author: Judge Edwin A. Lombard

text:
    HOWELL CONSTRUCTION, INC. v. ANDRY LERNER, L.L.C., Andry Law Group, L.L.C., Johnathan B. Andry and Christina E. Mancuso
    NO. 2018-CA-0317
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 24, 2018
    Robert H. Matthews, Pauline M. Warriner, MATTHEWS & WARRINER, L.L.C., 230 Olivier Street, New Orleans, LA 70114 -AND- Jean-Paul Layrisson, Timothy D. Scandurro, Krista M. Eleew, SCANDURRO & LAYRISSON, L.L.C., 607 St. Charles Avenue, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    Lewis O. Unglesby, Jordan L. Bollinger, UNGLESBY LAW FIRM, 246 Napoleon Street, Baton Rouge, LA 70802 -AND- David S. Daly, FRILOT, LLC, 1100 Poydras Street, Suite 3700, New Orleans, LA, 70163, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Paula A. Brown )
   Judge Edwin A. Lombard

This appeal is from a summary judgment rendered in favor of the defendants, dismissing the plaintiff's legal malpractice claims. After review of the record in light of the applicable law and arguments of the parties, we affirm the district court judgment.

Relevant Facts and Procedural History

On April 20, 2010, the Deepwater Horizon (a semi-submersible offshore oil drilling rig) exploded in the Gulf of Mexico. In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, On April 20, 2010, 910 F.Supp.2d 891, 900 (E.D. La. 2012). A massive discharge of oil into the Gulf continued for nearly three months, resulting in thousands of lawsuits filed for damages resulting from the oil spill. A federal class action settlement was reached in April 2012 wherein businesses that suffered economic damages as a result of the oil spill could file for Business Economic Loss ("BEL") damages under the Settlement Agreement. Thus, pertinent to this lawsuit, a "B1" damage claim could be filed if the plaintiff: (1) owned, operated, or leased a facility in the Gulf Coast area between April 20, 2010; and (2) sold products in those areas directly to consumers or end users. Additionally, a service business with one or more full-time employees who were physically present performing services in the Gulf Coast area between April 20, 2010, and April 16, 2012, could file a damage claim. Clearly, inherent in qualifying for economic loss damages is an implicit requirement that a business owner show an economic loss.

To participate in the settlement program, a claimant was required to submit claim forms with required documentation for evaluation and processing by the Court Supervised Settlement Program. Throughout the existence of the program, the claims administrator issued policies and orders pertinent to various changes, including changes to deadlines relevant to filing claims, opting out of the settlement, and revocation of prior opt-outs to the Settlement Agreement. Notably, failure to timely and properly opt-out of the settlement agreements foreclosed a party from bringing a separate claim under the Oil Pollution Act ("OPA").

In July 2012, the plaintiff, Howell Construction, Inc., an Arkansas company registered as a business in Louisiana, entered into a contingency agreement for legal representation to pursue a claim for economic damages from the oil spill with the defendants, Andry Lerner, L.L.C., Andry Law Group, L.L.C, and Jonathan B. Andry. On November 1, 2012, after consulting with the defendants, the plaintiff signed documents to opt-out of the BP settlement. On or about January 29, 2013, the defendants sent a certified letter terminating their professional relationship with the plaintiff.

On January 17, 2014, the plaintiff filed this lawsuit against the defendants, alleging breach of contract and, by amended petition filed on November 5, 2014, asserting a legal malpractice claim. On August 11, 2017, the defendants filed a motion for summary judgment. The plaintiff filed its opposition to summary judgment on November 30, 2017. The defendants filed a reply brief on December 8, 2017. After a hearing on the motion, the district court rendered judgment in favor of the defendants on February 6, 2017, finding that the plaintiff would be (1) unable to prove as a matter of law that the defendants were negligent in the handling of its BP oil spill claim and (2) unable to prove that it suffered any loss caused by the defendants' alleged negligence.

This devolutive appeal was timely filed.

Standard of Review

A motion for summary judgment is reviewed de novo on appeal, using the same criteria as the district court, to determine the existence of a genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. La. Code Civ. Proc. art. 966 ; Louisiana Safety Association of Timbermen Self-Insurers Fund v. Louisiana Ins. Guaranty Association, 09-23 (La. 6/26/09), 17 So.3d 350, 353.

