Andria Downing, Executrix Of The Estate Of Melissa Downing On Behalf Of The Estate Of Melissa Downing, Daron Downing, Andrus Downing, Andria Downing, Andre Downing, And Amaryd Downing v. The State Of Louisiana Through The Board Of Supervisors Of Loui

Supreme Court of Louisiana
March 14, 2023
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
ANDRIA DOWNING, EXECUTRIX OF THE
ESTATE OF MELISSA DOWNING ON
BEHALF OF THE ESTATE OF MELISSA
DOWNING, DARON DOWNING, ANDRUS
DOWNING,
ANDRIA DOWNING, ANDRE
DOWNING, AND AMARYD DOWNING
VS.
THE
STATE OF LOUISIANA THROUGH
THE BOARD OF SUPERVISORS OF
LOUISIANA
STATE UNIVERSITY AND
AGRI
CULTURAL AND MECHANICAL
COLLEGE, ET AL.
No. 2023-CC-00039
_ _ _ _
_ _
IN R
E: State of Louisiana, through the Board of Supervisors of Louisiana S tate
University and Agricultural and Mechanical College, et al. - Applicant Defendant;
Applying For Supervisory Writ, Parish of Orleans Civil, Orleans Civil District Court
Number(s) 2015-9813 c/w 2020-1874, Court of Appeal, Fourth Circuit, Number(s)
2022-C-0809;
_ _ _ _ _ _
March 14, 2023
Writ application granted. See per curiam.
Weimer, C.J., would deny.
Hughes, J., would deny.
Griffin, J., would deny.
SJC
JTG
WJC
JBM
03/14/2023 "See News Release 013 for any Concurrences and/or Dissents."

S
UPREME COURT OF LOUISIANA
No
. 2023-CC-00039
ANDRI
A DOWNING, EXECUTRIX OF THE ESTATE OF MELISSA
DOWNING ON BEHALF OF THE ESTATE OF MELISSA DOWNING,
DARON DOWNING, ANDRUS DOWNING, ANDRIA DOWNING, ANDRE
DOWNING, AND AMARYD DOWNING
VS.
THE STATE OF LOUISIANA THROUGH THE BOARD OF
SUPERVISORS OF LOUISIANA STATE UNIVERSITYY AND
AGRICULTURAL AND MECHANICAL COLLEGE ON BEHALF OF LSU
HEALTH SERVICES CENTER, CHARLES SPURGEON CLARK, JR.,
M.D., WILLIARD WARREN MOSIER, JR., M.D., JENNIFER MOONEY,
M.D., REBECCA WARNER SCHROLL, M.D., ALLEN BLAND MARR,
M.D., SAMUEL E. VICTORIA, JR., M.D.
O
n Supervisory Writ to the Orleans Civil District Court, Parish of Orleans Civil
PE
R CURIAM
In this medical malpractice lawsuit, the defendants (State doctors) filed a
motion for summary judgment. At the hearing on defendants’ motion for summary
judgment, defendants acknowledged that plaintiffs’ opposition was timely filed on
the fifteenth day before the hearing on their motion for summary judgment, but that
they were not served until two days before said hearing in violation of La. Code Civ.
P. art. 966(B)(2). 1 Thus, defendants objected to the introduction of plaintiffs’
supporting documentation in their opposition as untimely.
Plaintiffs’ counsel stated she attempted to serve defendants by e-mail with the
opposition on the fifteenth day, but “the state server blocked that opposition from
coming in …. ” Counsel for defendants claimed that the state server could not block
the sending of an e -mail, and if certain files were rejected as too large, then the
sender would be instructed to create a link in order to send the file.
1 La. Code Civ. P. art. 966(B)(2) states: “Any opposition to the motion and all documents in
support of the opposition shall be filed and served in accordance with Article 1313 not less than
fifteen days prior to the hearing on the motion.”
03/14/23

2

The trial court overruled defendants’ objection and denied their motion for
summary judgment, stating: “Based on the arguments and the pleading s, and the
memorandum supported, the motion for summary judgment is hereby denied.”
Notably, the transcript is unclear, and this Court is unable to determine whether the
alleged transmission is effective in accordance with La. Code Civ. P. art.
1313(A)(4).2
As a result, we remand this matter to the trial court to conduct a hearing to
determine whether plaintiffs ’ e-mail transmission of their opposition was timely
filed according to La. Code Civ. P. art. 966(B)(2). In doing so, the trial court is
instructed to decide the specific issue of whether plaintiffs have proven that the e-
mail transmission of their opposition was effective and certified in accordance with
La. Code Civ. P. art. 1313(A)(4).
Should plaintiffs prevail on this specific issue, defendants have the right of
review of said ruling. Conversely, should defendants prevail on this specific issue,
the trial court shall consider defendants’ motion for summary judgment without
consideration of plaintiffs’ opposition.

REMANDED

2 La. Code Civ. P. art. 1313(A)(4) states:

Transmitting a copy by electronic means to counsel of record, or if
there is no counsel of record, to the adverse party, at the number or
addresses expressly designated in a pleading or other writing for
receipt of electronic service. Service by electronic means is
complete upon transmission but is not effective and shall not be
certified if the serving party learns the transmission did not reach the
party to be served.