ALEXANDER BURTON NO. 23-CA-380
VERSUS FIFTH CIRCUIT
ASPEN AMERICAN INSURANCE COMPANY COURT OF APPEAL AND DR. PATRICIA SUMMERS STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 824-379, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING
March 27, 2024
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Scott U. Schlegel
AFFIRMED SJW FHW SUS COUNSEL FOR PLAINTIFF/APPELLANT, ALEXANDER BURTON DaShawn P. Hayes
COUNSEL FOR DEFENDANT/APPELLEE, PATRICIA G. SUMMERS, DDS AND ASPEN AMERICAN INSURANCE COMPANY Bradley R. Belsome Lance V. Licciardi, Jr. WINDHORST, J.
Plaintiff/appellant, Alexander Burton, appeals the trial court’s May 30, 2023
judgment, granting the motion for summary judgment filed by defendants/appellees,
Dr. Patricia Summers and Aspen American Insurance Company (“Aspen
Insurance”), and dismissing plaintiff’s claim against them with prejudice. For the
following reasons, we affirm the trial court’s judgment.
BACKGROUND
Mr. Burton filed a petition for damages against Dr. Summers and Aspen
Insurance on January 13, 2022, claiming that he suffered injuries while Dr. Summers
was performing a dental surgical procedure on him. Mr. Burton alleged that while
Dr. Summers was administering a local anesthesia to his surgical area on December
9, 2019, she negligently punctured his tongue with the needle and negligently
injected him with the local anesthesia. As a result of this, Mr. Burton claimed that
his tongue began to swell to the extent that he could not swallow or breathe. Mr.
Burton was allegedly rushed to the emergency room and placed in the intensive care
unit with debilitating injuries for four days.
Defendants filed a motion for summary judgment on March 13, 2023,
asserting that plaintiff had not produced any expert opinion supporting his position
that Dr. Summers breached the applicable standard of care and, as a result, plaintiff’s
claim should be dismissed with prejudice.1
In their memorandum in support of their motion for summary judgment,
defendants stated that they propounded interrogatories and requests for production
of documents on plaintiff on February 25, 2022, specifically requesting (1) the
identity of any person whom plaintiff intends to call as an expert; (2) any witness
1 Defendants attached to their motion for summary judgment the following exhibits: (1) plaintiff’s petition for damages; (2) plaintiff’s responses to interrogatories and requests for production of documents; and (3) a copy of Dr. Summers’ clinical notes on plaintiff and the hospital discharge documents plaintiff brought to her office.
23-CA-380 1 who would testify that Dr. Summers failed to comply with the standard of care in
her treatment of plaintiff; and (3) any witness who would testify that any act or
omission on the part of Dr. Summers proximately caused plaintiff to suffer injuries
he would not have otherwise incurred. Defendants also requested copies of any
expert reports and reviews in plaintiff’s possession. On April 26, 2022, plaintiff
submitted discovery responses, answering each of the requests asking him to identify
any expert witness or expert report with “None.”
In their motion, defendants argue that expert testimony is required in this case
under La. R.S. 9:2794 to prove (1) the standard of care applicable to Dr. Summers,
(2) whether Dr. Summers breached that standard of care, and (3) whether any act or
omission on Dr. Summers’ part proximately caused plaintiff to suffer injuries that
would not otherwise have been incurred. Defendants submit that plaintiff has failed
to produce an expert opinion setting forth the applicable standard of care, that Dr.
Summers breached that standard of care, and that any alleged breach of the standard
of care proximately caused plaintiff’s damages. Defendants assert that plaintiff has
had over three years since the alleged malpractice on December 9, 2019 and over
one year since the filing of this action on January 13, 2022 to identify an expert who
will testify against defendants, but has failed to do so.
In support of their motion, defendants relied on plaintiff’s April 26, 2022
responses to interrogatories and requests for production, in which plaintiff indicated
he did not have an expert to present evidence that Dr. Summers failed to comply
with the standard of care. Defendants also relied on excerpts from Dr. Summers’
medical chart, which stated that teeth #23, 24, and 27 were extracted without any
complications.
In his May 3, 2023 opposition to defendants’ motion for summary judgment,
plaintiff acknowledged that expert testimony was necessary for the advancement of
medical malpractice claims and informed the court that he had retained a medical
23-CA-380 2 expert, Dr. Kalu U.E. Ogbureke. According to plaintiff, Dr. Ogbureke opined that
Dr. Summers deviated from the standard of care to a reasonable degree of medical
certainty by not obtaining informed consent as to the possibility of ACEI-induced
angioedema in a patient taking Lisinopril. Dr. Ogbureke indicated that ACEI-
induced angioedema is a well-documented complication of dental extractions.2
Plaintiff attached supplemental responses to interrogatories and requests for
production dated May 1, 2023. In the supplemental responses, plaintiff identified
Dr. Ogbureke as an expert in the field of oral and maxillofacial pathology and
produced a copy of her report. In his opposition, plaintiff further alleged that Dr.
