author: McClendon, j. WELCH, J.,

text:
    Eugene G. GUARDIA v. LAKE VIEW REGIONAL MEDICAL CENTER and Nursing Staff of Lakeview Regional Medical Center.
    No. 2008 CA 1369.
    Court of Appeal of Louisiana, First Circuit.
    May 8, 2009.
    Rehearing Denied June 30, 2009.

      Rykert O. Toledano, Jr., Brian G. Meiss-ner, Carter B. Wright, Ernest N. Souhlas, Covington, Louisiana, for Plaintiff/Appellant, Eugene G. Guardia.
    Aldric C. Poirier, Jr., James W. Vitrano, Mandeville, Louisiana, for Defendant/Ap-pellee, Lakeview Regional Medical Center, L.L.C.
    Before WHIPPLE, GAIDRY, PARRO, McClendon, and welch, jj.
   McClendon, j.

| j,The plaintiff, Eugene G. Guardia, appeals the judgment in favor of the defendant, Lakeview Medical Center, L.L.C., d/b/a Lakeview Regional Medical Center (Lakeview), granting Lakeview’s motion for summary judgment. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On March 17, 2003, Mr. Guardia was admitted to Lakeview for right and left knee arthroplasty, due to bilateral degenerative joint disease. Following bilateral knee replacement surgery, Mr. Guardia developed several complications, including lethargy and unconsciousness. He was admitted to the intensive care unit (ICU) on March 19, 2003. Mr. Guardia developed pressure ulcers and thereafter sacral decu-bitus, or skin breakdown, which eventually resolved.

On April 14, 2005, after a medical review panel unanimously found no breach of the standard of care by Lakeview, Mr. Guardia filed a petition for damages against the hospital. On November 28, 2007, Lake-view filed a motion for summary judgment asserting that Mr. Guardia was unable to meet his burden of proving his claim in that he had no expert to testify regarding medical causation between the alleged breach of the standard of care by Lake-view and his damages. Lakeview had also filed a motion in limine to strike Julia B. Fields, RN, as an expert witness, asserting that she was not properly qualified to give expert testimony in the areas to which she was to be offered to testify at trial. Both matters were set for hearing on January 15, 2008, at which time the trial court granted Lakeview’s motion for summary judgment and thereafter dismissed the motion to strike as moot. Judgment was signed on January 30, 2008, granting the summary judgment and dismissing Lakeview from the matter with prejudice. Mr. Guardia appealed.

[.DISCUSSION

In his assignments of error, Mr. Guardia contends that the trial court erred in granting summary judgment in favor of Lakeview and in denying his motion for rehearing and/or new trial. Specifically, Mr. Guardia argues that the affidavits and deposition testimony of his expert, Ms. Fields, were clearly sufficient to create genuine issues of material fact as to Lake-view’s liability.

On appeal, summary judgments are reviewed de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Duplantis v. Dillard’s Dept. Store, 02-0852, p. 5 (La.App. 1 Cir. 5/9/03), 849 So.2d 675, 679, writ denied, 03-1620 (La.10/10/03), 855 So.2d 350. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Brumfield v. Gafford, 99-1712, p. 3 (La.App. 1 Cir. 9/22/00), 768 So.2d 223, 225. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. Id., 99-1712 at pp. 3-4, 768 So.2d at 225; see LSA-C.C.P. art. 966 B.

The burden of proof is on the movant. But if the movant will not bear the burden of proof at the trial of the matter, the movant is not required to negate all essential elements of the adverse party’s claim, but rather to point out an absence of factual support for one or more essential elements. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and summary judgment is properly granted. LSA-C.C.P. art. 966 C(2).

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 04-0806,4 p. 1 (La.6/25/04), 876 So.2d 764, 765. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 03-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137.

In a medical malpractice action against a physician, the plaintiff must establish by a preponderance of the evidence the applicable standard of care, a violation of that standard of care, and a causal connection between the alleged negligence and the plaintiffs injuries resulting therefrom. See LSA-R.S. 9:2794 A; Pfiffner v. Correa, 94-0924, 94-0963, 94-0992, p. 8 (La.10/17/94), 643 So.2d 1228, 1233; Fagan v. LeBlanc, 04-2743, p. 6 (La.App. 1 Cir. 2/10/06), 928 So.2d 571, 575. Likewise, in a medical malpractice action against a hospital, the plaintiff must prove that the hospital caused the injury when it breached its duty. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 661 (La.1989). Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Pfiffner, 94-0924 at pp. 9-10, 643 So.2d at 1234.

In support of its motion for summary judgment, Lakeview submitted a copy of the deposition of Ms. Fields and the affidavit of Dr. Scott M. Sondes. Lakeview asserts that Ms. Fields admitted in her deposition that she was unqualified to testify as to medical causation. Although Ms. Fields did state in her deposition that she could not give the medical cause for Mr. Guardia’s pressure ulcers, she went on to state that, in her opinion, the most probable causes of Mr. Guardia’s pressure ulcers were his supine position for two days and not being turned by the nurses. Further, Ms. Fields testified that as a nurse, she believed that the Lakeview nurses violated their standard of care in that they failed to turn Mr. Guardia every two hours following surgery, especially | ¡^considering that he was a high-risk patient. Ms. Fields stated that nowhere in the nurses’ notes was it documented that the nurses ever changed Mr. Guardia’s position before he was moved to the ICU.

In his affidavit, Dr. Sondes, the director of rehabilitation and wound management services at Regency Hospital in Covington, stated that he reviewed the medical records of Mr. Guardia. Mr. Guardia lost a significant amount of blood as a normal course of his bilateral knee surgery on March 17, 2003, but he is a Jehovah’s Witness and did not accept blood transfusions or blood products because of his religious beliefs. On March 18, 2003, Mr. Guardia became responsive only to pain and was noted to have extremely low blood pressure and significant postoperative anemia. As a result of his hypovolemia (an abnormal decrease in blood volume), Mr. Guardia went into hypovolemic shock and acute renal failure. Being on Coumadin, a commonly used blood thinner, Mr. Guardia also developed coagulopathy. As a result, Mr. Guardia developed pressure ulcers on the occiput and on the gluteal areas bilaterally. Mr. Guardia received wound care from the physical therapy department while at Lakeview and by in-office visits and home health care upon his discharge. Dr. Sondes further stated:

In Affiant’s expert medical opinion, Mr. Guardia’s wounds were expected and unpreventable. These wounds were expected and unpreventable due to the chain of events that occurred during Mr. Guardia’s hospital stay. Specifically, Mr. Guardia suffered from severe hypo-volemic shock resulting in acute renal failure. This, combined with severe postoperative anemia, resulted in multiple physiologic responses designed to preserve internal organ function and ultimately preserve Mr. Guardia’s life.

