Adrena S. Freeman Versus Ochsner Clinic Foundation, Dr. George M. Fuhrman, Touro Infirmary and Dr. Cathy Swain-Jones, M.D.

ADRENA S. FREEMAN NO. 21-CA-401

VERSUS FIFTH CIRCUIT

OCHSNER CLINIC FOUNDATION, DR. COURT OF APPEAL
GEORGE M. FUHRMAN, TOURO
INFIRMARY AND DR. CATHY STATE OF LOUISIANA
SWAIN-JONES, M.D.

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 799-284, DIVISION "N"
HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

February 23, 2022

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
Robert A. Chaisson, and Hans J. Liljeberg

AFFIRMED
SMC
RAC
HJL

COUNSEL FOR PLAINTIFF/APPELLANT,
ADRENA S. FREEMAN
Richard H. Barker, IV

COUNSEL FOR DEFENDANT/APPELLEE,
OCHSNER CLINIC FOUNDATION AND GEORGE FUHRMAN, M.D.
Don S. McKinney
William K. Wright, IV

CHEHARDY, C.J.

In this medical malpractice case, the trial court refused to accept plaintiff

Adrena S. Freeman’s late-filed opposition to defendants’ motion for summary

judgment, denied plaintiff’s oral motion to continue the summary judgment

hearing, and granted the motion for summary judgment filed by defendants

Ochsner Clinic Foundation and Dr. George M. Fuhrman, thereby dismissing

plaintiff’s claims with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff filed medical review panel proceedings after plaintiff underwent

surgery at Ochnser performed by Dr. Fuhrman in July 2013 to remove a tumor in

her chest. Plaintiff alleges that during the surgery, Dr. Fuhrman made unnecessary

incisions in the areas of her neck and throat that she alleges were done without her

consent, and as a result of the surgery she suffers from permanent loss of the range

of motion of her neck, loss of spinal curve, permanent disfigurement of her neck

and chest, and chronic pain. The medical review panel issued a unanimous ruling

on March 20, 2019, finding that Dr. Fuhrman and Ochsner did not breach the

applicable standard of care.1 Plaintiff filed the instant case against Ochsner and Dr.

Fuhrman on September 10, 2019.2

Ochsner and Dr. Fuhrman moved for summary judgment in July 2020; the

motion was set to be heard on September 8, 2020. At the hearing, plaintiff’s

counsel indicated that an expert had been hired and argued that defendants’ motion

1
The Medical Review Panel’s Opinion states: “The evidence presented does not support
the conclusion that defendants, Ochsner Clinic Foundation and George M. Fuhrman, M.D.,
breached standards of care in their care and treatment of Adrena Freeman. Reasons: Based on the
patient’s symptoms, history and pre-operative testing, Dr. Fuhrman offered the patient a
thyroidectomy and median sternotomy, which were indicated. The pre-operative workup was
thorough and appropriate. Dr. Fuhrman appropriately involved cardiothoracic surgeons. The
surgery was indicated and the evidence shows it was performed pursuant to acceptable standards
of care.”
2
Plaintiff’s lawsuit also named other medical providers in conjunction with plaintiff’s
separate visit to Touro Infirmary. Plaintiff’s claims against those providers were dismissed and
are not pertinent to the present appeal.

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for summary judgment was therefore moot. The trial court and parties agreed to

continue the summary judgment hearing to September 23, 2020, and subsequently

agreed to continue the hearing without date.

Defendants set the deposition of plaintiff’s expert. During his deposition, the

expert failed to offer any testimony in support of plaintiff’s claim that defendants

breached the applicable standard of care when treating plaintiff. Accordingly,

defendants filed a second motion for summary judgment, which the trial court set

for hearing on January 26, 2021. The day before the scheduled hearing, plaintiff

again sought a continuance from defense counsel, who declined plaintiff’s request.

At the hearing, however, the trial court continued the summary judgment hearing

to February 23, 2021, because plaintiff had not been served with notice of the

January 26, 2021 hearing 30 days or more before that date, in violation of La.

C.C.P. art. 966 C(1)(b).

Notwithstanding the hearing’s continuance, plaintiff again failed to file a

timely opposition to defendants’ motion for summary judgment. Nevertheless,

based on plaintiff’s counsel’s plea at the February 23, 2021 hearing that he could

not file the opposition timely because he had had Covid, the trial court again

continued the hearing to March 24, 2021, noting on the record that plaintiff’s

opposition would be due on or before March 9, 2021.