Summers’ alleged malpractice was so obviously negligent that expert testimony was
not required to support the same, but, out of an abundance of caution, plaintiff had
retained the services of an expert to highlight the same.
In a May 11, 2023 reply memorandum in further support of defendants’
motion, defendants objected to plaintiff’s exhibits because they did not constitute
competent summary judgment evidence. Defendants asserted that Dr. Ogbureke’s
report should be stricken because it was not an affidavit, a sworn or certified
document, or a deposition, as required for a motion for summary judgment under
La. C.C.P. art. 966 A(4). Defendants also asserted that plaintiff’s supplemental
discovery responses were not competent summary judgment evidence, and that, even
if they were, the responses failed to satisfy plaintiff’s burden to oppose defendant’s
summary judgment motion.
After a hearing on May 18, 2023, the trial court granted defendants’ motion to
strike Dr. Ogbureke’s purported expert report and the motion for summary judgment.
As a result, by judgment of May 30, 2023, the trial court granted the motions and
dismissed plaintiff’s action against Dr. Summers and Aspen Insurance with prejudice.
2 Upon review, Dr. Ogbureke found that the record did not include a copy of the Informed Consent to determine whether or not plaintiff was informed of the possibility of angioedema, a potentially life- threatening medical emergency associated with Lisinopril therapy in some elderly African Americans.
23-CA-380 3 LAW and ANALYSIS
On appeal, plaintiff asserts the trial court erred in striking Dr. Ogbureke’s
expert report attached to his opposition to defendants’ motion for summary judgment
and in granting defendants’ motion for summary judgment.
Defendants’ Motion to Strike Plaintiff’s Expert Report
An appellate court reviews the grant or denial of a motion to strike pursuant
to La. C.C.P. art. 964 under the abuse of discretion standard. Detillier v. Borne, 15-
129 (La. App. 5 Cir. 9/23/15), 176 So.3d 669, 671, citing Pitre v. Opelousas Gen.
Hosp., 530 So.2d 1151 (La. 1988). The granting of a motion to strike rests in the
sound discretion of the trial court. Id. There is no indication that the trial court
abused its discretion in denying the motion to strike in this case.
La. C.C.P. art. 966 A(4) provides the exclusive list of documents which may
be considered by the trial or reviewing courts:
A. (4) The only documents that may be filed or referenced in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, certified copies of public documents or public records, certified copies of insurance policies, authentic acts, private acts duly acknowledged, promissory notes and assignments thereof, written stipulations, and admissions. The court may permit documents to be filed in any electronically stored format authorized by court rules or approved by the clerk of the court.
The introduction of documents which are not included in this exclusive list is
not permitted unless they are properly authenticated by an affidavit or the deposition
to which they are attached. Reed v. Landry, 21-589 (La. App. 5 Cir. 6/3/22), 343
So.3d 874, 881; Dye v. LLOG Exploration Company, LLC, 20-441 (La. App. 5 Cir.
11/3/21), 330 So.3d 1222, 1224.
This court has consistently held that exhibits, filed as unsworn and
unauthenticated attachments to an opposition to a motion for summary judgment,
are not permissible supporting documents in opposition to the motion for summary
judgment. Dye, 330 So.3d at 1225. A document that is not an affidavit or sworn to
23-CA-380 4 in any way, or is not certified or authenticated by an affidavit or deposition, is not of
sufficient evidentiary quality to be given weight in determining whether there are
remaining genuine issues of material fact. Nettle v. Nettle, 15-1875 (La. App. 1 Cir.
9/16/16), 212 So.3d 1180, 1183, writ denied, 16-1846 (La. 12/16/16), 212 So.3d
1170. The requirement that documents be verified or authenticated is not merely a
mechanical one of form only. It is based on the fundamental fact that such
documents are not self-proving. Person v. 2434 St. Charles Ave. Condo. Ass’n, 11-
1097 (La. App. 4 Cir. 3/7/12), 88 So.3d 679, 682.
Dr. Ogbureke’s expert report was not submitted as an affidavit; it is unsworn,
and it was not certified or authenticated by an affidavit or deposition. Nor was it
submitted as a sworn response to interrogatories. As a result, we agree with the trial
court’s conclusion that the expert report from Dr. Ogbureke does not qualify as
competent summary judgment evidence, and cannot be considered. Thus, we find
no abuse of discretion in the trial court’s granting of defendants’ motion to strike the
purported expert report.
Defendants’ motion for summary judgment
A motion for summary judgment “shall be granted if the motion,
memorandum, and supporting documents show that there is no genuine issue as to
material fact and that the mover is entitled to judgment as a matter of law.” La.
