In a medical malpractice case, where former employees of the hospital were subpoenaed but not called by the defendant, the Louisiana Second Circuit Court of Appeal affirmed the trial court’s refusal to allow the jury to apply an adverse presumption: “As former employees, Dr. Walton and Ms. Smith were no longer under defendant’s control for purposes of the uncalled witness rule. Furthermore, the record reflects that both parties had the opportunity during the discovery process to depose these witnesses, something which apparently was not done by either party. While Dr. Walton was subpoenaed by defendant, LSUHSC was not required to call all persons listed on its witness list. The decision not to call Dr. Walton to testify was apparently a tactical one made by defense counsel, just as the decision not to depose or subpoena either Dr. Walton or Cynthia Smith was by plaintiff’s counsel. The burden of proof in this malpractice case remained on plaintiff, who cannot, by application of the adverse presumption rule, accomplish a shift of the burden to defendant to prove that malpractice did not occur.” See Glasscock v. Board of Supervisors, 49,855 (La. App. 2nd Cir. 8/19/2015), 2015 WL 4926405.
Note – That former employees are not under the defendant’s control for adverse presumption purposes would also seem to lend further support for the notion that communications with former employees are not subject to Louisiana Rule of Professional Conduct 4.2 (“…a person the lawyer knows is presently a director, officer, employee, member, shareholder or other constituent of a represented organization….”) (emphasis supplied).
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