PAUL O. SCHWARZENBERGER, M.D. AND CLINICAL ONCOLOGY RESEARCH ASSOCIATES, L.L.C.
LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER-NEW ORLEANS AND THE LSU BOARD OF SUPERVISORS
APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT,
ORLEANS PARISH NO. 2009-07311, DIVISION "D"
Honorable Nakisha Ervin-Knott, JUDGE
Samantha P. Griffin J. Dalton Courson STONE PIGMAN WALTHER
WITTMAN, L.L.C. COUNSEL FOR PLAINTIFFS/APPLICANTS
Katherine B. Muslow Meredith Cunningham LOUISIANA STATE
UNIVERSITY HEALTH SCIENCES CENTER COUNSEL FOR
composed of Chief Judge James F. McKay, III, Judge Rosemary
Ledet, Judge Sandra Cabrina Jenkins
CABRINA JENKINS, JUDGE
Paul O. Schwarzenberger, M.D. and Clinical Oncology Research
Associates, LLC ("CORA"), seek review of the trial
court's May 22, 2018 judgment granting a motion for
partial new trial filed by respondents/plaintiffs in
reconvention, Louisiana State University Health Sciences
Center-New Orleans and the LSU Board of Supervisors
(collectively, "LSU"). The May 22, 2018 judgment
withdrew a November 16, 2017 interlocutory judgment wherein
the trial court previously granted relators' motion for
partial summary judgment dismissing LSU's claims against
relators relating to the Amgen clinical trial. For the
reasons that follow, we grant relators' writ, reverse the
trial court's May 22, 2018 judgment granting the motion
for partial new trial, and reinstate the November 16, 2017
judgment granting relators' motion for partial summary
AND PROCEDURAL HISTORY
2002, LSU entered into clinical research agreements with two
pharmaceutical companies, Amgen and GlaxoSmithKline
("GSK"), to conduct clinical trials of potential
new treatments for cancer patients. Through these separate
contracts both pharmaceutical companies agreed to pay LSU for
the costs incurred for hosting the trials, including the
direct clinical expenses, overhead, and the salaries and
benefits of the LSU employees. At that time in 2002, Dr.
Schwarzenberger was employed by LSU as a professor in the
oncology department, and he served as the principal
investigator for the Amgen and GSK clinical trials.
2004, Dr. Schwarzenberger relinquished his full-time, tenured
position at LSU and took a part-time associate professor
position. At that time, LSU and the pharmaceutical sponsors
of the clinical trials sought to have the patients in the
trials transferred out of the LSU system to another venue. In
May 2004, Dr. Schwarzenberger formed CORA as an entity for
him to continue the clinical trials. Subsequently, the
pharmaceutical companies, LSU, and CORA entered into transfer
and assignment agreements whereby CORA assumed all
responsibilities for the clinical trials and residual funds
from those trials would transfer to CORA. Dr.
Schwarzenberger's employment at LSU ended in 2006.
15, 2009, Dr. Schwarzenberger and CORA filed a petition for
writ of mandamus, declaratory relief and damages against LSU
for breach of contract alleging that LSU failed to transfer
the funds from the Amgen and GSK clinical trials. On February
16, 2011, LSU filed an answer and a reconventional demand
alleging that Dr. Schwarzenberger willfully mismanaged the
financial matters associated with the Amgen and GSK clinical
trials in breach of his employment agreement with LSU.
October 18, 2016, the trial court granted summary judgment in
favor of LSU dismissing all the claims asserted by Dr.
Schwarzenberger and CORA with prejudice. On appeal, this
Court affirmed. Schwarzenberger v. Louisiana State Univ.
Health Sciences Center New Orleans, 2017-0024 (La.App. 4
Cir. 8/24/17), 226 So.3d 1200. Thereafter, only LSU's
claims in reconvention remained.
September 29, 2017, relators filed a motion for partial
summary judgment seeking dismissal of all claims related to
the Amgen clinical trial. Following a hearing, the trial
court granted the motion for partial summary judgment and
dismissed LSU's claims relating to the Amgen clinical
trial. LSU sought supervisory review of the trial court's
November 16, 2017 judgment on the motion for partial summary
judgment; this Court denied the writ, noting that
"relator has adequate remedy on appeal."
Schwarzenberger v. Louisiana State Univ. Health Sciences
Center New Orleans, unpub., 2017-0969 (La.App. 4 Cir.
January 2018, LSU's claims against relators relating to
the GSK clinical trial proceeded to a bench trial. Following
a three day trial, the trial court rendered judgment in favor
of LSU and awarded damages. The trial court's March 1,
2018 judgment and reasons for judgment adjudicated all
remaining claims in the suit. In its written reasons for
judgment regarding the GSK trial, the trial court found that
Dr. Schwarzenberger breached his contractual and fiduciary
obligations to LSU through fraud and self-dealing by using
CORA to enter a "side contract" with GSK and
mismanaging the GSK study.
March 12, 2018, LSU filed a motion for partial new trial. LSU
argued that based on the evidence at the GSK trial, the trial
court should "reconsider its interlocutory order
dismissing LSU's Amgen claims in light of the findings in
its Reasons for Judgment [in the GSK trial]" ...