C.C.P. art. 966 A(3); Bryde v. Lakeview Reg’l Med. Ctr., LLC, 19-166 (La. App. 5
Cir. 12/11/19), 284 So.3d 686, 691. The mover’s burden on the motion for summary
judgment, when he does not bear the burden of proof at trial, requires him “to point
out to the court the absence of factual support for one or more elements essential to
the adverse party’s claim, action, or defense.” La. C.C.P. art. 966 D(1). The
opposing party’s burden is to “produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the mover is not entitled to
judgment as a matter of law.” Id.
23-CA-380 5 A material fact is one that potentially insures or prevents recovery, affects a
litigant’s ultimate success, or determines the outcome of a lawsuit. Populis v. State
Dep’t of Transportation & Dev., 16-655 (La. App. 5 Cir. 5/31/17), 222 So.3d 975,
980, writ denied, 17-1106 (La. 10/16/17), 228 So.3d 753. An issue is genuine if it
is such that reasonable persons could disagree. If only one conclusion could be
reached by reasonable persons, summary judgment is appropriate, as there is no need
for a trial on that issue. Id.
Appellate courts review summary judgments de novo, using the same criteria
that govern the trial court’s consideration of whether summary judgment is
appropriate. Rhodes v. AMKO Fence & Steel Co., LLC, 21-19 (La. App. 5 Cir.
10/28/21), 329 So.3d 1112, 1117; Lincoln v. Acadian Plumbing & Drain, LLC, 17-
684 (La. App. 5 Cir. 5/16/18), 247 So.3d 205, 209, writ denied, 18-1074 (La.
10/15/18), 253 So.3d 1302.
In a medical malpractice action, such as the present case, a plaintiff must
prove, by a preponderance of the evidence: (1) the standard of care applicable to the
defendant; (2) that the defendant breached that standard of care; and (3) that there
was a causal connection between the breach and the resulting injury. La. R.S.
9:2794; Byrde, 284 So.3d at 691. Because of the complex medical and factual issues
involved, a plaintiff will likely fail to sustain the burden of proving his claim under
La. R.S. 9:2794 without medical expert testimony. Id.; Pfiffner v. Correa, M.D., 94-
924, 94-963, 94-992 (La. 10/17/94), 643 So.2d 1228, 1234. Only in cases of obvious
negligence, where the trier of fact does not need an expert to assess the standard of
care, breach, and causation, is expert testimony unnecessary. Turner v. Bosley Med.
Inst., Inc., 19-131 (La. App. 5 Cir. 10/16/19), 280 So.3d 326, 329-30; Hastings v.
Baton Rouge General Hosp., 498 So.2d 713, 719 (La. 1986).
Plaintiff asserts the trial court erred in granting defendants’ motion for
summary judgment because (1) Dr. Summers’ acts of medical negligence were
23-CA-380 6 obvious and apparent; and (2) plaintiff retained a medical expert to provide an
opinion regarding whether Dr. Summers’ treatment fell below the applicable
standard of care. Defendants argue that plaintiff’s expert report does not constitute
competent summary judgment evidence. Defendants therefore assert that plaintiff
has not presented essential elements of his claim, because he lacks expert medical
evidence to prove the standard of care, Dr. Summers breached the standard of care,
and causation.
The jurisprudence recognizes an exception to the requirement of expert
testimony where the claim arises out of an obviously careless act from which a lay
person can infer negligence. Pfiffner, 643 So.2d at 1233-34; White v. LAMMICO,
21-1222 (La. App. 1 Cir. 4/8/22), 342 So.3d 63, 67-68. Examples of an “obviously
careless act” not requiring expert testimony include “fracturing a leg during
examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a
patient, or leaving a sponge in a patient’s body.” Pfiffner, 643 So.2d at 1234;
Richardson v. Cotter, 51,637 (La. App. 2 Cir. 9/27/17), 245 So.3d 136, 143. Failure
to attend a patient when the circumstances demonstrate the serious consequences of
this failure, and failure of an on-call physician to respond to an emergency when he
knows or should know that his presence is necessary are also examples of obvious
negligence which require no expert testimony to demonstrate the physician’s fault.
Pfiffner, 643 So.2d at 1234.
In the present case, plaintiff alleges that Dr. Summers negligently punctured
his tongue while administering local anesthesia. We find that this alleged negligent
act does not fall within the narrow scope of the obvious-negligence exception.
Medical testimony may be necessary to determine whether this is a common
occurrence, and as significantly, the potential effects of accidental injection of an
uncertain amount of anesthesia to the tongue. Further, in his opposition to
defendants’ motion for summary judgment, plaintiff stated that he “does not dispute
23-CA-380 7 Defendants’ contention that expert testimony is necessary for the advancement of
medical malpractice claims.”
