Camille Landry v. Pediatric Services of America, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-376

CAMILLE LANDRY, ET AL.

VERSUS

PEDIATRIC SERVICES OF AMERICA, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20132251
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Marc T. Amy, Judges.

REVERSED AND REMANDED.

John L. Hammons
Nelson & Hammons
705 Milam Street
Shreveport, LA 71101
(318) 227-2401
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Ryan Landry, et al.

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

J. 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:
PSA of Lafayette, LLC
P S A of Lafayette, LLC
Pediatric Services of America, Inc.

Monica A. Frois
Brandy N. Sheely
Baker Donelson Bearman Caldwell & Berkowitz, P.C.
201 St. Charles Avenue, Suite 3600
New Orleans, LA 70170-3600
(504) 566-5200
COUNSEL FOR DEFENDANTS/APPELLEES:
PSA of Lafayette, LLC
P S A of Lafayette, LLC
Pediatric Services of America, Inc.

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

Nadia de la Houssaye
Jones Walker, L.L.P.
Post Office Drawer 3408
Lafayette, LA 70502-3408
(337) 262-7600
COUNSEL FOR DEFENDANTS/APPELLEES:
Louisiana Patient’s Compensation Fund
Dr. Vasanth Nalam

AMY, Judge.

The plaintiffs filed a petition seeking to annul an underlying judgment

rendered following a jury trial. The plaintiffs alleged that, during the trial, a juror

spoke to the trial court regarding her concerns about continuing to serve on the jury

and that the trial court did not advise the parties of that conversation. This decision

not to disclose the juror communication, the plaintiffs argued, constituted a

condition rendering the judgment null under La.Code Civ.P. art. 2004. The trial

court dismissed the plaintiffs‟ petition after sustaining the defendants‟ motion to

strike the affidavit of the juror and, in turn, the defendants‟ exceptions of no cause

of action. The plaintiffs appeal. For the following reasons, we reverse the ruling

of the trial court and remand for further proceedings.

Factual and Procedural Background

The plaintiffs, Camille Landry and Ryan Landry, are the parents of a minor

child who experienced breathing distress and, ultimately, brain damage from a

hypoxic brain injury. The plaintiffs filed the underlying matter seeking damages

related to that condition from various health care providers and a medical

equipment provider. Following a multi-week trial, the jury returned a verdict

attributing the fault to a nonparty physician. That verdict was affirmed on appeal.

See Landry v. PSA of Lafayette, LLC, 12-277 (La.App. 3 Cir. 11/7/12), 120 So.3d

707. Thereafter, the plaintiffs filed a writ application with the Supreme Court of

Louisiana.

Before resolution of that writ application, however, the plaintiffs filed a

“Petition to Annul Judgment Pursuant to La.C.C.P. Article 2004.” In that separate

proceeding, the plaintiffs alleged that during the course of trial, one of the jurors

approached the initial trial court judge and first informed him that the multi-week

trial had created difficulties with her work schedule. Later, and at issue here, the

juror informed the trial judge that during the course of the presentation of evidence

she had identified her name and writing on hospital records for the minor child that

were published to the jury. She also explained that she recalled having a

conversation with fellow nurses about one of the child‟s medical conditions.

Referencing the attached affidavit of the juror, the petition suggested that the juror

expressed to the trial judge “that she did not feel it was appropriate since she had

actually treated the child and recalled having discussed the condition of „cortical

thumb‟ with other nurses.”

The petition alleged that the trial judge “responded to [the juror] that she was

not to disclose this information to any other jurors and also told her that he was not

going to disclose this fact to the lawyers representing the litigants. He then

instructed her to continue to serve as a juror.” The plaintiffs asserted, however,

that the trial judge “had a legal obligation to notify the parties and to allow them to

question this juror in open court.” The failure to do so, the plaintiffs alleged,

tainted the verdict and rendered the judgment “null as a matter of law.” For these

reasons, the plaintiffs sought a full trial on the petition to annul judgment and a

declaration that the underlying judgment is null.