After explaining the body’s responses in a situation such as Mr. Guardia’s, Dr. Sondes concluded that there was very little chance that Mr. Guardia would not have developed pressure ulcer complications. He opined that Mr. Guardia would have, more probably than not, developed pressure-ulcer breakdown regardless of any action by Lakeview, and there was little, if any, intervention that would have prevented the formation of the pressure ulcers. It was Dr. Sondes’ opinion that the nurses and staff of Lakeview met the standard of care in their care of Mr. Guardia.

| fiIn response, Mr. Guardia filed an opposition to the motion for summary judgment, attaching an affidavit of Ms. Fields, a copy of the National Pressure Ulcer Prevention Advisory Panel’s summary regarding pressure ulcer prevention points, and the position statement of the American Association of Legal Nurse Consultants regarding expert nursing testimony. In her affidavit, Ms. Fields stated that she reviewed the affidavit of Dr. Sondes. She further stated that the issue at hand is a nursing issue and that the nursing staff at Lakeview failed to timely and accurately assess Mr. Guardia’s skin integrity. Further, she stressed that Mr. Guardia was not repositioned even once during the first 24 hours following surgery, according to the nursing documentation. Ms. Fields pointed out the statement of the National Pressure Ulcer Prevention Advisory Panel that bed-bound patients be repositioned every two hours and that a written repositioning schedule be used. Further, Ms. Fields noted Lakeview’s Nursing Policy P-5 titled “Post-Operative Care,” which specifically states: “2. Assessment status to include but not limited to: (h) skin color and condition and 3. Note doctor’s orders and follow as documented to include but not limited to: (a) cough, turn and deep breathe every 2h x 24 hr. Change position frequently.” Ms. Fields concluded:

Since the issues of earlier detection, such as routine skin assessments, or preventative measures, such as turning Mr. Guardia, were not addressed in his first two postoperative days, it can be reasonably concluded that they were causative factors to his impaired skin integrity. It is still my opinion that the nursing staff of Lakeview Regional Medical Center did deviate from the nursing standards of care by NOT assessing or maintaining skin integrity in a postoperative, bed bound patient who became at higher risk for developing decubitus ulcers after complications from his surgery.

We agree that expert testimony was required in this matter. This is not a case where the alleged negligence is similar to a physician’s leaving a sponge in a patient’s body or the amputation of the wrong leg. Mr. Guardia claims that his injuries were caused by the failure of the nursing staff to assess his skin condition and regularly change his position for the first two days following his surgery. The connection between this failure and his injuries in circumstances involving a complex medical condition is beyond the province of lay persons to assess. Therefore, once the burden 17shifted to Mr. Guardia to produce evidence demonstrating genuine issues of material facts, he needed to establish through expert testimony that given his medical history and condition, Lakeview breached a specified standard of care and that this breach caused his injuries.

Mr. Guardia contends that he sufficiently did so with the affidavit and deposition testimony of Ms. Fields, thereby establishing a genuine issue of material fact. However, Lakeview filed a motion in limine to strike the expert testimony of Ms. Fields, in which it argued that Ms. Fields did not meet the criteria for admission of her testimony.

The admissibility of expert testimony in Louisiana is governed by LSA-C.E. art. 702, which provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” The Daubert standard, which was adopted by the Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1123 (La.1993), requires that expert scientific testimony must rise to a threshold level of reliability in order to be admissible under LSA-C.E. art. 702. Terrebonne v. B & J Martin, Inc., 03-2658, p. 10 (La.App. 1 Cir. 10/29/04), 906 So.2d 431, 440.

In Daubert, the United States Supreme Court set a new standard to assist trial courts in evaluating the admissibility of expert testimony and required the district courts to perform a “gatekeeping” function to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. at 2795. In Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238 (1999), the United States Supreme Court held that the analysis established by Daubert is to be applied to determine the admissibility of all expert testimony, not just scientific testimony. Cheairs v. State ex rel. Department of Transp. and Development, 03-0680, p. 7 (La.12/3/03), 861 So.2d 536, 541. However, the decision in Daubert concerned the admissibility of the expert’s opinion based on methodology used and not on his or her qualification as an expert in|sthe area tendered, which was the issue raised in Cheairs and is the same issue raised herein.

Thus, the court in Cheairs adopted a three-prong inquiry to give trial courts more comprehensive guidance in determining the admissibility of expert testimony. The admission of expert testimony is proper only if: (1) the proposed expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. Cheairs, 03-0680 at p. 9, 861 So.2d at 542. As explained in Cheairs, these factors are reflective of the considerations under LSA-C.E. art. 702 and whether the admissibility of the expert testimony would assist the trier of fact to understand the evidence or to determine a fact in issue. The court also recognized that experience alone is normally sufficient to qualify a witness as an expert. Cheairs, 03-0680 at p. 8, 861 So.2d at 541-42.

In this matter, in filing its motion in limine to strike the testimony of Ms. Fields, Lakeview asserted that Ms. Fields was unable to satisfy the three-prong test adopted in Cheairs and therefore was not qualified to render an expert opinion in the areas about which she was to testify at trial. The motion was set for hearing at the same time as the motion for summary judgment. The parties argued the motion for summary judgment, which was granted by the trial court. However, the trial court did so without holding a hearing on the motion in limine,

We conclude that it was legal error for the trial court to fail to consider' and to disregard Ms. Field’s testimony without first conducting a hearing to determine if her testimony constituted reliable expert testimony as contemplated in Cheairs. Although the trial court, in ruling on the motion for summary judgment, stated that Ms. Fields was not qualified to testify regarding the issue of causation, her testimony was excluded without a hearing and without any evaluation or analysis of the relevant | ¡factors to be considered in determining the admissibility of expert testimony. Accordingly, we conclude that summary judgment was premature and therefore improper.

CONCLUSION

For the foregoing reasons, the summary judgment appealed from is reversed, and the matter is remanded for further proceedings consistent with this opinion. Costs of this appeal shall be shared equally by the parties.

REVERSED AND REMANDED.

WELCH J. dissents and assigns reasons.

WELCH, J.,

dissenting.

hi believe the trial court correctly granted summary judgment in this case, and therefore, I respectfully dissent.

To satisfy his burden on the medical causation issue, Mr. Guardia was required to prove more probable than not that his injuries were caused by the nurses’ failure to regularly change his position during the first two post-operative days. The majority correctly observes that expert testimony was necessary on the issue of medical causation. It is well-settled that when a conclusion regarding medical causation is not one within common knowledge, expert medical testimony is required to prove or disprove causation. Hutchinson v. Shah, 94-0264, p. 3 (La.App. 1st Cir.12/22/94), 648 So.2d 451, 452, writ denied, 95-0541 (La.4/21/95), 653 So.2d 570.

