M.P. Versus American Economy Insurance Company

M.P. NO. 23-C-338

VERSUS FIFTH CIRCUIT

AMERICAN ECONOMY INSURANCE COURT OF APPEAL
COMPANY ET AL.
STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 785-298, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

November 16, 2023

SCOTT U. SCHLEGEL
JUDGE

Panel composed of Judges Stephen J. Windhorst,
Scott U. Schlegel, and Jason Verdigets, Pro Tempore

REVERSED; SUMMARY JUDGMENT GRANTED;
PLAINTIFF’S CLAIMS AGAINST DEFENDANT
FERTILITY INSTITUTE OF NEW ORLEANS
DISMISSED WITH PREJUDICE
SUS
SJW
JMV

COUNSEL FOR DEFENDANT/RELATOR,
FERTILITY INSTITUTE OF NEW ORLEANS
Benjamin J. Biller

COUNSEL FOR DEFENDANT/RESPONDENT,
ADVAGENIX, LLC AND DR. WILLIAM KEARNS
Guice A. Giambrone, III
Ivana Dillas

COUNSEL FOR DEFENDANT/RESPONDENT,
AMERICAN STATES INSURANCE COMPANY
Alexis P. Joachim
Jeffrey A. Clayman

COUNSEL FOR PLAINTIFF/RESPONDENT,
M.P.
Kara H. Samuels
Amanda J. Francis

SCHLEGEL, J.

Defendant, Fertility Institute of New Orleans (“FINO”), filed an application

for supervisory writs asking this Court to reverse the trial court’s denial of its

motion for summary judgment seeking dismissal of plaintiff M.P.’s lawsuit. M.P.

alleges that FINO, and its co-defendants, acted negligently in mishandling,

labelling and transferring her embryos resulting in the implantation of a male

embryo, instead of a female embryo as promised. In its writ application, FINO

first argues that the trial court erred by denying its motion because M.P.’s own

expert agrees that FINO was not negligent or at fault with respect to the handling,

labelling and transferring of her embryos, and M.P. did not contest the request to

dismiss this claim in her opposition. FINO further contends that the trial court

erred by relying on a new claim for negligent hiring and retention of co-defendant

contractor, AdvaGenix, which M.P. raised for the first time in her opposition brief,

to deny its summary judgment motion. For the reasons explained more fully

below, we agree with FINO and therefore, reverse the trial court’s judgment

denying FINO’s summary judgment motion, grant the motion and dismiss all

claims alleged by M.P. against FINO with prejudice.

FACTS AND PROCEDURAL BACKGROUND

M.P. filed this lawsuit on June 29, 2018, against FINO, its insurer American

States Insurance Company, AdvaGenix, Good Start Genetics, Inc. and William

Kearns, Ph.D. M.P. alleges that she went to FINO in April 2016 for fertility

treatment and eventually underwent in vitro fertilization with pre-implantation

genetic screening. This involved egg retrieval and the creation of eight human

embryos using donor sperm. FINO then biopsied cells from the embryos and sent

the samples to co-defendant, AdvaGenix, for screening to identify any genetic

abnormalities. The genetic screening revealed that six of the embryos were

abnormal and two female embryos were normal.

23-C-338 1

In April 2017, FINO implanted one of the embryos that AdvaGenix

classified as a genetically normal female embryo, resulting in M.P.’s pregnancy.

In July 2017, M.P. underwent an ultrasound and learned she was carrying a male

baby. M.P. alleged that as a result, she was not sure which embryo or even whose

embryo FINO implanted. She was also concerned that the baby she was carrying

was genetically abnormal due to the fact that AdvaGenix’s testing indicated that all

of the male embryos were abnormal. M.P. requested additional genetic testing of

the remaining embryos and FINO sent biopsies for testing to co-defendant, Good

Start. The subsequent analysis revealed completely different chromosome results

for four embryos when compared to AdvaGenix’s results and further indicated no

normal male embryos. Due to the inexplicable conflicts existing between the two

sets of genetic screening results, M.P. underwent additional testing, which

confirmed she was carrying her own child. In December 2017, M.P. gave birth to

a healthy baby boy.