Applicable Law

Summary Judgment

Summary judgment, designed to secure just, speedy, and inexpensive determinations of legal actions, is favored in Louisiana "and shall be construed to accomplish these ends." La. Code Civ. Proc. art. 966(A)(2). A motion for summary judgment shall be granted when "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. Code Civ. Proc. art. 966(A)(3).

A moving party who does not bear the burden of proof at trial is not required to negate all essential elements of the adverse party's claim but need only point out an absence of factual support for one or more elements essential to the adverse party's claim.

La. Code Civ. Proc. art. 966(D)(1). Accordingly, once the mover has pointed out the absence of factual support, 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. Vague allegations are insufficient to oppose a motion for summary judgment. MB Indus., LLC v. CNA Ins. Co. , 2011-0303 (La. 10/25/11), 74 So.3d 1173, 1186. Whether a particular fact in dispute is "material" for summary judgment purposes is viewed 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 (citations omitted).

Legal Malpractice

To establish a valid legal malpractice claim, a plaintiff must show evidence sufficient to convince a reasonable trier of fact of (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney; and (3) loss caused by that negligence. An attorney's license to practice and a contract for employment both indicate possession of certain minimal skills, knowledge, and abilities but, although an attorney is obligated to exercise at least that degree of care, skill, and diligence which is exercised by prudent local practicing attorneys, an attorney is "not required to exercise perfect judgment in every instance." Crescent City Prop. Redevelopment Ass'n, LLC v. Hardy , 2011-1292, p. 7 (La. App. 4 Cir. 4/18/12), 89 So.3d 1270, 1274-75, writ denied, 2012-1429 (La. 10/8/12), 98 So.3d 859 (citation omitted).

Prescription

In Louisiana, prescription begins to run on the day the injury or damage is sustained. Cole v. Celotex Corp. 620 So.2d 1154, 1156 (La. 1993). In other words, damage is sustained for prescription purposes only when it has manifested itself with sufficient certainty to support accrual of a cause of action. Id.

Definition of Start-Up Business under Settlement Agreement

A "Start-Up Business" for purposes of the Settlement Agreement "is a business entity, not a line of business," i.e., "a claimant with less than eighteen months of operating history at the time of the [BP oil] spill. Holmes Motors, Inc. v. BP Exploration & Prod., Inc. 829 F.3d 313, 316 (5th Cir. 2016) (emphasis in original; citing Settlement Agreement § 38.15); See Deepwater Horizon, 910 F.Supp.2d at 903-10 (describing the Settlement Agreement at length).

Discussion

In its legal malpractice lawsuit against the defendants, the plaintiff asserts two claims: (1) the plaintiff's decision to opt-out of the settlement was based on the defendants' negligent advice to do so; and (2) the deadline for a presentment under the OPA expired nine days before the defendants sent the letter terminating their attorney/client relationship and, therefore, the failure to make a presentment under the OPA on behalf of the plaintiff was legal malpractice.

The existence of the attorney/client relationship between the parties is undisputed. The defendants acknowledge that they advised the plaintiff that its claim might not qualify under the Settlement Agreement and, in addition, that its claim would be difficult under the OPA because of the precipitous rise in its income between 2009 and 2011. The defendants also acknowledge that the termination letter was sent to the plaintiff in late January 2013. The defendants assert, however, that they are entitled to summary judgment as a matter of law because the plaintiff cannot show that the defendants' advice to opt-out of the BP settlement was negligent or that the plaintiff's potential OPA claim was not viable after the termination of the attorney/client relationship.

In support of their motion for summary judgment, the defendants submit the following documents:

