                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #023


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 5th day of May, 2015, are as follows:




PER CURIAM:


2014-C -1964      CLYDE SNIDER, JR., ET UX v. LOUISIANA MEDICAL MUTUAL INSURANCE
                  COMPANY, ET AL. (Parish of Beauregard)

                  For the reasons assigned, the judgment of the court of appeal is
                  reversed.    The case is remanded to the court of appeal for
                  further proceedings consistent with this opinion.

                  JOHNSON, C.J., dissents.
                  KNOLL, J., dissents and assigns reasons.
                  CRICHTON, J., additionally concurs and assigns reasons.
05/05/15


                      SUPREME COURT OF LOUISIANA

                                 NO. 2014-C-1964

                             CLYDE SNIDER, JR., ET UX

                                     VERSUS

    LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, ET AL.

           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
               THIRD CIRCUIT, PARISH OF BEAUREGARD


PER CURIAM

      In this case, we are called upon to decide whether a jury’s factual finding that

a physician did not breach the appropriate standard of care is manifestly erroneous.

For the reasons that follow, we find the jury’s verdict is supported by the evidence

and is not clearly wrong.



                   FACTS AND PROCEDURAL HISTORY

      This case was previously before the court in Snider v. Louisiana Medical Mut.

Ins. Co., 13-0579 (La. 12/10/13), 130 So. 3d 922. The underlying facts were set forth

in our opinion as follows:

             On May 13, 2007, within days of his twenty-seventh
             birthday, Clyde Snider, Jr., was hospitalized at CHRISTUS
             St. Patrick Hospital ("St. Patrick"), in Lake Charles,
             Louisiana, for a suspected myocardial infarction. Mr.
             Snider was treated by cardiologist Dr. Jean King White,
             who diagnosed him with coronary artery disease and acute
             coronary syndrome, which was treated with angioplasty and
             the implantation of a heart stent in Mr. Snider's circumflex
             artery. He was also placed on medications, including a
             cholesterol-lowering medication, a beta-blocker, and a
             blood thinner.

             On August 28, 2007 Mr. Snider sought treatment at the
             Beauregard Memorial Hospital ("Beauregard") emergency
             room in DeRidder, Louisiana for shortness of breath, chest
pains, dizziness, lightheadedness, and faintness. Mr. Snider
disclosed his past medical history, which included the May
2007 heart attack and coronary artery disease treatment, as
well as diabetes, hypertension, hyperlipidemia, and a strong
family history of premature coronary artery disease.
Beauregard cardiologist Dr. Robin Yue diagnosed Mr.
Snider with symptomatic bradycardia, as his heart rate fell
as low as thirty-five beats per minute (a normal heart rate is
considered to be at least sixty beats per minute). Dr. Yue
recommended heart catheterization and implantation of a
pacemaker; Mr. Snider consented. The procedures were
performed later that day, and Mr. Snider was discharged
from the hospital the following day.

On the day of his discharge from Beauregard, Mr. Snider
sustained an unrelated injury to the area of his pacemaker,
when, on his return home, his two-year-old daughter ran to
greet him and jumped into his arms, striking his chest and
causing injury to the surgical site. Mr. Snider returned to the
Beauregard emergency room that evening, complaining of
numbness in his left arm and pain in his shoulder. Mr.
Snider was examined by Dr. Yue, who noted redness,
swelling, severe tenderness at the pacemaker surgical site,
left shoulder pain, and left arm weakness. Because Dr. Yue
was leaving town on a previously-scheduled business trip,
Mr. Snider was left in the care of Dr. Flynn A. Taylor, who
ordered that Mr. Snider be monitored for signs of infection
and hematoma at the pacemaker implant site. Deeming
outpatient antibiotic treatment appropriate, Dr. Taylor
discharged Mr. Snider from Beauregard on September 3,
2007.

On September 4, 2007 Mr. Snider returned to St. Patrick,
where he was previously treated for his May 2007 cardiac
problems, and was admitted to the hospital. He was
examined by his treating cardiologist there, Dr. White, who
found symptoms of infection at the pacemaker surgical site.
Dr. White recommended removal of the pacemaker. The
next day, Dr. Michael C. Turner, a cardiovascular surgeon,
removed the pacemaker.

