Anthony Cemo Versus State Farm Mutual Automobile Insurance Company and John Doe

ANTHONY CEMO NO. 22-CA-226

VERSUS FIFTH CIRCUIT

STATE FARM MUTUAL AUTOMOBILE COURT OF APPEAL
INSURANCE COMPANY AND JOHN DOE
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 800-124, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

February 01, 2023

MARC E. JOHNSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Stephen J. Windhorst

REVERSED AND REMANDED
MEJ
SMC
SJW

COUNSEL FOR PLAINTIFF/APPELLANT,
ANTHONY CEMO
Ross F. Lagarde
Jeffrey G. Lagarde
Alexander L.H. Reed

COUNSEL FOR DEFENDANT/APPELLEE,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Joseph M. Messina
Bradley S. Groce

JOHNSON, J.

Plaintiff/Appellant, Anthony Cemo, appeals the partial summary judgment

in favor of Defendant/Appellee, State Farm Mutual Automobile Insurance

Company (hereinafter referred to as “State Farm”), that dismissed his claims

related to a fall sustained in a hospital and the ensuing necessity for a second hip

revision surgery following his primary surgery to repair hip injuries allegedly

sustained in an automobile accident from the 24th Judicial District Court, Division

“L”. For the following reasons, we reverse the trial court’s partial summary

judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On October 9, 2018, Mr. Cemo was involved in an auto accident with a Ford

F-150 truck while stopped in traffic on Manhattan Boulevard in Harvey, Louisiana.

The driver of the Ford F-150 fled the scene on foot after the collision. It was later

claimed by the owner of the Ford F-150 that the vehicle had been stolen. On

October 3, 2019, Mr. Cemo filed suit against “John Doe” and his

uninsured/underinsured insurance carrier, State Farm, alleging that the driver was

negligent and the Ford F-150 was not covered by any automobile liability

insurance; thus, his State Farm policy was in full force and effect for liability

coverage, uninsured/underinsured motorist coverage, and medical coverage to him.

He allegedly suffered severe, painful, debilitating and permanently disabling

injuries to his left knee, neck, back, left shoulder, and right hip as a result of the

accident.

On May 14, 2020, Mr. Cemo underwent a right hip replacement surgery,

which was allegedly related to the injuries from the October 9, 2018 accident.1

While recuperating in the hospital following the hip replacement surgery, Mr.

1
The procedure was performed by Dr. Gustavo Godoy.

22-CA-226 1

Cemo slipped in his socks and suffered a periprostethetic hip fracture.2 The fall

necessitated a revisionary arthroplasty3 to his right hip on May 17, 2020, which

was also performed by Dr. Godoy.

On January 3, 2022, State Farm filed a motion for partial summary

judgment, seeking dismissal of all of the claims related to Mr. Cemo’s fall and

May 17, 2020 hip revision surgery. In its motion, State Farm argued that the fall in

the hospital was an intervening and superseding cause of a new hip injury. It also

argued that Mr. Cemo’s fall and subsequent need for a hip revision surgery was not

a reasonably foreseeable consequence of the negligence of the uninsured motorist

driving the Ford F-150, and the October 9, 2018 accident was too remote to

attribute causation to Mr. Cemo’s fall in the hospital. In opposition, Mr. Cemo

argued that his treating physicians related his revisionary hip surgery to the 2018

auto accident, and the medical testimony created a genuine issue of material fact

sufficient to preclude partial summary judgment.

The trial court heard the matter on February 7, 2022 and orally granted the

partial summary judgment in favor of State Farm. The trial judge reasoned that the

first accident could not be the proximate cause for the second surgery, and the

medical testimony would be more prejudicial than probative for jury consideration.

A written judgment was rendered on February 11, 2022—which granted the partial

summary judgment, dismissed all of Mr. Cemo’s claims related to his fall and May

17, 2020 hip revision surgery—and designated the judgment as a final judgment

pursuant to La. C.C.P. art. 1915(B). The instant devolutive appeal by Mr. Cemo

followed.

2
Dr. Gustavo Godoy explained that a periprostethic hip fracture is a fracture around the
prosthetic hip.
3
The surgery required the replacement of the femoral component of Mr. Cemo’s primary hip
replacement.