Plaintiff filed an opposition on March 17, 2021, only six days before the

hearing date, to which defendants objected. At the March 24, 2021 hearing,

plaintiff’s counsel again moved for a continuance, which the trial court denied. The

court determined there was no reason why plaintiff could not file a timely

opposition. The trial court then granted defendants’ motion for summary judgment,

“based on the filings of the defense and the fact that the motion is unopposed.”

Plaintiff-appellant filed a motion and order for appeal; the record lodged in

this Court on June 25, 2021. Notice of Lodging was sent to all counsel. No timely

21-CA-401 2

request for oral argument was made by either party.3 Defendants-appellees

subsequently asked this Court to dismiss the appeal as abandoned, because

plaintiff-appellant did not file her brief timely. This Court denied appellees’

motion to dismiss the appeal, the merits of which we now consider.

LAW AND ANALYSIS

Plaintiff argues the trial court erred in granting defendants’ motion for

summary judgment “as unopposed” after failing to consider her opposition, and

erred in failing to continue the hearing.

Louisiana’s Code of Civil Procedure Article 966 B(2) provides:

B. Unless extended by the court and agreed to by all of
the parties, a motion for summary judgment shall be
filed, opposed, or replied to in accordance with the
following provisions:
***
(2) 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.

The Louisiana Supreme Court recently resolved the split among the circuits on the

issue of whether a trial court retains discretion to accept a late-filed opposition to a

motion for summary judgment, finding no such discretion exists:

The clear and unambiguous language of Article
966(B)(2) says that, absent the consent of the parties and
the court, an opposition shall be filed within the fifteen-
day deadline established by the article. The word ‘shall’ is
mandatory. La. R.S. 1:3. Under well-established rules of
interpretation, the word “shall” excludes the possibility of
being “optional” or even subject to “discretion,” but
instead means “imperative, of similar effect and import
with the word ‘must.’ ” Louisiana Fed’n of Tchrs. v. State,
2013-0120 (La. 5/7/13), 118 So. 3d 1033, 1051. This
interpretation also does not lead to absurd consequences.
3
Appellant’s brief, filed September 20, 2021, requested oral argument too late and without
following the proper format. Pursuant to Uniform Rules – Courts of Appeal Rule 2 – 11.4:
“Appeals in all cases shall be submitted for decision without oral argument unless a written
request for permission to orally argue is filed in the clerk's office by a party within thirty (30)
days after the filing of the record in the court and permission is granted. Pursuant to this rule, the
request for oral argument must be in the form of a motion or a letter. A request made within a
party's brief will NOT suffice.”

21-CA-401 3

Summary judgments are intended “to secure the just,
speedy, and inexpensive determination of every action.”
La. Code Civ. P. art. 966(A)(2). Limiting judicial
discretion by setting a firm deadline for filing an
opposition furthers this end. That is a rational legislative
choice and must be applied as written.

Auricchio v. Harriston, 20-1167 (La. 12/10/21), --- So.3d ---, 2021 WL 5865496,

at *2 (emphasis in original). The Supreme Court also noted that the 2015

Legislature’s change to the language of Article 966 B eliminated previous

language that had granted a trial court discretion, upon a showing of “good cause,”

to afford a litigant additional time to file an opposition. Id. at *3. “By removing the

discretionary language and replacing it with mandatory language, we must assume

the legislature intended to change the law to eliminate the previously afforded

discretion.” Id.

Pursuant to Auricchio and the language of La. C.C.P. art. 966 B(2), the trial

court correctly refused to consider plaintiff’s late-filed opposition. Cf. Pillow v.

Roymar Ltd. P’ship, 15-730 (La. App. 5 Cir. 6/30/16), 197 So.3d 348, 354, writ

denied, 16-1465 (La. 11/15/16), 209 So.3d 780 (finding the trial court did not

abuse its discretion in choosing to follow the mandatory language of La. C.C.P. art.

966(B)(2)). Plaintiff’s contention that the trial court erred in refusing to consider

her untimely opposition lacks merit.

Plaintiff further argues that the trial court erred in denying her motion to

continue the March 24, 2021 hearing. A trial court’s decision to hear a motion for

summary judgment or to grant a continuance is reviewed for an abuse of

discretion. Roadrunner Transp. Systems v. Brown, 17-0040 (La. App. 4 Cir.

