Alfred Dupree v. Louisiana Medical Mutual Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-366

ALFRED DUPREE, ET AL.

VERSUS

LOUISIANA MEDICAL MUTUAL INS. CO., ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 10C2674
HONORABLE JAMES PAUL DOHERTY, JR., DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Jimmie C. Peters,
Judges.

REVERSED AND REMANDED.

Marc W. Judice
Michelle R. Judice
Judice & Adley
926 Coolidge Boulevard
Lafayette, LA 70503
(337) 235-2405
Counsel for Defendant/Appellee:
Louisiana Medical Mutual Insurance Company

Nelson William Wagar III
Justin M. Chopin
Chopin, Wagar, Richard & Kutcher, LLP
3850 North Causeway Boulevard
Metairie, LA 70002
(504) 830-3838
Counsel for Plaintiffs/Appellants:
Alfred Dupree
Sondria Dupree
Brandon Harris

Daryl K. Washington
Attorney at Law
325 N. St. Paul, Suite 1875
Dallas, TX 75201
(214) 880-4881
Counsel for Plaintiffs/Appellants:
Alfred Dupree
Sondria Dupree
Brandon Harris

DECUIR, Judge.

Sondria and Alfred Dupree and Brandon Harris filed suit against Dr. José

Dorta and Louisiana Medical Mutual Insurance Company (“LAMMICO”) alleging

medical malpractice in the prenatal care and treatment of the Duprees‟ daughter,

Katie Lynn Dupree, and her unborn child, Kaydon Harris, both now deceased. The

petition was dismissed via summary judgment when the trial court ruled that

Plaintiffs failed to present evidence sufficient to establish a genuine issue of

material fact. A motion for new trial filed by Plaintiffs was denied. Plaintiffs

appeal both the summary judgment and the denial of their motion for new trial, and

for the following reasons, we reverse.

Twenty-seven-year old Katie Lynn Dupree became a patient of Dr. Dorta

when she was pregnant with her child Kaydon, whose father is Brandon Harris.

On January 9, 2009, Dupree went to the Emergency Room of Opelousas General

Hospital with complaints of facial edema, vomiting, and headaches. She was

found to have elevated blood pressure and was told to stop working and decrease

her activities. On January 26, at thirty-six weeks gestation, Dupree again presented

with elevated blood pressure and other symptoms suggestive of gestational

hypertension or preeclampsia. Dr. Dorta did not intervene medically nor did he

propose an early delivery of the baby. Dupree was again sent home with no

medical intervention in place other than bed rest. Two days later, Dupree was

found face down and unresponsive by her father. Her baby was stillborn the

following day. Dupree was then taken off life support and died after donating her

organs.

Plaintiffs filed a request for review by a Medical Review Panel on June 25,

2009. Eleven months later, on May 12, 2010, the panel rendered its opinion

finding no malpractice on the part of Dr. Dorta. Plaintiffs then filed suit on May

28, 2010 against Dr. Dorta and his insurer, LAMMICO. Defendants filed

numerous exceptions. Dr. Dorta, who has other malpractice claims pending

against him and no longer practices medicine, was soon dismissed from the case

due to his discharge in bankruptcy. Plaintiffs sought to compel LAMMICO to

comply with discovery requests and moved for sanctions and a protective order.

Plaintiffs then requested a status conference to schedule deadlines and a trial date.

Immediately after the scheduling order was issued, on November 9, 2010,

LAMMICO moved for summary judgment. A hearing on the motion was held on

December 10, 2010; the court ruled from the bench in favor of LAMMICO based

on the plaintiffs‟ failure to submit an affidavit from an expert showing a genuine

issue of material fact sufficient to defeat summary judgment.

At the hearing, plaintiffs‟ counsel argued that he declined to submit an

expert‟s affidavit because he was relying on the scheduling order which provided

for expert reports to be exchanged several months in the future. Although counsel

acknowledged that he had consulted an expert, he denied having retained one for

trial purposes. The trial court found this argument disingenuous and considered

counsel‟s argument to be a risky strategy that had failed. Plaintiffs‟ counsel then

requested a ten-day extension of time in order to submit expert evidence. The trial

court held: “[T]he plaintiffs need to provide the testimony, either by reports or

affidavits or depositions of an expert, that raises the material issue that they will be

able to carry their burden of proof. That‟s not done in this matter.”

Two weeks later, on December 28, 2010, plaintiffs filed a motion for new

trial and attached as an exhibit an affidavit from Dr. James Tappan, a board

certified physician specializing in obstetrics and gynecology whose credentials as

an expert are undisputed. LAMMICO opposed the motion for new trial and moved

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to strike the affidavit. A hearing was held, and the trial court denied the plaintiffs‟

motion and found LAMMICO‟s motion to strike moot. This appeal followed.

Article 967(B) of the Louisiana Code of Civil Procedure provides that when

a motion for summary judgment is made and supported by competent evidence,

“an adverse party may not rest on the mere allegations or denials of his pleading,”

but his response must set forth specific facts showing that there is a genuine issue

for trial. The provision further states, “If he does not so respond, summary

judgment, if appropriate, shall be rendered against him.” Id.

The plaintiff‟s burden of proof in a medical malpractice action is three-fold.