Subsequently, Mr. Snider filed a medical malpractice
complaint against Dr. Yue, which was presented to a
medical review panel. The medical review panel concluded
that Dr. Yue had failed to comply with the appropriate
standard of care and that his conduct was a factor in the
"minor resultant damage." The medical review panel issued
the following reasons for their decision:




                              2
                   Dr. Yue rushed the decision for implantation
                   of a permanent pacemaker in this patient. He
                   should have stopped the beta-blocker and the
                   rivaroxaban for 24-48 hours, and monitored
                   the patient for possible improvement or
                   deterioration in heart rate, before making the
                   decision about a permanent pacemaker.
                   Except for the relatively minor complication of
                   a hematoma, and the surgical scar after
                   pacemaker extraction, we found no evidence
                   of any long-term, major injury to this patient.

            On December 16, 2010 Mr. Snider and his then-wife, Lisa
            Snider, individually and on behalf of their minor child, filed
            suit against Dr. Yue and his liability insurer, Louisiana
            Medical Mutual Insurance Company, seeking recovery for
            damages arising out of Dr. Yue's alleged negligence in the
            treatment of Mr. Snider on August 28, 2007. The Sniders
            alleged that Dr. Yue was at fault for: (1) failing to exercise
            a reasonable degree of skill and competence possessed and
            ordinarily exercised by members of his profession; (2)
            failing to provide Mr. Snider with diligent and skillful care;
            (3) failing to undertake conservative treatment to resolve
            Mr. Snider's medical condition and failing to stop his blood
            thinner medication prior to performing surgery; (4)
            proceeding to surgery for implantation of a pacemaker
            when Mr. Snider's condition and medications made said
            treatment contraindicated; (5) failing to consult with Mr.
            Snider's treating physician when Mr. Snider specifically
            asked that he be consulted; (6) failing to educate Mr. Snider
            on his true condition and the exact treatment being
            recommended and implemented; and (7) performing
            unnecessary surgery on Mr. Snider, resulting in
            complications requiring further treatment and surgery.

            In March of 2012 this case was tried before a jury, which
            ruled in favor of Dr. Yue, finding that Mr. Snider had not
            proved by a preponderance of the evidence that Dr. Yue
            breached the applicable standard of care owed to Mr.
            Snider. The plaintiffs' subsequent motion for judgment
            notwithstanding the verdict and, alternatively, for new trial
            was denied by the district court judge, who stated that the
            jury verdict was not clearly contrary to the law and
            evidence.

            Snider, 13-0579 at pp. 1-5, 130 So. 3d at 926-27.

      Plaintiffs appealed, assigning multiple errors. On appeal, the court of appeal

found merit to plaintiffs’ assignment of error asserting Dr. Yue failed to properly

                                          3
obtain Mr. Snider's informed consent to the pacemaker implantation surgery,

because he failed to provide all of the information required by La. R.S.

40:1299.40(E). Snider v. Louisiana Medical Mut. Ins. Co., 12-1068 (La.App. 3 Cir.

2/27/13), 129 So.3d 61.

Accordingly, the court of appeal rendered judgment in favor of the plaintiffs and

against defendants on the issue of liability and remanded the matter to the district court

to allow the parties an opportunity to complete the record as to damages.1

Defendants sought review in this court. We granted writs and reversed the judgment

of the court of appeal. Snider v. Louisiana Medical Mut. Ins. Co., 13-0579 (La.

12/10/13), 130 So. 3d 922. In our opinion, we explained the court of appeal erred in

failing to apply a manifest error standard of review to the jury's factual finding that

informed consent was given in this case. Accordingly, we reversed the court of

appeal’s judgment and remanded the case to the court of appeal “to consider and rule

upon plaintiffs' assignments of error, including those assignments of error pretermitted

by the appellate court, in accordance with the views expressed herein.” Id. at p. 22,

