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Battle v. Memorial Hospital at Gulfport

United States Court of Appeals for the Fifth Circuit
228 F.3d 544 (5th Cir. 2000)


Daniel Battle, a minor, and his parents (plaintiffs) brought suit against Memorial Hospital at Gulfport and other doctors individually (defendants) for negligent medical treatment—specifically the misdiagnosis of Daniel’s viral encephalitis. Prior to trial, the magistrate judge barred the plaintiffs from introducing the deposition of their expert, Dr. Fred Lakeman, who was unavailable for testimony at trial. Lakeman had run some tests on Daniel that had indicated that Daniel had herpes simplex encephalitis (HSE), a rare version of viral encephalitis. The defendants contended that Daniel did not have HSE and the plaintiffs’ suit was based in part on this contention in that the defendants’ diagnosis resulted in a delay in giving Daniel the proper antibiotics. In addition, during discovery, the plaintiffs informed the defendants that plaintiffs’ expert, Dr. Lowell Young, would not be available for trial and gave notice for a videotape deposition of Young on September 3. On September 2, the plaintiffs moved for a continuance, thus possibly making Lowell available at trial. The magistrate judge granted the continuance motion, but later admitted the video deposition of Young as evidence and prohibited the plaintiffs from calling him as a live witness. At trial, the magistrate judge ruled for the defendants on the merits. The plaintiffs appealed on the grounds of the evidentiary rulings. In terms of Lakeman’s live testimony, the defendants responded to the appeal by asserting that Lakeman’s videotaped deposition was hearsay because the defendants did not cross-examine Lakeman to challenge his opinions.

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Holding and Reasoning (Parker, J.)

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