In June 2018, M.P. filed this lawsuit seeking to recover medical and testing

expenses, as well as damages for mental anguish and emotional distress. She

alleged that FINO never provided her with an explanation for the inconsistencies

and discrepancies in the testing results, thereby “indicating laboratory error or

assay failure” by FINO, AdvaGenix and/or Good Start. The following allegations

from the petition are the focus of the dispute regarding whether M.P. sufficiently

alleged a claim for negligent hiring or retention against FINO:

Defendant, Fertility Institute of New Orleans, is liable to Petitioner
because M.P.’s injuries and damages were proximately and/or legally
caused by the fault, including negligence, of FINO and its
embryologists, physicians, officers, agents, employees, contractors,
and any and all other individuals for whom it is financially and/or
legally responsible, including the following negligent acts of omission
and commission, among others, which may be shown at trial:

a. Negligently transferring the wrong embryo to M.P. on April
13, 2017 due to laboratory or assay failure;

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b. Negligently mislabeling M.P.’s embryos in the laboratory;
and/or

c. Negligently mishandling M.P.’s embryos in the laboratory.

After M.P. filed her petition, Dr. Barry Behr with Igenomix USA conducted

additional testing on the genetic material of the embryos at M.P.’s request, and his

results matched Good Start’s findings. In his deposition taken in January 2023, Dr.

Behr testified that based on his analysis, FINO did not bear any fault for the

discrepancies in the genetic screening results and FINO was not negligent or at

fault in the manner in which they transferred, labeled and handled the embryos.

He further testified that he did not think FINO did anything wrong with respect to

the treatment it provided to M.P. Based on this testimony, FINO filed a motion for

summary judgment, and alternative exceptions of prematurity and prescription, on

February 10, 2023, arguing that it should be dismissed from the case.

On April 14, 2023, M.P. filed an opposition to FINO’s summary judgment

motion. M.P. did not oppose FINO’s request to dismiss her negligence claim

based on the expert testimony. Rather, M.P. argued that genuine issues of material

fact existed based on an alternative claim that FINO was negligent in hiring and

retaining its contractor, AdvaGenix. In support of this claim, M.P. attached an

expert affidavit from Dr. Justin Schleede, a molecular geneticist. He explained that

AdvaGenix’s negligent laboratory procedures caused a sample swap and further

stated that FINO was negligent in retaining AdvaGenix because it was aware of

prior instances involving a genetic screening discrepancy at AdvaGenix. Dr.

Schleede opined that FINO should have investigated the lab and used a different

contractor for M.P.’s testing. M.P. did not move to amend her petition to add these

new facts or to state a specific claim for negligent hiring or retention against FINO.

In its reply brief filed on April 26, 2023, FINO argued that M.P. did not

allege a claim for negligent hiring or retention in her petition and that her only

23-C-338 3

allegations against it were for its own alleged negligence in handling, transferring

and labelling the embryos and vicarious liability for its contractors as stated in the

allegations cited above. FINO argued that after five years of litigation and after the

expiration of the deadline to amend pleadings, M.P. should not be allowed to raise

a new cause of action for negligent hiring or retention in her summary judgment

opposition.

At oral argument on June 13, 2023, FINO’s counsel again argued that the

allegations in M.P.’s petition at most state a claim asserting that FINO is

vicariously liable for its contractors and that M.P. never moved to amend her

petition to add a negligent hiring or retention claim against FINO. Counsel further

argued that M.P. could not attempt to raise a new claim because the deadline to

amend pleadings in the court’s scheduling order expired on May 8, 2023. In

response, M.P.’s counsel argued that they learned about the negligent hiring or

retention claim with respect to AdvaGenix during the discovery process after she

filed her petition. Her counsel further argued that Louisiana is a fact pleading state

and the trial court should not apply technical pleading rules. Counsel urged the

trial court to liberally construe the petition to include the negligent hiring or

retention claim based on M.P.’s general allegations that FINO was responsible for

its contractors. M.P.’s counsel also argued that the trial court should allow for the

expansion of pleadings because FINO had notice of the claim based on discovery

conducted on this issue.

