John Henry Sandlin v. Abc Ins. Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 12-725

JOHN HENRY SANDLIN, ET AL.

VERSUS

ABC INS. CO., ET AL.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-108-10
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

AFFIRMED.

Michael H. Schwartzberg
Vamvoras, Schwartzberg, & Hinch, LLC
1111 Ryan St.
Lake Charles, LA 70601
(337) 433-1621
COUNSEL FOR PLAINTIFF/APPELLANT:
John Henry Sandlin

David L. Bateman
Bateman Law Firm
6010 Perkins Road, Ste A
Baton Rouge, LA 70808
(225) 766-8484
COUNSEL FOR PLAINTIFF/APPELLANT:
John Henry Sandlin

Mark Wayne Verret
Allen & Gooch
3900 N. Causeway Blvd., #1450
Metairie, LA 70002
(504) 836-5270
COUNSEL FOR DEFENDANTS/APPELLEES:
The Therapy Center of JeffersonDavis Parish, Inc.
Baxter Deal

EZELL, Judge.

John Sandlin appeals the decision of the trial court below granting summary

judgment in favor of Baxter Deal and the Therapy Center of Jefferson Parish. For the

following reasons, we hereby affirm the decision of the trial court.

The instant matter is a negligence claim against Mr. Deal and the facility where

he renders physical therapy services. Mr. Sandlin was prescribed physical therapy

from Mr. Deal after back surgery in 2009. The prescription called for aquatic therapy.

Mr. Sandlin chose Mr. Deal because he was the closest therapist to his home that had

a pool. Mr. Sandlin claims that he was improving after surgery until Mr. Deal

disregarded his physician’s orders for aquatic therapy and performed manipulations

on his legs and back. Mr. Sandlin claims that during one of these manipulations he

suffered a ruptured disc. He filed the current suit seeking damages for that injury and

the resulting surgery. Mr. Deal filed a motion for summary judgment seeking

dismissal of Mr. Sandlin’s claims, which was granted by the trial court. From that

decision, Mr. Sandlin appeals.

Mr. Sandlin asserts two assignments of error. He claims that the trial court

erred in failing to grant his motion to continue and that the trial court erred in granting

Mr. Deal’s motion for summary judgment.

Mr. Sandlin first claims that the trial court erred in failing to grant his

continuance in light of the fact that he had relevant depositions scheduled after the

date of the hearing on the motion for summary judgment. A denial of a motion for

continuance will not be disturbed absent a showing of an abuse of discretion by the

trial court. Woods v. City of Shreveport, 40, 393, 40, 394 (La.App. 2 Cir. 10/26/05),

914 So.2d 635. Mr. Sandlin claims that he was unable to secure expert testimony in

this case because his physician’s deposition was postponed due to the doctor’s ill

health and his eventual death. Mr. Sandlin further claims that the rescheduling was at

Mr. Deal’s request. However, the record in this case shows that, while Mr. Deal had

asked to reschedule Dr. Fraser Landreneau’s deposition, the doctor’s office had

already informed Mr. Sandlin that he was unable to participate in the deposition due

to his failing health prior to the actual cancelation of the deposition. Mr. Sandlin

knew Dr. Landreneau would be unavailable no later than March 23, 2011, over one

full year before the hearing on the summary judgment. While parties must be given a

fair opportunity to carry out discovery and present their claim, there is no absolute

right to delay an action on a motion for summary judgment until discovery is

complete. Borne v. New Orleans Health Care, Inc., 580 So.2d 1070 (La.App. 4 Cir.),

writ denied, 586 So.2d 533 (La.1991). Mr. Sandlin had three years from the filing of

his suit, one year from his notification that Dr. Landreneau could not participate in his

scheduled deposition, and another six months after his doctor’s death to secure expert

testimony regarding this claim. He did not. In light of the record before this court,

we find that the trial court did not abuse its discretion in denying Mr. Sandlin’s

motion for a continuance.

Next, Mr. Sandlin claims the trial court erred in granting Mr. Deal’s motion for

summary judgment in light of evidence in the record regarding Mr. Deal’s alleged

breach of the standard of care. Again, we disagree. As noted in Hargrove v. Goods,

41, 817, 41, 934, pp. 2-3 (La. App. 2 Cir. 2/28/07), 953 So.2d 968, 971:

On appeal, a trial court’s ruling on a motion for summary
judgment is reviewed pursuant to the de novo standard of review. Jones v.
Estate of Santiago, 03–1424 (La.4/14/04), 870 So.2d 1002.

Our law provides that the summary judgment procedure is
designed to secure the just, speedy, and inexpensive determination of
every action, except those disallowed by law; the procedure is favored
and shall be construed to accomplish these ends. La. C.C.P. art.
966(A)(2); Racine v. Moon’s Towing, 2001–2837 (La.05/14/02), 817

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So.2d 21. If the pleadings, depositions, answers to interrogatories, and
admissions on file, together with any affidavits, show that there is no
genuine issue of material fact and that the mover is entitled to judgment
as a matter of law, then summary judgment shall be rendered. La. C.C.P.
art. 966; Patton v. Strogen, 39,829 (La.App.2d Cir.8/17/05), 908 So.2d
1282, writ denied, 2005–2397 (La.3/17/06), 925 So.2d 548.

As explained in La. C.C.P. art. 966(C)(2) and throughout our
jurisprudence, the burden of proof on a motion for summary judgment
remains with the movant. However, when the movant will not bear the
burden of proof at trial on the matter before the court on the summary
judgment motion, the burden does not require the movant to negate all
essential elements of the adverse party’s claim, but rather to point out
that there is an absence of factual support for one or more elements
essential to that claim. La. C.C.P. art. 966(C)(2). If the adverse party then
fails to produce factual support sufficient to establish that he will be able
to satisfy his evidentiary burden at trial, there is no genuine issue of
material fact. Id.

As provided in La. C.C.P. art. 967(B), the adverse party may not
rest on the mere allegations or denials of his pleading in response to a
properly made and supported motion for summary judgment; rather, his
response, by affidavits or otherwise, must set forth specific facts showing
a genuine issue for trial. Otherwise, summary judgment shall be rendered
against him, if appropriate. La. C.C.P. art. 967(B).

After a thorough review of the record before this court, we can find no error in

the trial court’s ruling. While Mr. Deal’s actions in this matter were allegedly below

the standard of care, it is upon Mr. Sandlin to actually offer proof that they caused him

injury. He failed to do so. There is simply no evidence of a causal connection

between Mr. Deal’s actions and Mr. Sandlin’s injuries in the record. As noted by the

trial court itself:

[T]he plaintiff did not introduce any expert testimony sufficient to
establish a causal connection between the injuries SANDLIN alleged in
his petition and the actions of the defendants. This lawsuit was filed on
February 11, 2010, almost a year after the plaintiffs allege the injuries
occurred. As of the date of the hearing, three (3) years have passed since
SANDLIN’s treatment, yet the plaintiffs have not retained any medical
experts to support their contention that the THERAPY CENTER and
DEAL were negligent in their treatment of SANDLIN, causing him
further injuries and aggravation of his pre-existing condition.
Consequently, as the plaintiffs have not offered any factual and medical
support sufficient to establish that they will satisfy their evidentiary

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burden of proof at trial, there is no genuine issue of material fact, and the
defendants are entitled to have their Motion for Summary Judgment
granted.

The trial court committed no error in granting Mr. Deal’s motion for summary

judgment.

For the above reasons, the ruling of the trial court is hereby affirmed. Costs of

this appeal are assessed against Mr. Sandlin.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
RulesnCourts of Appeal. Rule 2-16.3.

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