(1) Defendants' Exhibit A: An affidavit by Jonathan Andry, stating that his law firm (Andry Lerner, LLC, and Andry Law Group, LLC) maintained a file during their representation of the plaintiff, including the following copied documents:
(a) Defendants' Exhibit A-1: case file notes including inter-office correspondence and notes documenting conversations with plaintiff between October 11, 2012, and December 12, 2012, pertaining to documents not yet received from the plaintiff, explaining to plaintiff that the settlement claim was problematic because rather than losing money in 2010 (the year the oil spill occurred) he made substantially more money than previous years (2008: $50K; 2009: $170K; 2010: $4 million; 2011: $16 million) and whether he satisfied the causation requirement under the settlement was based on the interpretation of "customer location," i.e., where the work was done or where the contractor/subcontractor was located. (Emphasis added).
(b) Defendants' Exhibit A-2: list of various documents in file including attorney/client contract, tax forms , and business records. (Emphasis added).
(c) Defendants' Exhibit A-3: correspondence between defendants and Coastal Claims Group about evaluation of the plaintiff's claim on the causation issue.
(d) Defendants' Exhibit A-4: letter dated July 24, 2012, to plaintiff requesting various documents necessary to evaluate plaintiff's potential claim.
(e) Defendants' Exhibit A-5: letter dated October 11, 2012, defining "Opt-out" and advising of upcoming deadlines in the Multi-District litigation.
(f) Defendants' Exhibit A-6: Official request to opt-out of settlement signed by Jerry Howell (plaintiff's Vice President) on October 24, 2012.
(g) Defendants' Exhibit A-7: Official request to opt-out signed by Jerry Howell on October 31, 2012.
(h) Defendants' Exhibit A-8: copy of certified letter dated January 29, 2013, by the defendants terminating their representation of the plaintiff for damages suffered as a result of the oil spill "due to the significant increase in revenue by the plaintiff in 2010."
(2) Defendants' Exhibit B: Excerpts of April 12, 2016, deposition testimony of Jerry Lee Howell, Jr., conceding that he signed two opt-out letters. He also stated that he "assumed" he had damages from the oil spill because that he "lost" the Idlewild contract in 2011 "due to not having sold enough material due to the BP Oil spill slowing us down.
(3) Defendants' Exhibit C: Excerpts of April 28, 2016, deposition testimony of Dane S. Ciolino stating that (a) the only BP settlement case he worked on was for his own law practice; (b) he did not know whether the law allowed a three year period for filing BP oil spill claims; (c) "I don't pretend to be an expert on BP claims;" (d) the standard of care was not breached if the prescriptive date for filing a claim fell after the termination of the attorney/client relationship; (e) the plaintiff's business moved to Louisiana from Arkansas in 2010 (the year of the oil spill) and income rose from $170,000 in 2009 to $4,000,000 in 2010 and $16,000,000 in 2011; and (f) he did not know the "claims office" interpretation of a Start-Up Business which was "one of these complicated formulas that dealt with losses" in different zones and did not "pretend to be an expert in the calculation of losses either in the general business model or under the start-up model."
(4) Defendants' Exhibit D: Excerpts of September 13, 2016, deposition testimony of D. Keith Chun agreeing that evaluating a complicated "start-up company" oil spill claim required full information from the claimant.
(5) Defendants' Exhibit E: affidavit of Zachary Wool stating that based on his review of the documents produced in the defendants' case file, it was his opinion that the defendants did not breach any standard of care and that the plaintiff's OPA claim did not prescribe during the period the plaintiff was represented by the defendants. In addition to the case file documents Exhibits E1-E8 (identical to Exhibits A1-A8, supra ), Exhibit E-9 is a copy of a certified Default Letter sent to the plaintiff at its Arkansas business address from White Oak Realty, L.L.C. and Citrus Realty, L.L.C., dated June 22, 2011, notifying the plaintiff that it was in default under the Sale Agreement for failing to produce and pay for the required cubic yards of material during the specific time periods set forth in the Sale Agreement and that the plaintiff had thirty days to pay $3,817,774.17 to cure the default.

In opposition to the defendants' motion for summary judgment, the plaintiff asserts that summary judgment should be denied because there is a genuine issue of material fact as to when the plaintiff's "opt-out" claim became time-barred during the attorney/client relationship. Specifically, the plaintiff asserts that because the defendants' legal malpractice expert, Zachary Wool, did not review Jerry Howell's deposition testimony, he erroneously concluded that the applicable statute of limitations for the plaintiff's oil spill claim began to run on only when the Idlewild contract was terminated, June 21, 2011.

