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Turner v. Bosley Medical Institute, Inc.

Court of Appeals of Louisiana, Fifth Circuit

October 16, 2019

DONNA TURNER AND PAUL TURNER
v.
BOSLEY MEDICAL INSTITUTE, INC. AND DR. FRANK CAMPISI

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 774-458, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, DONNA TURNER AND PAUL TURNER Carl J. Rachal

          COUNSEL FOR DEFENDANT/APPELLEE, BOSLEY MEDICAL INSTITUTE, INC. AND DR. FRANK CAMPISI Stephen M. Pizzo, Ashley R. Wilmore

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Hans J. Liljeberg

          JUDE G. GRAVOIS, JUDGE

         In this medical malpractice action, plaintiffs, Donna and Paul Turner, seek reversal of the trial court's October 18, 2018 judgment which granted summary judgment in favor of defendants, Dr. Frank Campisi and Bosley Medical Institute, Inc., and dismissed all claims against defendants with prejudice. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         In a petition for damages filed on July 27, 2017, plaintiffs stated that on August 3, 2016, Dr. Campisi performed a hair restoration procedure on Ms. Turner. As part of the procedure, Dr. Campisi removed and transplanted 1, 771 hair follicles/grafts upon Ms. Turner's scalp. Plaintiffs alleged that Dr. Campisi failed to properly sanitize and close the wound site, and thus the wound site became infected immediately following the procedure. Additionally, in their petition, plaintiffs alleged that Dr. Campisi failed to take any corrective action to treat the infected wound. This caused the infection to worsen and forced Ms. Turner to undergo treatment for wound care.

         On August 23, 2018, defendants filed a motion for summary judgment arguing that plaintiffs failed to produce expert testimony to establish a breach of the standard of care, causation, and damages. In support of their motion, defendants attached responses to discovery requests issued to plaintiffs on November 3, 2017 and answered on April 17, 2018. One interrogatory asked that plaintiffs name the expert who would testify as to the applicable standard of care and the specific breach that occurred. In response, plaintiffs stated that the request was premature since discovery was ongoing. Plaintiffs noted that their expert witness list was incomplete at that time, and no determination had been made as to which expert, if any, they intended to call. They reserved their right to supplement and amend their response at a later date. Thus, defendants argued that the record is devoid of any evidence to establish that there was a breach of the standard of care or that any alleged breach caused injury to plaintiffs.

         The record reflects that plaintiffs were served with the motion for summary judgment on September 5, 2018. Plaintiffs did not file an opposition to the motion for summary judgment.

         At the hearing on the motion for summary judgment on October 9, 2018, after defendants informed the trial court that no opposition had been filed, the trial court granted the motion for summary judgment "after having received no opposition."[1] A judgment was signed on October 18, 2018 granting the motion for summary judgment and dismissing all claims against defendants with prejudice. This appeal followed.

         On appeal, plaintiffs argue that the trial court erred in granting the motion for summary judgment when defendants failed to meet their burden to affirmatively prove the absence of genuine issues of material fact. Plaintiffs believe that summary judgment was granted solely because no opposition was filed by plaintiffs' counsel. They argue that no evidence was introduced into the record to support defendants' assertions by way of affidavit, deposition testimony, or certified medical records. Further, plaintiffs argue that the filing of the motion was premature. Plaintiffs note that at the time the discovery was answered, Ms. Turner had not yet completed her medical treatment related to the injury. Plaintiffs contend that they planned to hire an expert after taking Dr. Campisi's deposition, which they claim they never had the opportunity to do.

         LAW AND ANALYSIS

         A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The burden of proof rests with the mover. La. C.C.P. art. 966(D). However, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Id. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id.; Dillenkofer v. Marrero Day Care Ctr., Inc., 16-713 (La.App. 5 Cir. ...


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