John Greene And Shedonna Heathmon, Individually And On Behalf Of Their Minor Child, Prince Greene v. Vermilion Parish Hospital Service District #2, D/b/a Abbeville General Hospital, Et Al.

Supreme Court of Louisiana
September 19, 2023
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
JOHN GREENE AND SHEDONNA
HEATHMON, INDIVIDUALLY AND ON
BEHALF OF THEIR MINOR CHILD, PRINCE
GREENE
VS.
VERMILION PARISH HOSPITAL SERVICE
DISTRICT #2, D/B/A ABBEVILLE GENERAL
HOSPITAL, ET AL.
No. 2023-CC-00670
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I
N RE: Vermilion Parish Hospital Service District #2, d/b/a Abbeville General
Hospital - Applicant Plaintiff; Applying For Supervisory Writ, Parish of Vermilion,
15th Judicial District Court Number(s) 102106, Court of Appeal, Third Circuit,
Number(s) CW 22-00702;
_ _ _ _ _ _
September 19, 2023
Writ application granted. See per curiam.
Hughes, J., dissents.
Griffin, J., dissents.
WJC
JLW
SJC
JTG
JBM
09/19/2023 "See News Release 040 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA
No. 2023-CC-00670
JOHN GREENE AND SHEDONNA HEATHMON, INDIVIDUALLY AND
ON BEHALF OF THEIR MINOR CHILD, PRINCE GREENE
VS.
VERMILION PARISH HOSPITAL SERVICE DISTRICT #2, D/B/A
ABBEVILLE GENERAL HOSPITAL, ET AL.
On Supervisory Writ to the 15th Judicial District Court, Parish of Vermilion
PER CURIAM
On July 19, 2016, plaintiffs filed the instant medical malpractice action
against Vermilion Parish Hospital Service District No. 2 d/b/a Abbeville General
Hospital (“Abbeville General”) and Dr. Trent J. Fogleman. Thereafter, Abbeville
General moved for summary judgment. On February 16, 2018, the trial court signed
a judgment denying the motion, and on March 1, 2018, the clerk mailed notice of
judgment to the parties.
No further activity took place until February 6, 2021, when plaintiffs sent
interrogatories and requests for admissions to Dr. Fogleman. Although plaintiffs’
certificate of service provided that “a copy of the [discovery] has been duly served
upon all counsel of record by facsimile transmission this 6th day of February, 2021,”
Abbeville General was never served. On June 1, 2021, Dr. Fogleman answered
plaintiffs’ discovery and served his answers on all parties.
Abbeville General filed an ex parte motion to dismiss plaintiffs’ suit based on
abandonment. The district court denied the motion, finding Dr. Fogelman’s answer
to plaintiffs’ discovery “waived any issue of abandonment. . . .”
Abbeville General applied for supervisory review. The court of appeal denied
writs with one judge dissenting. The dissenting judge explained “[t]o the extent Dr.
Trent Fogleman’s June 1, 2021 responses to Plaintiffs’ discovery requests are argued

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to have waived his right to assert abandonment, they cannot be said to waive the
right of Relator’s motion seeking dismissal of Plaintiffs’ claims against Relator on
the ground of abandonment under La. Code Civ. P. art. 561.” Abbeville General now
seeks review in this court.
Article 561(B) of the Louisiana Code of Civil Procedure provides:
B. Any formal discovery as authorized by this Code and
served on all parties whether or not filed of record,
including the taking of a deposition with or without formal
notice, shall be deemed to be a step in the prosecution or
defense of an action. [emphasis added]

It is undisputed that plaintiffs did not serve their discovery on Abbeville
General as required by this article. Therefore, the requirements of the article have
not been satisfied as to Abbeville General.
In denying the motion to dismiss, the district court found that Dr. Fogelman’s
answer to the discovery after the abandonment period had run served to waive
abandonment. We have recognized “a defense -oriented exce ption, based on
acknowledgment that applies when the defendant waives his right to assert
abandonment by taking actions inconsistent with an intent to t reat the case as
abandoned.” Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010 (La. 5/15/01), 785
So.2d 779, 785. However, it is obvious from our holding that the defendant which
waives abandonment must be the same party which has taken the actions inconsistent
to treat the action as abandoned. See also Theriot v. State, Dept. of Transp. & Dev.,
01-1420 (La. App. 1 Cir. 9/25/01), 809 So.2d 279, 283 (explaining that a waiver of
the abandonment period by one defendant does not deprive another defendant of its
right to assert its claim of abandonment). Any purported waiver of abandonment by
Dr. Fogelman cannot act to deprive Abbeville General of its right to assert
abandonment.1

1 The issue of whether Dr. Fogelman’s actions amounted to a waiver of his right to assert
abandonment is not before us, and we express no opinion on this question.

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Finally, plaintiffs suggest the doctrine of contra non valentem applies. They
contend the closure of their counsel’s office during the pandemic and counsel’s
“brain fog” as a result of COVID prevented them from prosecuting the case.
Clark recognizes “a plaintiff -oriented exception, based on contra non
valentem, applies when failure to prosecute is caused by circumstances beyond the
plaintiff's control. . . .” Clark, 785 So.2d at 785. P laintiffs have not demonstrated
the failure to prosecute was caused by any factors beyond their control. While the
pandemic-related disruptions occurred during part of the abandonment period,
plaintiffs’ counsel was obviously able to act by February 6, 2021, when he sent
interrogatories to Dr. Fogelman. He could have easily protected plaintiffs’ rights by
ensuring this discovery was served on all parties as required by La. Code Civ. P. art.
561(B).

DECREE
For the reasons assigned, the writ is granted and made peremptory. The
judgment of the district court is reversed. The motion is granted, and plaintiff s’
claims against Ve rmilion Parish Hospital Service District No. 2 d/b/a Abbeville
General Hospital are dismissed as abandoned.