STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-366
ALFRED DUPREE, ET AL.
VERSUS
LOUISIANA MEDICAL MUTUAL INS. CO., ET AL.
**********
APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 10C2674 HONORABLE JAMES PAUL DOHERTY, JR., DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Jimmie C. Peters, Judges.
REVERSED AND REMANDED.
Marc W. Judice Michelle R. Judice Judice & Adley 926 Coolidge Boulevard Lafayette, LA 70503 (337) 235-2405 Counsel for Defendant/Appellee: Louisiana Medical Mutual Insurance Company Nelson William Wagar III Justin M. Chopin Chopin, Wagar, Richard & Kutcher, LLP 3850 North Causeway Boulevard Metairie, LA 70002 (504) 830-3838 Counsel for Plaintiffs/Appellants: Alfred Dupree Sondria Dupree Brandon Harris
Daryl K. Washington Attorney at Law 325 N. St. Paul, Suite 1875 Dallas, TX 75201 (214) 880-4881 Counsel for Plaintiffs/Appellants: Alfred Dupree Sondria Dupree Brandon Harris DECUIR, Judge.
Sondria and Alfred Dupree and Brandon Harris filed suit against Dr. José
Dorta and Louisiana Medical Mutual Insurance Company (“LAMMICO”) alleging
medical malpractice in the prenatal care and treatment of the Duprees‟ daughter,
Katie Lynn Dupree, and her unborn child, Kaydon Harris, both now deceased. The
petition was dismissed via summary judgment when the trial court ruled that
Plaintiffs failed to present evidence sufficient to establish a genuine issue of
material fact. A motion for new trial filed by Plaintiffs was denied. Plaintiffs
appeal both the summary judgment and the denial of their motion for new trial, and
for the following reasons, we reverse.
Twenty-seven-year old Katie Lynn Dupree became a patient of Dr. Dorta
when she was pregnant with her child Kaydon, whose father is Brandon Harris.
On January 9, 2009, Dupree went to the Emergency Room of Opelousas General
Hospital with complaints of facial edema, vomiting, and headaches. She was
found to have elevated blood pressure and was told to stop working and decrease
her activities. On January 26, at thirty-six weeks gestation, Dupree again presented
with elevated blood pressure and other symptoms suggestive of gestational
hypertension or preeclampsia. Dr. Dorta did not intervene medically nor did he
propose an early delivery of the baby. Dupree was again sent home with no
medical intervention in place other than bed rest. Two days later, Dupree was
found face down and unresponsive by her father. Her baby was stillborn the
following day. Dupree was then taken off life support and died after donating her
organs.
Plaintiffs filed a request for review by a Medical Review Panel on June 25,
2009. Eleven months later, on May 12, 2010, the panel rendered its opinion
finding no malpractice on the part of Dr. Dorta. Plaintiffs then filed suit on May 28, 2010 against Dr. Dorta and his insurer, LAMMICO. Defendants filed
numerous exceptions. Dr. Dorta, who has other malpractice claims pending
against him and no longer practices medicine, was soon dismissed from the case
due to his discharge in bankruptcy. Plaintiffs sought to compel LAMMICO to
comply with discovery requests and moved for sanctions and a protective order.
Plaintiffs then requested a status conference to schedule deadlines and a trial date.
Immediately after the scheduling order was issued, on November 9, 2010,
LAMMICO moved for summary judgment. A hearing on the motion was held on
December 10, 2010; the court ruled from the bench in favor of LAMMICO based
on the plaintiffs‟ failure to submit an affidavit from an expert showing a genuine
issue of material fact sufficient to defeat summary judgment.
At the hearing, plaintiffs‟ counsel argued that he declined to submit an
expert‟s affidavit because he was relying on the scheduling order which provided
for expert reports to be exchanged several months in the future. Although counsel
acknowledged that he had consulted an expert, he denied having retained one for
trial purposes. The trial court found this argument disingenuous and considered
counsel‟s argument to be a risky strategy that had failed. Plaintiffs‟ counsel then
requested a ten-day extension of time in order to submit expert evidence. The trial
court held: “[T]he plaintiffs need to provide the testimony, either by reports or
affidavits or depositions of an expert, that raises the material issue that they will be
able to carry their burden of proof. That‟s not done in this matter.”
