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Summary judgment deadlines - a med-mal lesson

Amendments to La. C.C.P. art. 966 a few years ago challenged the capacity of the procedurally habituated to adjust. A recent med-mal defense summary judgment and reversal at the Third Circuit illustrates. See Dufour v. The Schumacher Group of Louisiana, Inc., 2018-0020 (La.App. 3 Cir. 08/01/18).

Beth Dufour, in pain during pregnancy, arrived at the Rapides Regional emergency room for care. Four hours later she was discharged after learning that she miscarried. She was not seen by an Ob/Gyn.

Later, with "increased pain and bleeding, fever, and further complications", Ms. Dufour was seen by her personal Ob/Gyn who diagnosed an ectopic pregnancy. Emergency surgery with removal of a fallopian tube ensued.

A medical review panel found no breach of the standard of care by the hospital or attending ER physician. Ms. Dufour and her husband filed suit in the 9th JDC. After a period of discovery, the defendants filed a motion for summary judgment. Following two continuances, a hearing was scheduled for June 12, 2017. The Dufours filed an opposition with attached affidavit of Dr. Thomas Arnold addressing informed consent. The June hearing was also continued and the court "permitted [plaintiffs] to engage in additional discovery for the purpose of adequately defending against RMC's summary judgment motion." After plaintiffs initiated further discovery, the defendants filed a motion to quash and for protective order.

On August 4, prior to the re-scheduled hearing on August 21, the Dufours filed a supplemental opposition attaching an additional affidavit of Dr. Arnold and an affidavit of Dr. Christina Lord. The court initially overruled a defense objection and allowed the new evidence. Later, the trial judge reversed that decision, excluded the affidavits and found that plaintiffs failed to produce evidence raising a genuine issue of material fact as to breach of the standard of care.

Exclusion of the evidence turned on the application of La. C.C.P. art. 966(B)(2) requiring opposition memoranda to be filed 15 days prior to the hearing. Although the Dufours final opposition with supporting affidavits was filed 17 days prior to the August hearing, the deadline had passed if calculated in relation to the June hearing date.

The Third Circuit reversed. Key points from Judge Kyzar's opinion include:

  • "[D]istrict courts, in applying the deadline imposed by the article [966(B)], ... have the discretion to consider late-filed opposition materials, absent prejudice to the mover. Smith v. Rapides Healthcare Sys., L.L.C., 13-1172 (La.App. 3 Cir. 3/5/14), 134 So.3d 122";
  • "The rescheduling of the hearing reset the time for the filing of opposition documents. Mahoney v. East Carroll Parish Police Jury, 47,494 (La.App. 2 Cir. 9/26/12), 105 So.3d 144, writ denied, 12-2684 (La. 2/8/13), 108 So.3d 88";
  • "While ... the Dufours did not request time to file additional expert affidavits nor did the trial court order that they be allowed to file additional expert affidavits, we note that neither did the trial court deny the right to file any supplemental response affidavits";
  • "Baez [v. Hospital Service District No. 3 of Allen Parish, et al, 2016-951 (La.App. 3 Cir. 4/5/17), 216 So.3d 98] does not stand for the proposition that a party is only permitted to file a single opposition without the ability to supplement that opposition even when the supplemental opposition is filed within the delays provided for in La.Code Civ.P. art. 966(B);"
  • The "purpose of a surreply is to enable the non-movant to contest matters presented for the first time in the opposing party's reply";
  • "The filings on behalf of the Dufours were not filed as a surreply; ... [they] were filed as part of the Dufours' response to the original motion for summary judgment"; and
  • "Because the hearing on the motion for summary judgment was reset, the deadline for filing opposition documents to the motion was reset as well in the absence of any limiting orders from the trial court, of which there were none in this case."

Posted: Aug. 20, 2018