In support of its motion for summary judgment, Lakeview pointed out that plaintiff lacked sufficient expert testimony on the issue of medical causation. Further, mover offered medical evidence to disprove causation through the affidavit of Dr. Scott Sondes, the director of rehabilitation and wound management services at Regency Hospital. Dr. Sondes noted that in the normal course of his surgery, Mr. Guardia lost a significant amount of blood and for religious reasons did not accept blood transfusions or blood products. One day following the surgery, Mr. Guardia had extremely low blood pressure and significant postoperative anemia. As a result, Dr. Sondes explained, Mr. Guardia went into hypovolemic shock and acute renal failure, and also developed a coagulopathy as a | ^result of taking a blood thinner. Dr. Sondes opined that Mr. Guardia’s complex medical condition caused the formation of pressure ulcers. He noted that the body typically responds to hypovolemia by shunting of blood away from peripheral tissues to maintain blood flow to the major organs, which put Mr. Guardia’s skin at great risk for breakdown in all tissues, not just those exposed to pressure. In addition, Mr. Guardia’s coagulopathy inhibited his clotting ability, which made his body unable to control the progression of damage and made the pressure ulcers worse, while the severe anemia added to the development of Mr. Guardia’s pressure ulcers by reducing the body’s ability to carry oxygen to the peripheral tissues. Dr. Sondes ultimately concluded that Mr. Guardia’s wounds were expected and unpreventable due to Mr. Guardia’s complex medical condition. Specifically, the doctor observed that because Mr. Guardia was suffering from hypovolemic shock causing acute renal failure combined with severe postoperative anemia, Mr. Guardia’s body underwent physiological responses designed to preserve internal organ function and preserve his life. Dr. Sondes opined that more probably than not, Mr. Guardia would have developed pressure ulcer breakdown regardless of any action taken by Lakeview and there was little, if any, intervention that would have prevented the formation of the pressure ulcers.

Once Lakeview pointed out plaintiffs absence of factual support on the issue of medical causation, in addition to introducing expert opinion disapproving medical causation, the burden shifted to Mr. Guar-dia to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Thus, it was incumbent on Mr. Guardia to offer expert medical testimony that the failure of the nurses to reposition him, rather than his complex medical condition, caused the pressure ulcers. In an attempt to satisfy this burden, plaintiff offered the deposition testimony and affidavit of Ms. Fields, a nurse. However, Ms. Fields acknowledged in her deposition that she is not qualified to give an ^expert opinion on the medical cause of plaintiffs pressure ulcers. In light of this admission, it is undisputed that Ms. Fields was not qualified to render a medical opinion on medical causation. Accordingly, Mr. Guardia did not satisfy his burden of offering expert evidence sufficient to establish that he would be able to prove at trial more probably than not that the nurses’ substandard care caused his injuries.

For these reasons, I conclude the trial court correctly granted Lakeview’s motion for summary judgment, and I would affirm that ruling.

      . In his petition, Mr. Guardia named as defendants Lakeview and the nursing staff at Lakeview. Lakeview subsequently stipulated that it would accept responsibility for any negligent acts or omissions of its employees relative to the treatment of Mr. Guardia at issue herein.

      . A previous motion for summary judgment was filed by Lakeview on June 5, 2006, but the record does not show that it was ever ruled upon.

      . This affidavit, dated January 11, 2008, is the second affidavit of Ms. Fields in this matter. The first affidavit, dated June 17, 2006, was submitted by Mr. Guardia in opposition to Lakeview's first motion for summary judgment and again in opposition to Lakeview's motion to strike.

      . Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . When counsel for Lakeview mentioned the motion in limine, the trial court ordered that it be dismissed as moot.

      . We note that LSA-C.E. art. 104 A provides, in pertinent part, that "[plreliminary questions concerning the competency or qualification of a person to be a witness ... shall be determined by the court....” Additionally, by Acts 2008, No. 787, § 1, eff. Jan. 1, 2009, LSA-C.C.P. art. 1425 was amended to add Paragraph F to provide for a pretrial hearing regarding the qualifications and admissibility of testimony of an expert witness.


source: Caselaw Access Project

author: WELCH, J.

license: Public Domain

text:
    Eva TAYLOR and Kevin Ledet v. Camille E. Saltz BABIN, Camille E. Saltz, a Professional Law Corp., Joan Malbrough, Joan Malbrough & Associates, a Professional Law Corporation, Jerri G. Smitko, and The Law Office of Jerri G. Smitko, a Professional Law Corporation.
    No. 2008 CA 2063.
    Court of Appeal of Louisiana, First Circuit.
    May 8, 2009.

      Stephen S. Stipelcovich, Michael J. Sa-manie, Houma, LA, for Plaintiffs-Appellants, Eva Taylor, Kevin Ledet, and Jesse Foret.
    Jack E. Truitt, Nancy N. Butcher, Madi-sonville, LA, for Defendants-Appellees, Joan Malbrough and Joan Malbrough & Associates, APLC.
    E. Phelps Gay, Kevin R. Tully, New Orleans, LA, for Defendants-Appellees, Jerri G. Smitko and Jerri G. Smitko, APLC.

      Before PARRO, McCLENDON, and WELCH, JJ.
   WELCH, J.

1 {¡This is an appeal by the plaintiffs, Eva Taylor, Kevin Ledet, and Jesse Foret, from a judgment granted in favor of defendants, Camille E. Saltz Babin; Camille E. Saltz, A Professional Law Corporation; Joan Malbrough; Joan Malbrough & Associates, A Professional Law Corporation; Jerri G. Smitko; and The Law Office of Jerri G. Smitko, A Professional Law Corporation. The judgment sustained the defendants’ peremptory exceptions raising the objections of no right of action or interest to institute suit and/or no cause of action, and dismissed the plaintiffs’ claims with prejudice. The defendants’ peremptory exceptions raising the objections of prescription and no cause of action were likewise granted, dismissing with prejudice the claims of Taylor and Ledet, and also those of Jesse and Michelle Foret asserted in the first amended petition for damages. For the following reasons, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

This is a legal malpractice action. The alleged legal malpractice arose in connection with litigation stemming from a motorboat accident that occurred on July 5, 2003. On that date, Eva Taylor and Kevin Ledet were passengers in a motorboat operated by Jesse Foret. Foret drove the watercraft into a rock levee while traversing the waterway connecting Bayou Decade to Lake Jug in Terrebonne Parish. Upon impact, all three occupants were thrown overboard and sustained serious injuries.

Following the accident, Foret was arrested and charged with vehicular negligent injuring. He later pled guilty to charges of vehicular negligent injuring |sand first degree vehicular negligent injuring and was sentenced to a combination of home and weekend incarceration that allowed him to go to work during the week. He was also ordered, as part of his sentence, to pay Taylor and Ledet $10,000 each in restitution. Foret had retained Jerri G. Smitko and the Law Offices of Jerri G. Smitko, APLC (“Smitko”) to represent him in connection with the criminal charges. Subsequently, Taylor and Ledet filed two separate civil suits, which were later consolidated, against Foret in the 32nd Judicial District Court. Smitko also represented Foret in those two consolidated cases.

Foret did not have liability insurance that would have compensated Taylor and Ledet for the injuries they sustained as a result of the motorboat accident. As such, Foret retained additional counsel, Camille Saltz Babin (“Babin”), who at the time was employed by Joan Malbrough & Associates, APLC (“Malbrough”), to file a voluntary petition in bankruptcy court in the Eastern District of Louisiana under Chapter 7,11 U.S.C. § 101.