Because defendants filed the motion for summary judgment, defendants had
the initial burden of proof. In this regard, defendants argued that medical expert
testimony was necessary for plaintiff’s claim to establish a breach of the standard of
care, causation, and damages. To show that plaintiff could not establish these
elements, defendants attached to their motion plaintiff’s discovery responses
confirming that plaintiff did not have an expert. In a malpractice claim, expert
testimony is generally required to establish the applicable standard of care and
whether or not that standard was breached, except where the negligence is so obvious
that a layperson can infer negligence without the guidance of expert testimony.
Gorbach v. Tulane Univ. Med. Ctr., 2011-1575 (La. App. 4 Cir. 4/11/12), 89 So.3d
429, 433-34, writ denied, 12-1063 (La. 6/22/12), 91 So.3d 978. Accordingly, upon
our de novo review, we find that defendants satisfied their initial burden on summary
judgment of establishing that plaintiff could not prove the applicable standard of
care, a breach of the standard by Dr. Summers, or causation. Consequently, the
burden shifted to plaintiff to produce evidence sufficient to establish that he would
be able to satisfy his evidentiary burden of proof at trial.
Plaintiff opposed the motion, claiming that he had identified an expert,
thereby creating a genuine issue of material fact. Plaintiff’s opposition failed to
attach any countervailing affidavits, deposition testimony, or other competent
summary judgment evidence to dispute the facts established by defendants’ motion.
Instead, plaintiff simply relies on the fact that he has now retained an expert as
enough to show a genuine issue of material fact exists.
As discussed above, plaintiff’s purported expert report does not constitute
competent summary judgment evidence. In addition, the dispositive issue is not
whether plaintiff has retained an expert; instead, the issue is whether plaintiff has
23-CA-380 8 produced expert medical testimony to support his claim. A plaintiff cannot create
an issue of fact simply by naming an expert witness’s name in a brief and alleging
that a report and affidavit will be submitted at an unknown future date, without
submitting an affidavit or other competent summary judgment evidence. Jordan v.
Community Care Hosp., 19-39 (La. App. 4 Cir. 7/24/19), 276 So.3d 564, 582;
Gorbach, 89 So.3d at 434; Robles v. ExxonMobile, 02-854 (La. App. 1 Cir. 3/28/03),
844 So.2d 339, 342. A plaintiff’s identification of an “expert without an affidavit or
deposition testimony in which the expert actually testifies under oath in a manner
favorable to the plaintiff’s position is insufficient opposition to a properly supported
summary judgment motion.” Jordan, 276 So.3d at 581. Mere conclusory allegations
are insufficient to defeat a properly supported motion for summary judgment. Id.
We also point out that courts have refused to grant plaintiffs additional time
to obtain an expert after a medical defendant has filed a motion for summary
judgment based on the lack of expert testimony. In Perricone v. East Jefferson
General Hosp., 98-343 (La. App. 5 Cir. 10/14/98), 721 So.2d 48, this court affirmed
the trial court’s grant of summary judgment to defendant physicians where the
medical review panel unanimously found no breach in the standard of care and
plaintiff had not produced expert medical testimony. Plaintiff argued that the trial
court should have allowed her additional time to produce expert testimony, but the
appellate court found that argument unpersuasive. Defendant responded that two
and one-half years had elapsed between the accident and the motions for summary
judgment, and one year had passed between issuance of the medical review panel
opinion and the motions for summary judgment. Considering the amount of time
that had passed, the court found that plaintiff had a fair opportunity to present her
claim, and that the trial court did not err in refusing to grant additional time before
granting the motions for summary judgment.
In this case, the alleged malpractice occurred on December 9, 2019, and
23-CA-380 9 plaintiff filed suit on January 13, 2022. Plaintiff waited until defendants filed a
motion for summary judgment to retain an expert, but failed to provide competent
summary judgment evidence in opposition to defendants’ motion. Plaintiff in this
case has had even more time than plaintiff in Perricone to present an affidavit or
deposition of a medical expert, but has not done so.
Consequently, upon our de novo review, plaintiff failed to produce any
competent summary judgment evidence to show that he will be able to satisfy his
burden of proof at trial. Thus, defendants are entitled to judgment as a matter of law.
We therefore find no error in the trial court’s granting of defendants’ motion for
summary judgment.
DECREE
For the foregoing reasons, we affirm the trial court’s judgment granting
defendants’ motion for summary judgment and dismissing plaintiff’s claim against
defendants with prejudice.
AFFIRMED
23-CA-380 10 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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23-CA-380 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE NANCY A. MILLER (DISTRICT JUDGE) LANCE V. LICCIARDI, JR. (APPELLEE)
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