FESTUS OGBEBOR, INDIVIDUALLY AND ON BEHALF OF HIS DECEASED WIFE, MARY OGBEBOR
LAFAYETTE GENERAL MEDICAL CENTER, ET AL.
APPLICATION FOR SUPERVISORY WRITS FIFTEENTH JUDICIAL DISTRICT
COURT LAFAYETE PARISH, LOUISIANA DOCKET NUMBER C-2016-3574
"I" HONRABLE THOMAS J. DUPLANTIER, DISTRICT JUDGE
Charles J. Boudreaux, Jr., Louis Simon II, Jones Walker LLP,
ATTORNEYS FOR DEFENDANTS/APPLICANTS, Dr. Louis Salvaggio, Dr.
Douglas Busari, S. Douglas Busari & Associates, LLC,
ATTORNEYS FOR PLAINTIFF/RESPONDENT Festus Ogbebor,
Individually and on behalf of his deceased wife, Mary Ogbebor
composed of Shannon J. Gremillion, John E. Conery, and Van H.
SHANNON J. GREMILLION JUDGE
Dr. Louis A. Salvaggio and Dr. Nick G. Cavros (Applicants),
seek supervisory review from the judgment of the district
court granting a motion for new trial filed by Plaintiff,
Festus Ogbebor, individually and on behalf of his deceased
wife, Mary Ogbebor. For the reasons that follow, we grant the
writ and make it peremptory.
AND PROCEDURAL POSTURE
21, 2013, Mrs. Ogbebor presented to the emergency room of
Lafayette General Medical Center (LGMC) in Lafayette with
complaints of anterior chest discomfort with bilateral arm
discomfort, shortness of breath, and sweating. Following an
EKG and a chest x-ray, Dr. Salvaggio performed a procedure on
Mrs. Ogbebor in the cardiac catheterization laboratory (cath
lab) of LGMC. Later that same day, Mrs. Ogbebor was taken
back to the cath lab at the direction of Dr. Cavros after she
was found to have "a totally occluded first obtuse
marginal, status post recent PCI of the vessel with
drug[-]eluting stint [sic]." Dr. Cavros performed
another procedure which included the placement of an aortic
balloon pump. Dr. Cavros discharged Mrs. Ogbebor on July 2,
2013. On July 4, 2013, at 5:37 a.m., Mrs. Ogbebor returned to
the LGMC emergency room with complaints of severe chest pain.
The cath lab was not notified of her condition until 6:11
a.m. Mrs. Ogbebor passed away at 6:31 a.m.
Ogbebor, Mrs. Ogbebor's husband, timely filed a request
for review by a medical review panel regarding the care
administered by Applicants. The medical review panel
concluded that the evidence submitted in support of the claim
did not show that Dr. Salvaggio or Dr. Cavros breached the
applicable standards of care.
6, 2016, Mr. Ogbebor filed suit against Applicants, LGMC, and
Dr. Phillip Ralidis, asserting medical malpractice claims on
behalf of Mrs. Ogbebor and himself arising from her death.
Applicants answered Mr. Ogbebor's suit on July 26, 2017,
and thereafter filed a motion for summary judgment on August
16, 2017. Mr. Ogbebor filed an opposition to the motion for
summary judgment to which he attached the curriculum vitae of
his expert, Dr. David Korn. Three days before the hearing on
the motion for summary judgment, Mr. Ogbebor filed a letter
prepared by Dr. Korn in which he opined that Applicants
breached the standard of care applicable to Mrs.
Ogbebor's symptoms and medical condition.
asserted in their motion that Mr. Ogbebor's claims
against them should be dismissed because he did not have an
expert witness to rebut the experts on the medical review
panel. At the summary judgment hearing, counsel for Mr.
Ogbebor argued that he did not have an affidavit from Dr.
Korn because he did not believe the expert he initially
retained could withstand a challenge of her credentials under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S.Ct. 2786 (1993). At the conclusion of the
hearing, the trial court granted summary judgment dismissing
Mr. Ogbebor's claims against Applicants because he had
failed to produce an affidavit by Dr. Korn supporting his
Ogbebor filed a motion for new trial, asserting that he had
new evidence that warranted the grant of his motion as
provided in La.Code Civ.P. art. 1972. At the hearing on the
motion for new trial, Mr. Ogbebor produced an affidavit
executed by Dr. Korn. Applicants argued that the affidavit
was not new evidence because Mr. Ogbebor obtained and
submitted a letter opinion by Dr. Korn before the hearing on
the motion for summary judgment. Mr. Ogbebor argued to the
trial court that he did not get an affidavit from Dr. Korn,
because there "was a national disaster," "so
much of [a] national event, everyone in the country knows
about it." The trial court granted the new trial,
finding Dr. Korn's affidavit "to be new evidence and
that it was beyond [Mr. Ogbebor's] control . . . to
jurisprudence clearly establishes that the grant of a motion
for new trial is a not a final, appealable judgment, but
rather, an interlocutory judgment[.]" McGinn v.
Crescent City Connection Bridge Auth., 15-165, p. 4
(La.App. 4 Cir. 7/22/15), 174 So.3d 145, 148. See
also, La.Code Civ.P. arts. 1841, 1915. Generally, the
proper procedural vehicle for the review of an interlocutory
judgment is an application for supervisory writs.
McGinn, 174 So.3d 145. The ...