Louise Frederick Wife of/and Steven Frederick Versus St. Charles Surgical Hospital, LLC

LOUISE FREDERICK WIFE OF/AND STEVEN NO. 24-C-464
FREDERICK
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
ST. CHARLES SURGICAL HOSPITAL, LLC,
ET AL STATE OF LOUISIANA

October 25, 2024

Linda Wiseman
First Deputy Clerk

IN RE ALEXIS WAGUESPACK, M.D.

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD A.
ROWAN, JR., DIVISION "L", NUMBER 807-181

Panel composed of Judges Jude G. Gravois,
John J. Molaison, Jr., and Timothy S. Marcel

WRIT GRANTED

In the medical malpractice lawsuit, the relator, Alexis Waguespack, M.D.,

seeks a review of the trial court’s grant of the plaintiffs/respondents’ motion to

compel her to appear for a second deposition. For the following reasons, we grant

this writ application, reverse the judgment granting the motion to compel, and deny

the motion to compel.

PROCEDURAL HISTORY

On March 16, 2017, the plaintiffs, Louise Frederick and Steven Frederick,

filed a Medical Review Panel Complaint against Alexis Waguespack, M.D., and

other healthcare providers, alleging they committed medical malpractice in the

spine surgery performed on Steven Frederick on April 6, 2016. On January 25,

2019, the plaintiffs took the deposition of Dr. Waguespack. On March 2, 2020, the

Medical Review Panel issued its expert opinion, finding that, after a review of the

24-C-464

medical records and operative notes, there was no deviation from the standard of

care by Dr. Waguespack. On June 9, 2020, the plaintiffs filed a petition for

damages in the 24th Judicial District Court against Dr. Waguespack and others,

alleging medical malpractice in the April 6, 2016 surgery.

On July 23, 2024, the plaintiffs filed a motion to compel the deposition of

Dr. Waguespack to “discuss multiple developments post medical review panel”

that include the affirmative defenses raised in Dr. Waguespack’s answer, “expert

opinions,” “relationships to trial witnesses,” “licensure lapses,” false testimony

after the January 2019 deposition, and cases involving the administration of the

medication at issue in this case. Dr. Waguespack opposed the motion to compel,

stating her previous deposition in the medical review panel proceeding entitles her

to a protective order, and the plaintiffs have not identified any question that she has

failed to answer. The plaintiffs filed a reply to the opposition elaborating that the

dispute in this matter is whether Dr. Waguespack administered a local anesthetic,

Bupivacaine, to Mr. Frederick. Following the hearing on the motion to compel, the

trial court issued a judgment granting the plaintiffs’ motion to compel the

deposition of Dr. Waguespack. This timely writ application followed.

LAW AND DISCUSSION

A trial court has broad discretion when ruling on pre-trial discovery matters,

and its ruling will not be disturbed absent a clear showing of abuse of discretion.

Hodges v. State Farm Bureau Cas. Ins. Co., 433 So.2d 125, 129 (La. 1983). It

follows that a trial court’s ruling regarding whether to allow a second deposition of

a deponent is subject to the same abuse of discretion standard. Guillory v.

Bofinger’s Tree Service, 06-0086 (La. App. 1 Cir. 11/3/06), 950 So.2d 682, 686-

87. An abuse of discretion generally results from a conclusion reached

capriciously or arbitrarily, which means there is no rational basis for the action.

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Boone Servs., LLC v. Clark Homes, Inc., 23-0299 (La. App. 1 Cir. 10/18/23), 377

So.3d 304, 311.

In this writ application, Dr. Waguespack argues that the trial court abused its

discretion in granting the motion to compel because the plaintiffs seek to question

Dr. Waguespack regarding alleged, unrelated incidents that occurred after Dr.

Waguespack’s treatment of Mr. Frederick. Dr. Waguespack contends that these

incidents have no bearing on the disputed fact over whether Dr. Waguespack

administered Bupivacaine to Mr. Frederick during the back surgery.

The documents submitted in this writ application indicate that the plaintiffs

have hired two experts who have opined that Dr. Waguespack injured Mr.

Frederick by administering Bupivacaine to Mr. Frederick during the surgery. In

the 2019 deposition, Dr. Waguespack was questioned extensively regarding the

administration of Bupivacaine to Mr. Frederick, and she repeatedly denied

administering this medication. Several other healthcare providers, some named as

defendants in this matter, were deposed, including the anesthesiologist, the surgical

techs, and the circulating nurse. All of these witnesses denied seeing Dr.