In response, Pediatric Services of America, Inc. (PSA), one of the

defendants in the underlying matter, filed an exception of no cause of action and

submitted that the plaintiffs‟ “nullity action is barred as a matter of law by its

failure to exercise due diligence during voir dire.” In a supporting memorandum,

PSA developed the argument, noting that the subject juror stated in an affidavit

attached to the petition that she had disclosed during voir dire that she previously

worked as a neonatal nurse, had been employed at the hospital where the child was

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hospitalized, and that she worked certain cases with several of the defendant

physicians. PSA noted therein that the juror did not otherwise retreat from her voir

dire admission that she could be a fair and impartial juror. PSA further argued

that, in light of the underlying facts revealed at voir dire, the petition does not

allege anything regarding the juror‟s employment as a nurse that could not have

been discovered with more fully developed voir dire questioning by the plaintiffs.

Otherwise, PSA asserted that the plaintiffs did not demonstrate that there was any

ill practice in the trial judge‟s decision not to reveal the conversation with the juror.

Instead, PSA suggested that no “rule, regulation, or standard” required the trial

court to alert the parties about the conversation with the juror. Finally, PSA argued

that the petition did not contain any facts demonstrating a causal relationship

between the decision not to disclose the conversation with the juror and the

ultimate jury‟s verdict. Thus, PSA alleged in its exception, the petition does not

set forth a cause of action.

Thereafter, two of the defendant physicians, Dr. Cong T. Vo and Dr. Rosaire

Josseline Belizaire, filed a motion to strike/exclude the juror‟s affidavit and related

allegations. Namely, the defendant physicians argued that the affidavit, attached to

the plaintiffs‟ petition, violated La.Code Evid. art. 606(B) since it contained

statements in an alleged attempt to “impeach the jury‟s verdict[.]” Therefore, the

defendant physicians asked the trial court considering the petition to annul to strike

the affidavit.

Additionally, the defendant physicians filed an exception of no cause of

action and alternative motion for summary judgment. In their memorandum in

support, the defendant physicians contend that the plaintiffs‟ petition largely

advances conclusions and not underlying facts that would demonstrate the

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occurrence of an ill practice. As did PSA, the defendant physicians asserted that

there was no legal obligation for the trial judge to reveal the juror disclosure to the

parties, the affidavit did not indicate that the juror was not impartial, and the

plaintiffs did not allege that the juror discussed her recollections with the other

members of the jury. Finally, the defendant physicians also argued that a more

complete voir dire process could have revealed the information discovered during

the midst of trial. In support of their alternative motion for summary judgment, the

defendant physicians attached excerpts from the portions of the jury voir dire in

which the juror was questioned regarding her work as a neonatal nurse and her

familiarity with some of the medical issues that would be before the court.

The petition to annul judgment was assigned to Judge Edward Rubin, who

heard the motion to strike, exceptions of no cause of action and motion for

summary judgment. Providing written reasons for ruling in a minute entry, Judge

Rubin first granted the motion to strike, finding that the affidavit did, in fact,

address areas prohibited by La.Code Evid. art. 606(B). The trial court further

granted the defendants‟ exceptions of no cause of action and, in turn, determined

that the defendant physicians‟ alternative motion for summary judgment was

rendered moot. Following that ruling, Judge Rubin entered judgment sustaining a

motion to strike the juror‟s affidavit and an exception of no cause of action filed by

the Louisiana Patient‟s Compensation Fund and another defendant physician, Dr.

Vasanth Nalam. The judgment indicated that it did so upon consideration of its

previously rendered minute entry.

The plaintiffs appeal the judgments entered in favor of the various

defendants and assign the following as error:

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I. The trial court in the nullity action committed reversible error
by striking the Affidavit of Kim Mayer Gisclaire, a civil juror
in the underlying cause under Article 606(B)of the Code of
Evidence. Since the Affidavit in no way related to jury
deliberations but rather dealt with an undisclosed ex parte
communication between the juror and the trial judge four days
before the end of the trial concerning the juror‟s continued
ability to be a fair and impartial juror. The trial judge in the
nullity action committed reversible error since Article 606(B) of
the Code of Evidence is simply not applicable to the Affidavit
in question.

