonmoving party Id The rigorous standard of a JNOV is based upon the principle that when there is a jury the jury is the trier of fact Trunk v Medical Center of Louisiana at New Orleans 040181 La 10 885 So 534 537 04 19 2d Simply stated if reasonable persons could have arrived at the same verdict given the evidence presented to the jury then a JNOV is improper Cavalier v State ex rel Dept of Transp and Development 080561 La 1 Cir App 08 12 9 994 So 635 644 2d 14 The standard to be applied by the appellate courts in reviewing the grant or denial of a JNOV is whether the trial court findings were manifestly s erroneous App La Belle Pass Terminal Inc v olin Inc 921544 921545 1 Cir 3 634 So 466 492 writ denied 940906 La 94 11 2d 94 17 6 638 So 1094 2d Considering all of the evidence and the reasonable inferences to be made therefrom in favor of Dr Hertzak we cannot say that the trial court was manifestly erroneous in refusing to grant Ms Marroy motion for NOV s The evidence did not point so strongly in favor of Ms Marroy that reasonable persons could not reach a different conclusion As such the trial court did not err in denying the JNOV Alternatively Ms Marroy moved for a new trial The motion for a new trial requires a less stringent test than a motion for a JNOV in that such a determination involves only a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury Broussard v Stack 95 2508 La 1 Cir 9 680 So 771 781 A new trial shall be granted App 96 27 2d if the jury verdict appears to be clearly contrary to the law and the evidence LSAC art 1972 Also a trial court may grant a new trial if there is some P C 1 good ground therefor LSAC art 1973 When considering a motion for a P C new trial the trial court has wide discretion LSAC art 1971 P C In considering a motion for a new trial the trial court is free to evaluate the evidence without favoring either party drawing its own conclusions and inferences and evaluating the credibility of the witnesses to determine if the jury has erred in giving too much credence to an unreliable witness Hunter v State ex rel LSU Medical School 050311 La 1 Cir 3 934 App 06 29 2d So 760 764 writ denied 060937 La 11 940 So 653 06 3 2d The trial s court discretion in ruling on a motion for new trial is great and its decision will not be disturbed on appeal absent an abuse of that discretion However the fact that a determination on a motion for new trial involves judicial discretion does not imply that the trial court can freely interfere with any verdict with which 15 it disagrees Fact finding is the province of the jury and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury responsibility A motion for new trial solely on the basis of being s contrary to the evidence is directed squarely at the accuracy of the jury factual s determinations and must be viewed in that light Thus the jury verdict should s not be set aside if it is supportable by any fair interpretation of the evidence Hunter 934 So at 76465 2d In this matter although the trial court stated that it would have decided the case differently it acknowledged in its oral reasons that reasonable minds could have reached the jury conclusion s The trial court therefore denied the motion We are constrained to agree The jury findings were largely based on s credibility determinations and weighing of conflicting evidence Although the evidence was conflicting two permissible views of the evidence existed and the s factfinder choice between them cannot be manifestly erroneous or clearly wrong See Rosell 549 So at 844 The jury verdict was clearly supported 2d s by a fair interpretation of the evidence and there was ample evidence heard by the jury that could have led it to conclude that Dr Hertzak did not breach the applicable standard of care Accordingly we can find no abuse of the trial s court discretion in its judgment denying Ms Marroy motion for new trial s CONCLUSION For the reasons stated herein we affirm the judgments of the trial court dismissing Ms s Marroy petition and denying her motion for judgment notwithstanding the verdict or in the alternative for a new trial Costs of this appeal are assessed to the plaintiff Angele D Marroy individually and as the administrator of the estate of her minor child Collin Andrew Marroy AFFIRMED Although the trial court questioned the credibility of Dr Collins it recognized that based on the totality of the evidence presented to it the jury believed that Dr Hertzak did not breach the standard of care required of him with regard to Ms Marroy and Collin The court stated Whether the court agrees or disagrees with it is of no moment Reasonable minds could have come to that conclusion 16
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