Taylor and Ledet filed a separate adversary complaint in bankruptcy court to determine the dischargeability of their claims against Foret. Taylor and Ledet asserted that their claims against Foret were non-disehargeable in bankruptcy pursuant to Section 523 of Title 11 of the United States Code. On October 7, 2004, the bankruptcy court signed and entered a consent order based upon “joint consent submitted by all parties represented herein,” declaring For-et’s alleged debt to Taylor and Ledet non-dischargeable under 11 U.S.C.A. § 523(a)(9) and lifting the automatic stay of Taylor and Ledet’s state court lawsuits against Foret.

|/Thereafter, a bench trial on liability alone was held in the 32nd Judicial District Court for the Parish of Terrebonne. For-et was found to have negligently caused the boating accident that injured Taylor and Ledet and to have been intoxicated at the time of the accident. However, the trial court did not find Foret’s actions to be wanton or reckless. Judgment was entered accordingly on February 6, 2006, and Foret, still represented by Smitko, devolutively appealed. This court unanimously affirmed on June 8, 2007. See Taylor v. Foret, 2006-1945, 2006-1946 (La. App. 1st Cir.6/8/07), 958 So.2d 1217(unpublished), writ denied, 2007-1411 (La.10/5/07), 964 So.2d 943.

The argument that legal malpractice was committed is based on the assertion that at the time the consent order was signed in bankruptcy court, 11 U.S.C.A. § 523(a)(9) did not apply to the claims made by Taylor and Ledet. It was alleged that Saltz, Smitko, and Malbrough failed to adequately research whether 11 U.S.C.A. § 523(a)(9) applied to the claims made by Taylor and Ledet. In light of the trial court’s ruling that Foret did not act in a wanton or reckless manner, it was alleged that the claims of Taylor and Ledet were dischargeable pursuant to Title 11 of the United States Code.

The petition in the instant suit alleges that on September 22, 2006, Foret discovered that the defendants had committed malpractice. The petition further alleges that Foret assigned his legal malpractice claims against defendants and their respective law corporations to Taylor and Ledet. Defendants filed various exceptions, but primarily objected to the petition on the basis that the plaintiffs had no right of action to bring this lawsuit, because legal malpractice claims are not assignable under Louisiana law. Thereafter, plaintiffs amended the petition to add | Jesse and Michelle Foret as plaintiffs and to bring a new claim for mental anguish. Following this amended petition, the defendants filed exceptions raising the objections of no cause of action, prescription, and vagueness. By judgment signed on December 5, 2007, the trial court sustained the exceptions, and this appeal followed.

II. NO RIGHT OF ACTION

A. General Legal Precepts

The objection of no right of action tests whether the plaintiff, who seeks relief, is or is not the person in whose favor the law extends a remedy. Howard v. Administrators of Tulane Educational Fund, 2007-2224, p. 16 (La.7/1/08), 986 So.2d 47, 59. The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring suit, but it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Reese v. State Department of Public Safety and Corrections, 2003-1615, pp. 2-3 (La.2/20/04), 866 So.2d 244, 246.

B. Assignability of Legal Malpractice Claims

In this case, the defendants contend, and the trial court agreed, that the plaintiffs had no right of action to bring this action, because legal malpractice claims are not assignable. Initially, we note that the issue of the assignability of legal malpractice claims is res nova in Louisiana. The plaintiffs argue that legal malpractice claims are assignable under La. C.C. art. 2642 and/or 2044.

First, the plaintiffs contend that rights are generally assignable under Louisiana law, citing La. C.C. art. 2642, which provides:

All rights may be assigned, with the exception of those |fipertaining to obligations that are strictly personal. The assignee is subrogated to the rights of the assignor against the debtor.

The plaintiffs also assert that the Louisiana Supreme Court has held that actions for the recovery of tort damages are not strictly personal. Since the action herein lies in tort, as it is a claim for loss of money occasioned by legal malpractice, the plaintiffs argue it is, therefore, assignable. In support of this argument, plaintiffs cite Nathan v. Touro Infirmary, 512 So.2d 352 (La.1987), and Guidry v. Theriot, 377 So.2d 319 (La.1979). However, both of these cases involved the inheritability — not the assignability' — of medical malpractice actions by a designated beneficiary, after the commencement of an action by the plaintiff tort victim through the filing of a suit or pre-suit complaint. In both cases, the supreme court emphasized the fact that the patients had asserted their rights to recover by filing a claim prior to death, thus creating property rights that were inheritable. Nathan, 512 So.2d at 355.

We find these cases distinguishable from the instant matter in one crucial aspect— the tort victims had asserted their rights prior to death. As noted by the Guidry court, there is a significant difference between inheriting an instituted action and inheriting the right to institute an action. Guidry, 377 So.2d at 324. In this case, we are not confronted with the situation where Foret either instituted a legal malpractice action against his former attorneys and then died or filed suit against the defendants and later transferred his rights to the plaintiffs. Thus, the facts of this case differ from those in Nathan and Gui-dry and are not controlling precedent.

The plaintiffs also contend that they could have initiated this action on their own behalf, without the disputed assignment of rights, based on La. C.C. art.2044. Louisiana Civil Code article 2044 provides:

If an obligor causes or increases his insolvency by failing to exercise a right, the obligee may exercise it himself, unless the right is 17strictly personal to the obligor.
For that purpose, the obligee must join in the suit his obligor and the third person against whom that right is asserted.

The plaintiffs assert that, because Foret discovered the legal malpractice on September 22, 2006, yet did not exercise his rights for over eight months, they could have brought this action directly in their capacity as judgment creditors. However, the plaintiffs have not directed us to any case law demonstrating that the oblique action applies under these facts. Our review of the limited jurisprudence on the subject reveals that the oblique action has been maintained in situations where the debtor has refused or neglected to accept an inheritance, where a debtor refuses to sue to set aside a sale based on lesion, or where a debtor has refused to recover his property in the hands of third persons. We also note that, for purposes of this codal provision, the patrimony of the debtor is the totality of his assets and liabilities susceptible of pecuniary evaluation. Succession of McLean, 580 So.2d 935 (La.App. 2nd Cir.), writ denied, 584 So.2d 682 (La.1991). The court in Succession of McLean held that strictly personal rights and actions, though patrimonial in nature, cannot be exercised by third persons when closely connected with the personality of the debtor. Succession of McLean, 580 So.2d at 942.

Herein, we are not convinced that Foret increased his insolvency by failing to file a legal malpractice action against his former counsel. Indeed, had Foret filed suit he may have increased his insolvency through the expenditure of legal fees and costs by pursuing a legal action that had no clear outcome. Accordingly, [swe are not persuaded by plaintiffs’ argument that they could have brought this action themselves pursuant to La. C.C. art.2044.