130 So. 3d at 939.

        On remand, the court of appeal again reversed the trial court, rendered judgment

as to liability, and remanded for determination of damages. Snider v. Louisiana

Medical Mut. Ins. Co., 12-1068 (La.App. 3 Cir. 8/27/14), 146 So.3d 965. In its

opinion, the court of appeal reasoned the jury was manifestly erroneous in failing to

find Dr. Yue’s actions fell below the acceptable standard of care.2

        1
        The issue of damages had been severed from the issue of liability and no quantum evidence
was presented at trial after the jury verdict absolved the defendants of liability.
        2
            Although our order of remand directed the court of appeal to review the jury’s informed
consent finding under a manifest error standard, the court of appeal pretermitted this issue, stating, “
it is not necessary for us on remand to visit the question of informed consent again because even if Snider
gave informed consent under Sections A or B of the statute, which the supreme court finds applicable, such
consent has no bearing on the question of whether Dr. Yue's actions fell below the standard of care when
                                                                                             (continued...)

                                                    4
       Upon defendants’ application, we granted certiorari to review the correctness

of this determination. Snider v. Louisiana Medical Mutual Insurance Company, 14-

1964 (La. 12/8/14), 153 So. 3d 431.




                                        DISCUSSION

       It is well settled that a court of appeal may not set aside a trial court's or a jury's

finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and

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.2d 840, 844 (La. 1989). This test dictates that a reviewing

court must do more than simply review the record for some evidence that may

controvert the trial court ruling. Rather, it requires a review of the entire record to

determine whether manifest error has occurred. Thus, the issue before the court of

appeal is not whether the trier of fact was right or wrong, but whether the fact-finder's

conclusion was a reasonable one. Clay v. Our Lady of Lourdes Regional Medical

Center, 11-1797 (La. 5/8/12), 93 So.3d 536, 543. The appellate court must not

reweigh the evidence or substitute its own factual findings because it would have

decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust

Co., 01-2217 (La. 4/3/02), 816 So.2d 270, 278-79.                     Where the factfinder’s

determination is based on its decision to credit the testimony of one of two or more

witnesses, that finding can virtually never be manifestly erroneous. This rule applies

equally to the evaluation of expert testimony, including the evaluation and resolution


       2
        (...continued)
he rushed to implant a permanent pacemaker in the body of Snider.” Snider, 12-1068 at p. 5, 146 So.
3d at 967-68.

                                                5
of conflicts in expert testimony. Bellard v. American Central Ins. Co., 07-1335 (La.

4/18/08), 980 So.2d 654, 672.

      Considering these principles, we now turn to a review of the record.

Specifically, we will look at the expert medical testimony to determine whether Dr.

Yue’s decision to implant the pacemaker was within the appropriate standard of care.

      Dr. Michael Turner, tendered as an expert in cardiac pacing, cardiovascular

disease and internal medicine, testified on behalf of plaintiffs. Dr. Turner testified in

his opinion, the appropriate standard of care would have been to follow a conservative

treatment rather than implanting the pacemaker. He testified he would have observed

the patient for one day or several days and try drug therapy to alleviate the slow

heartbeat. However, on cross-examination, Dr. Turner admitted the guidelines for

pacemaker implantation were met in this case. He further acknowledged that it was fair

to say some cardiologists would have made the choice to implant the pacemaker, even

though he would not have done it.

      Dr. Jean King White, Mr. Snider’s treating cardiologist, testified on plaintiffs’

behalf. Dr. White testified he did not have an opinion as to whether it was necessary

for Dr. Yue to implant the pacemaker. He stated he never recommended Mr. Snider

have a pacemaker because he had “never seen him with a slow heart rate except when

he was on a beta blocker.”

      Defendants called Dr. Yue. Dr. Yue testified he relied on four considerations

in recommending implantation of the pacemaker: (1) Mr. Snider had a very slow heart

rate, below 40; (2) Mr. Snider was symptomatic, with symptoms of shortness of

breath and chest pain; (3) Mr. Snider’s heart rate became very fast when he was not

on medication, and he needed to continue the medication to protect his heart; and (4)

Mr. Snider’s heart was weak, as shown by an echocardiogram. Dr. Yue testified he

                                           6
did not see much benefit to waiting, pointing out that patients with low heart rates can

become unstable.