II. The trial court in the nullity action committed reversible error in
granting an exception of no cause of action and in ruling that
Judge Edward Broussard had no duty to advise counsel of
record of an ex parte communication between himself and a
trial juror who expressed doubts to him about her continued
ability to be a fair and impartial juror, and in ruling as a matter
of law that Judge Broussard had the legal discretion to decide
unilaterally to allow the juror to continue to serve without
advising counsel of record. The trial court in the nullity action
committed clear error since the failure of the judge in the
underlying case constitutes a deprivation of the due process
right to cross examine jurors in such a situation under Article
1769(B) of the Louisiana Code of Civil Procedure.

III. The trial court in the nullity action committed reversible error in
granting an exception of no cause of action and in ruling that
plaintiffs failed to allege facts which could establish a causal
link between the improper ex parte communication not revealed
to counsel and the jury verdict sought to be nullified. The trial
court in the nullity action committed reversible error since any
verdict and judgment which follows an improper ex parte
communication between the judge and a juror is considered
tainted and null as a matter of Louisiana law.

Discussion

Motion to Strike

Without elaboration in the minute entry, Judge Rubin granted the motions to

strike,1 finding that the affidavit was inadmissible under La.Code Evid. art. 606(B).

1
Louisiana Code of Civil Procedure Article 964 provides that: “The court on motion of
a party or on its own motion may at any time and after a hearing order stricken from any
pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or
scandalous matter.”

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That article, which pertains to the disqualification of a juror as a witness provides,

in part, that:

B. Inquiry into validity of verdict or indictment. Upon
an inquiry into the validity of a verdict or indictment, a juror may not
testify as to any matter or statement occurring during the course of
the jury’s deliberations or to the effect of anything upon his or any
other juror’s mind or emotions as influencing him to assent to or
dissent from the verdict or indictment or concerning his mental
processes in connection therewith, except that a juror may testify on
the question whether any outside influence was improperly brought to
bear upon any juror . . . [.] Nor may his affidavit or evidence of any
statement by him concerning a matter about which he would be
precluded from testifying be received for these purposes.

La.Code Evid. art. 606(B)(emphasis added).

After review, we find that the juror‟s affidavit and related allegations do not,

on their face, implicate La.Code Evid. art. 606(B). Clearly, the plaintiffs‟ petition

here seeks to annul the underlying judgment and the affidavit and the related

allegations were offered in support of that petition. However, the juror‟s affidavit

does not address the jury‟s deliberation or the juror‟s mental processes in

connection therewith.

Rather, the affidavit addresses events that occurred before deliberations

began and it is offered in support of a petition that questions whether those events

should have been made known to the parties so that they could consider the

appropriateness of whether the juror should be allowed to continue to serve or

whether the use of an alternate juror was required.2 In this sense, the deliberations

2
In the subject affidavit, the juror sets forth the information she provided to counsel
when questioned during voir dire, stating:

In my examination to become a juror, I revealed to the parties that . . . I
formerly had been a neonatal nurse working at Women‟s and Children‟s Hospital in
Lafayette, Louisiana. I further revealed that I had worked certain cases with three of the
defendants, Dr. Vasanth Nalam, Dr. Cong Vo and Dr. Rosaire Belizaire. In my
questioning, I indicated that despite the fact that I had worked with them, that I could be a
fair and impartial juror and I believed this to be so at the outset of the trial.

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and the juror‟s thought processes at that more distant point in time are largely

irrelevant, notwithstanding the fact that such evidence would be excluded by

La.Code Evid. art. 606(B).

Accordingly, we reverse the granting of the motion to strike the affidavit of

the juror and the petition‟s related allegations.

