FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-06879,
DIVISION "DIV. C-10" Honorable Sidney H. Cates,
D. Sileo Casey W. Moll LAW OFFICE OF JOHN D. SILEO, LLC
COUNSEL FOR PLAINTIFF/APPELLANT, TANYA MADERE
Simon, II Charles J. Boudreaux, Jr. Jones Walker, LLP COUNSEL
FOR DEFENDANT/APPELLEE, LOUISE GAUTREAUX COLLINS, M.D.
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Dennis R. Bagneris, Sr., Pro Tempore LOBRANO J.,
DISSENTS AND ASSIGNS REASONS.
R. Bagneris, Sr., Pro Tempore Judge.
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.
AND PROCEDURAL HISTORY
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
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.
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.
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
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. 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
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.
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. ...