22-CA-226 2

ASSIGNMENTS OF ERROR

On appeal, Mr. Cemo alleges the trial court legally erred in granting State

Farm’s motion for partial summary judgment because he produced admissible

expert testimony regarding the causation of the necessity for the May 17, 2020 hip

revision surgery, and the trial court made an impermissible credibility

determination.

LAW AND ANALYSIS

Expert Testimony

Mr. Cemo alleges that the trial court legally erred in granting partial

summary judgment against him because his treating physicians, Dr. Neil

Duplantier and Dr. Gustavo Godoy, testified to the issue of causation for the

second, revisionary hip surgery, which created genuine issues of material fact. He

contends that the medical testimony of both doctors related medical causation for

his primary hip replacement surgery and secondary, revisionary surgery to the

October 9, 2018 accident, to which State Farm failed to produce any countervailing

testimony. As such, Mr. Cemo maintains that there are genuine issues of material

fact remaining as to whether he would have needed the hip revision surgery “but

for” the underlying auto accident.

State Farm avers that partial summary judgment was properly rendered in its

favor. It asserts that Mr. Cemo’s hospital fall was not reasonably foreseeable and

was an intervening and superseding cause of a new hip injury, resulting in the need

for the May 17, 2020 hip revision surgery. It contends that Dr. Godoy’s testimony

supports its position that the fall was, in fact, an intervening and superseding cause

of the injury. Because Mr. Cemo’s hospital fall was not a reasonably foreseeable

consequence of the negligence of the Ford F-150 driver, State Farm maintains that

it should not be liable for any damages related to the fall, which includes the May

22-CA-226 3

17, 2020 hip revision surgery.

The summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of every action and is favored. La. C.C.P. art.

966(A)(2). Appellate courts review summary judgments de novo under the same

criteria that govern the trial court’s consideration of whether summary judgment is

appropriate. Jefferson Par. Sch. Bd. v. TimBrian, LLC, 21-67 (La. App. 5 Cir.

10/20/21), --- So.3d ----, 2021WL4891089, writ denied, 21-1725 (La. 1/12/22),

330 So.3d 629, citing Stogner v. Ochsner Clinic Foundation, 18-96 (La. App. 5

Cir. 9/19/18), 254 So.3d 1254, 1257. Summary judgment shall be granted “if the

motion, memorandum, and supporting documents shows that there is no genuine

issue as to material fact and that the mover is entitled to judgment as a matter of

law.” Id., quoting La. C.C.P. art. 966(A)(3).

A material fact is one that potentially insures or prevents recovery, affects a

litigant’s ultimate success, or determines the outcome of the lawsuit. Populis v.

State Department of Transportation and Development, 16-655 (La. App. 5 Cir.

5/31/17), 222 So.3d 975, 980, quoting Pouncy v. Winn-Dixie La., Inc., 15-189 (La.

App. 5 Cir. 10/28/15), 178 So.3d 603, 605. An issue is genuine if it is such that

reasonable persons could disagree. If only one conclusion could be reached by

reasonable persons, summary judgment is appropriate as there is no need for trial

on that issue. Id. Whether a particular fact in dispute is material for purposes of

summary judgment can only be determined in light of the substantive law

applicable to the case. Stogner, 254 So.3d at 1257, citing Jackson v. City of New

Orleans, 12-2742 (La. 1/28/14), 144 So.3d 876, 882, cert. denied, 574 U.S 869,

135 S.Ct. 197, 190 L.Ed.2d 130 (2014).

The party moving for summary judgment bears the burden of proof.

Stogner, supra, citing La. C.C.P. art. 966(D)(1). However, if the mover will not

bear the burden of proof at trial, the moving party must only point out that there is

22-CA-226 4

an absence of factual support for one or more elements essential to the adverse

party’s claims. Id. Thereafter, the burden shifts to the adverse party to produce

factual support sufficient to establish that he will be able to satisfy his evidentiary

burden of proof at trial. Id. If the adverse party fails to meet this burden, there is

no genuine issue of material fact, and the mover is entitled to summary judgment

as a matter of law. Id. Once the motion for summary judgment has been properly

supported by the moving party, the failure of the adverse party to produce evidence

of a material factual dispute mandates the granting of the motion. Id., citing Babin

v. Winn Dixie La., Inc., 00-78 (La. 6/30/00), 764 So.2d 37, 40. The decision as to

the propriety to grant a motion for summary judgment must be made with

reference to the substantive law applicable to the case. Vincent v. Nat’l Gen. Ins.

