RUNKLE v. LOUISIANA UROLOGY LLC (2022)

Writ application granted. See per curiam.

Writ granted. Plaintiff called Dr. Henry Hollier in her case-in-chief as a witness identified with an adverse party pursuant to Code of Evidence article 611(C) due to his role as the surgeon who performed the plaintiff's operation. Defendant Louisiana Urology declined to cross-examine Dr. Hollier at that time. Dr. Hollier was later called as a witness in defendant's case-in-chief. Over plaintiff's objection, the trial court refused to allow plaintiff to cross-examine Dr. Hollier on the basis that plaintiff had previously examined him in her case-in-chief. At the conclusion of trial, the jury found Louisiana Urology was not at fault. The trial court denied the plaintiff's motion for new trial.

Code of Evidence article 611(C) provides in part:

Generally, leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony and in examining an expert witness on his opinions and inferences. However, when a party calls a hostile witness, a witness who is unable or unwilling to respond to proper questioning, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Comment (c) of Article 611 provides in part:

The terms “direct examination” and “cross-examination” are not defined in this Paragraph or elsewhere in this Code. “Direct examination” as used in this Code simply means the questioning of a witness by the party who called him, and, particularly as used in Paragraphs B and C of this Article, “cross-examination” refers merely to the questioning of a witness after the witness has been called and questioned by another party. In common legal parlance the term “cross-examination” often carries with it an additional connotation that relates to the form and content of the questioning; that is, to the use of leading questions and to the use of questions that attack the credibility of a witness. This Code, however, separates from the meaning of “direct” and “cross-examination” those issues which relate to scope and form of examination and attacks on credibility. Thus, Paragraph B of this Article controls the scope of cross-examination. Paragraph C controls the use of leading questions.

A trial court has the right to control the nature, extent and character of cross-examination; however, a trial court cannot deprive a party of the procedural right of cross-examination. Labadot v. Labadot, 328 So.2d 747, 749 (La. App. 4 Cir. 1976).

The plaintiff in this case did not have the opportunity to cross-examine Dr. Hollier. The plaintiff was able to conduct a direct examination of Dr. Hollier in her case-in-chief. Because Dr. Hollier met the definition of a witness identified with an adverse party, the plaintiff was able to ask leading questions. Under the terms of Article 611 the plaintiff did not cross-examine Dr. Hollier because the plaintiff was not allowed to question him following his direct examination during the defense's case-in-chief. Dr. Hollier was the plaintiff's first witness at trial. During Dr. Hollier's direct examination by the defendant, Dr. Hollier addressed the testimony of plaintiff and her expert, Dr. Richard Link, who testified after Dr. Hollier in the plaintiff's case-in-chief.

Without cross-examination of Dr. Hollier by the plaintiff, the jury could not properly weigh the evidence and determine its value. This error defeated plaintiff's right to a fair trial. See Harry Bourg Corp. v. Punch, 625 So.2d 735, 737 (La. App. 1 Cir. 1993). Because of this error, we grant the plaintiff's motion for new trial.

Calling a witness on direct examination as adverse in order to ask leading questions, sometimes referred to as calling a witness “under the rule,” is not the same thing as cross examination of a witness after direct examination.

Under the facts presented, I find the trial court committed prejudicial error by disallowing plaintiff the right to cross-examine Dr. Hollier after the defense presented his direct testimony. See Buckbee v. United Gas Pipe Line Co. Inc., 561 So.2d 76, 85 (La. 1990); Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 735 (“Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights.”).

A party's ability to cross examine a witness, previously called by that party under La. C.E. art. 611 in their case-in-chief, should be limited in scope to any additional evidence or testimony elicited in that witness’ subsequent direct examination by the opposing party.¹ Put simply, a party should not get two bites at the apple in exercising their rights under La. C.E. art. 611(C).

FOOTNOTES

1.   Such a limitation is consistent with the ones provided in La. C.E. art. 611(B) and (D).

Weimer, C.J., dissents and would deny the writ. Hughes, J., additionally concurs and assigns reasons. Crain, J., concurs and assigns reasons. Griffin, J., additionally concurs and assigns reasons.