United States District Court, W.D. Louisiana, Alexandria Division
DEE D. DRELL UNITED STATES DISTRICT COURT
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.
FACTS & PROCEDURAL HISTORY
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
April 2012, Dr. Gregory Dowd performed a C3-6 anterior
cervical discectomy on Mrs. Foster. She followed up with Dr.
Dowd post-surgery through 2013. 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. Dr. Dowd testified that this new
injury appeared to be unrelated to her prior
August 12, 2016, Mrs. Foster allegedly slipped and fell in a
puddle of water at a Wal-Mart Supercenter in Alexandria,
Louisiana ("Walmart store"). Mrs. Foster
asserts that this accident caused her to suffer
"injuries to lumbar spine, left knee, and right
shoulder, among other injuries." 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. One week later she saw her primary
physician, Dr. Garcia, although again she did not complain of
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. She complained of neck pain and mild
tingling down the right arm to the forearm. A January 3,
2017, MRI showed a disc bulge at ¶ 6-7 (the level
immediately below her prior surgery). Dr. Dowd
testified that it could not be determined when Mrs. Foster
developed this disc bulge.
months later, on March 18, 2017, Mrs. Foster was involved in
a head-on collision ("the collision") in which her
vehicle was totaled. On April 26, 2017, Mrs. Foster related
to Dr. Dowd that she suffered an "[i]mmediate onset of
neck pain" after the collision. 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
Dowd performed cervical surgery on September 4, 2018, because
of the persistence of Mrs. Foster's neck
pain. According to Dr. Dowd, the underlying
reason for the surgery was the disc bulge at ¶
6-7. During his deposition, Dr. Dowd was
unable to state that, more likely than not, the Walmart store
incident caused this disc problem.
Devy Foster and Charles Foster, her husband, filed suit in
Alexandria City Court, Rapides Parish, Louisiana, on October
3, 2016. The case was removed on May 18, 2017,
pursuant to the Court's diversity
jurisdiction. The instant motion was filed on February
8, 2019. An opposition was filed on March 1,
2019,  and a reply was filed on March 8,
LAW & ANALYSIS
Standard of Review
"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.
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).
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).
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
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.
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
[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 ...