Sarah Barber v. Louisiana Municipal Risk Management Agency Group Self-Insured Fund

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-1005

SARAH BARBER, ET AL.

VERSUS

LOUISIANA MUNICIPAL RISK

MANAGEMENT AGENCY GROUP

SELF-INSURED FUND, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 251,753
HONORABLE GEORGE CLARENCE METOYER JR, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie,
Judges.

REVERSED IN PART AND AFFIRMED IN PART.

Jeff Landry
Attorney General
Robert L. Bussey
Lewis O. Lauve, Jr.
Special Assistant Attorneys General
P. O. Drawer 8778
Alexandria, LA 71306
(318) 449-1937
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana

Lance B. Williams
Joshua Dierker
McCranie, Sistrunk, Anzelmo, Hardy, McDaniel
& Welch, LLC
195 Greenbriar Blvd., Suite 200
Covington, LA 70433
(504) 831-0946
COUNSEL FOR DEFENDANT/APPELLANT:
Estate of Larry Jeane, Sr.

Derrick G. Earles
David C. Laborde
Jeff D. Easley
Laborde Earles Law Firm, LLC
603 N. Washington St.
Marksville, LA 71351
(318) 261-2617
COUNSEL FOR PLAINTIFFS/APPELLEES:
Sarah Barber
Jamie Turner
Racheal Spivey
Jamie Turner, o/b/o Abbigail Turner
Elizabeth Spivey
Dana Spivey
Wallace Spivey
Racheal Spivey

GREMILLION, Judge.

In this tort case, Appellants, The Estate of Larry Jeane, Sr., Republic Fire &

Casualty Insurance Company, and the State of Louisiana, appeal a partial summary

judgment on the issue of liability in favor of Appellees. For the reasons that follow,

we reverse in part and affirm in part.

FACTS

This matter was initiated by the filing of a petition for damages concerning a

motor vehicle accident that occurred on July 18, 2014, when the vehicle driven by

then-Pineville City Marshal, Larry Jeane, Sr., crossed the center line of Louisiana

Highway 107 and struck the vehicle occupied by Appellees, Sarah Barber; Jamie

Turner; Racheal Spivey; the minor, Abbigail Turner; Elizabeth Spivey; Dana

Spivey; and Wallace Spivey. As a result of this collision, the occupants assert that

they sustained injuries.

Appellees filed a motion for partial summary judgment on the issue of Mr.

Jeane’s liability and asserting that they were free from fault. In support of their

motion, Appellees submitted the affidavit of Ms. Sandra Shannon, who was

operating the vehicle immediately in front of the Appellees’ vehicle and witnessed

the collision. In her affidavit, Ms. Shannon also attested to the fact that she gave a

recorded statement to Pineville police officers and to the fact that a true and correct

transcript of the statement was attached to her affidavit. Appellee Sarah Barber’s

affidavit was also attached. Appellees also attached the deposition of current

Pineville City Marshal, Sarah A. Smith.

Ms. Shannon’s affidavit stated that on July 18, 2014, she was driving north-

bound on Highway 107 at approximately forty-five miles per hour when she saw a

southbound pickup truck enter her lane. Ms. Shannon avoided being hit, but saw,

in her rearview mirror, the vehicle behind her collide with the truck. In her

recorded statement, Ms. Shannon stated, “I had plenty of time to get over but I

looked as he came closer and I could see he was slumped over.” The movement of

the truck into her lane was described by Ms. Shannon as “veering gently.” She

stated that there may have been another vehicle between her and the one hit by the

truck.

Ms. Barber attested that she was driving north on highway 107 when

“suddenly, without any prior warning, she saw the vehicle in front of her swerve

onto the shoulder.” She then saw a pickup truck traveling south in the northbound

lane. She attempted to get as far over as she could but was unable to avoid the

collision. The next thing she could recall was being extricated from the vehicle by

emergency personnel using the “jaws-of-life.”

