Joseph Georgusis v. Frank Minyard, M.D., in His Capacity as Coroner for the Parish of Orleans, State of Louisiana

• Court: Louisiana Court of Appeal
• Decided: November 20, 2024
• Docket: 2024-CA-0243
• Status: Published

Opinion

JOSEPH GEORGUSIS * NO. 2024-CA-0243

VERSUS * COURT OF APPEAL FRANK MINYARD, M.D., IN * HIS CAPACITY AS CORONER FOURTH CIRCUIT FOR THE PARISH OF * ORLEANS, STATE OF STATE OF LOUISIANA LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2011-12493, DIVISION “N-8” Honorable Ethel Simms Julien, Judge ****** Judge Joy Cossich Lobrano ****** (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Nakisha Ervin-Knott)

Joseph R. Ward, Jr. WARD & CONDREY, LLC 438 S. New Hampshire St. Covington, LA 70433

Frank G. DeSalvo 829 Baronne Street New Orleans, LA 70133

COUNSEL FOR PLAINTIFF/APPELLANT

C. William Bradley, Jr. L. David Adams Lance V. Licciardi, Jr. BRADLEY MURCHISON KELLY & SHEA, LLC 1100 Poydras Street, Suite 2700 New Orleans, LA 70163

COUNSEL FOR DEFENDANT/APPELLEE

REVERSED AND REMANDED

NOVEMBER 20, 2024 JCL Plaintiff/Appellant, Joseph Georgusis (“Plaintiff”), seeks review of the

SCJ district court’s January 12, 2024 judgment, which granted the Motion for Summary

NEK Judgment filed by Defendant/Appellee, Dr. Dwight L. McKenna (“Defendant”),

and dismissed Plaintiff’s claims with prejudice. For the reasons that follow, we

reverse the summary judgment and remand.

FACTS AND PROCEDURAL HISTORY

This is an action to compel the Orleans Parish Coroner’s Office (“Coroner’s

Office”) to change the official designation of the cause of death of Plaintiff’s

twenty-three year old son, Joseph J. Georgusis (“Decedent”). Decedent passed

away on August 5, 2005. An autopsy was conducted by the Coroner’s Office on

the following day. Thereafter, Dr. Frank Minyard (“Dr. Minyard”), then Orleans

Parish Coroner, issued an autopsy protocol, which classified the death as

“ACCIDENT - Drug Related.”

Plaintiff conducted his own investigation into the cause of the death. In

February 2011, at Plaintiff’s request, Decedent’s body was exhumed, and an

autopsy was conducted by Dr. Cyril Wecht (“Dr. Wecht”), a forensic pathologist.

In his June 17, 2011 report, Dr. Wecht concluded that “it is not possible to arrive at

1 an opinion with reasonable medical and scientific certainty what the cause of death

. . . was” and “[a]ccordingly, it is not possible to determine what the manner of

death was.” Further, he concluded that “[t]he toxicological analyses . . . do not

reveal drugs of sufficient quantity to be forensically and unequivocally acceptable

as a cause of death.”

On November 30, 2011, Plaintiff filed suit against Dr. Minyard in his

capacity as Coroner of Orleans Parish, alleging that the Coroner’s Office failed to

properly investigate Decedent’s death and requesting that the Coroner’s Office be

ordered to reclassify the death from “ACCIDENT - Drug Related” to some other

cause. Plaintiff further requested an order compelling the Coroner’s Office to

provide him access to the complete coroner’s file, including photographs taken at

the time of the autopsy, and sought an award for damages for emotional distress

and mental anguish.

In response to the Petition, Dr. Minyard filed exceptions of no cause of

action and prescription, arguing that there is no cause of action against a coroner

for the breach of his statutory duties because “the duty statutorily imposed upon

the coroner is for the benefit of the sovereign, and not the private individual or the

individual’s private interest” and that, in any event, Plaintiff’s action was

prescribed by the one-year liberative prescription period applicable to delictual

actions set forth in La. C.C. art. 3492. Plaintiff filed a memorandum in opposition

to the exceptions of no cause of action and prescription.

In ruling on the exceptions filed by Dr. Minyard, the district court

categorized Plaintiff’s claims into two different types, namely, negligence claims

for damages and non-negligence claims, consisting of Plaintiff’s demand that the

Coroner’s Office reclassify Decedent’s death and his demand that he be given

2 access to the entire coroner’s file, including all photographs. Further, the district

court determined that Plaintiff’s non-negligence claims were personal in nature and

were therefore subject to a liberative prescription of ten years under La. C.C. art.

3492. By written judgment issued on March 27, 2012, the district court sustained

the exception of prescription as to the negligence claims; dismissed the negligence

claims with prejudice; and denied the exception of no cause of action and the

exception of prescription as to the non-negligence claims.

On July 13, 2015, the Coroner’s Office amended Decedent’s death

certificate to state that the manner of death “could not be determined” and that the

immediate cause of death was “undetermined.”

On June 14, 2019, Plaintiff filed a First Supplemental and Amending

Petition to add Defendant in his capacity as Coroner for the Parish of Orleans.