Co., 21-227 (La. App. 5 Cir. 10/13/21), 330 So.3d 378, 381.

In the case at bar, Mr. Cemo filed a negligence action against State Farm for

the alleged injuries he sustained as a result of the October 9, 2018 accident. In

order to prove a claim under the duty-risk analysis pursuant to La. C.C. art. 2315,

the plaintiff must satisfy five elements: (1) the defendant had a duty to conform his

or her conduct to a specific standard of care (the duty element); (2) the defendant

failed to conform his or her conduct to the appropriate standard of care (the breach

of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of

the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard

conduct was a legal cause of the plaintiff’s injuries (the scope of protection

argument); and (5) actual damages (the damages element). Smith v. Great Am. Ins.

Co., 20-377 (La. App. 5 Cir. 5/26/21), 325 So.3d 495, 498.

State Farm argues that Mr. Cemo will not be able to meet his burden of

proving the October 9, 2018 accident caused the need for his secondary,

revisionary surgery. It contends that Mr. Cemo’s hospital fall was not reasonably

foreseeable and was an intervening and superseding cause of a new hip injury,

22-CA-226 5

resulting in the need for the May 17, 2020 hip revision surgery. In contrast, Mr.

Cemo argues that but for him being in the hospital for a right hip surgery relating

to the October 9, 2018 accident, he would not have slipped and fell, necessitating a

hip revision surgery.

Questions of causation are usually issues for the factfinder’s determination;

but, it is possible to determine these issues on summary judgment, if reasonable

minds could not differ. Cunningham v. Northland Ins. Co., 00-888 (La. App. 5

Cir. 9/14/00), 769 So.2d 689, 694, writ denied, 00-2844 (La. 12/8/00), 776 So.2d

470. The issue of cause-in-fact is generally a “but for” inquiry such that if the

plaintiff probably would have not sustained the injuries but for the defendant’s

substandard conduct, the conduct is a cause-in-fact. Lahare v. Valentine Mech.

Servs. LLC, 17-289 (La. App. 5 Cir. 6/29/17), 223 So.3d 773, 778, citing Roberts

v. Benoit, 605 So.2d 1032, 1042 (La. 1991). However, intervening and

superseding causes may sever the causal connection between a plaintiff’s injuries

and a defendant’s negligence. Id. In Adams v. Rhodia, Inc., 07-2110 (La.

5/21/08), 983 So.2d 798, 808, the Louisiana Supreme Court explained:

In situations in which there is an intervening force that comes
into play to produce the plaintiff’s injury (or more than one cause of
an accident), it has generally been held that the initial tortfeasor will
not be relieved of the consequences of his or her negligence unless the
intervening cause superceded [sic] the original negligence and alone
produced the injury. If the original tortfeasor could or should have
reasonably foreseen that the accident might occur, he or she will be
liable notwithstanding the intervening cause. In sum, foreseeable
intervening forces are within the scope of the original risk, and hence
of the original tortfeasor’s negligence.

(Citations omitted).

In support of its motion for partial summary judgment, State Farm submitted

selected portions of Dr. Gustavo Godoy’s deposition.4 When questioned about the

4
Although Mr. Cemo argues that State Farm only submitted portions of Dr. Godoy’s deposition
in its favor for review, the record before us reflects that he did not submit any evidence in support of his
position, as his opposition brief cites to exhibits that are not attached to the brief. Thus, our review is
limited to the evidence presented for summary judgment purposes. See, La. C.C.P. art. 966(A)(3) and (4).