Marshal Smith testified that she was not present at the scene until she was

notified by Mr. Michael Gates of the Marshal’s office that Mr. Jeane had been

involved in an accident. She went to the scene, where she found Mr. Jeane already

loaded into an ambulance. She rode in the ambulance with Mr. Jeane to the

hospital. Mr. Jeane told her that he did not know what had happened. After the

accident, Marshal Smith checked Mr. Jeane’s cell phone records.1

After filing their motion, Appellees supplemented the motion through the

filing of a supplemental memorandum. The certified records of Rapides Regional

Medical Center (RRMC) regarding Mr. Jeane’s treatment were introduced. The

physician who primarily attended to Mr. Jeane’s care at RRMC, Dr. Jeremy

Timmer, noted that Mr. Jeane was “on the phone with a friend, possible low blood

1
The excerpt of Marshal Smith’s deposition that was introduced to support Appellees’
motion does not disclose the results of her scrutiny of the cell phone records.
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sugar, the patient was talking funny on the phone, was the driver, and collided with

another vehicle.” Mr. Jeane had a long history of heart disease and type-II diabetes.

He sustained many injuries in the collision. Unfortunately, Mr. Jeane passed away

on July 20, 2014, at RRMC.

In opposition, Appellants submitted the affidavit of Dr. Brabson Lutz, M.D.,

M.P.H., F.A.C.P. Dr. Lutz is an internal medicine and infectious disease physician

with a practice in these fields since 1974. Dr. Lutz has been accepted as an expert

in many state and federal courts in Louisiana. After he was retained, Dr. Lutz

reviewed the accident report, statements of the various witnesses and investigators,

and Mr. Jeane’s medical records from Cenla Heart Specialists, Louisiana

Cardiology Associates, and Christus St. Francis Cabrini Hospital regarding Mr.

Jeane’s pre-accident treatment.

Appellees, in their reply memorandum, objected to Dr. Lutz’s affidavit

based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.

2786 (1993). Appellees also objected to the attachment of the coroner’s report but

withdrew that objection at the hearing on the motion for summary judgment.

The medical records indicated to Dr. Lutz that Mr. Jeane did not suffer from

a pre-accident hypoglycemic, cardiac, or other condition resulting in loss of

consciousness. According to the deposition testimony of Marshal Smith, Mr.

Jeane was bragging the day before the accident that his doctor had given him a

clean bill of health regarding his heart and his type-II diabetes. No physician had

placed limitations on Mr. Jeane’s driving. Laboratory results obtained at RRMC

indicated that Mr. Jeane’s blood sugar in the ambulance and at the emergency

room later demonstrated “appropriate levels,” indicating that hypoglycemia and

diabetes did not play a role in the accident.

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Dr. Lutz concluded that Mr. Jeane suffered a cardiac arrhythmia that

suddenly deprived his brain of oxygen, causing a loss of consciousness. This event,

according to Dr. Lutz, was unforeseeable.

The matter proceeded to hearing. The trial court ruled as follows (footnote

omitted):

For the reasons given on this date, July 10, 2017, it is the
finding of this court that the motion for summary judgment should be
granted based upon the fact that there is no issue of material fact. The
summary judgment procedure is designed to secure the just, speedy,
and inexpensive determination of every action. When the non-movant
such as the plaintiffs, does not carry the burden of proof at trial, the
mover in a partial summary judgment need only show a lack of factual
support for an essential element of the defense. The burden shifts to
the defendant to prove that they would be able to carry their burden of
proof at trial. Here, the defendants alleged an affirmative defense that
[Marshal Jeane] experienced a condition that was sudden, unexpected,
and without, warning. It is alleged that this condition prohibited
[Marshal Jeane] from pulling off the roadway. The defendant has the
burden of proving an affirmative defense by clear and convincing
evidence. It is the finding of the court that the defendants have not
met its burden of proof and for this reason Partial summary judgment
is granted.