      Dr. Freddy Michel Abi-Samra testified for defendants as an expert in

cardiology, internal medicine and electrophysiology. Dr. Abi-Samra discussed the

categories set forth in the “Indications for Permanent Cardiac Pacing,” and explained

Mr. Snider’s case presented a “clear type two indication for implantation.” He further

opined Dr. Yue was within the appropriate standard of care in performing the

pacemaker implantation.

      A review of the record in its entirety demonstrates the jury’s conclusion that Dr.

Yue did not breach the appropriate standard of care was reasonable. The defense

expert, Dr. Abi-Samra, testified that Mr. Snider’s condition clearly fell within Class II

category in the “Indications for Permanent Cardiac Pacing,” which permits

implantation of a permanent pacemaker. While plaintiffs’ expert, Dr. Turner, testified

that he would not have implanted a pacemaker under the facts, he admitted the

guidelines for pacemaker implantation were met in this case, and acknowledged some

cardiologists would have made the choice to implant the pacemaker, even though he

would not have done it. Faced with these different opinions, the jury obviously chose

to accept the testimony of the defense expert. This conclusion is not manifestly

erroneous.

      Accordingly, we reverse the judgment of the court of appeal holding the jury

was manifestly erroneous in failing to find Dr. Yue’s actions fell below the acceptable

standard of care. Consistent with our prior judgment in Snider v. Louisiana Medical

Mut. Ins. Co., 13-0579 (La. 12/10/13), 130 So. 3d 922, the case is remanded to the

court of appeal to consider the remaining assignments of error in the appeal.




                                           7
                                    DECREE

      For the reasons assigned, the judgment of the court of appeal is reversed. The

case is remanded to the court of appeal for further proceedings consistent with this

opinion.




                                         8
05/05/15



                    SUPREME COURT OF LOUISIANA

                              NO. 2014-C-1964

                        CLYDE SNIDER, JR., ET UX

                                    VERSUS

    LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, ET AL.

           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
               THIRD CIRCUIT, PARISH OF BEAUREGARD


JOHNSON, Chief Justice, dissents.
      05/05/15


                     SUPREME COURT OF LOUISIANA

                                   NO. 2014-C-1964

                        CLYDE SNIDER, JR., ET UX.

                                      VERSUS

  LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, ET AL.


KNOLL, Justice, dissenting.

      The majority herein concludes the evidence supports the jury’s finding Dr.

Robin Yue did not breach the applicable standard of care by emergently implanting

a permanent pacemaker in the plaintiff without ambulatory monitoring or first

regulating his prescribed drug therapy. However, after reviewing the entire record

in this case, I can only conclude, as did the Court of Appeal, the jury did

manifestly err in finding no malpractice. For this reason, I respectfully dissent

from the majority’s decision reinstating the jury’s clearly erroneous findings. I

would affirm the Court of Appeal’s judgment finding Dr. Yue’s actions fell below

the acceptable standard of care.

      In a medical malpractice action against a physician, the plaintiff carries a

two-fold burden of proof. The plaintiff must first establish by a preponderance of

the evidence the doctor’s treatment fell below the ordinary standard of care

expected of physicians in his medical specialty, and must then establish a causal

relationship between the alleged negligent treatment and the injury sustained.

Smith v. State through DHHR, 523 So.2d 815, 819 (La.1988). A determination of

whether a physician breached the appropriate standard of care owed to a particular

plaintiff depends upon the facts and circumstances of the case. Hunt v. Bogalusa

Community Medical Center, 303 So.2d 745, 746 (La. 1974). An appellate court
may not set aside a trial court’s or jury’s factual finding in the absence of “manifest

error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.

1989). Thus to reverse a trial court, the reviewing court must find from the record a

reasonable factual basis does not exist for the finding, and further the finding is

clearly wrong. Mart v. Hill, 505 So.2d 1120 (La. 1987). Though the standard of

review is high, it does not require the reviewing court to abdicate its responsibility

to review the trial court’s findings, nor does it require the court to rubber stamp a

jury’s manifestly erroneous findings.