In support of its assertion that there is a genuine issue as to whether the plaintiff's claim for business losses prescribed prior to termination of the attorney/client relationship, the plaintiff submits:

(1) Plaintiff's Exhibit A: excerpts of Jerry Howell's deposition testimony wherein Mr. Howell states that he knew "immediately" on the day of the oil spill (April 20, 2010) that he had a damage claim and, therefore, the prescriptive period for his claim (and related presentment deadline) began to toll on April 20, 2010. Specifically, Mr. Howell states that the day the oil spill occurred he knew that the employees of the U.S. Army Corps of Engineers responsible for certifying "borrow" pits would be "pulled to the BP Oil Spill," which would in turn delay certification of the borrow pits underlying his Idlewild contract which would cause him to lose the contract. He explained that the owners of the Idlewild property were White Oak Realty, L.L.C. and Citrus Realty, L.L.C. Mr. Howell conceded, however, that there was no evidence that the Corps delayed certification of the borrow pits. Mr. Howell also alleges that, as a result of losing the Idlewild contract, he lost other unnamed contracts.
(2) Plaintiff's Exhibit B: excerpt of deposition testimony of Zachary Wool wherein he was asked whether he agreed that "[a]ssuming the date that Howell Construction was held to reasonably have discovered its claim was April 20, 2010, the date of the oil spill, ... the presentment date would have been 90 days before April 20, 2013, or before January 20. In response, Mr. Wool stated:
That is a huge if. But, yes, generally speaking, the statute of limitations is three years from when you know or should have known that you had a loss attributable to the spill. And there's a 90-day presentment requirement that starts running beyond that three-year deadline. So you'd come back in three months when you would have to make presentment."
(3) Plaintiff's Exhibit C: excerpts of the deposition testimony by D. Keith Chunn wherein he stated that he is not an attorney but it is his opinion that Mr. Wolf's conclusion that the presentment deadline was based on a date "further out" than the date of the oil spill because he (Mr. Chunn) had worked with several law firms "getting their cases ready for filing and "there was a big rush to make the presentment based on that [January 30, 2013] deadline date .. nobody was sitting there saying 'Well, we probably could argue that we could go out further.' " Mr. Chunn reiterated that he did not "prepare claims," but "had a lot of discussions with people on this" and when "the date came in January, I don't remember the specific date, it was probably the 29th or so, every firm was in a rush to file by that deadline."
(4) Plaintiff's Exhibit D: deposition testimony of Dane S. Ciolino wherein he stated that he believed the applicable standard of care required the defendants to gather all the relevant documents, "run damages calculations under the settlement agreement both under the general business model and as a start-up." Mr. Ciolino asserted that it was his opinion based on the documents he had seen that the defendants were on notice that a start-up claim was possible. He opined that the standard of care required the law firm to run those damages calculations with the assistance of its consulting accountants and then to share those calculations with Mr. Howell and discuss his claims, damages, the strengths and weaknesses of his claims under the settlement and as an opt-out, and then to obtain his consent timely to a course of action. Mr. Ciolino asserted that he had not "seen any documents suggesting that when [Mr. Howell] signed" either opt-out notice "that he had been given the information that he needed to make an informed decision to opt-out." Mr. Ciolino conceded, however, that his "opinion is totally dependent upon pieces of paper" and that he did not "have any idea what Kaily Leboeuf or Leslie Tate or Christine Mancuso or anyone else may have said [to Mr. Howell]."
(5) Plaintiff's Exhibit E: the deposition testimony of Richard S. Lacour wherein he stated that the plaintiff met causation for a start-up business to be compensated through the Settlement Agreement under the Deepwater Horizon rules because the plaintiff "worked on the levees" in an area designated as "Zone B" and "compensation just follows." Mr. Lacour defined causation as "where your gross revenues in ... a three month period in 2010 ... compared to those same three months [in 2011 shows] a 8 ½ percent increase."

In its response to the plaintiff's opposition, the defendants assert they are entitled to summary judgment because the plaintiff is unable to sustain its burden of proof with regard to material elements of the malpractice claim. Specifically, with regard to whether the defendants' actions fell below the applicable standard of care related to an action for economic/business loss, the defendants point out that under the OPA, 33 U.S.C. § 2717(f)(1)(A), an action must be brought within three-years after "the date on which the loss and the connection of the loss with the discharge in question are reasonably discoverable with the exercise of due care." Therefore, the defendants argue that, even if Mr. Howell subjectively "knew" there was potential future economic loss related to the oil spill, no "reasonably discoverable" loss occurred until the plaintiff received notice by letter dated June 21, 2011, from White Oak Realty, L.L.C., and Citrus Realty terminating the contract with the plaintiff related to its Idlewild property and thereby triggering the three-year prescriptive period.

