Ellen C. Badeaux v. Kevin Watson, M.D.

• Court: Louisiana Court of Appeal
• Decided: December 15, 2022
• Docket: 2022-C-0634
• Status: Published

Opinion

ELLEN C. BADEAUX * NO. 2022-C-0634

VERSUS * COURT OF APPEAL KEVIN WATSON, M.D., ET AL. * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-09565, DIVISION “B” Honorable Richard G. Perque, Judge ****** Judge Edwin A. Lombard ****** (Court composed of Chief Judge Terri F. Love, Judge Edwin A. Lombard, Judge Rosemary Ledet)

Ellen Cronin Badeaux, L.L.C. 324 N. Theard Street Covington, LA 70433

COUNSEL FOR PLAINTIFF

C. WM. Bradley Jr. Richard S. Crisler Lance V. Licciardi Jr. 1100 Poydras Street, Suite 2700 New Orleans, LA 70163-2700

COUNSEL FOR DEFENDANTS

WRIT GRANTED; DISTRICT COURT JUDGMENT VACATED; SUMMARY JUDGMENT GRANTED.

DECEMBER 15, 2022 EAL

TFL

RML

On application for supervisory writ, Kevin M. Watson, M.D. (Dr. Watson)

and Orthopaedic Associates of New Orleans (collectively “the relators”) seek

review of the district court judgment of September 6, 2022, denying their motion

for summary judgment.

Relevant Facts and Procedural History

This is a medical malpractice lawsuit filed by the plaintiff, Ellen C.

Badeaux, in November 2020. After the plaintiff failed to identify an expert witness

in response to interrogatories, the relators filed a motion for summary judgment on

April 28, 2022, asserting that the opinion of the medical review panel sufficiently

proves the absence of factual support for the plaintiff’s claims and that, because the

plaintiff failed to come forward with expert medical testimony to support her a

claims of breach in the standard of care and causation of damages (thereby creating

a genuine issue of dispute), the relators were entitled to summary judgment as a

matter of law. The district court set a hearing on the relators’ motion for summary

judgment for August 11, 2022.

The plaintiff failed to file an opposition to the defendants’ motion for

summary judgment but, on July 27, 2022, filed an unopposed motion to continue the hearing on the relators’ motion for summary judgment. On July 29, 2022, the

district court granted the continuance, resetting the hearing for the date requested

by the plaintiff, August 26, 2022. However, on August 11, 2022, the plaintiff filed

a second motion to continue the summary judgment hearing.

On August 26, 2022, the district court heard both the plaintiff’s motion for

continuance of the hearing on the motion for summary judgment and the relators’

motion for summary judgment. The district court first considered the plaintiff’s

motion to continue the hearing and denied it stating: “. . . [the plaintiff] chose this

date [August 26, 2022]. She filed the motion [to continue]; it was set for today.

I’m denying the motion to continue.” Next, the district court acknowledged the

plaintiff’s failure to file an opposition to the relators’ motion for summary

judgment but, nonetheless, considered the plaintiff’s motion for continuance as an

opposition to the motion for summary judgment and allowed the plaintiff to orally

argue that her motion to continue the hearing on the motion for summary judgment

constituted opposition to the motion for summary judgment. After hearing the oral

arguments of the parties, the district court denied the relators’ motion for summary

judgment, stating: “I understand what you’re [relator] saying about the motion

being unopposed. However, the Court’s reading of the motion to continue

provides what we believe to be the opposition to the motion [for] summary

judgment.”

The relators filed a timely notice of intent in the district court, followed by a

timely filed writ application in this court seeking review of the district court

judgment denying summary judgment. The plaintiff did not seek review of the

district court decision to deny her motion to continue. Moreover, in her opposition

to the relators’ writ application, the plaintiff concedes that she did not file an

3 opposition in the district court to the relators’ motion for summary judgment or

present an expert witness to support her claim and rebut the findings of the medical

review panel. In her opposition to the relators’ writ application filed in this court,

the plaintiff argues only that this is a case where negligence can be inferred from

the undisputed facts and, accordingly, no expert is required to testify about obvious

negligence.

Discussion

Pursuant to La. Code Civ. Proc. art. 967, the opponent of a properly

supported motion for summary judgment must respond by affidavit or otherwise

setting forth specific facts showing that there is a genuine issue for trial. If he does

not so respond, summary judgment, if appropriate, shall be rendered against him.

In this case, the relators’ unopposed motion for summary judgment was

based on the finding by the medical review panel opinion that the relators did not

breach the standard of care. The plaintiff failed to file an affidavit or other proof

showing there is a genuine issue for trial in opposition to the relators’ motion for

summary judgment. It was clear error for the district court to find that the

plaintiff’s motion to continue was sufficient to overcome a properly filed and

supported motion for summary judgment. Accordingly, the relators are entitled to

summary judgment as a matter of law. Moreover, pursuant to Rule 4-3, Uniform

Rules, Courts of Appeal, the district court’s denial of the plaintiff’s motion for a

continuance is final because the plaintiff did not timely seek supervisory review of

that adverse ruling.

Conclusion

4 For the above stated reasons, the relator’s writ application is granted, the

district court judgment denying the relators’ motion for summary judgment is

vacated, and summary judgment is granted in favor of the relators.

WRIT GRANTED; DISTRICT COURT JUDGMENT VACATED; SUMMARY JUDGMENT GRANTED.