Two weeks later, on December 28, 2010, plaintiffs filed a motion for new
trial and attached as an exhibit an affidavit from Dr. James Tappan, a board
certified physician specializing in obstetrics and gynecology whose credentials as
an expert are undisputed. LAMMICO opposed the motion for new trial and moved
2 to strike the affidavit. A hearing was held, and the trial court denied the plaintiffs‟
motion and found LAMMICO‟s motion to strike moot. This appeal followed.
Article 967(B) of the Louisiana Code of Civil Procedure provides that when
a motion for summary judgment is made and supported by competent evidence,
“an adverse party may not rest on the mere allegations or denials of his pleading,”
but his response must set forth specific facts showing that there is a genuine issue
for trial. The provision further states, “If he does not so respond, summary
judgment, if appropriate, shall be rendered against him.” Id.
The plaintiff‟s burden of proof in a medical malpractice action is three-fold.
He must present evidence establishing the applicable standard of care, a breach of
the standard of care, and a causal connection between the breach and the injury.
La.R.S. 9:2794; Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La. 10/17/94), 643
So.2d 1228; Weeks v. Brown, 01-00495 (La.App. 3 Cir. 10/3/01), 796 So.2d 839.
Ordinarily, for a plaintiff to meet his burden of proof, the “„opinions of expert
witnesses who are members of the medical profession and who are qualified to
testify on the subject are necessary to determine whether or not physicians
possessed the requisite degree of knowledge or skill, or failed to exercise
reasonable care and diligence.‟” Venable v. Dr. X, 95-1634, p. 4 (La.App. 3 Cir.
4/3/96), 671 So.2d 1249, 1252 (quoting Richoux v. Tulane Med. Ctr., 617 So.2d
13, 16 (La.App. 4 Cir. 1993)).
Article 1973 of the Louisiana Code of Civil Procedure provides that a “new
trial may be granted in any case if there is good ground therefor, except as
otherwise provided by law.” After reviewing the record before us, we find good
and valid reasons for a new trial, and we believe the trial court abused its discretion
in denying the motion for new trial in this case.
3 First, the time line in the case shows a very fast-moving litigation, not at all
slowed or delayed by any action of the plaintiffs or their counsel. Suit was filed
immediately after the Review Panel‟s decision. A scheduling order was requested
early so that all parties would be working quickly towards a final resolution.
Plaintiffs did not request continuances or extensions of time. Plaintiffs moved
ahead with discovery and urged the defendants‟ prompt participation. In fact, if
the record shows any delay, it was due to the filings of LAMMICO in countless
pretrial pleadings.
Second, we address the trial court‟s finding that plaintiffs‟ reliance on the
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-366
ALFRED DUPREE, ET AL.
VERSUS
LOUISIANA MEDICAL MUTUAL INS. CO., ET AL.
**********
APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 10C2674 HONORABLE JAMES PAUL DOHERTY, JR., DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Jimmie C. Peters, Judges.
REVERSED AND REMANDED.
Marc W. Judice Michelle R. Judice Judice & Adley 926 Coolidge Boulevard Lafayette, LA 70503 (337) 235-2405 Counsel for Defendant/Appellee: Louisiana Medical Mutual Insurance Company Nelson William Wagar III Justin M. Chopin Chopin, Wagar, Richard & Kutcher, LLP 3850 North Causeway Boulevard Metairie, LA 70002 (504) 830-3838 Counsel for Plaintiffs/Appellants: Alfred Dupree Sondria Dupree Brandon Harris
Daryl K. Washington Attorney at Law 325 N. St. Paul, Suite 1875 Dallas, TX 75201 (214) 880-4881 Counsel for Plaintiffs/Appellants: Alfred Dupree Sondria Dupree Brandon Harris DECUIR, Judge.
Sondria and Alfred Dupree and Brandon Harris filed suit against Dr. José
Dorta and Louisiana Medical Mutual Insurance Company (“LAMMICO”) alleging
medical malpractice in the prenatal care and treatment of the Duprees‟ daughter,
Katie Lynn Dupree, and her unborn child, Kaydon Harris, both now deceased. The
petition was dismissed via summary judgment when the trial court ruled that
Plaintiffs failed to present evidence sufficient to establish a genuine issue of
material fact. A motion for new trial filed by Plaintiffs was denied. Plaintiffs
appeal both the summary judgment and the denial of their motion for new trial, and
for the following reasons, we reverse.