Analysis

After de novo review of the defendants' motion for summary judgment, the plaintiff's opposition, and the defendants' reply, including supporting exhibits, we find that defendant is entitled to summary judgment as a matter of law. The defendants pointed out the absence of factual support for elements essential to the plaintiff's legal malpractice claim and the plaintiff failed to meet its burden to produce factual support sufficient to establish the existence of a genuine issue of material fact.

The gist of the plaintiff's legal malpractice claim appears to be that it would have been compensated for an economic loss suffered as a result of the oil spill but for the defendants' negligence in evaluating, advising, and timely filing claims on its behalf. As factual support for this claim, the plaintiff proffered the deposition testimony of Mr. Howell, Mr. Wool, Mr. Ciolino, Mr. Chunn, and Mr. Lacour. The proffered deposition testimony offers only vague allegations of fault, however, and fails to establish any genuine issue of material fact that the defendants are not entitled to summary judgment as a matter of law.

Mr. Howell claimed that he "immediately" knew the oil spill would result in an economic loss for his business because the Corps of Engineers would shift its focus to the oil spill, thereby delaying certification of the borrow pits. He conceded, however, that there is no evidence that the Corps delayed certifying the borrow pit. Moreover, even accepting arguendo that the termination of the "Idlewild" contract was based on delayed certification of a borrow pit by the Corps, there is no evidence to connect that delay to the oil spill.

Mr. Wool agreed that, if it were held that damages were "reasonably discoverable" on the day of the oil spill, the three year prescriptive period would be triggered, thus creating a January 2013 presentment date deadline. However, it has not been held that the plaintiff's damages were "reasonably discoverable" on the day of the oil spill and the plaintiff submits no evidence to support a finding that the termination of the Idlewild contract was "reasonably discoverable" on April 20, 2010. Notably, no claim was filed and dismissed as having prescribed.

Mr. Chunn's anecdotal testimony that other law firms rushed to file claims by January 30, 2013, does not establish that date as the deadline for filing the plaintiff's presentment. Notably, there is no jurisprudence or other evidence to establish that January 30, 2013, was the filing deadline for all presentments under the Settlement Agreement.

Mr. Ciolino opined that based on the documents he had seen, the defendants were on notice that the plaintiff could file as a "Start-Up Business" and that the defendants' failure to advise or timely file a presentment for such a claim constituted legal malpractice. Mr. Ciolino conceded, however, that (1) he did not know what advice was offered prior to Mr. Howell's decision to opt-out of the Settlement Agreement; (2) he was not an expert on BP claims; and (3) he did not know the definition of a Start-Up Business under the Settlement Agreement. Moreover, Mr. Ciolino appeared unaware that "a Start-Up Business" under the terms Settlement Agreement is an entity "with less than eighteen months of operating history at the time of the [BP oil] spill," Holmes Motors, Inc., 829 F.3d at 316 (citing Settlement Agreement § 38.15), and, in any event, Mr. Ciolino offered no explanation as to how a business with tax returns indicating that it had been operating for at least two years prior to the oil spill qualified as a "Start-Up Business." Similarly, Mr. Ciolino failed to explain how the termination of the Idlewild contract in June 2011 was "reasonably discoverable" on April 20, 2010, and, thus, triggered a prescriptive period.

Mr. Lacour opined that the plaintiff was entitled to compensation under the Settlement Agreement as a Start-Up Business because "causation" was established by the fact that the plaintiff "worked on the levees" and, therefore, "compensation just follows." Again, Mr. Lacour offered no explanation as to how the plaintiff qualified as a "Start-Up Business" under the Settlement Agreement when according to its tax returns, the plaintiff had at least two years of operating history at the time of the oil spill. Moreover, contrary to Mr. Lacour's rationale, compensation was not automatic based solely upon an entity working in a location affected by the oil spill but also required a showing of some economic loss after the oil spill. In this case, the plaintiff's income substantially the year of the oil spill and even more the following year.