Plaintiff filed a Second Supplemental and Amending Petition on July 28, 2020,

alleging that evidence obtained through discovery revealed that the cause of

Decedent’s death was homicide and requesting that the Coroner’s Office be

ordered to change the official cause of death to homicide.

On August 28, 2023, Defendant filed a motion for summary judgment, along

with a memorandum in support of his motion for summary judgment. Plaintiff filed

a motion for summary judgment on September 18, 2023. On the same date,

Plaintiff also filed a memorandum in support of his motion for summary judgment

and in opposition to Defendant’s motion for summary judgment. Defendant filed a

memorandum in opposition to Plaintiff’s motion for summary judgment and reply

memorandum in support of Defendant’s motion for summary judgment on October

12, 2023. The parties’ motions for summary judgment were heard by the district

court on January 12, 2024. By judgment rendered on January 12, 2024, the district

3 court denied Plaintiff’s motion for summary judgment and granted Defendant’s

motion for summary judgment, dismissing the action with prejudice. This appeal

timely follows.

ASSIGNMENT OF ERROR

As his only assignment of error, Plaintiff asserts that the district court erred

in granting summary judgment in favor of Defendant.

LAW AND DISCUSSION

Appellate courts review the grant or denial of a motion for summary

judgment de novo, using the same criteria applied by trial courts to determine

whether summary judgment is appropriate. Jones v. Boot Bar & Grill, 22-0154, p.

12 (La. App. 4 Cir. 10/5/22), 350 So.3d 968, 978, writ denied, 22-01639 (La.

1/18/23), 353 So.3d 728. “The summary judgment procedure is designed to secure

the just, speedy, and inexpensive determination of every action . . . .” La. C.C.P.

art. 966(A)(2). It is “favored and shall be construed to accomplish these ends.” Id.

A court must grant a motion for summary judgment “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).

“In ruling on a motion for summary judgment, the judge’s role is not to

evaluate the weight of the evidence or to determine the truth of the matter, but

instead to determine whether there is a genuine issue of triable fact. All doubts

should be resolved in the non-moving party’s favor.” Hines v. Garrett, 04-0806, p.

1 (La. 6/25/04), 876 So.2d 764, 765. A fact is material when its existence or

nonexistence may be essential to the plaintiff’s cause of action under the applicable

theory of recovery; a fact is material if it potentially insures or precludes recovery,

4 affects a litigant’s ultimate success, or determines the outcome of the legal dispute.

Jones, 22-0154, p. 14, 350 So.3d at 979. A genuine issue is one as to which

reasonable persons could disagree; if reasonable persons could reach only one

conclusion, there is no need for trial on that issue and summary judgment is

appropriate. Id.

On motion for summary judgment, the burden of proof remains with the

movant. La. C.C.P. art. 966(D)(1). However, “if the mover will not bear the burden

of proof at trial on the issue that is before the court on the motion for summary

judgment, the mover’s burden on the motion does not require him to negate all

essential elements of the adverse party’s claim, action, or defense, but rather 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.” Id. Thereafter, “the

adverse party [must] 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. “The adverse party may not rely on mere allegations or denials

to defeat a motion for summary judgment but must provide specific facts showing

that a genuine issue remains for trial, and failure to do so will result in the

rendering of the summary judgment.” Jones, 22-0154, p. 13, 350 So.3d at 979

(citing La. C.C.P. art. 967(B)). “ ‘[I]f the adverse party fails to provide factual

evidence sufficient to establish that he will be able to satisfy his evidentiary burden

of proof at trial, there is no genuine issue of material fact’ and summary judgment

is appropriate.” Id. (quoting Knox v. Elite Prot. Sols. & Willie’s Chicken Shack,

LLC, 21-0419, pp. 9-10 (La. App. 4 Cir. 10/13/21), 366 So.3d 341, 349).

5 Plaintiff brought this suit against the coroner for, inter alia, reclassification

of the cause of Decedent’s death. Louisiana Revised Statutes 13:5713(E)1 provides,

in pertinent part, as follows:

(1) The coroner shall furnish a death certificate based on his examination, investigation, or autopsy, and he shall state as best he can the cause and manner of death. *** (3) The cause of death, and the manner or mode in which the death occurred, as incorporated in the death certificate as provided in the Vital Statistics Laws, R.S. 40:32 et seq., filed with the division of vital records of the Louisiana Department of Health, shall be the legally accepted cause of death, unless the court of the parish in which the death occurred, after a hearing, directs otherwise.

In Wyatt v. Williams, the Second Circuit held:

[La.] R.S. 33:1563(E) [now La. R.S. 13:5713(E)] requires that the coroner state a cause of death. The coroner’s designation is the legally accepted cause of death unless a court directs the coroner to change the cause of death on the death certificate. The party seeking to change the cause of death has the burden of proof.

28,092, p. 3 (La. App. 2 Cir. 2/28/96), 669 So.2d 1380, 1381-82 (citing Brooks v.