Following oral argument, the trial court denied FINO’s summary judgment

motion based on the existence of genuine issues of material fact. The trial court

though did not specify whether its finding pertained to both the negligence claim

and the negligent hiring or retention claim. On June 15, 2023, the trial court

23-C-338 4

entered a written judgment denying FINO’s summary judgment motion.1 FINO

filed a notice of intent to apply for supervisory writs and filed a timely writ

application with this Court on July 7, 2023. After reviewing the writ application,

this Court allowed the parties the opportunity to present oral argument and submit

additional briefing in accordance with La. C.C.P. art. 966(H).2

LAW AND DISCUSSION

In its writ application, FINO argues that the trial court erred by failing to

grant summary judgment as to the negligence claim alleged in the petition because

M.P. did not oppose summary judgment on this issue. FINO also argues that if the

trial court determined genuine issues of material fact existed with respect to a

negligent hiring or retention claim argued in M.P.’s opposition brief, the trial court

erred because M.P. did not plead facts supporting this claim in her petition and did

not ask to amend or supplement her petition to add this claim. FINO contends that

M.P.’s general allegation that FINO is responsible for its contractor’s conduct is at

best a vicarious liability claim.

A motion for summary judgment is a procedural device used to avoid a full-

scale trial when there is no genuine issue of material fact. Bell v. Parry, 10-369

(La. App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment procedure is

favored and is designed to secure the just, speedy, and inexpensive determination

of every action. La. C.C.P. art. 966(A)(2). Under La. C.C.P. art. 966(D)(1), the

initial burden is on the mover to show that no genuine issue of material fact exists.

If the moving party will not bear the burden of proof at trial, the moving party must

1
The trial court did not address FINO’s alternative exceptions and they are not at issue in FINO’s writ
application.
2
La. C.C.P. art. 966(H) provides:

On review, an appellate court shall not reverse a trial court's denial of a motion for
summary judgment and grant a summary judgment dismissing a case or party without
assigning the case for briefing and permitting the parties an opportunity to request oral
argument.

23-C-338 5

only point out that there is an absence of factual support for one or more elements

essential to the adverse party’s claim, action, or defense. The nonmoving party

must then produce factual support to establish that he will be able to satisfy his

evidentiary burden of proof at trial. If the nonmoving party fails to do so, there is

no genuine issue of material fact, and summary judgment should be granted.

Babino v. Jefferson Transit, 12-468 (La. App. 5 Cir. 2/21/13), 110 So.3d 1123,

1125.

Appellate courts review a judgment granting or denying a motion for

summary judgment de novo. Thus, appellate courts ask the same questions the trial

court does in determining whether summary judgment is appropriate: whether

there is any genuine issue of material fact, and whether the mover is entitled to

judgment as a matter of law. Breaux v. Fresh Start Properties, L.L.C., 11-262 (La.

App. 5 Cir. 11/29/11), 78 So.3d 849, 852.

We first find that the trial court erred by failing to grant summary judgment

to dismiss M.P.’s negligence claim against FINO for mishandling, mislabeling and

transferring the embryos. M.P. did not oppose FINO’s motion on this issue.

Further, considering the expert testimony, no genuine issue of material fact exists

to establish FINO’s negligence in handling, labelling, or transferring the embryos.

With respect to the negligent hiring or retention claim, M.P. raises two

arguments in opposition to FINO’s writ application. First, she contends that her

petition adequately pleads such a claim against FINO. Louisiana follows a system

of fact pleading. Martin v. Thomas, 21-1490 (La. 6/29/22), 346 So.3d 238, 243.

Although Louisiana law does not require “theory of the case” pleading, the

plaintiff's petition must set forth facts upon which such recovery can be based.

Cangelosi v. Jefferson Parish Council, 22-174 (La. App. 5 Cir. 12/14/22), 362

So.3d 868, 872, writ denied, 23-36 (La. 3/14/23), 357 So.3d 827. In Certified

Cleaning & Restoration, Inc. v. Lafayette Ins. Co., 10-948 (La. App. 5 Cir.

23-C-338 6

6/14/11), 67 So.3d 1277, 1282-83, writ granted in part and remanded on other

grounds, 11-2174 (La. 11/18/11), 75 So.3d 466, this Court recognized that a claim

for the negligent hiring of a contractor is a separate claim from one for the

vicarious liability for an independent contractor’s conduct. Recently, the

Louisiana Supreme Court in Martin, supra, similarly confirmed that a negligent

hiring or retention claim is distinct and independent from a vicarious liability

claim.

