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Madere v. Collins

Court of Appeals of Louisiana, Fourth Circuit

March 28, 2018


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-06879, DIVISION "DIV. C-10" Honorable Sidney H. Cates, Judge


          Louis Simon, II Charles J. Boudreaux, Jr. Jones Walker, LLP COUNSEL FOR DEFENDANT/APPELLEE, LOUISE GAUTREAUX COLLINS, M.D.

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dennis R. Bagneris, Sr., Pro Tempore LOBRANO J., DISSENTS AND ASSIGNS REASONS.

          Dennis R. Bagneris, Sr., Pro Tempore Judge.

         Plaintiff/appellant, Tanya Madere ("Madere"), appeals the district court's May 25, 2017 ruling that granted summary judgment in favor of Louise Gautreaux Collins, M.D. ("Dr. Collins") and dismissed Madere's claims with prejudice. For the reasons that follow, we affirm the district court's judgment.


         This medical malpractice case arises from a gynecological surgical procedure. Madere alleges that as a result of Dr. Collins' negligence, she suffered from kidney complications, additional surgeries, and treatment. Madere timely requested review from a medical review panel, which rendered an opinion favorable to Dr. Collins. Madere then filed a petition for damages in the district court.[1]

         On March 23, 2016, Dr. Collins filed a motion for summary judgment, seeking dismissal of Madere's lawsuit on the basis that Madere had produced no expert testimony to support her claim that Dr. Collins breached the applicable medical standard of care or that a breach of the standard of care caused Madere's injuries. See Samaha v. Rau, 07-1726, pp. 5-6 (La. 2/26/08), 977 So.2d 880, 884; Schultz v. Guoth, 10-0343, p. 12 (La. 1/19/11), 57 So.3d 1002, 1009 (discussing the general principle that expert testimony is required to establish the applicable medical standard of care, breach of the standard of care, and causation, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony). In support of her motion for summary judgment, Dr. Collins introduced as evidence Madere's petition for medical malpractice review and the medical review panel opinion favorable to Dr. Collins.

         On May 12, 2016, Madere filed an opposition to summary judgment arguing that she retained an expert, Dr. Lawrence Thomas Kim, and needed time to conduct discovery. The district court continued the summary judgment hearing until August 5, 2016, to allow Madere additional time for expert discovery.

         On August 3, 2016, two days before the new hearing date of August 5, 2016, Madere filed a supplemental opposition memorandum attaching the affidavit of another physician, Dr. Alexander F. Burnett. The opposition and affidavit were untimely under La. Code Civ. P. art. 966(B)(2), which requires that an opposition be filed no later than fifteen (15) days before the summary judgment hearing. The affidavit submitted was also that of Dr. Burnett, a physician different from the expert whom Madere previously had identified - Dr. Kim. Dr. Burnett attested in his affidavit to his opinion that Dr. Collins' medical treatment more probably than not fell below the applicable medical standard of care, and further stated that he would supplement his affidavit in the future with an expert report providing an explanation of his opinion.

         At the August 5, 2016 summary judgment hearing, the district court admitted into evidence the untimely expert affidavit over Dr. Collins' in-court objection and denied Dr. Collins' motion for summary judgment. Dr. Collins filed a writ application with this Court, which was denied. Madere v. Collins, 16-0896 (La.App. 4 Cir. 10/14/16) (unpub.). Dr. Collins then filed a writ application with the Louisiana Supreme Court. The Supreme Court granted the writ and decreed as follows: "Granted. The district court abused its discretion." Madere v. Collins, 16-2011 (La. 1/9/17), 208 So.3d 370.[2] The majority's ruling did not contain additional instructions, but in a concurring opinion, Justice Crichton wrote:

I agree that the district court abused its discretion and a remand is warranted-ordering the district court to hear the motion for summary judgment without consideration of the untimely affidavit.
I write separately to spotlight my concern that district courts are improperly applying La. C.C.P. art. 966(B)(2) and ignoring La. D.Ct. R. 9.9(c). See Newsome v. Homer Memorial Medical Center, 10-0564 (La. 4/9/10), 32 So.3d 800 [ ]; see also Guillory v. Chapman, 10-1370 (La. 9/24/10), 44 So.3d 272) [ ]. Before a district court can consider an untimely affidavit, a party must show "good cause under La. C.C.P. art. 966(B) why she should have been given additional time to file an opposing affidavit." See Sims v. Hawkins-Sheppard, 11-0678, p. 4 (La. 7/1/11), 65 So.3d 154, 157 (internal quotations removed).
This case adds to my concern. Despite the district court's grant of a nearly three-month continuance on the hearing on the defendant's motion for summary judgment, the plaintiff waited until two days prior to the hearing to file an opposing affidavit. Doing so was impermissible under La. C.C.P. art. 966(B)(2). Buggage v. Volks Constructors, 2006-0175 (La. 5/5/06), 928 So.2d 536, 536 ("The time limitation established by La. C.C.P. art. 966(B) for the serving of affidavits in opposition to a motion for summary judgment is mandatory; affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court."). Under these circumstances, the district court abused its discretion.

Madere, 16-2011, pp. 1-2, 208 So.3d 370, 370-71.

         On January 18, 2017, Dr. Collins filed a "motion for rehearing and/or new trial" on the motion for summary judgment. Attached to the motion was the Supreme Court's January 9, 2017 ruling. Dr. Collins argued that the district court should consider the evidence before it at the original summary judgment hearing, excluding the affidavit of Dr. Burnett. On March 9, 2017, Madere filed an opposition memorandum, attaching as exhibits Dr. Burnett's affidavit as well as Dr. Burnett's expert report, which was not previously in evidence in opposition to summary judgment. Madere contended that Dr. Collins' motion for rehearing and/or new trial was procedurally improper, and that in order to obtain reconsideration of summary judgment, Dr. ...

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