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Foster v. Wal-Mart Louisiana, LLC

United States District Court, W.D. Louisiana, Alexandria Division

April 17, 2019





         Before the Court is a motion for partial summary judgment (Doc. 46) filed by Defendant Wal-Mart Louisiana, LLC ("Walmart"), an opposition (Doc. 48) filed by Plaintiff Devy Foster, and a reply (Doc. 49) filed by Walmart. For the following reasons, the Court finds that Walmart's motion should be DENIED.


         The instant motion seeks summary judgment that Mrs. Foster is unable to sustain the burden of proof required to show that the cervical surgery she underwent on September 4, 2018, was necessitated by a slip and fall in a Walmart store on August 12, 2016.[1]

         In April 2012, Dr. Gregory Dowd performed a C3-6 anterior cervical discectomy on Mrs. Foster.[2] She followed up with Dr. Dowd post-surgery through 2013.[3] Several years later, on July 6, 2016, Mrs. Foster presented to Dr. Dowd with neck pain radiating to her left shoulder that she stated had persisted for approximately six months.[4] Dr. Dowd testified that this new injury appeared to be unrelated to her prior surgery.[5]

         On August 12, 2016, Mrs. Foster allegedly slipped and fell in a puddle of water at a Wal-Mart Supercenter in Alexandria, Louisiana ("Walmart store").[6] Mrs. Foster asserts that this accident caused her to suffer "injuries to lumbar spine, left knee, and right shoulder, among other injuries."[7] Shortly after the Walmart store incident, Mrs. Foster went to the Cabrini Hospital ER for treatment, but she made no mention of any neck pain.[8] One week later she saw her primary physician, Dr. Garcia, although again she did not complain of neck pain.[9]

         On October 12, 2016, Mrs. Foster had a follow-up appointment with Dr. Dowd for her neck pain and described the incident at the Walmart store.[10] She complained of neck pain and mild tingling down the right arm to the forearm.[11] A January 3, 2017, MRI showed a disc bulge at ¶ 6-7 (the level immediately below her prior surgery).[12] Dr. Dowd testified that it could not be determined when Mrs. Foster developed this disc bulge.[13]

         Several months later, on March 18, 2017, Mrs. Foster was involved in a head-on collision ("the collision") in which her vehicle was totaled.[14] On April 26, 2017, Mrs. Foster related to Dr. Dowd that she suffered an "[i]mmediate onset of neck pain" after the collision.[15] She also stated that she had a new "burning type pain down her right arm to hand," and she further complained of a limited range of cervical motion.[16]

         Dr. Dowd performed cervical surgery on September 4, 2018, because of the persistence of Mrs. Foster's neck pain.[17] According to Dr. Dowd, the underlying reason for the surgery was the disc bulge at ¶ 6-7.[18] During his deposition, Dr. Dowd was unable to state that, more likely than not, the Walmart store incident caused this disc problem.[19]

         Plaintiffs Devy Foster and Charles Foster, her husband, filed suit in Alexandria City Court, Rapides Parish, Louisiana, on October 3, 2016.[20] The case was removed on May 18, 2017, pursuant to the Court's diversity jurisdiction.[21] The instant motion was filed on February 8, 2019.[22] An opposition was filed on March 1, 2019, [23] and a reply was filed on March 8, 2019.[24]

         II. LAW & ANALYSIS

         A. Standard of Review

         A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute of material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We consider "all evidence in the light most favorable to the party resisting the motion." Seacor Holdings. Inc. v. Commonwealth Ins. Co.. 635 F.3d 675, 680 (5th Cir. 2011) (internal quotations omitted). It is important to note that the standard for summary judgment is two-fold: (1) there is no genuine dispute as to any material fact, and (2) the movant is entitled to judgment as a matter of law.

         The movant has the burden of pointing to evidence proving there is no genuine dispute as to any material fact, or the absence of evidence supporting the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986). The burden shifts to the nonmoving party to come forward with evidence which demonstrates the essential elements of his claim. See Anderson, 477 U.S. at 250. The nonmoving party must establish the existence of a genuine dispute of material fact for trial by showing the evidence, when viewed in the light most favorable to him, is sufficient to enable a reasonable jury to render a verdict in his favor. Celotex, 477 U.S. at 325; Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995). A party whose claims are challenged by a motion for summary judgment may not rest on the allegations of the complaint and must articulate specific factual allegations which meet his burden of proof. Duffy, 44 F.2d at 312. "[C]onclusory allegations unsupported by concrete and particular facts will not prevent an award of summary judgment." Id. (citing Anderson, 477 U.S. at 247).

         B. CAUSATION

         "Federal courts apply state substantive law in diversity jurisdiction cases, but apply federal procedural law." DP Sols., Inc. v. Rollins, Inc., 353 F.3d 421, 427 (5th Cir. 2003) (citation omitted). Under Louisiana law, "[t]he test for determining the causal relationship between the accident and a subsequent injury is whether the plaintiff provided sufficient proof that more probably than not, the accident caused the subsequent injuries." Urquhart v. Spencer, 2017-0069 (La.App. 4 Cir. 7/27/17), 224 So.3d 1022, 1031 (citation omitted). "The mere possibility of a causal connection is insufficient to support any recovery." Bacon v. Ace Am. Ins. Co., No. CIV. A. 07-615-C, 2008 WL 5377998, at *4 (M.D. La. Dec. 23, 2008) (citations omitted). "Louisiana jurisprudence, however, is well-settled that a defendant 'takes his victim as he finds him' and is responsible for all natural and probable consequences of his negligent conduct." Urquhart, 224 So.3d at 1031 (citation omitted).

         In essence, Walmart argues that it is entitled to partial summary judgment because Dr. Dowd did not testify in his deposition that Mrs. Foster's need for neck surgery was, more likely than not, caused by the Walmart store incident. When asked to opine whether the Walmart store incident, more probably than not, caused the need for the cervical surgery, Dr. Dowd gave the following responses:

Well, I think it's a difficult question. I don't know that there's an exact answer to these things.
Oh, I think it's a difficult question. I mean, and I don't think there is an exact answer.
And her pain ultimately persisted, despite a full course of treatment necessitating the need for surgery. I mean, that - that's what I'm trying to say. As to how much of that was going to progress with or without the auto accident, I mean, I don't know. I mean, I guess I can't tell you.[25]

         The plaintiff is required to carry the burden of proving causation. Nonetheless, the inability to provide a medical expert who will explicitly testify that an accident, more likely than not, caused the need for surgery is not necessarily fatal. To the contrary, courts typically engage in a detailed factual analysis when determining whether to issue summary judgment on the basis of insufficient evidence of medical causation.

         In Bacon, the court found that a plaintiff who was involved in an automobile accident could not recover damages for a knee replacement surgery. 2008 WL 5377998, at *4. The court explained that the plaintiffs doctor would not testify that the accident "more probably than not" caused the need for surgery, and instead only testified such a causal connection was "possible" and that any opinion as to the probability would be speculative. LI However, the Bacon court only reached its holding after discussing the plaintiffs medical history and noting that:

[i]n this case, where [the doctor] could only state that there is a possibility that the accident caused [the plaintiff] to have to undergo her March 2007 knee replacement surgery and where the evidence indicates that such surgery was warranted prior to the accident, if only the plaintiff had elected to go forward with it at that time, the Court cannot find, based upon the substance of the medical evidence, that plaintiff has ...

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