In order to determine whether a principal is negligent for hiring an

independent contractor, the court must consider the principal’s knowledge at the

time of the hiring. Certified Cleaning & Restoration, supra; Lafayette Steel

Erector, Inc. v. G. Kendrick, LLC, 22-895, p. 5 (La. App. 1 Cir. 8/30/23), 2023 WL

5601961. A claim for negligent hiring is cognizable only if the claimant can show

that the principal had knowledge when it hired the independent contractor that the

independent contractor was irresponsible. Id.

After reviewing M.P.’s petition for damages, we agree that it neither

references a claim for negligent hiring or retention nor asserts any facts supporting

such a claim. It does not contain any facts or allegations to suggest FINO had prior

knowledge of irresponsible behavior by AdvaGenix as required to state a claim.

We also agree that M.P.’s general allegations regarding FINO’s responsibility for

its contractors are not sufficient to plead a claim for negligent hiring or retention.

M.P. alternatively argues that pursuant to La. C.C.P. art. 1154, the pleadings

were expanded to include a negligent hiring or retention claim because FINO knew

that M.P. was conducting discovery on this issue. La. C.C.P. art. 1154 generally

allows for the addition of issues when tried by the express or implied consent of

the parties:

When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as if
they had been raised by the pleading. Such amendment of the

23-C-338 7

pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any
party at any time, even after judgment; but failure to so amend does
not affect the result of the trial of these issues. If evidence is objected
to at the trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended and shall
do so freely when the presentation of the merits of the action will be
subserved thereby, and the objecting party fails to satisfy the court
that the admission of such evidence would prejudice him in
maintaining his action or defense on the merits. The court may grant a
continuance to enable the objecting party to meet such evidence.

In its reply brief to M.P.’s summary judgment opposition, FINO argued that

M.P. could not raise a new claim in her opposition brief and did not concede to add

or try a new negligent hiring or retention claim. Pursuant to La. C.C.P. art. 1154,

an objection to an attempt to enlarge the pleadings, coupled with the plaintiff’s

failure to move for an amendment of the pleadings, is fatal to an issue not raised by

the pleadings. Alaska Southern. Partners v. Baxley, 35,206 (La. App. 2 Cir.

10/31/01), 799 So.2d 680, 683. Said another way, the party who wishes to

introduce evidence not within the issues raised by the pleadings must move that the

pleadings be amended before the issue-raising evidence can be admitted over

objection. Id. Because M.P. never moved to amend her petition to add a negligent

hiring or retention claim, the issue was not properly before the trial court and could

not serve as a basis for denying FINO’s motion for summary judgment.

In addition, this Court has previously held that because a memorandum is

not recognized as a pleading, a plaintiff cannot allege facts to raise a new claim for

the first time in a memorandum in opposition to a motion for summary judgment.

See Williams v. Nelson, 18-207 (La. App. 5 Cir. 12/19/18), 263 So.3d 466, 476-77,

writ denied, 19-92 (La. 3/18/19), 267 So.3d 92 (finding that plaintiffs could not

allege facts in support of a new fraud claim for the first time in an opposition to a

summary judgment motion); see also Stuckey v. Republic Fire and Casualty

Insurance Company, 19-445, p. 3 (La. App. 1 Cir. 1/9/20), 2020 WL 104382.

23-C-338 8

DECREE

For the reasons explained above, we grant defendant Fertility Institute of

New Orleans’s writ application and reverse the trial court’s judgment denying its

motion for summary judgment. We further grant the summary judgment motion

and dismiss M.P.’s claims against defendant, Fertility Institute of New Orleans,

with prejudice.

REVERSED; SUMMARY JUDGMENT GRANTED;
PLAINTIFF’S CLAIMS AGAINST DEFENDANT
FERTILITY INSTITUTE OF NEW ORLEANS
DISMISSED WITH PREJUDICE

23-C-338 9

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
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JUDGES 101 DERBIGNY STREET (70053)
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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
NOVEMBER 16, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-C-338
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
BENJAMIN J. BILLER (RELATOR) GUICE A. GIAMBRONE, III (RESPONDENT) IVANA DILLAS (RESPONDENT)
ALEXIS P. JOACHIM (RESPONDENT) KARA H. SAMUELS (RESPONDENT)

MAILED
JEFFREY A. CLAYMAN (RESPONDENT) AMANDA J. FRANCIS (RESPONDENT)
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