Appellants sought supervisory relief from this court in which they

maintained that the judgment was final and appealable. Writs were denied on the

basis that the judgment was final and appealable, and Appellants had an adequate

remedy on appeal. Barber v. Louisiana Mun. Risk Mgmt. Agency Self-Insured

Fund, 17-730 (La.App. 3 Cir. 9/8/17) (unpublished opinion). Appellants then

perfected this appeal.

ASSIGNMENTS OF ERROR

In three assignments of error, Appellants assert that the trial court applied

the wrong standard of evidence in deciding to grant summary judgment, ignored

the uncontroverted affidavit of Dr. Lutz, and should not have granted summary

judgment.

ANALYSIS
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Courts of appeal employ de novo review of summary judgments, applying

the same analysis as does a trial court. Samaha v. Rau, 07-1726 (La. 2/26/08), 977

So.2d 880. “A de novo review gives no weight to the judgment of the trial court.”

Covington v. McNeese State Univ., 08-505, pp. 2-3 (La.App. 3 Cir. 11/5/08), 996

So.2d 667, 671, writ denied, 09-69 (La. 3/6/09), 3 So.3d 491. Therefore, we need

not consider Appellants’ first two assignments of error, because whether the trial

court applied the correct standard or erred factually are of no moment. The only

question before us is whether Appellees are entitled to judgment.

The movers bear the burden of proof in a motion for summary judgment to

prove that there is no genuine issue of material fact and that they are entitled to

judgment as a matter of law. La.Code Civ.P. arts. 966, 967.

The Louisiana Supreme Court held in Brannon v. Shelter Mutual Insurance

Co., 507 So.2d 194 (La.1987), that a driver who claims that his presence in

another’s proper lane of travel was due to sudden unconsciousness bears a high

burden of proving that by clear and convincing evidence. This high burden is

placed on that driver because of the difficulty attendant to dispelling such a

contention; proving a negative in such a case is nigh impossible. Quoting from

Rizley v. Cutrer, 232 La. 655, 663-64, 95 So.2d 139, 142 (1957), a roadway defect

case, the supreme court stated that a motorist claiming unforeseeable

circumstances as a defense must:

clearly [exhibit] that his conduct in no wise contributed to the accident.
By this, of course, we do not mean that such a motorist is the insurer
of the safety of those injured in an accident such as the one in the
instant case but only that, in order to be exonerated, he must establish
his freedom from all fault by clear and convincing proof.

The burden of proof of an affirmative defense lies with its proponent. Hines

v. Garrett, 04-806 (La. 6/25/04), 876 So.2d 764. However, in the instance in

which the affirmative defense is used to defeat summary judgment, he is not held
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to a burden of proof; rather, he bears a burden of production under which he must

merely demonstrate that a genuine issue of material fact precludes judgment.

La.Code Civ.P. art. 966 (D)(1). See also Covington, 996 So.2d 667.

A fact, for summary judgment purposes, is “material” if it potentially

ensures or precludes recovery, “affects a litigant’s ultimate success, or determines

the outcome of a legal dispute.” Hines, 876 So.2d at 765. A genuine issue of

material fact is an issue over which reasonable minds could disagree. Id.

We have already discussed the supporting and opposing documents

presented in this motion. We initially note that Appellants’ assignments of error

address the judgment in toto, but nothing complains of that portion of the judgment

that finds Appellees free from fault. We find nothing in our de novo review of the

record to convince us that there exists any genuine issue of material fact regarding

victim fault, and we affirm that portion of the trial court’s judgment. Several facts,

though, stand out which create genuine issues of material fact regarding Mr.

Jeane’s fault. Of course, Dr. Lutz’s affidavit opines that Mr. Jeane suffered a

sudden, unforeseeable cardia arrhythmia that deprived his brain of oxygen and

rendered him unconscious. Ms. Shannon’s statement that she saw Mr. Jeane

slumped over as his truck passed her supports Dr. Lutz’s opinion. Lastly, Marshal

Smith’s testimony regarding Mr. Jeane, the day before the accident “bragging to

me about how he had gotten a clear call from the facility in Shreveport that was

handling his blood sugar and diabetes and he’d gotten a clear report from his heart

doctor” indicate that any event like the arrhythmia opined by Dr. Lutz was not

foreseeable.