      As the majority astutely notes “where the findings are based on

determinations regarding the credibility of witnesses, the manifest error standard

demands great deference to the findings of fact.” Slip Opinion at 5. This is so

because “only the factfinder can be aware of the variations in demeanor and tone

of voice that bear so heavily on the listener’s understanding and belief in what is

said.” Rosell, 549 So.2d at 844. However, although the manifest error doctrine is

not easily broached, “[w]here documents or objective evidence so contradict the

witness’s story, or the story itself is so internally inconsistent or implausible on its

face, that a reasonable fact finder would not credit the witness’s story, the court of

appeal may well find manifest error or clear wrongness even in a finding

purportedly based upon a credibility determination.” Menard v. Lafayette Ins. Co.,

09-1869, p. 15 (La. 3/16/10), 31 So.3d 996, 1008 (quoting Rosell, 549 So.2d at

844-45).

      The following is the objective evidence I find so contradictions the

defendants’ witnesses. Four physicians, including the three members of the

medical review panel and plaintiff’s treating cardiovascular surgeon, opined Dr.




                                           2
Yue failed to comply with the appropriate standard of care. One member of the

panel, Dr. Tommy Brown, testified on behalf of the entire panel, opining:1

       I do not [think Snider was a candidate for a pacemaker]. I think that
       he could have been managed by withholding his beta blocker and
       withholding his blood thinner…. Again, the big thing that we go back
       to, is that there’s different beta blockers, there’s different strength of
       beta blockers, there’s different action of beta blockers. And to say
       that we need a pacemaker because he requires a beta blocker and he
       failed one specific beta blocker at one specific dose, I don’t really
       think that’s what we do in private practice every day…. I think he
       should have had a little time to see if his heart rate would have came
       up…. I think that would have been better served to wait and see if his
       bradycardia persisted. Again, he was stable. He wasn’t in heart
       failure. He wasn’t having ongoing angina. So I didn’t think that there
       was an absolute rush to put the pacemaker in that day.

When then asked whether Dr. Yue’s actions complied with the ordinary standard

of care for cardiologists, Dr. Brown along with the other two members of the panel

found Dr. Yue’s actions did not. See Slip Opinion at 2-3. Dr. Michael Turner,

accepted as an expert in implanting cardiology, agreed testifying:

              Q.     In your opinion, as far as the standard of care dealing
       with cardiologists implanting pacemakers, between the conservative
       treatment and implanting the pacemaker on this particular day that Dr.
       Yue saw him, what is your opinion about the standard of care there?
              A.     If we define the standard of care as what most implanting
       cardiologists would have done at that time, it would have been to wait.
              Q.     Wait and do what?
              A.     Observe for a period of time, maybe a day, maybe
       several days, depending on the course. Very likely withdraw or try to
       alter drug therapy to alleviate the slow heartbeat.

       Moreover, the physician called by defendant, Dr. Freddy Michael Abi-

Samra, conceded, as suggested by the national guidelines, the implantation of a

permanent pacemaker herein was not “emergent.” Significantly, a document was

admitted into evidence entitled “Indications for a Permanent Cardiac Pacing,”

listing the classifications for a permanent pacing as established by a joint task force




1 The testimony of the other two members were stipulated to as their testimony would have been
identical to Dr. Brown’s.



                                              3
formed by the American College of Cardiology, the American Heart Association,

and the Heart Rhythm Society. These guidelines set forth three classifications:

      Class I—Conditions in which permanent pacing is definitely
      beneficial, useful, and effective. In such conditions, implantation of a
      cardiac pacemaker is considered acceptable and necessary, provided
      that the condition is not due to a transient cause.

      Class II—Conditions in which permanent pacing may be indicated but
      there is conflicting evidence and/or divergence of opinion; class IIA
      refers to conditions in which the weight of the evidence/opinion is in
      favor of usefulness/efficacy, while class IIB refers to conditions in
      which the usefulness/efficacy is less well established by
      evidence/opinion.

      Class III—Conditions in which permanent pacing                   is   not
      useful/effective and in some cases may be harmful.

      Symptoms—Patients frequently present for consideration of
      pacemaker placement because of symptoms that may be due to
      bradyarrhythmias (e.g. dizziness, lightheadedness, syncope, fatigue,
      and poor exercise tolerance.) These patients will often have evidence
      of mild or intermittent sinus node dysfunction or conduction
      abnormalities. It is critical to attempt to establish a direct correlation
      between symptoms and bradyarrhythmias. This is done via a careful
      history and ambulatory monitoring.