To reiterate, a "Start-Up Business" for purposes of the Settlement Agreement is "a claimant with less than eighteen months of operating history at the time of the [BP oil] spill." Holmes Motors, Inc., 829 F.3d at 316. According to the tax forms and business records the plaintiff submitted to the defendants for purposes of evaluating its potential claims under the Settlement Agreement, the plaintiff reported income for the two years prior to the oil spill (2008: $50K; 2009:$170K), the year of the oil spill (2010:$4 million), and the year the Idlewild contract was terminated (2011: $16 million). Therefore, based on the plaintiff's two years of reported income prior to the oil spill (and the absence of any evidence to the contrary), the plaintiff could not establish that it was a "Start-up Business" for purposes of the Settlement Agreement. In addition, the plaintiff's tax returns indicate a substantial increase, rather than an economic loss, following the oil spill.

Finally, as the federal district court recently observed in its order dismissing the plaintiff's federal legal malpractice case against the defendants, Section 7.3.1 of the Settlement Agreement contained a provision wherein the three year limitations period was extended by 183 days (from May 2, 2012, when the federal court granted preliminary approval of the Economic Settlement, until November 1, 2012, when the plaintiff opted out of the Settlement Agreement) so that, even accepting arguendo that the OPA limitation period commenced on the day of the oil rig explosion, the plaintiff's OPA claim did not expire until at least October 20, 2013, giving the plaintiff until July 22, 2013, to make a presentment. See "Order & Reasons"

issued granting defendants' motion to dismiss and dismissing the plaintiff's claims with prejudice, In Re Oil Spill by Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on Apr. 20, 2010 related to No. 14-0121, Howell Construction, Inc. v. Andry Lerner, L.L.C. et al, 14-0121 La. 8/28/18, 2018 WL 4095544.

Conclusion

After de novo review, we find that the defendants are entitled to summary judgment as a matter of law. The plaintiff failed to produce the requisite factual support for its legal malpractice claim against the defendants. Accordingly, the judgment of the district court is affirmed.

AFFIRMED.

DYSART, J., CONCURS IN THE RESULT

      In litigation arising out of this incident, it is described variously as the Deepwater Horizon oil spill, the BP oil spill, the Macondo (rig) oil spill.

      By joint motion and order signed on July 25, 2016, all claims and causes of action against Christine Mancuso (initially named as a defendant) were dismissed.

      The previous day (on January 16, 2014), a legal malpractice lawsuit was also filed in federal court by the plaintiff against the defendants, alleging that "Andry Lerner prevented Howell from filing a lawsuit against BP by failing to inform Howell of the need to make presentment and file a lawsuit until it sent its termination letter on January 29, 2013." In Re Oil Spill by Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on Apr. 20, 2010, 14-0121, p. 2 (E.D. La., 8/28/18), 2018 WL 4095544. Finding that the plaintiff filed to state a claim for relief that is plausible on its face, the federal district court granted the defendants' motion to dismiss and dismissed with prejudice the plaintiff's claims on August 28, 2018.

      The plaintiff also added the defendants' professional liability insurer, Continental Casualty Company ("CAN"), as a defendant.

      Mr. Howell explained in his deposition that the owners of the Idlewild property were White Oak Realty, L.L.C. and Citrus Realty, L.L.C. Accordingly, his business economic loss theory is apparently based on the presumption that the plaintiff is eligible for payment of losses incurred as a result of losing the "Idlewild" contract because the plaintiff's deficiency in fulfilling the contract was caused by the Corps of Engineer ("the Corps") delay which, in turn, was caused by the oil spill.


source: Caselaw Access Project

author: Judge Daniel L. Dysart

license: Public Domain

text:
    STATE of Louisiana v. Johnquell BIBBINS
    NO. 2018-KA-0419
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 24, 2018
    Leon Cannizzaro, DISTRICT ATTORNEY, Donna Andrieu, Chief of Appeals, ASSISTANT DISTRICT ATTORNEY, Michael Danon, ASSISTANT DISTRICT ATTORNEY, Irena Zajickova, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Paula A. Brown )
   Judge Daniel L. Dysart

Defendant, Johnquell Bibbins, appeals his conviction of second degree battery and the sentence imposed. After our review of the record, and for the reasons that follow, we affirm both the conviction and the sentence.

