Festus Ogbebor, Individually and O/B/O Wife, Mary Ogbebor v. Lafayette General Medical Center

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-296

FESTUS OGBEBOR, INDIVIDUALLY AND
ON BEHALF OF HIS DECEASED WIFE,
MARY OGBEBOR

VERSUS

LAFAYETTE GENERAL MEDICAL CENTER, ET AL.

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ON APPLICATION FOR SUPERVISORY WRITS
FIFTEENTH JUDICIAL DISTRICT COURT
LAFAYETE PARISH, LOUISIANA
DOCKET NUMBER C-2016-3574 “I”
HONRABLE THOMAS J. DUPLANTIER, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, John E. Conery, and Van H. Kyzar,
Judges.

WRIT GRANTED AND MADE PEREMPTORY.

Charles J. Boudreaux, Jr.
Louis Simon II
Jones Walker LLP
600 Jefferson, Suite 1600
P.O. Drawer 3408
Lafayette, LA 70502-3408
(337) 593-7600
ATTORNEYS FOR DEFENDANTS/APPLICANTS
Dr. Louis Salvaggio
Dr. Nick Cavros

S. Douglas Busari
S. Douglas Busari & Associates, LLC
506 East Green Street
Tallulah, LA 71282
(318) 574-2955
ATTORNEYS FOR PLAINTIFF/RESPONDENT
Festus Ogbebor, Individually and on behalf
of his deceased wife, Mary Ogbebor

GREMILLION, Judge.

Defendants/Applicants, Dr. Louis A. Salvaggio and Dr. Nick G. Cavros

(Applicants), seek supervisory review from the judgment of the district court

granting a motion for new trial filed by Plaintiff, Festus Ogbebor, individually and

on behalf of his deceased wife, Mary Ogbebor. For the reasons that follow, we grant

the writ and make it peremptory.

FACTS AND PROCEDURAL POSTURE

On June 21, 2013, Mrs. Ogbebor presented to the emergency room of

Lafayette General Medical Center (LGMC) in Lafayette with complaints of anterior

chest discomfort with bilateral arm discomfort, shortness of breath, and sweating.

Following an EKG and a chest x-ray, Dr. Salvaggio performed a procedure on Mrs.

Ogbebor in the cardiac catheterization laboratory (cath lab) of LGMC. Later that

same day, Mrs. Ogbebor was taken back to the cath lab at the direction of Dr. Cavros

after she was found to have “a totally occluded first obtuse marginal, status post

recent PCI of the vessel with drug[-]eluting stint [sic].” Dr. Cavros performed

another procedure which included the placement of an aortic balloon pump. Dr.

Cavros discharged Mrs. Ogbebor on July 2, 2013. On July 4, 2013, at 5:37 a.m.,

Mrs. Ogbebor returned to the LGMC emergency room with complaints of severe

chest pain. The cath lab was not notified of her condition until 6:11 a.m. Mrs.

Ogbebor passed away at 6:31 a.m.

Festus Ogbebor, Mrs. Ogbebor’s husband, timely filed a request for review

by a medical review panel1 regarding the care administered by Applicants. The

medical review panel concluded that the evidence submitted in support of the claim

1 Additional defendants, LGMC and Dr. Philip Ralidis, were named in the medical panel
review request and the suit later filed against Dr. Salvaggio and Dr. Cavros. This writ applicatio n
does not involve LGMC or Dr. Ralidis.

did not show that Dr. Salvaggio or Dr. Cavros breached the applicable standards of

care.

On July 6, 2016, Mr. Ogbebor filed suit against Applicants, LGMC, and Dr.

Phillip Ralidis, asserting medical malpractice claims on behalf of Mrs. Ogbebor and

himself arising from her death. Applicants answered Mr. Ogbebor’s suit on July 26,

2017, and thereafter filed a motion for summary judgment on August 16, 2017. Mr.

