Camille Landry v. P.S.A of Lafayette

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 12-277

CAMILLE LANDRY, ET AL.

VERSUS

PSA OF LAFAYETTE, LLC, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20045188
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

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JAMES T. GENOVESE

JUDGE

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Court composed of Jimmie C. Peters, James T. Genovese, and John E. Conery,
Judges.

MOTION TO DISMISS DENIED.

CONERY, J., dissents and would grant the motion.

Eve Barrie Masinter
Breazeale, Sachse & Wilson
909 Poydras, Suite 1500
New Orleans, LA 70112-4004
(504) 619-1800
COUNSEL FOR DEFENDANT/APPELLEE:
Pediatric Services of America, Inc.

William Winfield Stagg
Ryan M. Goudelocke
Durio, McGoffin & Stagg
Post Office Box 51308
Lafayette, LA 70505
(337) 233-0300
COUNSEL FOR DEFENDANT/APPELLEE:
Women’s and Children’s Hospital, Inc.

Roy Clifton Cheatwood
Monica Ann Frois
Brandy N. Sheely
Baker Donelson Bearman Caldwell & Berkowitz, P.C.
201 St. Charles Ave., #3600
New Orleans, LA 70170
(504) 566-5200
COUNSEL FOR DEFENDANT/APPELLEE:
Pediatric Services of America, Inc.

John Layne Hammons
Annis Cornell Rushing Flournoy
Chaile Allen
Nelson & Hammons, A.P.L.C.
705 Milam Street
Shreveport, LA 71101
(318) 227-2401
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Ryan D. Landry, et al.

John Michael Veron
J. Rock Palermo, III
Veron, Bice, Palermo & Wilson, L.L.C.
Post Office Box 2125
Lake Charles, LA 70602-2125
(337) 310-1600
COUNSEL FOR DEFENDANTS/APPELLEES:
Monica Ann Frois
Pediatric Services of America, Inc.

Marc W. Judice
James J. Hautot, Jr.
Judice & Adley
Post Office Drawer 51769
Lafayette, LA 70505-1769
(337) 235-2405
COUNSEL FOR DEFENDANTS/APPELLEES:
Dr. Cong T. Vo
Dr. Rosarie Josseline Belizaire

James Paul Lambert
Post Office Box 53083
Lafayette, LA 70505-3083
(337) 261-3737
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Camille Landry, et al.

Stewart Earl Niles, Jr.
Michelle Anne Bourque
Niles, Bourque & Fontana, LLC
909 Poydras St., 35th Floor
New Orleans, LA 70112
(504) 310-8550
COUNSEL FOR DEFENDANT/APPELLEE:
The Administrators of the Tulane Educational Fund

Daniel G. Brenner
Eric John Miller
R. Preston Mansour, Jr.
Bolen, Parker & Brenner
Post Office Box 11590
Alexandria, LA 71315-1590
(318) 445-8236
COUNSEL FOR DEFENDANTS/APPELLEES:
Daniel G. Brenner
R. Preston Mansour, Jr.

Nadia Marie de la Houssaye
Jones, Walker, Waechter, Poitenvent, Carrère & Denègre, L.L.P.
Post Office Drawer 3408
Lafayette, LA 70502-3408
(337) 262-9000
COUNSEL FOR DEFENDANTS/APPELLEES:
Dr. Vasanth Nalam
Louisiana Patient’s Compensation Fund

GENOVESE, Judge.

Plaintiffs-Appellants, Camille Landry, individually and on behalf of her

minor child, Tai Landry, and Ryan Landry, individually and on behalf of his minor

child, Tai Landry, and the defendants-appellees, Dr. Cong T. Vo, Dr. Rosaire

Josseline Belizaire, Dr. Vasanth Nalam and the Louisiana Patient’s Compensation

Fund, have filed a ―Joint Motion to Dismiss Appeals and All Claims Against Dr.

Cong T. Vo, Dr. Rosaire Josseline Belizaire, Dr. Vasanth Nalam and the Louisiana

Patient’s Compensation Fund.‖ The defendant-appellee, Pediatric Services of

America, Inc. (PSA), has filed a memorandum in opposition to the motion to

dismiss. For the reasons expressed below, we deny the motion.

Following the issuance of this court’s opinion in this appeal, the plaintiffs

filed a writ application with the Louisiana Supreme Court, which remains pending

due to a stay issued by that court while plaintiffs’ nullity action is decided by the

trial court. The supreme court granted plaintiffs’ motion lifting the stay ―for . . .

the limited purpose of allowing the plaintiffs[] to file a motion to dismiss claims

against Dr. Vo, Dr. Belizaire, Dr. Nalam and the Louisiana Patient’s Compensation

Fund.‖

Plaintiffs filed a motion to dismiss their claims against these four defendants

in this court. The motion was opposed by the only other defendant, PSA. This

court issued its opinion denying this motion on May 20, 2015. Plaintiffs and the

four other defendants have again filed a joint motion to dismiss, and this time

plaintiffs’ counsel attached an affidavit allegedly in compliance with the provisions

set forth in Uniform Rules—Courts of Appeal, Rule 2–8.3, asking in this motion

that this court dismiss the plaintiffs’ claims against these four defendants, but

reserving the plaintiffs’ claims against PSA. PSA opposes this motion.

Uniform Rules—Courts of Appeal, Rule 2–8.3 provides, ―Any appeal may

be summarily dismissed or remanded by order of the court where there has been a

joint motion filed by all interested parties or their counsel of record, which

shall set forth the reason for such action and which shall be supported by

appropriate affidavits that the facts alleged are true and correct.‖1 Emphasis added.

Plaintiffs and the other four defendants, in their memorandum in support of the

motion to dismiss, never discuss the question of whether PSA is an ―interested

party‖ as this term is used in Rule 2–8.3. It appears from a reading of the

arguments set forth in the memorandum in support of the motion that the parties

thereto are suggesting that PSA has no interest in the dismissal of these other

defendants since any fault that may ultimately be assigned to the dismissed

defendants would reduce the plaintiffs’ recovery by their assigned percentage of

fault.

However, Rule 2–8.3 refers to ―[a]ny appeal,‖ not any motion to dismiss an

appeal, and we find that PSA is an ―interested party‖ in plaintiffs’ appeal.

Therefore, we find that PSA must also acquiesce in the granting of the motion to

dismiss in order to comply with Rule 2–8.3. PSA has filed a memorandum in

opposition to the motion; therefore, PSA clearly does not acquiesce. Accordingly,

we find that the movers have failed to comply with Rule 2–8.3, and we deny the

motion.

MOTION TO DISMISS DENIED.

1
As explained in this court’s opinion rendered on the plaintiffs’ first motion to dismiss,
Uniform Rules—Courts of Appeal, Rule 2–8.4 has no application to the facts of this case.

2