## Facts

- Shirley Brandt had recurring corns on the second and fourth toes of her right foot and received conservative treatment for years.
- In August 1993, she consulted Dr. Alan J. Engle, a podiatrist, who discussed surgical treatment; she initially continued conservative care.
- In August 1994, Brandt elected surgery, motivated in part by concerns about losing insurance coverage.
- On August 26, 1994, Engle performed an arthroplasty on the second and fourth toes; the written consent described arthroplasty as involving removal of a portion of bone.
- After surgery, Brandt developed “floppy toe,” allegedly causing loss of control of the operated toes, pain, and limits on footwear and walking distance.
- Brandt claimed Engle told her he would make a small incision and “shave” bone, and that she did not consent to bone-removal arthroplasty or accept the risk of floppy toe.
- Engle did not recall the exact conversation but testified to his routine practice in arthroplasty cases: using a diagram, explaining the procedure including bone removal, and showing the amount of bone to be removed; he denied ever describing arthroplasty as mere “shaving.”
- A jury found for Engle and his insurer, Boston Old Colony Insurance Company, implicitly crediting that Brandt consented to the procedure performed.

## Issues

1. Whether the trial court erred by admitting the physician’s habit/routine-practice testimony to prove what he likely explained to the patient, despite lack of specific recollection.
2. Whether any evidentiary error was sufficiently prejudicial to justify overturning the jury’s verdict.

## Decision

- The Louisiana Supreme Court reversed the court of appeal and reinstated the jury verdict for Engle and the insurer.
- The Court held the routine-practice testimony was admissible as habit/routine-practice evidence to show conduct in conformity on the occasion in question.
- The Court further held that the court of appeal improperly disturbed the jury’s credibility determinations; any evidentiary error did not substantially influence the verdict or interdict the fact-finding process.

## Legal Principles

- Evidence of a person’s habit or routine practice is admissible to prove that the person acted in conformity with that practice on a particular occasion when the practice is sufficiently regular and specific.
- Trial courts have discretion over evidentiary rulings; reversal is not warranted absent an abuse of discretion causing substantial prejudice.
- Appellate courts should not overturn a jury verdict based on evidentiary rulings unless the error materially affected the fact-finding process or substantially influenced the outcome.
- In informed-consent disputes, the trier of fact may weigh a written consent form and admissible habit evidence against conflicting testimony to resolve consent and misrepresentation allegations.

## Conclusion

The court reinstated the defense verdict, holding that the physician’s routine-practice testimony about preoperative explanations was properly admitted to support informed-consent findings and that the appellate court lacked a basis to displace the jury’s credibility and fact determinations.


Brandt v. Engle, 791 So. 2d 614 (La. 2001)