United States District Court, E.D. Louisiana
ORDER & REASONS
the Court is Defendant's motion for summary judgment, R.
Doc. 33. Plaintiff has communicated to the Court that they
will not oppose the motion. Having considered the
parties' briefs and communications and considered the
applicable law, the Court issues this Order & Reasons.
case arises from injuries allegedly sustained by Beverly
Taylor (“Taylor”) as a result of dialysis
treatment at Davita Dialysis Center (“Davita”) in
Donaldsonville, Louisiana. Plaintiffs, the husband and
children of the deceased, initially filed this complaint in
the Twenty-Third Judicial District Court in Ascension Parish.
Defendant DVA Renal Care (improperly named as Davita Dialysis
Center of Donaldsonville, Louisiana, and from here on
referred to as “DVA”) timely removed the case on
the basis of diversity jurisdiction.
allege that Taylor, a renal patient undergoing dialysis at
Davita, severely hemorrhaged through her dialysis shunt as a
result of a ruptured aneurysm/psueduoaneurysm of the stunt
following discharge from Davita on July 2, 2015. R. Doc. 1-2
at 8. Plaintiffs claim that Defendant, through its agents or
employees at Davita, negligently placed and or failed to
recognize and fix the condition of Taylor's shunt, the
hemorrhaging of which led to Taylors death by cardiac arrest
on July 3, 2015. R. Doc. 1-2 at 8.
maintain that Defendant is not a qualified healthcare
provider under the Louisiana Medical Malpractice Act, and
that Defendant is liable for damages caused by its negligence
in placing or inserting Taylor's shunt, in failing to
realizing the shunt had been improperly inserted, in failing
to revise or relocate the shunt prior to discharge, and
failure to supervise and train the employees of Davita. R.
Doc. 1-2 at 9-10. Plaintiffs further allege that Defendant
breached the standard of care, and bring a wrongful death
action and a survival action. R. Doc. 1-2 at 10. Plaintiffs
seek damages for Taylor's loss of physical capacity, pain
and suffering, fear and mental anguish, emotional distress,
embarrassment and humiliation, loss of enjoyment of life,
past medical expenses, and loss of the chance of a better
outcome or the chance of survival. R. Doc. 1-2 at 11.
Plaintiffs also seek damages for loss of consortium, loss of
companionship, affection, society, and service, expenses
associated with their mother's care, and funeral and
burial expenses. R. Doc. 1-2 at 11.
DVA responded, denying that Taylor underwent dialysis at
Davita on July 2, 2015. R. Doc. 6 at 2. Furthermore,
Defendant denies owning the facility on the date of the
procedure. R. Doc. 6 at 4. Defendant avers that
Plaintiffs' claims are barred by prescription,
peremption, laches, and the applicable statutes of
limitation. Further, Defendant avers that the alleged
injuries were caused by factors outside of Defendant's
control, that Defendant acted reasonably and appropriately
under the circumstances, and that Defendant possessed and
rendered the same degree of skill and care as would be used
by other medical providers. R. Doc. 6 at 5. Defendant claims
that Taylor and Plaintiffs failed to mitigate their losses,
that injuries were caused by Taylor's own negligence or
by superseding causes, and that Defendant cannot be held
solidarily liable under the civil code. R. Doc. 6 at 6-7.
has filed a motion for summary judgment arguing that it
cannot be liable for Plaintiffs' injuries because it did
not own the dialysis center on the date of the incident. R.
Doc. 33-3 at 1. Defendant alleges that it sold the dialysis
center eleven (11) months prior to the alleged injuries. R.
Doc. 33-3 at 3. The buyer has stipulated to owning the
dialysis center on the date of the incident. R. Doc. 33-3 at
4. Plaintiff has communicated to the Court that they will not
oppose the motion.
LAW & ANALYSIS
judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing
Fed.R.Civ.P. 56(c)). “Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which the party will bear
the burden of proof at trial.” Id. A party
moving for summary judgment bears the initial burden of
demonstrating the basis for summary judgment and identifying
those portions of the record, discovery, and any affidavits
supporting the conclusion that there is no genuine issue of
material fact. Id. at 323. If the moving party meets
that burden, then the nonmoving party must use evidence
cognizable under Rule 56 to demonstrate the existence of a
genuine issue of material fact. Id. at 324.
genuine issue of material fact exists if a reasonable jury
could return a verdict for the nonmoving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1996). “[U]nsubstantiated assertions, ”
“conclusory allegations, ” and merely colorable
factual bases are insufficient to defeat a motion for summary
judgment. See Hopper v. Frank, 16 F.3d 92, 97 (5th
Cir. 1994); see also Anderson, 477 U.S. at 249-50.
In ruling on a summary judgment motion, a court may not
resolve credibility issues or weigh evidence. See
Int'l Shortstop, Inc. v. Rally's Inc., 939 F.2d
1257, 1263 (5th Cir. 1991). Furthermore, a court must assess
the evidence, review the facts and draw any appropriate
inferences based on the evidence in the light most favorable
to the party opposing summary judgment. See Daniels v.
City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir.
2001); Reid v. State Farm Mut. Auto. Ins. Co., 784
F.2d 577, 578 (5th Cir. 1986).
there is no genuine issue of material fact remaining in the
case. It is clear that Defendant did not own the dialysis
center at the time of Plaintiff s injuries and cannot be
liable for those injuries. Therefore, summary judgment is
appropriate at this time.