PATRICK SIMMONS, SR. AND CRYSTAL SIMMONS, INDIVIDUALLY AND ON BEHALF OF THEIR DECEASED MINOR CHILD, ELI SIMMONS, ET AL.
THE STATE OF LOUISIANA, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, ET AL
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-03522, DIVISION " G-11" . Honorable Robin M. Giarrusso, Judge.
John J. Finckbeiner, Jr., Rachel L. Moss, LAW OFFICE OF FINCKBEINER & ROBIN, Chalmette, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
Benjamin J. Biller, C. Wm Bradley, Jr., BRADLEY MURCHISON KELLY & SHEA, LLC, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.
(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Rosemary Ledet).
Edwin A. Lombard, J.
[2015-0034 La.App. 4 Cir. 1] The plaintiffs, Patrick Simmons, Sr., and Crystal Simmons, individually and on behalf of their minor children, Marcus, Ania, and their deceased child, Eli, appeal the district court judgment of October 3, 2015, granting the exception of no cause of action and dismissing all causes of action against the office of the Coroner of Orleans Parish and the coroner, Dr. Frank Minyard, in his professional capacity. After de novo review of the record in light of the applicable law and arguments of the parties, we reverse the judgment of the district court.
Relevant Facts and Procedural History
On or about February 11, 2013, the Simmons' children were removed from the physical care and control of their parents by an agency of the State of Louisiana and placed in foster care. On or about April 8, 2013, the State agency advised Mr. and Mrs. Simmons that Eli had been taken to Children's Hospital in New Orleans. Upon arrival at the hospital, Mr. and Mrs. Simmons were advised of Eli's death.
[2015-0034 La.App. 4 Cir. 2] In this lawsuit filed on April 8, 2014, the plaintiffs allege that the coroner's office received Eli's body on April 10, 2013, to perform an autopsy as to the cause of death but failed to do so or to provide proper information as to the cause of death. In addition, the plaintiffs claim that Eli's body was misplaced by the coroner's office because, despite repeated requests and court orders to maintain and preserve the body for a period of nine months, the coroner's office was apparently unable to locate the body until, approximately nine months after the child's death and without notification to the family, the coroner's office cremated the body and buried it in an as yet undisclosed (to the family) " John Doe" burial plot. The plaintiffs assert that these acts and omissions constitute gross and/or intentional negligence by the coroner's office, as well as intentional infliction of emotional distress on the remaining family members.
The " Defendant Coroner of the Parish of Orleans, in his official capacity" (the coroner's office) filed a peremptory exception for no cause of action and, alternatively, dilatory exceptions of vagueness and improper cumulation of actions on May 30. 2014. In response, the plaintiffs filed an amended and supplemental petition for damages on July 10, 2014, again asserting that the coroner's office and Dr. Minyard in his professional and personal capacities, negligently and/or intentionally misplaced their son's body and then, nine months later, negligently and/or intentionally cremated the body without notifying the court or family and that these action were in direct violation of Louisiana law, including but not [2015-0034 La.App. 4 Cir. 3] limited to procedural mandates for coroners set forth in La. Rev. Stat. 13:5701 et seq.
The peremptory exception of no cause of action at issue in this appeal was filed by the coroner's office on August 7, 2014. The following day, an order to show cause ...