YVONNE AINSWORTH, INDIVIDUALLY AND ON BEHALF OF HER DECEASED MOTHER, SYLVIA TAYLOR
AMERICAN HOME ASSURANCE COMPANY, HEALTHCARE CASUALTY INSURANCE LIMITED, AGGREKO, LLC, AND TOURO INFIRMARY
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-00889,
DIVISION "J" HONORABLE Cherrell Sims Taplin, PRO
M. Bruno Melissa A. Debarbieris BRUNO & BRUNO LLP COUNSEL
Franklin D. Beahm Christopher G. Otten BEAHM & GREEN, LLC
COUNSEL FOR DEFENDANTS/APPELLEES
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Dennis R. Bagneris, Sr., Pro Tempore.
F. Love, Judge.
Ainsworth ("Ms. Ainsworth"), individually and on
behalf of her deceased mother, Ms. Sylvia Taylor ("Ms.
Taylor"), filed the instant lawsuit, alleging that the
conditions at Touro Infirmary ("Touro") during
Hurricane Katrina caused or contributed to the injuries Ms.
Taylor sustained while under its care. Ms. Ainsworth seeks
appellate review of the trial court's granting of summary
judgment in favor of Touro and Healthcare Casualty Insurance
Limited ("HCIL"). In light of the environmental
conditions at Touro and Touro's admitted failures to
adequately care for its patients, expert testimony is not
required to prove claims of temporary suffering. However, we
find expert testimony necessary to establish whether the
conditions at Touro contributed to or caused Ms. Taylor's
death. Therefore, as to plaintiff's wrongful death
claims, we find summary judgment premature. Pursuant to La.
C.C.P. art. 966(A)(3), we reverse the trial court's
ruling granting summary judgment and remand to allow Ms.
Ainsworth to conduct additional discovery.
HISTORY AND FACTUAL BACKGROUND
Taylor, an 82 year old woman, who had undergone radiation
therapy for lung cancer, was admitted to Touro on August 26,
2005. According to Touro's medical records, Ms. Taylor
presented with complaints of nausea and vomiting for three
days with an episode of hematemesis but was found not to be
in any "acute distress." She was diagnosed with
hematemesis, nausea, vomiting, dehydration, digoxin toxicity,
COPD, and lung cancer.
August 29, 2005, Hurricane Katrina struck the City of New
Orleans, causing severe damage, power outages, and a lack of
clean water. Ms. Taylor was not evacuated prior to the
hurricane making landfall and remained at Touro, whose
generators had failed. On August 31, 2005, Ms. Taylor was
evacuated from Touro. A discharge summary from Touro in UT
Southwestern's records for Ms. Taylor noted her
"long term prognosis poor." Medical records show
Ms. Taylor was admitted to University of Texas-Southwestern
Medical Center/St. Paul University Hospital ("UT
Southwestern") in Texas on September 1, 2005. However,
her medical records fail to indicate what transpired between
the time she was evacuated from Touro and her admission at UT
Southwestern the following day.
radiological consult on September 2, 2005, indicated that Ms.
Taylor's lung cancer had metastasized to her brain, and
it was recommended that "she undergo palliative
radiation therapy to the brain." On September 17, 2005,
Ms. Taylor was discharged from UT Southwestern in
"guarded" condition and was placed in a hospice
facility. Ms. Taylor passed away on October 14, 2005.
initially a putative class member in a class action suit
against Touro, Ms. Ainsworth timely filed suit individually
against Touro on January 23, 2014, after the denial of the
class. Ms. Ainsworth sought damages for Touro's
negligence, alleging Touro breached its duty to its patients
to evacuate them safely or to provide a safe and adequate
environment for them in the wake of Hurricane Katrina. Touro
and HCC filed a motion for summary judgment, and a hearing
was held, after which the trial court granted summary
Ms. Ainsworth's appeal was lodged with this Court, the
parties filed a joint motion to remand the matter on the
basis that the trial court's judgment lacked the
necessary decretal language in order for this Court to have
proper appellate jurisdiction. This Court granted the joint
motion and the record was supplemented with a "Reformed
Judgment." Ms. Ainsworth seeks this Court's reversal
of the granting of summary judgment.
of appeal review de novo a trial court's ruling
on a motion for summary judgment, applying the same standard
as the trial court. Klutz v. New Orleans Pub. Facility
Mgmt., Inc., 05-0327, p. 2 (La.App. 4 Cir. 12/21/05),
921 So.2d 1021, 1023 (citing Schmidt v. Chevez,
00-2456, p. 4 (La.App. 4 Cir. 1/10/01), 778 So.2d 668, 670).
an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and
supporting documents show that there is no genuine issue as
to material fact and that the mover is entitled to judgment
as a matter of law." La. C.C.P. art. 966(A)(3);
Klutz, 05-0327, p. 3, 921 So.2d at 1023. The burden
rests with the mover, unless the mover will not bear the
burden of proof at trial. La. C.C.P. art. 966(D)(1). In which
case, "the mover's burden on the motion does not
require him to negate all essential elements of the adverse
party's claim…but rather to point out…the
absence of factual support for one or more elements essential
to the adverse party's claim…." Id.
The burden shifts to the ...