FACTS AND PROCEDURAL HISTORY

By bill of information dated March 13, 2015, Mr. Bibbins was charged with the January 3, 2015 second degree battery of Keith McGuire. At his arraignment on April 8, 2015, Mr. Bibbins pleaded not guilty. At the preliminary hearing, the trial court denied Mr. Bibbins' motion to suppress identification, found probable cause to substantiate the charge against Mr. Bibbins, and set a trial date for June 17, 2015. The matter was continued numerous times (at the requests of both the State and Mr. Bibbins).

Mr. Bibbins was tried before a six member jury on March 13-14, 2017 and was unanimously found guilty of the charge. He filed a Motion for New Trial, which was denied on April 17, 2017. Mr. Bibbins then waived the sentencing delays and was sentenced on April 21, 2017 to five years at hard labor with credit for time served. At that time, the State filed a multiple bill of information, and on October 5, 2017, Mr. Bibbins was adjudicated a second felony offender. The trial court vacated his original sentence and re-sentenced him to ten years at hard labor without the benefit of probation or suspension of sentence.

This appeal followed.

Errors Patent

We have reviewed the record for errors patent and found none. See State v. Lambert , 15-0886, p. 5 n.6 (La. App. 4 Cir. 1/20/16), 186 So.3d 728, 733, writ denied , 16-0335 (La. 2/17/17), 216 So.3d 50, and cert. denied , --- U.S. ----, 138 S.Ct. 92, 199 L.Ed.2d 187 (2017).

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, Mr. Bibbins contends that there was insufficient evidence adduced at trial to warrant his conviction of second degree battery, a violation of La. R.S. 14:34.1 A, which defines second degree battery as "a battery when the offender intentionally inflicts serious bodily injury ...." More particularly, Mr. Bibbins maintains that the State failed to prove the element of "serious bodily injury." Mr. Bibbins further argues that the State failed to prove beyond a reasonable doubt that he did not act in self-defense.

Our jurisprudence on the applicable standard of review for sufficiency of the evidence challenges is well-settled. We reiterated that standard in State v. Rapp , 14-0633, pp. 5-6 (La. App. 4 Cir. 2/18/15), 161 So.3d 103, 108, quoting State v. Marcantel , 00-1629, p. 8 (La. 4/3/02), 815 So.2d 50, 55 :

The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See LSA- C.Cr.P. art. 821 ; State v. Hampton , 98-0331, p. 13 (La. 4/23/99), 750 So.2d 867, 880, cert. denied , 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999).

"[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith , 600 So.2d 1319, 1324 (La.1992)." State v. Watkins , 13-1248, p. 13 (La. App. 4 Cir. 8/6/14), 146 So.3d 294, 303, quoting State v. Huckabay , 00-1082, p. 32 (La. App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111. To the contrary, "the touchstone of Jackson v. Virginia [443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ] is rationality ...[;] 'irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.' " State v. Alexis , 14-0327, p. 6 (La. App. 4 Cir. 12/3/14), 157 So.3d 775, 778, quoting State v. Wilson , 09-0304, p. 3 (La. App. 4 Cir. 2/17/10), 68 So.3d 1031, 1033 (internal citations omitted).

As this Court explained in State v. Landry , 03-1671, pp. 6-7 (La. App. 4 Cir. 3/31/04), 871 So.2d 1235, 1238-39 :

In a second-degree battery conviction, the State is required to prove the offender committed a battery without the consent of the victim and that he intentionally inflicted serious bodily injury. In second-degree battery cases, the offense requires proof of a specific intent to inflict "serious bodily harm. Serious bodily injury is defined as injury that involves unconsciousness, extreme physical pain, or protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death. Specific intent is defined as that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. Therefore, the elements of second-degree battery are: (1) the intentional use of force or violence upon the person of another, (2) without the consent of the victim, (3) when the offender has the specific intent to inflict serious bodily injury.
The term "extreme physical pain" as used in the statute refers to "a condition which most people of common intelligence can understand; it is considered subjective in nature and susceptible to interpretation."

Id. (Internal footnotes omitted).