Twenty-seven-year old Katie Lynn Dupree became a patient of Dr. Dorta
when she was pregnant with her child Kaydon, whose father is Brandon Harris.
On January 9, 2009, Dupree went to the Emergency Room of Opelousas General
Hospital with complaints of facial edema, vomiting, and headaches. She was
found to have elevated blood pressure and was told to stop working and decrease
her activities. On January 26, at thirty-six weeks gestation, Dupree again presented
with elevated blood pressure and other symptoms suggestive of gestational
hypertension or preeclampsia. Dr. Dorta did not intervene medically nor did he
propose an early delivery of the baby. Dupree was again sent home with no
medical intervention in place other than bed rest. Two days later, Dupree was
found face down and unresponsive by her father. Her baby was stillborn the
following day. Dupree was then taken off life support and died after donating her
organs.
Plaintiffs filed a request for review by a Medical Review Panel on June 25,
2009. Eleven months later, on May 12, 2010, the panel rendered its opinion
finding no malpractice on the part of Dr. Dorta. Plaintiffs then filed suit on May 28, 2010 against Dr. Dorta and his insurer, LAMMICO. Defendants filed
numerous exceptions. Dr. Dorta, who has other malpractice claims pending
against him and no longer practices medicine, was soon dismissed from the case
due to his discharge in bankruptcy. Plaintiffs sought to compel LAMMICO to
comply with discovery requests and moved for sanctions and a protective order.
Plaintiffs then requested a status conference to schedule deadlines and a trial date.
Immediately after the scheduling order was issued, on November 9, 2010,
LAMMICO moved for summary judgment. A hearing on the motion was held on
December 10, 2010; the court ruled from the bench in favor of LAMMICO based
on the plaintiffs‟ failure to submit an affidavit from an expert showing a genuine
issue of material fact sufficient to defeat summary judgment.
At the hearing, plaintiffs‟ counsel argued that he declined to submit an
expert‟s affidavit because he was relying on the scheduling order which provided
for expert reports to be exchanged several months in the future. Although counsel
acknowledged that he had consulted an expert, he denied having retained one for
trial purposes. The trial court found this argument disingenuous and considered
counsel‟s argument to be a risky strategy that had failed. Plaintiffs‟ counsel then
requested a ten-day extension of time in order to submit expert evidence. The trial
court held: “[T]he plaintiffs need to provide the testimony, either by reports or
affidavits or depositions of an expert, that raises the material issue that they will be
able to carry their burden of proof. That‟s not done in this matter.”
Two weeks later, on December 28, 2010, plaintiffs filed a motion for new
trial and attached as an exhibit an affidavit from Dr. James Tappan, a board
certified physician specializing in obstetrics and gynecology whose credentials as
an expert are undisputed. LAMMICO opposed the motion for new trial and moved
2 to strike the affidavit. A hearing was held, and the trial court denied the plaintiffs‟
motion and found LAMMICO‟s motion to strike moot. This appeal followed.
Article 967(B) of the Louisiana Code of Civil Procedure provides that when
a motion for summary judgment is made and supported by competent evidence,
“an adverse party may not rest on the mere allegations or denials of his pleading,”
but his response must set forth specific facts showing that there is a genuine issue
for trial. The provision further states, “If he does not so respond, summary
judgment, if appropriate, shall be rendered against him.” Id.
The plaintiff‟s burden of proof in a medical malpractice action is three-fold.
He must present evidence establishing the applicable standard of care, a breach of
the standard of care, and a causal connection between the breach and the injury.
La.R.S. 9:2794; Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La. 10/17/94), 643
So.2d 1228; Weeks v. Brown, 01-00495 (La.App. 3 Cir. 10/3/01), 796 So.2d 839.
Ordinarily, for a plaintiff to meet his burden of proof, the “„opinions of expert
witnesses who are members of the medical profession and who are qualified to
testify on the subject are necessary to determine whether or not physicians
possessed the requisite degree of knowledge or skill, or failed to exercise
reasonable care and diligence.‟” Venable v. Dr. X, 95-1634, p. 4 (La.App. 3 Cir.
4/3/96), 671 So.2d 1249, 1252 (quoting Richoux v. Tulane Med. Ctr., 617 So.2d
13, 16 (La.App. 4 Cir. 1993)).