Ogbebor filed an opposition to the motion for summary judgment to which he

attached the curriculum vitae of his expert, Dr. David Korn. Three days before the

hearing on the motion for summary judgment, Mr. Ogbebor filed a letter prepared

by Dr. Korn in which he opined that Applicants breached the standard of care

applicable to Mrs. Ogbebor’s symptoms and medical condition.

Applicants asserted in their motion that Mr. Ogbebor’s claims against them

should be dismissed because he did not have an expert witness to rebut the experts

on the medical review panel. At the summary judgment hearing, counsel for Mr.

Ogbebor argued that he did not have an affidavit from Dr. Korn because he did not

believe the expert he initially retained could withstand a challenge of her credentials

under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786

(1993). At the conclusion of the hearing, the trial court granted summary judgment

dismissing Mr. Ogbebor’s claims against Applicants because he had failed to

produce an affidavit by Dr. Korn supporting his claims.

Mr. Ogbebor filed a motion for new trial, asserting that he had new evidence

that warranted the grant of his motion as provided in La.Code Civ.P. art. 1972. At

the hearing on the motion for new trial, Mr. Ogbebor produced an affidavit executed

by Dr. Korn. Applicants argued that the affidavit was not new evidence because Mr.

Ogbebor obtained and submitted a letter opinion by Dr. Korn before the hearing on

the motion for summary judgment. Mr. Ogbebor argued to the trial court that he did

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not get an affidavit from Dr. Korn, because there “was a national disaster,” “so much

of [a] national event, everyone in the country knows about it.” The trial court granted

the new trial, finding Dr. Korn’s affidavit “to be new evidence and that it was beyond

[Mr. Ogbebor’s] control . . . to provide that.”

ANALYSIS AND DISCUSSION

“Our jurisprudence clearly establishes that the grant of a motion for new trial

is a not a final, appealable judgment, but rather, an interlocutory judgment[.]”

McGinn v. Crescent City Connection Bridge Auth., 15-165, p. 4 (La.App. 4 Cir.

7/22/15), 174 So.3d 145, 148. See also, La.Code Civ.P. arts. 1841, 1915. Generally,

the proper procedural vehicle for the review of an interlocutory judgment is an

application for supervisory writs. McGinn, 174 So.3d 145. The reversal of the trial

court’s grant of a new trial would result in dismissal of Mr. Ogbebor’s claims against

Applicants.

A 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, 94-924, 94-963, 94-992 (La. 10/17/94), 643 So.2d 1228.

As a general rule, expert testimony is required to establish the applicable standard

of care and whether that standard was breached, unless the negligence is so obvious

that a lay person can infer negligence without the guidance of expert testimony.

Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880 (citing Pfiffner, 643 So.2d

1228).

In their motion for summary judgment, Applicants asserted that the opinions

of the medical review panel established that Mr. Ogbebor could not meet his burden

of proving the three elements of his malpractice claim without expert medical

testimony. Applicants further asserted that although Mr. Ogbebor responded to

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year-old discovery requests in September 2017, he did not identify an expert or

submit an expert opinion.

The hearing on the motion for summary judgment was held November 20,

2017. The trial court determined that because Mr. Ogbebor filed Dr. Korn’s letter

less than fifteen days before the hearing, it was not timely under La.Code Civ.P. art.

966(B)(2). The trial court further determined that Dr. Korn’s letter opinion did not

satisfy the evidentiary requirements of La.Code Civ.P. art. 966(A)(4), which

provides, “The only documents that may be filed in support of or in opposition to

the motion are pleadings, memoranda, affidavits, depositions, answers to

interrogatories, certified medical records, written stipulations, and admissions.”

Therefore, the trial court granted summary judgment in favor of Applicants and

dismissed Mr. Ogbebor’s claims against them.