Appellees argue that this court should not consider Dr. Lutz’s affidavit

because it was subject to a challenge under Daubert, 509 U.S. 579. Appellees

contend that the trial court “must have implicitly sustained” this challenge. The
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trial court never ruled on this issue. As a general proposition, when a trial court

does not rule in favor of relief sought by a party, it is presumed that relief was

denied. M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La. 7/1/08), 998 So.2d

16.

Admissibility of an expert’s opinion is covered by La.Code Civ.P. art.

967(A), which provides, in pertinent part, “The supporting and opposing affidavits

of experts may set forth such experts’ opinions on the facts as would be admissible

under Louisiana Code of Evidence Article 702, and shall show affirmatively that

the affiant is competent to testify to the matters stated therein.” Nothing in the

record hints that Dr. Lutz is incompetent to testify about these matters, and his

catalog of the evidence he reviewed in arriving at his opinions satisfies the

requirement under La.Code Evid. art. 702(2) that the opinion be based upon

sufficient facts or data. Appellees’ complaint that the affidavit relies upon hearsay

is misplaced; experts can rely upon hearsay.

The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made
known to him at or before the hearing. If of a type reasonably relied
upon by experts in the field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in evidence.

La.Code Evid. art. 703. Further, “[i]n a civil case, the expert may testify in terms

of opinion or inference and give his reasons therefor without prior disclosure of the

underlying facts or data, unless the court requires otherwise. The expert may in

any event be required to disclose the underlying facts or data on cross-

examination.” La.Code Evid. art. 705(A).

Lastly, Appellees rely upon two cases in addition to Brannon to support their

contention that judgment is appropriate in his case: Cash v. McGregor, 31,537

(La.App. 2 Cir. 2/24/99), 730 So.2d 497, writ denied, 99-1117 (La. 6/4/99), 744

So.2d 628, and Lewis v. City of Shreveport, 43,249 (La.App. 2 Cir. 6/4/08), 985
7

So.2d 1249, writ denied, 08-1477 (La. 10/3/08), 992 So.2d 1018. Neither of these

cases are apposite to this matter. Cash would provide very informative guidance in

this matter, but the judgment in Cash was entered upon a jury verdict. Despite the

changed status of summary judgment as favored, it still does not substitute for trial

on the merits. S.J. v. Lafayette Parish Sch. Bd., 06-2862 (La. 6/29/07), 959 So.2d

884 (Johnson, J., concurring). Determining that a litigant has carried its burden of

proof, as in rendering a judgment after trial, is not at all the same as determining

that a litigant could carry that burden, as in denying summary judgment.

Lewis, too, involved a trial on the merits and is unhelpful for that reason.

Further, the negligent driver in Lewis was a commercial driver for a common

carrier. Common carriers have long been held to a higher standard than drivers of

non-commercial vehicles. See Frank L. Maraist & Thomas C. Galligan, Louisiana

Tort Law 144-45 (1996). Outside the context of a common carrier, we are aware

of no cases—and Appellees have cited none—that would hold a driver negligent

for operating a vehicle solely on the basis that the driver suffered from diabetes,

heart ailments, or chronic obstructive pulmonary disease without prior indications

of impairment. We decline to make such a holding.

In the present matter, there exists a very genuine issue of material fact

regarding whether Mr. Jeane was rendered unconscious while operating the truck

that struck the Appellees’ vehicle. Whether Appellants will carry this burden of

proof at trial remains to be seen, but we are not allowed to deprive them of that

opportunity on the basis of the record before us. The judgment of the trial court

finding Mr. Jeane at fault is reversed; the portion of the judgment finding

Appellees free from fault is affirmed. All costs of this appeal are taxed to

Appellees.

REVERSED IN PART AND AFFIRMED IN PART.
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