The defendants contend that legal malpractice claims should not be assignable due to public policy considerations and request us to adopt the policy the majority of other states have adopted. Initially, we are guided by Louisiana jurisprudence that is related to the issue. For example, it is well established in Louisiana that a legal malpractice claim, in the absence of a warranty of result, is a delictual action. Hendrick v. ABC Insurance Company, 2000-2403, 2000-2349, p. 9 (La.5/15/01), 787 So.2d 283, 289; Brand v. New England Insurance Company, 576 So.2d 466, 468 (La.1991). It is equally well established in Louisiana that libel and personal injury actions cannot be assigned during the lifetime of the injured party. See Irion v. Knapp, 132 La. 60, 62, 60 So. 719, 720 (1913); Gilboy v. American Tobacco Company, 540 So.2d 391, 393 (La. App. 1st Cir.1989).

In recognition of the adversarial nature of litigation and that an attorney’s paramount duty is, and must be, to his client, Louisiana courts have long held that an attorney does not owe a legal duty to his client’s adversary, when acting on his client’s behalf. See Scheffler v. Adams and Reese, LLP, 2006-1774, pp. 13-14 (La.2/22/07), 950 So.2d 641, 651-652, and the cases cited therein. As such, a non-client cannot hold his adversary’s attorney personally liable for either malpractice or negligent breach of a professional obligation. Montalvo v. Sondes, 93-2813, p. 4 (La.5/23/94), 637 So.2d 127, 130.

With these precepts in mind, we now address the issue of whether the assignment of a legal malpractice claim is against public policy in Louisiana. Many courts across the country have been asked to address this issue, and most courts have determined that it is a simpler task — or a better approach — to simply resolve this issue from a public policy perspective. In taking that approach, the ^majority of our sister states have determined that legal malpractice claims are not assignable; only a few states, including Maine and Pennsylvania, have held that such claims are assignable.

Although there is no controlling precedent, we are presented with persuasive authority from both the federal courts and the courts of our sister states. In Stanley v. Trinchard, 500 F.3d 411, 425 (5th Cir. 2007), in dealing with distinct issues arising under bankruptcy law relating to the rights of the bankruptcy trustee, the fifth circuit acknowledged that “state laws, like Louisiana’s, ... prohibit assignment of legal malpractice claims.” However, Stanley did not address the question of assign-ability of legal malpractice claims from a public policy perspective. On the other hand, Ragas v. MGA Insurance Company, 1996 WL 467288 (E.D.La.1996), did address the issue and held that public policy concerns precluded assignment of legal malpractice claims. Ragas was pending in federal district court on grounds of diversity jurisdiction when the plaintiff sought to add Robert Hogan, whose presence in the case would destroy diversity, to the suit. The plaintiff claimed, among other things, that he was the assignee of MGA’s insureds’ legal malpractice claims against their former attorney, Hogan. In denying leave to amend to add Hogan, the court held, without providing an explanation, that the “assignment of a legal malpractice claim is against public policy.”

More recently, in Kilgore Marine Services, Inc. v. Fireman’s Fund Insurance Co., 2008 WL 3557711, p. 6 (W.D.La.2008)(citing Succession of Zatarain, 138 So.2d 163, 165 (La.App. 1st Cir. 1962)), the court acknowledged that “Louisiana law holds that the obligation of an attorney to his client is a personal, rather than heritable, obligation. Thus, a legal malpractice claim is not subject to assignment.” Id.

Moreover, we find the common theme in cases holding that legal malpractice claims are not assignable is that the relationship between an attorney |inand his client is a fiduciary relationship of the very highest character, and it binds the attorney to most conscientious fidelity. Goodley v. Wank & Wank, Inc., 62, Cal.App.3d 389, 62 Cal.App.3d 389, 133 Cal.Rptr. 83, 87 (2 Dist.1976). Thus, not only does the attorney owe the duty to use skill, prudence, and diligence in the performance of the tasks he undertakes for his client, but he also owes undivided loyalty to the interests professionally entrusted to him. Because of the inherent character of the attorney-client relationship, it has been jealously guarded and restricted to only the parties involved. Goodley, 62 Cal.App.3d at 395-396, 133 Cal.Rptr. 83. Therefore, in Good-ley, the California court held:

It is the unique quality of legal services, the personal nature of the attorney’s duty to the client and the confidentiality of the attorney-client relationship that invoke public policy considerations in our conclusion that malpractice claims should not be subject to assignment. The assignment of such claims could relegate the legal malpractice action to the market place and convert it to a commodity to be exploited and transferred to economic bidders who have never had a professional relationship with the attorney and to whom the attorney never owed a legal duty, and who have never had any prior connection with the assignor or his rights. The commercial aspect of assignability of choses in action arising out of legal malpractice is rife with probabilities that could only debase the legal profession. The almost certain end result of merchandizing such causes of action is the lucrative business of factoring malpractice claims which would encourage unjustified lawsuits against members of the legal profession, generate an increase in legal malpractice litigation, promote champerty and force attorneys to defend themselves against strangers. The endless complications and litigious intricacies arising out of such commercial activities would place an undue burden on not only the legal profession but the already overburdened judicial system, restrict the availability of competent legal services, embarrass the attorney-client relationship and imperil the sanctity of the highly confidential and fiduciary relationship existing between attorney and client.
Public policy encourages those who believe they have claims to solve their problems in a court of law and secure a judicial adjustment of their differences .... However, the ever present threat of assignment and the possibility that ultimately the attorney may be confronted with the necessity of defending himself against the assignee of an irresponsible client who, because of dissatisfaction with legal services rendered and out of resentment and/or for monetary gain, has discounted a purported claim for malpractice by assigning the same, would most surely result in a selective process for carefully choosing clients thereby rendering a disservice to the public and the profession.

hi Goodley, 62 Cal.App.3d at 397-398, 133 Cal.Rptr. 83 (citation omitted).

In Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313, 317-318 (Tex.App.1994), a Texas court recognized another problem inherent in allowing the assignability of legal malpractice claims, as follows:

[T]he Zuniga-Bauer assignment is a transparent device to replace a judgment-proof, uninsured defendant with a solvent defendant. To allow such assignments would serve two principal goals: enabling the defendant-client to extricate himself from liability, and funding the original plaintiffs judgment. But to allow assignments would exact high costs: the plaintiff would be able to drive a wedge between the defense attorney and his client by creating a conflict of interest; in time, it would become increasingly risky to represent the un-derinsured, judgment-proof defendant; and the malpractice case would cause a reversal of the positions taken by each set of lawyers and clients, which would embarrass and demean the legal profession.
Concerning the client’s desire to be free from liability, we question how far the law should stretch to protect the client who chose to go uninsured. (Footnote omitted).

The California court also raised another valid point — that to allow assignment would make lawyers reluctant, and perhaps unwilling, to represent defendants with inadequate insurance and assets, because such representation, after all, might make the lawyer the most attractive target in the lawsuit.