Foret, 314 So.2d 542, 545 (La. App. 1st Cir. 1975)). See also Bailey v. State of

Louisiana, 623 So.2d 704, 706 (La. App. 4th Cir. 1993) (noting that “[o]nce the

coroner has recorded his opinion, the burden then shifts to a party challenging his

findings to produce evidence that the coroner erred.”).

In support of his motion for summary judgment, Defendant submitted, inter

alia, the autopsy protocol, the June 17, 2011 report of Dr. Wecht, the correction to

the death certificate made on July 13, 2015, and the deposition of Dr. Samantha

1 The law governing a coroner’s duties with respect to investigations and autopsies was

previously set forth in La. R.S. 33:1563. La. R.S. 33:1563 was redesignated in 2011 as La. R.S. 13:5713.

6 Huber (“Dr. Huber”), the pathologist who performed the autopsy. The autopsy

protocol classified the death as “ACCIDENT - Drug Related.” In his report, Dr.

Wecht concluded that “it is not possible to arrive at an opinion with reasonable

medical and scientific certainty what the cause of death . . . was” and

“[a]ccordingly, it is not possible to determine what the manner of death was.”

Further, Dr. Wecht concluded that “[t]he toxicological analyses . . . do not reveal

drugs of sufficient quantity to be forensically and unequivocally acceptable as a

cause of death.” The correction to the death certificate changed the death certificate

to read: “manner of death: could not be determined; immediate cause:

undetermined.” In her deposition, taken on October 10, 2014, Dr. Huber stated that

there was insufficient evidence to support the conclusion that Decedent’s death

was caused by homicide.

In opposing the motion for summary judgment, Plaintiff submitted, inter

alia, the deposition of Decedent’s former roommate, Jerone Carrasquillo

(“Roommate”), the deposition of Decedent’s former girlfriend, Jennifer Miller2

(“Girlfriend”), and the sworn statement of Detective Charles Loescher (“Detective

Loescher”) of the New Orleans Police Department.3

In his sworn statement, Detective Loescher stated that he interviewed

Roommate at Plaintiff’s home on November 22, 2006. According to Detective

Loescher, Roommate stated that after he came home from work on August 5, 2005

around 4:00 a.m., he and Decedent started snorting cocaine. After they ran out of

cocaine, Decedent called Vernon Cook (“Cook”) to bring more cocaine. Cook and

2 At the time her deposition was taken on June 25, 2012, Girlfriend’s name was Jennifer Miller

Autin. 3 We note that the sworn statement of Detective Loescher was taken in compliance with the

procedures governing depositions set forth in La. C.C.P. art. 1421 et seq.

7 another man arrived at the house around 8:00 a.m., and Decedent and the two men

went into Decedent’s bedroom. Roommate subsequently heard “some commotion”

in Decedent’s bedroom “as though [] a drug deal was going bad,” and then

“observed [the two men] suffocating [Decedent].” Roommate further stated that

when the two men exited the bedroom, they told him and Girlfriend that if they

told anyone about the encounter, the men would “come back and get them.”

Detective Loescher testified that he returned to Plaintiff’s home approximately a

week later to interview Girlfriend and that her statement matched the statement

Roommate had given.

In his deposition, Roommate testified that he came home from work on

August 5, 2005 at around 4:00 or 4:30 a.m. and that after he and Decedent did

some cocaine together, he went to sleep. He stated that after Girlfriend returned

from work around lunchtime, she alerted him that Decedent was not breathing.

Roommate stated that he ran into Decedent’s bedroom, rolled Decedent over,

observed that Decedent was not warm and was purple around the mouth and eyes,

and attempted to perform CPR.

Roommate acknowledged in his deposition that when he was questioned at

Plaintiff’s home, he told the police that Decedent had been murdered but stated

that this statement was not true and that he had been pressured to say that Decedent

was murdered. Roommate explained that at the time of questioning, he was on

probation and was threatened that he would be arrested and his probation revoked

given his admission that he and Decedent did drugs together. Roommate stated that

he was aware of Plaintiff’s theory of murder as the cause of Decedent’s death,

having previously been questioned by Plaintiff’s private investigators, and that the

8 officer would not let him leave “until [Roommate] told him what he wanted to

hear.”

At Girlfriend’s deposition, Girlfriend invoked her Fifth Amendment

privilege to remain silent and refused to answer any questions relating to

Decedent’s death.

We find that there remain genuine issues of material fact as to the cause of

Decedent’s death. A hearing under La. R.S. 13:5713(E) cannot result in summary

judgment if there are disputed issues of material fact, especially when the outcome

depends on assessing the weight and credibility of conflicting evidence. Summary

judgment in this case is improper because there are determinations that require a

full evidentiary hearing where witnesses can be examined and cross-

examined. Accordingly, we find that the district court erred in granting

Defendant’s motion for summary judgment and dismissing the action.

CONCLUSION

For the foregoing reasons, we reverse the portion of the district court’s

January 12, 2024 judgment that granted summary judgment in favor of Defendant

and dismissed the action with prejudice, and we remand this matter to the district

court with instructions to proceed with a hearing in accordance with La. R.S.

13:5713(E) and make a finding as to whether or not there is sufficient evidence to

warrant a change of the official classification of Decedent’s death.

.