Waguespack administer Bupivacaine to Mr. Frederick. Allegedly, the hospital bill

charged Mr. Frederick for 50 mg of Bupivacaine. A nurse employed by the

hospital, Ms. Nicole Johnson, testified the hospital places anticipated medications

potentially needed during surgery in the operating room for the surgery; the patient

can be charged for this medication whether or not they administer the drug to the

patient.

In the motion to compel, the plaintiffs contend that they are entitled to

depose Dr. Waguespack for a second time regarding affirmative defenses raised by

Dr. Waguespack. In the answer filed by Dr. Waguespack, she alleged that the

cause of the plaintiffs’ damages were pre-existing conditions, plaintiffs’

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negligence, third parties’ negligence, and that plaintiffs failed to mitigate their

damages. According to the writ application, the court dismissed all other

healthcare providers through summary judgment. In her 2019 deposition, the

plaintiffs’ questioned Dr. Waguespack about her opinion regarding the care

rendered by other defendants. Dr. Waguespack testified that, in hindsight, it

appeared that Mr. Frederick “had an oxygenation problem” and a hypoxic brain

injury. Dr. Waguespack testified that she was not made aware that Mr. Frederick

was hypoxic. Dr. Waguespack also answered interrogatories and requests to

produce documents in November 2022. The plaintiffs do not identify which

affirmative defense they seek to question Dr. Waguespack. Still, it is clear that in

her January 2019 deposition, Dr. Waguespack answered the plaintiffs’ questions

regarding her opinion of the fault of others in their care of Mr. Frederick.

The plaintiffs claim they are entitled to take a second deposition of Dr.

Waguespack because of expert opinions obtained after the January 2019

deposition. In their reply to the opposition to the motion to compel, the plaintiffs

explain that the factual issue in this case is whether Dr. Waguespack administered

Bupivacaine to Mr. Frederick. The plaintiffs were aware that the administration of

Bupivacaine could cause the symptoms exhibited by Mr. Frederick at the time they

deposed Dr. Waguespack in January 2019. Dr. Waguespack was questioned

extensively regarding the side effects of Bupivacaine and symptoms exhibited by a

patient given excess Bupivacaine. Dr. Waguespack repeatedly testified that she

did not administer Bupivacaine to Mr. Frederick. The plaintiffs do not identify

what they contend is “objective medical evidence” that Dr. Waguespack

administered Bupivacaine to Mr. Frederick. In the deposition, Dr. Waguespack

answered all questions regarding the administration and side effects of

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Bupivacaine. Thus, the plaintiffs are not entitled to question Dr. Waguespack

again regarding the administration of Bupivacaine.

The plaintiffs argue that Dr. Waguespack’s “relationship to trial witnesses”

entitles them to depose her a second time. The plaintiffs do not state which

witnesses they are referring to. In addition, the plaintiffs had access to all of Mr.

Frederick's medical records before the first deposition of Dr. Waguespack.

Further, there is no trial date or witness list.

The plaintiffs argue they are entitled to take a second deposition of Dr.

Waguespack because there was a lapse in Dr. Waguespack’s certification by the

American Board of Orthopedic Surgery. According to the documents submitted

with this writ application, Dr. Waguespack’s board certification lapsed in 2021,

and recertification occurred in 2023. The plaintiffs have attached excerpts from a

deposition of Dr. Waguespack in an unrelated matter, in which Dr. Waguespack

stated that the COVID-19 pandemic delayed oral board examinations. Dr.

Waguespack treated Mr. Frederick in 2016. The deposition of Dr. Waguespack

occurred in January of 2019. Thus, any lapse in Dr. Waguespack’s board

certification in 2021 or beyond is not relevant as to whether Dr. Waguespack

violated the standard of care in her treatment of Mr. Frederick in 2016.

The plaintiffs allege Dr. Waguespack provided false testimony after her

2019 deposition. According to the plaintiffs, this false testimony occurred in an

unrelated matter in which Dr. Waguespack answered questions regarding an

alleged incident in 2018 in which the airline discovered her laptop in an airplane

bathroom. When passengers did not claim the computer in response to questioning

by the flight crew, the pilots diverted the flight and landed to examine the laptop to

determine if it presented a threat to the passengers. According to the plaintiffs, Dr.