In Coffey v. Jefferson County Board of Education, 756 S.W.2d 155 (Ky.App.1988), the court set aside an assignment of a legal malpractice claim based, at least in part, on the risk of collusion between assignor and assignee. In Coffey, the defendant in a negligence case confessed judgment for damages to plaintiff in the amount of $1,000,000 and at the same time sought to assign to plaintiff any legal malpractice claims he may have against his former counsel. In setting aside the assignment, the court found it collusive and against public policy.

We note that at least two courts in our sister states — Maine and Pennsylvania— have taken a contrary view regarding this issue. In Thurston v. Continental Casualty Company, 567 A.2d 922, 923 (Me. 1989), a Maine court allowed the assignment of a legal malpractice claim, reasoning as follows:

We hold first that there is no reason to prohibit the assignment of a legal malpractice claim in a situation such as this. We are not here confronted with the establishment of a general market for such claims; this assignee has an intimate connection with the underlying lawsuit. Although some cases from other jurisdictions flatly prohibit the assignment of any legal malpractice claim, e.g., Goodley v. Wank and Wank, Inc., 62 Cal.App.3d 389, 397, 133 Cal.Rptr. 83, 87 (1976); Christison v. Jones, 83 Ill. App.3d 334, 338-39, 39 Ill.Dec. 560, 405 N.E.2d 8, 11 (1980), their reasoning is not persuasive. A legal malpractice claim is not for personal injury, but for economic harm. Hedlund Mfg. Co. v. Weiser, Stapler & Spivak, 517 Pa. 522, 526, 539 A.2d 357, 359 (1988). The argument that legal services are personal and involve confidential attorney-client relationships does not justify preventing a client like 3K from realizing the value of its malpractice claim in what may be the most efficient way possible, namely, its assignment to someone else with a clear interest in the claim who also has the time, energy and resources to bring the suit. The Superior Court properly denied the lawyer defendants’ motion to dismiss.

In Hedlund Manufacturing Company, Inc. v. Weiser, Stapler & Spivak, 539 A.2d 357, 359, 517 Pa. 522 (Pa.1988), a Pennsylvania court allowed the assignment of a legal malpractice claim, stating, “We will not allow the concept of the attorney-client relationship to be used as a shield by an attorney to protect him or her from the consequences of legal malpractice. Where the attorney has caused harm to his or her client, there is no relationship that remains to be protected.”

Having thoroughly reviewed the cases from other jurisdictions, we are persuaded by the reasoning of the federal courts and the majority of our sister states and hold that legal malpractice claims may not be assigned. The mere threat of a malpractice claim being assigned would be detrimental to an attorney’s duty of loyalty and confidentiality to his client, would promote collusion, and would increase a lawyer’s reluctance to represent an underin-sured or insolvent client. Therefore, also as a matter of public policy, we conclude it is not prudent to permit enforcement of a legal malpractice claim that has been transferred by assignment, but never pursued by the original client.

| ^Accordingly, based on positive law, jurisprudence, and public policy, we hereby affirm the December 5, 2007 judgment of the trial court, sustaining the defendants’ peremptory exceptions raising the objection of no right of action.

III. PRESCRIPTION

A. General Legal Precepts

Prescription statutes are strictly construed against prescription and in favor of maintaining the cause of action. Babineaux v. State ex rel. Dept. of Transp. and Development, 2004-2649, p. 4 (La.App. 1st Cir.12/22/05), 927 So.2d 1121, 1124. However, prescription statutes are intended to protect defendants against stale claims and the lack of notification of a formal claim within the prescriptive period. In re Brewer, 2005-0666, p. 4 (La.App. 1st Cir.5/5/06), 934 So.2d 823, 826, writ denied, 2006-1290 (La.9/15/06), 936 So.2d 1278.

Ordinarily, the party pleading prescription bears the burden of proving the claim has prescribed. However, when the face of the petition reveals that the plaintiffs claim has prescribed, the burden shifts to the plaintiff to demonstrate prescription was interrupted or suspended. Kirby v. Field, 2004-1898, p. 6 (La.App. 1st Cir.9/23/05), 923 So.2d 131, 135, writ denied, 2005-2467 (La.3/24/06), 925 So.2d 1230.

In this case, the pleadings reveal that Foret became aware of the alleged legal malpractice on September 22, 2006, and the amended petition was filed on October 3, 2007. As such, the Forets’ claim is prescribed on its face and the plaintiffs must bear the burden of proving that prescription was interrupted or suspended.

B. Relation-Back Doctrine

Plaintiffs assert that the claims raised in the amended petition relate back to the original petition. The question of whether an amendment to a pleading relates back to the original pleading is controlled by La. C.C.P. art. 1153, which states:

114When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

The Code of Civil Procedure itself demands that its articles are to be liberally construed, with due regard for the fact that the rules of procedure implement the substantive law and are not an end in themselves. La. C.C.P. art. 5051. Liberality is particularly appropriate in the amendment process, as long as the moving party is not in bad faith or the opposing party unduly prejudiced. Giron v. Housing Authority of City of Opelousas, 393 So.2d 1267, 1270 (La.1981).

In Giroir v. South Louisiana Medical Center, Division of Hospitals, 475 So.2d 1040 (La.1985), the Louisiana Supreme Court established a four-part test for determining whether an amended petition adding a new plaintiff filed after prescription had run relates back to the filing date of the original petition under La. C.C.P. art. 1153. The court held:

[A]n amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; and (4) the defendant will not be prejudiced in preparing and conducting his defense.

Giroir, 475 So.2d at 1044.

The plaintiffs assert that the amended petition in this case meets all four parts of the Giroir test. Defendants do not concede that the four-part test of Giroir is met and argue that because plaintiffs (Taylor and Ledet) were Foret’s adversaries in the prior litigation, they had no reason to logically conclude that Foret would soon be added as a plaintiff in the malpractice action. Accordingly, the defendants’ argument does not focus on a Giroir analysis, but instead, the defendants contend, and the trial court agreed, that plaintiffs’ reliance on La. |1SC.C.P. art. 1153 and Giroir is misplaced, because the case law interpreting La. C.C.P. art. 1153 assumes that in the original pleadings, the original plaintiffs had a legally-cognizable claim to assert against the defendants in the first place. Defendants argue that Giroir and other Louisiana cases that support relation back involve the changing of party plaintiffs who already had a right to assert the underlying claim against the defendant at the outset. Therefore, the defendants assert that because Taylor and Ledet had no legally cognizable cause of action in the first place, the “Foret petition” is essentially a neio cause of action.

