Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana. Trial Court No. 2012-3824. Honorable Benjamin Jones, Judge.
RICHARD L. FEWELL, JR., Counsel for Appellant.
SMITH & ROBERTS, LLP, By: Steven Eric Soileau, MAYER, Counsel for Appellee.
Before BROWN, DREW and LOLLEY, JJ.
[49-571 La.App. 2 Cir. 1] DREW, J.
Laura and Charles Joiner appealed the summary judgment dismissing at their costs their suit seeking damages for a knee injury allegedly sustained by Mrs. Joiner when she got off an exercise bicycle during a physical therapy session. Named defendants were Jesse L. Wied, P.T. Physical Therapy Clinic, Inc. aka Wied Physical Therapy (" Wied" ), and Wied's insurer, American Casualty Company.
Filed December 13, 2012, the plaintiffs' petition asserted that Mrs. Joiner had neck surgery in Jackson, Mississippi, on December 1, 2011. Her surgeon prescribed physical therapy, which she began with Wied on December 20, 2011. For her first visits, the attendant adjusted the exercise bicycle for Mrs. Joiner prior to her using it and returned to assist her in getting off the machine.
On a third or fourth visit, Mrs. Joiner was placed on the same bicycle, but the attendant did not adjust it, and merely told Mrs. Joiner to get off after five minutes. The attendant left and did not return. The plaintiffs maintain Mrs. Joiner was left on the machine an excessive length of time, which resulted in her injuries: multiple tears of the posterior one-half medial meniscus, left knee and chondramalacia of medial femoral condyle. As a result of her injuries, Mrs. Joiner underwent an arthroscopic medial meniscectomy and an arthroscopic chondroplasty of the medial femoral condyle.
The plaintiffs asserted that her repair surgeries were not successful and that she had to undergo complete knee replacement surgery. Thereafter, she required surgery for the doctor to manipulate the prosthesis. Also, she [49-571 La.App. 2 Cir. 2] alleged further left knee surgery may be necessary and the knee replacement may need to be redone. Additionally, plaintiffs stated in the petition that she has returned to using a walker and faces the possibility of being confined to a wheelchair.
Specific allegations of negligence were that the attendant failed to properly adjust the exercise bicycle and failed to return in time to prevent Mrs. Joiner's injuries. Wied's alleged negligence was hiring an improperly trained attendant and failing to supervise the attendant to ensure that she correctly performed her duties so as to prevent harm to Mrs. Joiner. The Joiners' petition was accompanied by interrogatories and request for discovery.
In an affidavit filed December 2, 2013, Mrs. Joiner additionally asserted that in getting off the bicycle, she twisted and slightly torqued her left knee, which caused considerable pain and discomfort.
On January 16, 2013, the defendants transmitted to plaintiffs written interrogatories and requests for production of documents, as well as a medical release for Mrs. Joiner to sign. The defendants answered on January 22, 2013, asserting that Mrs. Joiner's problems were associated with a preexisting condition and excepting that Charles Joiner had not stated a cause of action.
Defendants filed a motion to compel discovery responses against the Joiners, to which they attached defendants' correspondence dated March 25, April 23, and May 5, 2013, seeking responses to their discovery requests. On November 4, 2013, the defendants filed a motion for summary judgment [49-571 La.App. 2 Cir. 3] accompanied by a memo of authority and exhibits supporting the motion. The trial court set the hearing on the motion for December 9, 2013. On December 2, the Joiners filed a motion to dismiss or stay the motion for summary judgment along with a memo and attached exhibits. On December 6, defendants filed an additional memo supporting their motion for summary judgment.
Notwithstanding the Joiners' late filing of their request to dismiss or stay the defendants' motion for summary judgment, the defendants wanted to proceed and noted that the Joiners had not requested a continuance of the hearing.
At the outset, the trial court heard arguments on the requested dismissal or stay. The Joiners argued that discovery was still pending and depositions needed to be ...