Mr. Ogbebor filed a motion for new trial based on La.Code Civ.P. art. 1972’s

provision that a new trial shall be granted when “evidence important to the cause,

which he could not, with due diligence, have obtained before or during the trial” is

discovered “since the trial.” La.Code Civ.P. art. 1972(2). Additionally, a “new trial

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

provided by law.” La.Code Civ.P. art. 1973. Mr. Ogbebor’s motion for new trial

asserted in argument that the basis for his motion was his contention that a hurricane

prevented him from timely obtaining and filing an affidavit by Dr. Korn. The trial

court acknowledged that the record established that Mr. Ogbebor retained and

identified Dr. Korn as his expert prior to the hearing on Applicants’ motion for

summary judgment but explained that Mr. Ogbebor also had to show why he had

not filed an affidavit before the hearing on the motion for summary judgment.

Counsel for Mr. Ogbebor responded:

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[I]t was a national disaster on country [sic] . . . Everyone was quite
aware of that, Judge. That was the reason why we . . . didn’t get the
affidavit. We could have done it, you know, got the affidavit if, clearly,
it was thought that, you know, that it was required, but because it was
so much of [a] national event, everyone in the country knows about it
right after the one in Texas, so we are sure the Court was quite aware
of that, Your Honor.

The fifth circuit addressed the requirements of a successful motion for new

trial on the basis of new evidence in Burns v. Sedgwick Claims Management

Services,14-421, p. 11 (La.App. 5 Cir. 11/25/14), 165 So.3d 147, 155(citations

omitted), where it explained:

The moving party bears the burden of proving that there are
adequate grounds for a new trial. When a claim is made that a new trial
is warranted due to newly discovered evidence, there must be a clear
showing, not only that the evidence was discovered after the conclusion
of the proceedings, but that every reasonable and diligent effort was
made to procure it before the proceedings.

See also, Holloway Drilling Equip., Inc. v. Bodin, 12-355 (La.App. 3 Cir. 11/7/12),

107 So.3d 699. The trial court’s grant of a motion for new trial is reviewed under

the abuse of discretion standard of review. Id.

Mr. Ogbebor acknowledged that his expert witness was not newly-discovered

evidence but argued that a hurricane prevented him from obtaining an affidavit from

Dr. Korn and filing it as required by La.Code Civ.P. art. 966. He did not, however,

present any evidence supporting this claim. Mr. Ogbebor did not identify the

hurricane/national disaster that prevented him from obtaining Dr. Korn’s affidavit

nor describe how the hurricane/national disaster prevented him from obtaining the

affidavit. The existence of a hurricane/national disaster alone does not satisfy

Mr. Ogbebor’s burden of proof. Mr. Ogbebor did not establish that a

hurricane/national disaster prevented Dr. Korn from preparing, executing, and

forwarding an affidavit to him before the hearing on the motion for summary

judgment. Indeed, he admitted that “we could have . . . got [sic] the affidavit if [we

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thought] that it was required,” but then implied that he thought the requirement

would not apply because of the “national event.”

Mr. Ogbebor obtained an affidavit from Dr. Korn for the hearing on his

motion for new trial that addressed the merits of his claims against Applicants.

Nonetheless, the transcript shows that Dr. Korn did not explain in his affidavit that

a hurricane/national disaster prevented him from providing Mr. Ogbebor an affidavit

before the hearing on the motion for summary judgment. Accordingly, Mr. Ogbebor

did not establish that Dr. Korn’s affidavit was newly-discovered evidence or that a

hurricane/national disaster excused his failure to timely obtain an affidavit from Dr.

Korn.

For these reasons, we find that the trial court abused its discretion in granting

Mr. Ogbebor’s motion for new trial. Applicants’ writ is granted, the trial court’s

ruling reversed, and the judgment granting summary judgment in favor of Applicants

is reinstated. All costs of this proceeding are taxed to Plaintiff/Respondent, Festus

Ogbebor, individually and on behalf of his deceased wife, Mary Ogbebor.

WRIT GRANTED AND MADE PEREMPTORY.

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