In Giroir, the Louisiana Supreme Court noted that La. C.C.P. art. 1153 was modeled after Rule 15 of the Federal Rules of Civil Procedure, and as such, federal case law interpreting Rule 15 provides authority in analyzing relation-back issues under Article 1153. Giroir, 475 So.2d at 1042. Therefore, defendants urge us to rely on Summit Office Park, Inc. v. United States Steel Corporation, 639 F.2d 1278 (5th Cir. 1981). In Summit, an indirect purchaser of material, had filed an antitrust suit against manufacturers of reinforced steel bars. After the filing of the suit, but before the case was tried, the United States Supreme Court announced a decision in which the court stated that indirect purchasers of materials had noutstanding to assert antitrust claims. Summit attempted to amend its original complaint to add a restructured class of direct purchasers only. The Fifth Circuit held that where the original plaintiff did not have a viable cause of action, he could not amend the complaint to add new parties-plaintiffs. The court also held that a newly added plaintiff could not appear in a case in which the original plaintiffs had no right to assert. The court stated: “A pleading which abandons the original plaintiff and class and asserts new claims upon which the original plaintiff and class could not recover, has the characteristics of a new lawsuit rather than an amended complaint.” Summit, 639 F.2d at 1284. The only manner in which the newly added plaintiff could assert a claim against the defendant is by filing a separate and independent claim, subject to the time limitations that attach thereto.

We agree with the trial court that relation back simply cannot be allowed under the circumstances of the instant case. Because we find that Taylor and Ledet could never recover upon the claims of legal malpractice against Foret’s counsel, the only manner in which Foret could assert said claims against his former counsel was by filing a separate suit, which is now time-barred. Accordingly, the December 5, 2007 judgment of the trial court, sustaining the defendants’ peremptory exceptions raising the objection of prescription, is hereby affirmed.

IV. CONCLUSION

For all the foregoing reasons, the December 5, 2007 judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiffs/appellants, Eva Taylor, Kevin Ledet, and Jesse Foret.

AFFIRMED.

      . The motion and order for appeal asserts that the appeal is taken on behalf of Eva Taylor, Kevin Ledet, Jesse Foret, Michelle Foret, and Janell Cook; however, it appears that the appellate brief has been filed only on behalf of Eva Taylor, Kevin Ledet, and Jesse Foret.

      . The facts concerning the motorboat accident and the underlying litigation are taken from this court’s opinion rendered in Taylor v. Foret, 2006-1945, 2006-1946 (La.App. 1st Cir.6/8/07, 958 So.2d 1217)(unpublished), -writ denied. 2007-1411 (La.10/5/07), 964 So.2d 943.

      .The bankruptcy petition filed on behalf of Foret advises that the purpose of a Chapter 7 case is to obtain a discharge of existing debts. However, there is a notation that some debts are not dischargeable under the law, including debts for death or personal injury caused while driving while intoxicated from alcohol or drugs.

      . Specifically, Taylor and Ledet asserted that their claim should not be discharged pursuant to 11 U.S.C.A. § 523(a)(9), because the injuries they suffered were caused by Foret’s operation of a motor vehicle while he was intoxicated. Plaintiffs further averred that their claims should not be discharged pursuant to 11 U.S.C.A. § 523(a)(6) because the accident resulted from Foret’s "willful and malicious” injury to them.

      . Before trial, the parties stipulated that Le-det had sustained damages in the amount of $200,000 and that Taylor had sustained $4,000,000 in damages.

      . There are no allegations in the pleadings nor any evidence contained in the record to suggest how Foret became aware of the alleged malpractice on that date.

      . The first amended petition for damages also added Janell Cook as a plaintiff and added a claim for attorney fees she allegedly paid in connection with the bankruptcy proceeding. Defendants asserted an exception of vagueness to the claims of Janell Cook, which was sustained by the trial court, but is not an issue in this appeal.

      . Gardner v. Montagna, 16 La. Ann. 299 (1861).

      . Belcher & Creswell v. Johnson, 114 La. 640, 38 So. 481 (1905). In this case, the court also gave examples of the types of personal rights that a creditor cannot exercise in the stead of his debtor or compel the debtor to perform, i.e., a creditor cannot compel his debtor to bring a suit for separation of property between him and his wife, as the right is entirely personal; nor for the same reason can he compel him to accept a donation, or call on coheirs to collate. Belcher & Creswell, 38 So. at 481.

        .Spencer v. Goodman & Bradfield, 33 La. Ann. 898 (1881).

      . At issue in Giroir was whether an amended petition, which added decedent's adult children as new plaintiffs in wrongful death and survival actions after prescription had run, related back to the date of the filing of their father’s timely original petition. The supreme court answered that question in the affirmative, specifically noting the close familial and legal relationship between the original plaintiff and the new plaintiffs. Curiously, both plaintiffs and defendants also cite this Court's opinion in Gilboy v. The American Tobacco Company, 540 So.2d 391 (La.App. 1st Cir. 1989), to support their respective positions on the issue. In Gilboy, Mr. Gilboy, allegedly injured by cigarette-induced lung cancer, executed a donation inter vivos giving his claim for damages against cigarette manufacturers and a cigarette vendor to his wife, his children, and Stop Teenage Addiction to Tobacco. The donees brought the lawsuit and the petition was met with the exceptions of no right and no cause of action. This court held that Mr. Gilboy could not legally donate his cause of action for personal injury during his lifetime, and held that the exception of no right of action was properly sustained. However, this court further held that the trial court should have permitted an amendment to the petition to substitute Mr. Gilboy as plaintiff, particularly since no party to the litigation asserted that the cause of action belonged to anybody but Mr. Gilboy.

      . The defendants assert that the first amended petition, which was filed to add the Forets as plaintiffs, only added a cause of action for mental anguish. The Forets dispute this and contend that they were added to pursue the full gamut of legal malpractice claims. The trial judge did not address this contention, because he ultimately concluded that all of the claims were prescribed because the relation-back doctrine did not apply.

      . We do not here address the issue of whether mental anguish damages are recoverable in a legal malpractice action, in light of our ruling that all claims asserted by the plaintiffs in the amended petition are prescribed.


author: McDonald, j.

text:
    Sanders COLEMAN, III, Individually and as the Administrator of the Estate of his Minor Son, Xavier Coleman v. ST. TAMMANY PARISH SCHOOL BOARD and ABC Insurance Company. Terese Coleman and Sanders Coleman, III, Individually and as the Administrator of the Estate of His Minor Son, Xavier Coleman v. St. Tammany Parish School Board and ABC Insurance Company.
    Nos. 2008 CA 1979, 2008 CA 1980.
    Court of Appeal of Louisiana, First Circuit.
    May 8, 2009.

      Doris D. McWhite, Baton Rouge, Louisiana, for Plaintiffs/Appellants, Terese Coleman and Sanders Coleman, III, Individually and as the Administrator of the Estate of his Minor Son, Xavier Coleman.
    David S. Pittmann, Harry P. Pastuszek, Jr., Patrice W. Oppenheim, Covington, Louisiana, Attorneys for Defendant/Appel-lee, St. Tammany Parish School Board.
    Before PETTIGREW, McDONALD, HUGHES, JJ.
   McDonald, j.

I ¡.This is an appeal of a grant of a motion for summary judgment on behalf of the defendant, St. Tammany Parish School Board. For the following reasons the judgment is reversed, and the matter is remanded to the trial court.