He must present evidence establishing the applicable standard of care, a breach of

the standard of care, and a causal connection between the breach and the injury.

La.R.S. 9:2794; Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La. 10/17/94), 643

So.2d 1228; Weeks v. Brown, 01-00495 (La.App. 3 Cir. 10/3/01), 796 So.2d 839.

Ordinarily, for a plaintiff to meet his burden of proof, the “„opinions of expert

witnesses who are members of the medical profession and who are qualified to

testify on the subject are necessary to determine whether or not physicians

possessed the requisite degree of knowledge or skill, or failed to exercise

reasonable care and diligence.‟” Venable v. Dr. X, 95-1634, p. 4 (La.App. 3 Cir.

4/3/96), 671 So.2d 1249, 1252 (quoting Richoux v. Tulane Med. Ctr., 617 So.2d

13, 16 (La.App. 4 Cir. 1993)).

Article 1973 of the Louisiana Code of Civil Procedure provides that a “new

trial may be granted in any case if there is good ground therefor, except as

otherwise provided by law.” After reviewing the record before us, we find good

and valid reasons for a new trial, and we believe the trial court abused its discretion

in denying the motion for new trial in this case.

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First, the time line in the case shows a very fast-moving litigation, not at all

slowed or delayed by any action of the plaintiffs or their counsel. Suit was filed

immediately after the Review Panel‟s decision. A scheduling order was requested

early so that all parties would be working quickly towards a final resolution.

Plaintiffs did not request continuances or extensions of time. Plaintiffs moved

ahead with discovery and urged the defendants‟ prompt participation. In fact, if

the record shows any delay, it was due to the filings of LAMMICO in countless

pretrial pleadings.

Second, we address the trial court‟s finding that plaintiffs‟ reliance on the

scheduling order was simply a misplaced strategic move by their counsel. It is

clear from the transcript of the summary judgment hearing that plaintiffs‟ counsel

sincerely believed the scheduling order was pre-emptive of the summary judgment

evidentiary burden. This belief was buttressed by LAMMICO‟s apparent reticence

in producing an expert for discovery. Counsel initially pointed out that

LAMMICO likewise failed to produce an expert in its reliance solely on the

Review Panel‟s decision and its discovery response that its expert would be a

member of the panel. LAMMICO would not give plaintiffs the name of one expert

they could depose; rather, plaintiffs were put in the position of having to depose all

three members of the panel in order to provide an expert with their findings. It is

clear to this court that neither side in this contentious litigation was ready and

willing to disclose preliminary information on potential experts at the time of the

summary judgment hearing.

Third, in support of their motion for new trial, plaintiffs submitted an

affidavit of an expert wherein three specific acts of medical negligence are

described: failure to diagnose, failure to warn, and failure to timely deliver the

baby. In fact, the expert‟s opinion that “Dr. Dorta failed to warn Ms. Dupree

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and/or her family of her condition and what to look for with respect to further

symptoms” is diametrically opposed to the Medical Review Panel‟s finding that

“we are sure a lengthy discussion ensued.” The juxtaposition of these two

statements presents without question a genuine issue of material fact. The trial

court, however, ruled on the motion for new trial without reference to the affidavit,

choosing to rely instead on the fact that plaintiffs failed to take advantage of their

one opportunity to present evidence.

A trial court is imbued with great discretion in both pre-trial and post-trial

matters. A trial court‟s discretion regarding motions for new trial is embodied in

both the title and text of La.Code Civ.P. art. 1973. Similarly, a trial court‟s

discretion to give additional time for the filing of affidavits in opposition to a

motion for summary judgment is referenced as “good cause” in La.Code Civ.P. art

966(B). While Louisiana jurisprudence generally upholds a trial court‟s decision

to exclude late-filed affidavits, the case law is rife with language describing the

discretionary nature of the trial court‟s ruling. In Higginbotham v. Rapides

Foundation, 07-538, p. 7 (La.App. 3 Cir. 10/31/07), 968 So.2d 1226, 1231, this

court held: “Given the facts, the law, and Plaintiffs‟ lack of due diligence, we find

no abuse of discretion by the trial court in excluding Plaintiffs‟ opposition.”

Conversely, in the instant case, the facts, the law, and plaintiffs‟ prudence

and initiative in prosecuting this case, compel a finding of an abuse of discretion

by the trial court. The trial court first erred in failing to grant plaintiffs‟ request for

a ten-day extension of time in which to file an expert affidavit in opposition to the

motion for summary judgment. Additionally, the trial court should have relied on

La.Code Civ.P. art. 1973 to grant the motion for new trial and accept into evidence

the affidavit of Dr. Tappan. Due consideration of the affidavit requires reversal of

summary judgment, as we find genuine issues of material fact which must be

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decided after trial on the merits. Our findings are based on the specific facts of this

case. We by no means intend to condone or legitimize the actions of plaintiffs‟

counsel in failing to timely file an expert affidavit. We reach our decision herein

after careful consideration of the facts, the law, and the procedural record before

us. Rare is the case where we find an abuse of the trial court‟s great discretion.

This instance is indeed one of rarity.

For the above and foregoing reasons, the judgments of the trial court are

reversed, and this case is remanded to the trial court for further proceedings. Costs

of this appeal are assessed to LAMMICO.

REVERSED AND REMANDED.

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