Fraud or Ill Practices

The plaintiffs‟ remaining two assignments of error address the petition to

annul judgment pursuant to La.Code Civ.P. art. 2004. That article provides that:

“A final judgment obtained by fraud or ill practices may be annulled.” La.Code

Civ.P. art. 2004(A). Such an action to annul a judgment on those grounds “must

be brought within one year of the discovery by the plaintiff in the nullity action of

Subsequently in the affidavit, the juror explained that, after one week of trial, she began
to experience scheduling and financial problems associated with her work and the
contemporaneous court proceedings. She explained that she and another juror expressed their
concerns to the trial judge, but that he informed them the employer‟s actions were beyond his
control and that she would have to continue serving as a juror. She stated that she also informed
him that she “was feeling very uncomfortable with continuing to serve as a juror because much
of the evidence was starting to involve friends and people I had worked with, such as Drs. Vo
and Belizaire. He instructed us to continue serving[.]”

The juror further explained that, later during the trial, she began to associate one of the
medical conditions experienced by the minor child with conversations she recalled having about
the condition with one of the “staff whose notes were being presented in evidence.” Even later,
she recognized her own name and writing as a neonatal nurse treating the minor child when
“certain medical records were broadcast onto a screen for viewing by the jury[.]” The juror
explained that:

At the next break, I realized that I needed to speak to Judge Broussard and asked to do so.
I spoke to Judge Broussard, who was also accompanied by his law clerk, Casey
Blanchette. I told him that I had seen my notes and my name as a treating nurse on the
case of Tai Landry. I did not feel it was appropriate since I had actually treated the child
and I recall discussing the condition of “cortical thumb” in connection with her treatment.
Judge Broussard told me that “you are not to disclose this information to the other jurors
and I am not going to disclose this to the lawyers.” He instructed me to continue to serve
as a juror.

The juror explained that she continued to do so. However, the juror stated in the affidavit
that she was “bothered about the meeting with Judge Broussard” and eventually provided the
subject affidavit to Ms. Landry‟s attorney.

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the fraud or ill practices.” La.Code Civ.P. art. 2004(B). See also Kem Search, Inc.

v. Sheffield, 434 So.2d 1067 (La.1983).

Notably, the Louisiana Supreme Court has explained that La.Code Civ.P.

art. 2004 is not limited to situations involving actual fraud or intentional

wrongdoing. Kem Search, 434 So.2d 1067. Rather, it is “sufficiently broad

enough to encompass all situations wherein a judgment is rendered through some

improper practice or procedure which operates, even innocently, to deprive the

party cast in judgment of some legal right, and where the enforcement of the

judgment would be unconscionable and inequitable.” Power Marketing Direct,

Inc. v. Foster, 05-2023, p. 16 (La. 9/6/06), 938 So.2d 662, 673 (emphasis added).

See also Wright v. Louisiana Power & Light, 06-1181, p. 24 (La. 3/9/07), 951

So.2d 1058, 1074 (wherein the supreme court addressed a nullity action in the

context of a party‟s alleged failure to disclose the existence of certain physical

evidence. The supreme court concluded that “[a]bsent a specific discovery request

or „knowing concealment,‟ failing to disclose information that might have been

helpful to the opposing party‟s case does not constitute fraud or ill practice if with,

reasonable diligence, the party could have ascertained the information himself.”)

However, the supreme court has cautioned that: “It is imperative that courts

review a petition for nullity closely as an action for nullity based on fraud or ill

practices is not intended as a substitute for an appeal or as a second chance to

prove a claim that was previously denied for failure of proof.” Belle Pass

Terminal, Inc. v. Jolin, Inc., 01-0149, p. 5 (La. 10/16/01), 800 So.2d 762, 766.

With that framework in mind, we turn to consideration of the defendants‟

challenges to the petition for nullity.

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Exception of No Cause of Action

As explained above, both PSA and the defendant physicians filed an

exception of no cause of action. Judge Rubin granted those exceptions, finding

that the plaintiffs failed to show a basis for the nullity action under either La.Code

Civ.P. art. 1769(B) or under the Code of Judicial Conduct.