Waguespack admitted that she owned the computer after the airplane landed. The

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documents submitted to support this allegation indicate that “IP Waguespack” was

intoxicated and was not allowed to reboard the aircraft. Plaintiffs argue that they

are entitled to depose Dr. Waguespack for a second time in this case because when

questioned regarding this incident in an unrelated matter, she denied knowledge of

it. This alleged incident is not relevant as to whether or not Dr. Waguespack

violated the standard of care in her treatment of Mr. Frederick in 2016.

Plaintiffs further argue that during discovery in a second, unrelated matter,

Dr. Waguespack denied that other malpractice claims had been asserted against

her. She then admitted to approximately ten malpractice claims against her over

the past twenty years. The plaintiffs contend that Dr. Waguespack has

“mischaracterized the very nature of the Fredericks’ allegations against her.” In

support of this contention, the plaintiffs point to Dr. Waguespack’s deposition

testimony in an unrelated matter in which she referred to a patient who had

“postoperative airway issues during the perioperative anesthesia period.” The

plaintiffs argue that this referred to the instant case and contend that Fredericks’

malpractice case is based on Bupivacaine toxicity. The plaintiffs argue that they

should be able to question Dr. Waguespack regarding her description of the

allegations in the Fredericks’ lawsuit as made when obtaining her recertification.

As stated above, Dr. Waguespack admitted that her board certification lapsed in

2021, after her treatment of Mr. Frederick and her deposition. The responses by

members of the medical review panel in this matter indicate that there are

conditions other than alleged Bupivacaine toxicity that could have caused the

symptoms exhibited by Mr. Frederick.

La. C.C.P. art. 1469 governs motions to compel. Concerning the oral

deposition of a party-person, it provides that “if a deponent fails to answer a

question propounded or submitted under Articles 1437 . . . the discovering party

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may move for an order compelling an answer. If the court denies the motion in

whole or in part, it may make such protective orders as it would have been

empowered to make on motion made pursuant to Article 1426.” La. C.C.P. art.

1469(2). La. C.C.P. art. 1426 permits a court to issue an order that discovery not

be had for good cause shown upon a showing that the examination is being

conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or

oppress the deponent.

In this case, Dr. Waguespack is entitled to a protective order, as provided in

article 1426, regarding the plaintiffs’ request to depose her a second time because

she has already been deposed in this matter and has answered all questions posed

to her. The additional topics that the plaintiffs claim entitle them to a second

deposition of Dr. Waguespack are so irrelevant to the issues of this case that they

are not discoverable and not reasonably calculated to lead to the discovery of

admissible evidence.

The plaintiffs strenuously argue that they took the January 2019 deposition

during the medical review panel proceeding and are entitled to a second

unrestricted deposition of Dr. Waguespack in preparation for trial. The notice of

deposition propounded by the plaintiffs to Dr. Waguespack for the January 25,

2019 deposition states that “the undersigned will take the oral testimony of Dr.

Waguespack pursuant to the Louisiana Code of Civil Procedure for all purposes,

including perpetuation.” The first page of Dr. Waguespack’s deposition states that

the deposition was taken “under the Louisiana Code of Civil Procedure, Article

14212, et seq., for all purposes, in accordance with law.” While there may be

some instances in which a plaintiff may conduct a second deposition of a defendant

doctor in a medical malpractice case, given the specific facts and circumstances

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presented in this writ application, the trial court abused its discretion in granting

the plaintiffs’ motion to compel.

CONCLUSION

After a thorough review of the writ application, the opposition to the writ

application, and applicable law, we grant this application and reverse the trial

court’s grant of the plaintiffs’ motion to compel the deposition of Dr. Waguespack.

We deny the plaintiffs’ motion to compel the second deposition of Dr.

Waguespack.

Gretna, Louisiana, this 25th day of October, 2024.

JJM
JGG
TSM

8

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
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 10/25/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-C-464
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Donald A. Rowan, Jr. (DISTRICT JUDGE)
Mark E. Kaufman (Relator) Bryan J. Knight (Relator)
Melissa M. Lessell (Respondent) T. Carey Wicker, III (Respondent)
Michael S. Sepcich (Respondent)
Vincent E. Odom (Respondent)
Thomas C. Wicker, IV (Respondent)

MAILED
Sean M. Casey (Respondent) Davida F. Packer (Respondent) Casey B. Wendling (Respondent)
Attorney at Law Attorney at Law Attorney at Law
1 Sanctuary Bouelvard 1100 Poydras Street 755 Magazine Street
Suite 202 Suite 2950 New Orleans, LA 70130
Mandeville, LA 70471 New Orleans, LA 70163