Article 1973 of the Louisiana Code of Civil Procedure provides that a “new
trial may be granted in any case if there is good ground therefor, except as
otherwise provided by law.” After reviewing the record before us, we find good
and valid reasons for a new trial, and we believe the trial court abused its discretion
in denying the motion for new trial in this case.
3 First, the time line in the case shows a very fast-moving litigation, not at all
slowed or delayed by any action of the plaintiffs or their counsel. Suit was filed
immediately after the Review Panel‟s decision. A scheduling order was requested
early so that all parties would be working quickly towards a final resolution.
Plaintiffs did not request continuances or extensions of time. Plaintiffs moved
ahead with discovery and urged the defendants‟ prompt participation. In fact, if
the record shows any delay, it was due to the filings of LAMMICO in countless
pretrial pleadings.
Second, we address the trial court‟s finding that plaintiffs‟ reliance on the
scheduling order was simply a misplaced strategic move by their counsel. It is
clear from the transcript of the summary judgment hearing that plaintiffs‟ counsel
sincerely believed the scheduling order was pre-emptive of the summary judgment
evidentiary burden. This belief was buttressed by LAMMICO‟s apparent reticence
in producing an expert for discovery. Counsel initially pointed out that
LAMMICO likewise failed to produce an expert in its reliance solely on the
Review Panel‟s decision and its discovery response that its expert would be a
member of the panel. LAMMICO would not give plaintiffs the name of one expert
they could depose; rather, plaintiffs were put in the position of having to depose all
three members of the panel in order to provide an expert with their findings. It is
clear to this court that neither side in this contentious litigation was ready and
willing to disclose preliminary information on potential experts at the time of the
summary judgment hearing.
Third, in support of their motion for new trial, plaintiffs submitted an
affidavit of an expert wherein three specific acts of medical negligence are
described: failure to diagnose, failure to warn, and failure to timely deliver the
baby. In fact, the expert‟s opinion that “Dr. Dorta failed to warn Ms. Dupree
4 and/or her family of her condition and what to look for with respect to further
symptoms” is diametrically opposed to the Medical Review Panel‟s finding that
“we are sure a lengthy discussion ensued.” The juxtaposition of these two
statements presents without question a genuine issue of material fact. The trial
court, however, ruled on the motion for new trial without reference to the affidavit,
choosing to rely instead on the fact that plaintiffs failed to take advantage of their
one opportunity to present evidence.
A trial court is imbued with great discretion in both pre-trial and post-trial
matters. A trial court‟s discretion regarding motions for new trial is embodied in
both the title and text of La.Code Civ.P. art. 1973. Similarly, a trial court‟s
discretion to give additional time for the filing of affidavits in opposition to a
motion for summary judgment is referenced as “good cause” in La.Code Civ.P. art
966(B). While Louisiana jurisprudence generally upholds a trial court‟s decision
to exclude late-filed affidavits, the case law is rife with language describing the
discretionary nature of the trial court‟s ruling. In Higginbotham v. Rapides
Foundation, 07-538, p. 7 (La.App. 3 Cir. 10/31/07), 968 So.2d 1226, 1231, this
court held: “Given the facts, the law, and Plaintiffs‟ lack of due diligence, we find
no abuse of discretion by the trial court in excluding Plaintiffs‟ opposition.”
Conversely, in the instant case, the facts, the law, and plaintiffs‟ prudence
and initiative in prosecuting this case, compel a finding of an abuse of discretion
by the trial court. The trial court first erred in failing to grant plaintiffs‟ request for
a ten-day extension of time in which to file an expert affidavit in opposition to the
motion for summary judgment. Additionally, the trial court should have relied on
La.Code Civ.P. art. 1973 to grant the motion for new trial and accept into evidence
the affidavit of Dr. Tappan. Due consideration of the affidavit requires reversal of
summary judgment, as we find genuine issues of material fact which must be
5 decided after trial on the merits. Our findings are based on the specific facts of this
case. We by no means intend to condone or legitimize the actions of plaintiffs‟
counsel in failing to timely file an expert affidavit. We reach our decision herein
after careful consideration of the facts, the law, and the procedural record before
us. Rare is the case where we find an abuse of the trial court‟s great discretion.
This instance is indeed one of rarity.
For the above and foregoing reasons, the judgments of the trial court are
reversed, and this case is remanded to the trial court for further proceedings. Costs
of this appeal are assessed to LAMMICO.