5/10/17), 219 So.3d 1265, 1272. We cannot say the trial court abused its discretion

in refusing to continue the hearing on defendants’ motion for summary judgment.

The trial court agreed to continue the summary judgment hearing three times

previously – twice setting a new hearing date and once continuing the matter

21-CA-401 4

without date. Plaintiff therefore had several previous opportunities to submit an

opposition in a timely manner, which plaintiff failed to do. At the March 24, 2021

hearing, the trial court recognized that the affidavit of plaintiff’s expert, Dr.

Moreman, had been signed on February 23, 2021, the same day that the previous

hearing on defendants’ second motion for summary judgment had been scheduled

but was continued. Plaintiff had ample time to file her opposition before the March

9, 2021 deadline. Plaintiff’s contention that the trial court erred in refusing to

continue the hearing yet another time lacks merit.

Our inquiry does not end here, however, because even though defendants’

motion for summary judgment is unopposed, defendants are still required to meet

their prima facie burden of proving that the non-mover, as the party who bears the

burden of proof at trial, will be unable to meet that burden. La. C.C.P. art. 966

D(1).4 Yet, plaintiff does not contend on appeal that defendants failed to meet their

threshold burden of proving their entitlement to summary judgment under La.

C.C.P. art. 966. Courts of Appeal will review only issues that were submitted to the

trial court and that are contained in specifications or assignments of error, unless

the interest of justice clearly requires otherwise. Uniform Rules – Courts of

Appeal, Rule 1-3. Plaintiff assigns as error the trial court’s ruling granting

summary judgment, but she does not brief the merits of defendants’ motion.

Nevertheless, our de novo review of the record in its entirety indicates that

defendants successfully met their threshold burden of proof under La. C.C.P. art.

4
La. C.C.P. art. 966 D(1) provides:

The burden of proof rests with the mover. Nevertheless, 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. The burden is on
the adverse party to 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.

21-CA-401 5

966 D(1), namely, that plaintiff could not meet her burden of proving at trial that

defendants breached the applicable standard of care.5 As such, we find no error in

the trial court’s decision to grant summary judgment in favor of defendants.

CONCLUSION

The trial court’s judgment striking plaintiff’s untimely opposition to

defendants’ motion for summary judgment, denying plaintiff’s oral motion for a

continuance of the hearing, and granting defendants’ motion for summary

judgment, thereby dismissing with prejudice plaintiff Adrena Freeman’s claims

against Ochsner Clinic Foundation and Dr. George Fuhrman, is affirmed.

AFFIRMED

5
Defendants deposed plaintiff’s expert, Dr. Jacob Moreman, who testified that defendants
did not breach the applicable standard of care in treating Ms. Freeman or in obtaining her
informed consent to the surgery. Dr. Moreman’s deposition was attached to defendants’ second
motion for summary judgment.
To succeed in a medical malpractice action against a health care provider, a plaintiff must
prove the applicable standard of care and show that the defendant breached the standard of care
or lacked the degree of knowledge or skill necessary to treat the claimant. La. R.S. 9:2794 A(2).
Establishing that a medical provider breached the standard of care owed to the claimant generally
requires expert testimony, unless “the negligence is so obvious that a lay person can infer
negligence without the guidance of expert testimony.” McGlothlin v. Christus St. Patrick Hosp.,
10-2775 (La. 7/1/11), 65 So.3d 1218, 1229 n. 4 (quoting Samaha v. Rau, 07-1726 (La. 2/26/08),
977 So.2d 880, 890). In light of defendants’ evidence, including plaintiff’s own expert’s
testimony that defendants did not breach the standard of care, Ms. Freeman cannot meet her
burden of proof at trial, and summary judgment is appropriate. See, e.g., Pfiffner v. Correa,
M.D., 94-992 (La. 10/17/94), 643 So.2d 1228, 1234; see also Suarez v. Mando, 10-853 (La. App.
5 Cir. 3/29/10), 62 So.3d 131, 135, writ denied, 11-885 (La. 6/17/11), 63 So.3d 1036 (finding
summary judgment proper where appellant failed to present expert testimony showing that
defendant had breached the standard of care).

21-CA-401 6

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
FEBRUARY 23, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-401
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
DON S. MCKINNEY (APPELLEE) WILLIAM K. WRIGHT, IV (APPELLEE)

MAILED
RICHARD H. BARKER, IV (APPELLANT)
ATTORNEY AT LAW
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SUITE 2345
NEW ORLEANS, LA 70130