      A direct correlation between symptoms and bradyarrhythmias will
      increase the likelihood of recommending pacemaker placement. On
      the other hand, failure to document such a correlation or the
      presence of an alternative explanation for symptoms will make
      pacemaker placement less likely or even contraindicated. (Emphasis
      added).

      As the guidelines clearly provide, in non-emergent or non-life threatening

situations, like the one herein, a cardiologist should “wait and see” before

implanting a permanent pacemaker as a period of monitoring is necessary in order

to ensure “the condition is not due to a transient cause.” These guidelines also

caution failure to document a direct correlation between symptoms and

bradycardia or the presence of an alternative explanation of the symptoms will

make pacemaker placement less likely or even contraindicated. Here, the record

undeniably shows Dr. Yue did not heed these warnings as he failed to do




                                          4
ambulatory monitoring or even determine if Snider’s condition was due to a

transient cause, like the beta blockers.

      Regarding the proper classification herein and the need for immediate

action, Dr. Abi-Samra testified there was a clear indication this was a Class II

implantation and as such would “benefit the patient, especially in the lifestyle,

rather than the immediate survival or immediate prevention of immediate death.”

It was not, according to him, an emergency surgery or anything of that sort,

specifically “[i]t was not necessarily emergent.”

      Accordingly, the overall testimony and the objective medical evidence

establish Snider’s presentation at the emergency room did not call for or require

immediate surgery. The objective evidence clearly shows the jury’s factual error as

it was not necessarily Dr. Yue’s performance of the procedure that breached the

applicable standard, but rather his “rush,” or more appropriately his decision, to

perform this particular procedure emergently based solely on the symptoms

presented in the emergency room the very same day that constitutes malpractice.

Though as the majority finds the evidence does reasonably show a young man at

26 years of age, facing a lifetime of beta blockers and drug therapy, may very well

be a candidate for a Class II implantation of a permanent pacing device, that same

evidence nevertheless conclusively and objectively establishes the implantation

herein was not emergent because plaintiff was stable, not in heart failure, and with

no ongoing angina. Thus, under the facts and circumstances of this case, the

objective medical evidence clearly shows Dr. Yue breached the ordinary standard

of care in his rush to treat the plaintiff’s symptoms through the implantation of a

permanent pacemaker.

      Given the medical guidelines, the medical testimony, and the panel’s

undisputed medical findings—all agreeing Dr. Yue rushed the decision for



                                           5
implantation of a permanent pacemaker without first stopping the patient’s

medication and monitoring for possible improvement in heart rate—a reasonable

fact finder would not have found as this jury did on the issue of breach of the

applicable standard of care. The Court of Appeal is an errors correcting court that

properly reversed the jury’s verdict in its manifest error review. For these reasons,

I would affirm the Court of Appeal.




                                          6
05/05/15


                     SUPREME COURT OF LOUISIANA

                                 No. 2014-C-1964

                           CLIDE SNIDER, JR., ET UX.

                                     VERSUS

       LOUISIANA MEDICAL MUTUAL INSURANCE CO., ET AL.


CRICHTON, J., additionally concurs and assigns reasons:

      I concur in the per curiam opinion reversing the court of appeal. I write

separately to emphasize the substantial weight given to a jury’s finding of fact

under Louisiana law. See Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989). As

esteemed late Justice Albert Tate, Jr. observed, the rule of limited appellate review

in the absence of manifest error “requires that the appellate court will not disturb

the trial court’s express or implied factual findings if the evidence is reasonably

open to any interpretation in accord therewith.” A. Tate, “Manifest Error” –

Further observations on appellate review of facts in Louisiana civil cases, 22 La.

L. Rev. 605, 611 (1962).

      The court of appeal disregarded this mandate in this case, despite the fact

that the evidence presented at trial was “reasonably open to any interpretation” in

accordance with the jury’s verdict.      Indeed, as the per curiam explains, even

plaintiffs’ own expert testified on cross-examination that the guidelines for

pacemaker implantation were met in this case.          As a result, I believe that,

consistent with prior jurisprudence of this Court, the case is properly reversed.
