Anthony Cemo Versus State Farm Mutual Automobile Insurance Company and John Doe

CourtLouisiana Court of Appeal
DecidedFebruary 1, 2023
Docket22-CA-226
StatusUnknown

This text of Anthony Cemo Versus State Farm Mutual Automobile Insurance Company and John Doe (Anthony Cemo Versus State Farm Mutual Automobile Insurance Company and John Doe) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anthony Cemo Versus State Farm Mutual Automobile Insurance Company and John Doe, (La. Ct. App. 2023).

Opinion

ANTHONY CEMO NO. 22-CA-226

VERSUS FIFTH CIRCUIT

STATE FARM MUTUAL AUTOMOBILE COURT OF APPEAL INSURANCE COMPANY AND JOHN DOE STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 800-124, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

February 01, 2023

MARC E. JOHNSON JUDGE

Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst

REVERSED AND REMANDED MEJ SMC SJW COUNSEL FOR PLAINTIFF/APPELLANT, ANTHONY CEMO Ross F. Lagarde Jeffrey G. Lagarde Alexander L.H. Reed

COUNSEL FOR DEFENDANT/APPELLEE, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Joseph M. Messina Bradley S. Groce JOHNSON, J.

Plaintiff/Appellant, Anthony Cemo, appeals the partial summary judgment

in favor of Defendant/Appellee, State Farm Mutual Automobile Insurance

Company (hereinafter referred to as “State Farm”), that dismissed his claims

related to a fall sustained in a hospital and the ensuing necessity for a second hip

revision surgery following his primary surgery to repair hip injuries allegedly

sustained in an automobile accident from the 24th Judicial District Court, Division

“L”. For the following reasons, we reverse the trial court’s partial summary

judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On October 9, 2018, Mr. Cemo was involved in an auto accident with a Ford

F-150 truck while stopped in traffic on Manhattan Boulevard in Harvey, Louisiana.

The driver of the Ford F-150 fled the scene on foot after the collision. It was later

claimed by the owner of the Ford F-150 that the vehicle had been stolen. On

October 3, 2019, Mr. Cemo filed suit against “John Doe” and his

uninsured/underinsured insurance carrier, State Farm, alleging that the driver was

negligent and the Ford F-150 was not covered by any automobile liability

insurance; thus, his State Farm policy was in full force and effect for liability

coverage, uninsured/underinsured motorist coverage, and medical coverage to him.

He allegedly suffered severe, painful, debilitating and permanently disabling

injuries to his left knee, neck, back, left shoulder, and right hip as a result of the

accident.

On May 14, 2020, Mr. Cemo underwent a right hip replacement surgery,

which was allegedly related to the injuries from the October 9, 2018 accident.1

While recuperating in the hospital following the hip replacement surgery, Mr.

1 The procedure was performed by Dr. Gustavo Godoy.

22-CA-226 1 Cemo slipped in his socks and suffered a periprostethetic hip fracture.2 The fall

necessitated a revisionary arthroplasty3 to his right hip on May 17, 2020, which

was also performed by Dr. Godoy.

On January 3, 2022, State Farm filed a motion for partial summary

judgment, seeking dismissal of all of the claims related to Mr. Cemo’s fall and

May 17, 2020 hip revision surgery. In its motion, State Farm argued that the fall in

the hospital was an intervening and superseding cause of a new hip injury. It also

argued that Mr. Cemo’s fall and subsequent need for a hip revision surgery was not

a reasonably foreseeable consequence of the negligence of the uninsured motorist

driving the Ford F-150, and the October 9, 2018 accident was too remote to

attribute causation to Mr. Cemo’s fall in the hospital. In opposition, Mr. Cemo

argued that his treating physicians related his revisionary hip surgery to the 2018

auto accident, and the medical testimony created a genuine issue of material fact

sufficient to preclude partial summary judgment.

The trial court heard the matter on February 7, 2022 and orally granted the

partial summary judgment in favor of State Farm. The trial judge reasoned that the

first accident could not be the proximate cause for the second surgery, and the

medical testimony would be more prejudicial than probative for jury consideration.

A written judgment was rendered on February 11, 2022—which granted the partial

summary judgment, dismissed all of Mr. Cemo’s claims related to his fall and May

17, 2020 hip revision surgery—and designated the judgment as a final judgment

pursuant to La. C.C.P. art. 1915(B). The instant devolutive appeal by Mr. Cemo

followed.

2 Dr. Gustavo Godoy explained that a periprostethic hip fracture is a fracture around the prosthetic hip. 3 The surgery required the replacement of the femoral component of Mr. Cemo’s primary hip replacement.

22-CA-226 2 ASSIGNMENTS OF ERROR

On appeal, Mr. Cemo alleges the trial court legally erred in granting State

Farm’s motion for partial summary judgment because he produced admissible

expert testimony regarding the causation of the necessity for the May 17, 2020 hip

revision surgery, and the trial court made an impermissible credibility

determination.

LAW AND ANALYSIS

Expert Testimony

Mr. Cemo alleges that the trial court legally erred in granting partial

summary judgment against him because his treating physicians, Dr. Neil

Duplantier and Dr. Gustavo Godoy, testified to the issue of causation for the

second, revisionary hip surgery, which created genuine issues of material fact. He

contends that the medical testimony of both doctors related medical causation for

his primary hip replacement surgery and secondary, revisionary surgery to the

October 9, 2018 accident, to which State Farm failed to produce any countervailing

testimony. As such, Mr. Cemo maintains that there are genuine issues of material

fact remaining as to whether he would have needed the hip revision surgery “but

for” the underlying auto accident.

State Farm avers that partial summary judgment was properly rendered in its

favor. It asserts that Mr. Cemo’s hospital fall was not reasonably foreseeable and

was an intervening and superseding cause of a new hip injury, resulting in the need

for the May 17, 2020 hip revision surgery. It contends that Dr. Godoy’s testimony

supports its position that the fall was, in fact, an intervening and superseding cause

of the injury. Because Mr. Cemo’s hospital fall was not a reasonably foreseeable

consequence of the negligence of the Ford F-150 driver, State Farm maintains that

it should not be liable for any damages related to the fall, which includes the May

22-CA-226 3 17, 2020 hip revision surgery.

The summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of every action and is favored. La. C.C.P. art.

966(A)(2). Appellate courts review summary judgments de novo under the same

criteria that govern the trial court’s consideration of whether summary judgment is

appropriate. Jefferson Par. Sch. Bd. v. TimBrian, LLC, 21-67 (La. App. 5 Cir.

10/20/21), --- So.3d ----, 2021WL4891089, writ denied, 21-1725 (La. 1/12/22),

330 So.3d 629, citing Stogner v. Ochsner Clinic Foundation, 18-96 (La. App. 5

Cir. 9/19/18), 254 So.3d 1254, 1257. Summary judgment shall be granted “if the

motion, memorandum, and supporting documents shows that there is no genuine

issue as to material fact and that the mover is entitled to judgment as a matter of

law.” Id., quoting La. C.C.P. art. 966(A)(3).

A material fact is one that potentially insures or prevents recovery, affects a

litigant’s ultimate success, or determines the outcome of the lawsuit. Populis v.

State Department of Transportation and Development, 16-655 (La. App. 5 Cir.

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Anthony Cemo Versus State Farm Mutual Automobile Insurance Company and John Doe, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anthony-cemo-versus-state-farm-mutual-automobile-insurance-company-and-john-lactapp-2023.