Within the context of the peremptory exception, a “cause of action” is

defined as the operative facts giving rise to a plaintiff‟s right to judicially assert the

action against the defendant. State, Div. of Admin. v. Infinity Sur. Agency, 10-2264

(La. 5/10/11), 63 So.3d 940. The exception of no cause of action is used to test the

legal sufficiency of the petition and inquires whether the law affords a remedy

based on the facts alleged in the pleading. Id. As no evidence may be introduced

to support or challenge the exception, the trial court considers whether, on the face

of the petition, the plaintiff is legally entitled to the relief sought. Id. All well-

pleaded allegations of fact are accepted as true and correct, and all doubts are

resolved in favor of the sufficiency of a petition so as to afford litigants their day in

court. Jackson v. City of New Orleans, 12-2742 (La. 1/28/14), 144 So.3d 876. It is

the moving party who must bear the burden of demonstrating that the petition

states no cause of action. Id. On review of a trial court‟s judgment on the

exception, an appellate court considers the matter de novo since the exception

raises a question of law. Id.

After review of the petition, we find that it does, in fact, sufficiently set forth

facts establishing the existence of a cause of action. As noted by the plaintiffs,

Louisiana Code of Civil Procedure Article 1769(B) provides that: “Alternate

jurors, in the order in which they are called, shall replace jurors who, prior to the

time the jury retires to consider its verdict, become unable or disqualified to

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perform their duties.” The plaintiffs here alleged facts in support of their view that

the subject juror may have become unable or disqualified to perform her duties

during the course of trial, thereby invoking the operation of Article 1769.

Certainly, as recounted by the juror in the affidavit and repeated in the petition, the

juror “expressed some discomfort with continuing to serve as a juror” to the trial

judge because of the revelations regarding her potential involvement in the care of

the child and that “she did not feel that it was appropriate[.]” While these

statements are perhaps vague and not ultimately indicative that the juror had

become unable or unqualified to serve due to bias, the statements are not

insignificant. Thus, we find that they are sufficient to allege the existence of a

cause of action on the issue of whether some improper procedure or practice

deprived the plaintiffs of an opportunity to consider/challenge the juror‟s continued

service. Significantly, in consideration of an exception of no cause of action all

doubts are resolved in favor of maintaining the petition. See Jackson, 144 So.3d

876.

Accordingly, we find error in the sustaining of the exception of no cause of

action. We reverse that ruling and deny the exception.

Finally, we note that the defendant physicians filed an alternative motion for

summary judgment and supported that motion with excerpts from the voir dire

transcript which contains questioning between the parties and the subject juror

regarding her work as a neonatal nurse. However, in light of its ruling on the

exceptions of no cause of action, the trial court determined that the motion for

summary judgment was moot. As the trial court did not address the alternative

motion for summary judgment, we do not review that motion for the first time on

appeal. Rather, we remand this matter for the trial court‟s consideration of the

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alternative motion for summary judgment and for further proceedings. See, e.g.,

Mouton v. Hebert’s Superette, Inc., 10-787, pp. 9-10 (La.App. 3 Cir. 12/8/10), 53

So.3d 561, 566 (wherein a panel of this court explained that, in order “[t]o preserve

the proper allocation of functions between trial and appellate courts, an appellate

court may remand to the trial court instead of conducting a de novo review.”).

DECREE

For the foregoing reasons, the trial court‟s judgment is reversed and

judgment is entered as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the Motion to Strike Juror Affidavit and Related
Allegations by Plaintiff filed by Dr. Cong Vo and Dr. Rosaire
Belizaire be, and is hereby, DENIED.

IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the Peremptory Exception of No Cause of Action
filed by Dr. Cong Vo and Dr. Rosaire Belizaire and the Peremptory
Exception of No Cause of Action filed by Pediatric Services of
America, Inc. be, and are hereby, DENIED.

This matter is remanded for consideration of the Alternative Motion for Summary

Judgment filed by Dr. Cong T. Vo and Dr. Rosaire Josseline Belizaire as well as

for further proceedings. Costs of this appeal are assigned equally to the defendants

appellees, Drs. Vo and Belizaire, Pediatric Services of America, Inc., and The

Louisiana Patient‟s Compensation Fund on Behalf of Dr. Vasanth Nalam.

REVERSED AND REMANDED.

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