FACTS AND PROCEDURAL BACKGROUND

Xavier Coleman was a fourth grade student at Little Oak Middle School in St. Tammany Parish in March 2003. On March 12, 2003, Xavier and another student, Matthew, were both trying to get a ball that had rolled between them in physical education class. Xavier got the ball and passed it, Matthew shoved Xavier, Xavier punched Matthew, and the teacher intervened and put Matthew on the bench for the rest of the game. After class, Matthew told Xavier that he was going to “beat him up at lunch time tomorrow.” Xavier reported the incident to his mother at home that night. The next day, Thursday, March 13, 2003, Xavier’s mother, Terese Coleman, went to the school at lunchtime. In spite of Mrs. Coleman’s presence, Matthew and a group of his friends again threatened to beat Xavier. Mrs. Coleman reported this to the school’s assistant principal, Mr. Heneg, who assured her that he would take care of the problem.

Mr. Heneg called Matthew and Xavier into his office and discussed the matter with them. However, Matthew and the same group of his friends continued to threaten Xavier. Mrs. Coleman called the disciplinarian of the St. Tammany Parish School System to discuss the problem, who advised that she would discuss it with Mr. Heneg. As the threats continued, Mrs. Coleman also reported them to a fourth grade teacher at Little Oak, Mrs. Holmes, and asked her to speak with the boys. She also reported the continuing daily threats again to Mr. Heneg, who again advised that he would take care of it.

On March 19, 2003, one of Matthew’s friends, Warren, did attack Xavier on the playground at lunchtime. The bell rang ending lunch and the attack, and | ¡¡Xavier went to class. That night he went to the emergency room for treatment. On March 3, 2004, a petition for damages was filed by Terese Coleman and Sanders Coleman III, on behalf of Xavier, for physical and mental pain and suffering and medical expenses. On June 27, 2007, the defendant filed a motion for summary judgment, which was set and then continued twice before being heard on January 23, 2008. The trial court granted the defendant’s motion for summary judgment. The plaintiffs appeal, asserting the trial court erred in granting the summary judgment because there are genuine issues of material fact. The plaintiffs also maintain that there is evidence supporting a finding that the school board was negligent in providing supervision, and that negligence was a causal factor in Xavier’s injury.

LAW AND ANALYSIS

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B); Gootee Construct, Inc. v. Amwest Sur. Ins. Co., 03-0144, p. 3 (La.10/10/03), 856 So.2d 1203, 1205. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Appellate review of a grant of a motion for summary judgment is de novo, and the appeal court uses the same criteria as the trial court in determining whether summary judgment is appropriate — whether there is a genuine issue of material fact and whether mover |4is entitled to judgment as a matter of law. Jones v. Estate of Santiago, 03-1424, p. 5 (La.4/14/04), 870 So.2d 1002, 1006.

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Id. A “genuine issue” is a “triable issue.” An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Smith v. Our Lady of the Lake Hospital, Inc. 93-2512, (La.7/5/94), 639 So.2d 730, 751.

The theory of recovery in this matter is governed by La. C.C. art. 2315, requiring any act causing damage to another to be repaired by him whose fault it is and La. C.C. art. 2320, providing that teachers and artisans are answerable for the damage caused by their scholars and apprentices, while under their supervision. The supreme court has articulated the correct standard of liability of a school board for the actions of its students under La. C.C. art. 2320 in Wallmuth v. Rapides Parish School Board, 01-1779, 1780, p. 8 (La.4/3/02), 813 So.2d 341, 346.

A school board, through its agents and teachers, owes a duty of reasonable supervision over students. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. This duty does not make the school board the insurer of the safety of the children. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision.
Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and also proof of a causal connection between the lack of supervision and the accident.... Furthermore, before a school board can be found to have breached the |fiduty to adequately supervise the safety of students, the risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. [Citations omitted]

The defendant argues that the injury to Xavier here was not foreseeable and could not have been prevented absent constant supervision. It posits that in the cases where the school board has been held liable there was evidence that the school board had advance notice of the specific conduct, including time and place, but took no steps to prevent that conduct. It emphasized that Xavier was injured by Warren and that the plaintiff did not present any evidence that the school board had any advance notice that Xavier and Warren would become involved in an altercation.

In granting summary judgment, the trial court correctly noted that the jurisprudence has established that a school board cannot be responsible for supervising every student 100 percent of the time. However, our review of this record does not lead us to conclude that would have been required to prevent the injury to Xavier. We do not agree that the attack on Xavier by Warren was not foreseeable because the reported problem was between Matthew and Xavier. Mrs. Coleman’s deposition indicates that the problem reported was with Matthew and his specific group of friends, one of whom was Warren. We find that there is a genuine issue as to whether Xavier’s injury by Warren was foreseeable.

Further, there is no evidence of what action, if any, was taken in response to the reported threats. Xavier’s deposition indicates that he and Matthew were called into Mr. Heneg’s office, and he asked them each to tell their side of the story. Apparently, this action was taken in response to the initial incident in physical education class. There is no indication that any response was made to Terese Coleman’s report that a group of boys were threatening to harm her son. The jurisprudence clearly establishes that the requisite supervision by the school of its | (¡students is “reasonable, competent supervision appropriate to the age of the children and the attendant circumstances.” We do not agree that the law requires that before a school board can be found liable it must receive specific notice, including the conduct, time and place. In Wallmuth, supra., the supreme court states that the risk of injury must be “foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised.” The requisite supervision is dependent on the attendant circumstances.

The defendant did not submit any evidence regarding the supervision exercised. The law relating to summary judgment provides that the initial burden of proof is with the mover. La. C.C.P. art. 966(C)(2). It is clear from the law and jurisprudence that the mover has the burden of proof and it is only after the motion has been made and properly supported that the burden shifts to the non-moving party. When a motion for summary judgment is not properly supported, the opposing party may rely on the mere allegations of his - pleadings to demonstrate that a genuine issue of material fact exists. Pugh v. St. Tammany Parish School Board, 07-1856 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 99. In this case, the plaintiffs’ petition alleged that the proximate cause of Xavier’s injury was the negligence of the defendant and its employees for several specified reasons, one of which was failure to have sufficient supervision. The defendant did not submit any supporting documentation to make a showing that the supervision exercised here was reasonable and competent under the circumstances. We find that the defendant did not meet its burden of proof, there is a triable issue on the fact of the adequacy of the defendant’s supervision, and they are not entitled to summary judgment as a matter of law.

CONCLUSION

Based on the foregoing, the judgment granting the motion for summary judgment and dismissing plaintiffs’ claims is reversed, and the matter is remanded [7to the trial court for further action. Costs of this appeal are assessed to the defendant.

REVERSED AND REMANDED.

HUGHES, J., concurs.

      . Two petitions were filed, one by Sanders Coleman, III, and one by Terese Coleman and Sanders Coleman, III. The two matters were consolidated.

      . We do not find evidence in this record that the school board was negligent and that the negligence was a causal factor in Xavier’s injury. However, while the plaintiffs will be required to prove that negligence to prevail in this matter, in a motion for summary judgment, the mover has the burden of proof.