22-CA-226 6

cause of Mr. Cemo’s revision hip surgery, Dr. Godoy testified as follows:

Q. -- record, which incorporates Mr. Cemo’s history to you of no
prior hip pain prior to the motor vehicle accident, more likely than
not to a reasonable degree of medical certainty, would you relate
the hip revision surgery, the second surgery --

A. Sure.

Q. -- to the motor vehicle accident in 2018?

A. That’s a difficult question to answer. Would he have -- he would
not have needed the revision hip arthroplasty -- replacement if he
would not have had the primary hip replacement. Are you asking
if this car accident caused him to have a revision hip arthroplasty?
I would say the fall caused him to have a revision hip arthroplasty.

Q. Okay. Let’s do it this way.

A. Sure.

Q. But for the motor vehicle accident in 2018, Mr. Cemo would not
have needed a hip replacement surgery at that time?

MR. MESSINA:

Object to the form, but you can answer.

A. Yes.

Q. Okay. So Mr. Cemo would not have been in the hospital --

A. Correct.

Q. -- two days or -- one or two days after his hip replacement surgery
but for the motor vehicle accident in 2018, correct?5

***

Q. Okay. And then the only other question, you’re not saying that the
car accident caused him to slip in socks, are you?

MR. LAGARDE:

Object to the form.

You can answer the question.

A. I don’t think the car accident directly caused him to slip in his
socks, no, I don’t. Would he have -- no, I don’t think it was

5
Dr. Godoy’s answer to the question is not included in the portions of the deposition submitted to
the court.

22-CA-226 7

directly caused.

After considering Dr. Godoy’s testimony and the issue of causation of Mr.

Cemo’s fall and need for the May 17, 2020 revision hip surgery, we find that

reasonable minds can differ. At different points in his deposition, Dr. Godoy both

associated and dissociated the fall and second surgery to the October 9, 2018

accident. From the evidence presented, there can be no clear determination as to

whether Mr. Cemo’s hospital fall could have been reasonably foreseen or

anticipated.6 Thus, at this juncture, we cannot find that the hospital fall is an

intervening and superseding cause that severs the causal connection between Mr.

Cemo’s revision hip surgery and State Farm’s alleged liability. Therefore, upon de

novo review, we find that there is a genuine issue of material fact remaining for the

fact finder’s determination, and State Farm is not entitled to partial summary

judgment as a matter of law.

Evidentiary Determination

Mr. Cemo alleges the trial court legally erred in granting partial summary

judgment against him because the court made an impermissible credibility

determination when finding that the medical testimony would be more prejudicial

than probative for the jury.

State Farm avers that the trial court’s commentary about the testimony of the

treating physicians being more prejudicial than probative enhances and supports

the law in this matter. It contends that the law requires an injured plaintiff to use

expert testimony to establish causation of the injuries claimed; however, the law

does not allow a plaintiff to use expert testimony to establish causation for injuries

6
“[A] risk may not be within the scope of a duty where the circumstances of the particular injury
to the plaintiff could not be reasonably foreseen or anticipated, because there was no ease of association
between the risk and the legal duty.” Lahare, supra, citing Rando v. Anco Insulations Inc., 08-1163 (La.
5/22/09), 16 So.3d 1065, 1092.

22-CA-226 8

that were not foreseeable or were due to an intervening and superseding event.

When examining factual issues on a motion for summary judgments, courts

may not consider the merits of the case, make credibility determinations, evaluate

testimony, or weigh evidence. Stogner, supra. Here, the trial court impermissibly

weighed evidence in consideration of its presentation to a jury. While the trial

court erred in that determination, because we performed a de novo review of the

evidence, we find that the trial court’s evidentiary determination is inconsequential

to this partial summary judgment review.

DECREE

For the foregoing reasons, we reverse the trial court’s partial summary

judgment in favor of State Farm Mutual Automobile Insurance Company and

remand the matter to the trial court for further proceedings. State Farm is assessed

the costs of this appeal.

REVERSED AND REMANDED

22-CA-226 9

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
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 1, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-CA-226
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
ROSS F. LAGARDE (APPELLANT) BRADLEY S. GROCE (APPELLEE) JOSEPH M. MESSINA (APPELLEE)

MAILED
ALEXANDER L.H. REED (APPELLANT)
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