The evidence in this matter reflects that, on January 3, 2015, Mr. Bibbins struck the victim, Keith McGuire, who was at a yard sale, which caused Mr. McGuire to suffer a broken jaw, requiring surgery at Tulane Medical Center. Mr. Bibbins does not dispute this fact, but argues that the injury does not constitute "serious bodily injury" as contemplated by La. R.S. 14: 14:34.1 and that the State failed to prove that he did not act in self-defense. We have carefully reviewed the record in this matter and find that neither of Mr. Bibbins' contentions have merit.

Serious bodily injury

As noted, " La. R.S. 14:34.1 A, requires a showing that a defendant 'intentionally inflict[ed] serious bodily injury,' which is defined to include 'unconsciousness, extreme physical pain or protracted and obvious disfigurement.' " State v. Miner , 14-0939, p. 9 (La. App. 4 Cir. 3/11/15), 163 So.3d 132, 138, writ denied , 15-0651 (La. 2/26/16), 187 So.3d 466. Relying heavily on the case of State v. Helou , 02-2302 (La. 10/23/03), 857 So.2d 1024, and to a lesser degree on State v. Broussard , 09-1012 (La. App. 3 Cir. 4/7/10), 33 So.3d 1036, Mr. Bibbins maintains that he "did not inflict serious bodily injury on Mr. McGuire," noting a lack of medical testimony and a lack of unconsciousness or "protracted or extreme injury." He point to the fact that the incident was "a single, brief encounter." He contends that a lesser verdict of simple battery was warranted under the circumstances of this case.

Helou involved an altercation in which the victim was struck in the nose by the defendant and was treated for a bloody nose. While the defendant was charged with and convicted of second degree battery in the trial court (a ruling which was set aside by Third Circuit), the Louisiana Supreme Court vacated the conviction and entered a conviction of simple battery. In doing so, the Court reviewed several cases on the issue of what constitutes "serious bodily injury," and found that "a punch in the nose, without more evidence, is sufficient to support a conviction of second degree battery." Id. , 02-2302, p. 8, 857 So.2d at 1029. The Helou Court noted the following:

Our jurisprudence demonstrates many cases where the State proved the "serious bodily injury" element of second degree battery. Some examples are: 1) State v. Abercrumbia , 412 So.2d 1027 (La.1982), where the defendant hit the victim with boards across his head, neck, and arm, causing a "deep cut over his right eye;" 2) State v. Robertson , 98-0883 (La. App. 3d Cir.12/9/98), 723 So.2d 500, writ denied , 99-0658 (La.6/25/99), 745 So.2d 1187, where the defendant knocked the victim to the ground and repeatedly kicked and hit her until she "kind of lost her senses for a minute;" the victim had bruises and contusions over the entire extent of her body, which left significant scars and lacerations on her nose; and 3) State v. Robinson , 549 So.2d 1282, 1285 (La. App. 3d Cir.1989), where the defendant stabbed the victim twice with a large, folding knife.

Id. , 02-2302, pp. 6-7, 857 So.2d at 1028.

The Broussard case involved an altercation, following which the victim was seen with "fresh cuts and severe bruising to the face" caused by her boyfriend. Id. , 09-1012, p. 4, 33 So.3d at 1038. Finding that the "State failed to prove [the victim] suffered extreme physical pain" the Court concluded that the State likewise "failed to prove that Defendant committed second degree battery" and entered a conviction of the lesser offense of simple battery. Id. , p. 8, 33 So.3d at 1040.

In State v. Jackson , 02-1250 (La. App. 3 Cir. 2/5/03), 838 So.2d 841, a case involving injuries similar to those in this case, a conviction of second degree battery was affirmed. There, the court found that the State established the element of "serious bodily injury" through the victim's medical records which reflected dislocated jaw for which the victim received various pain medications, underwent surgery to repair the injury, and experienced pain. Additionally, the victim was unable to chew or bite down for several weeks following the incident.

In the instant matter, Mr. McGuire testified that Mr. Bibbins "ran up and swung on him," hitting the victim in the face and fracturing his jaw. Immediately after the incident, Mr. McGuire went home but later sought medical attention after he experienced pain when he tried to eat. He was then hospitalized and underwent surgery to repair his fractured jaw. Moreover, unlike Helou and Broussard , here, the State introduced the victim's medical records, which verified the necessity of corrective surgery, the administration of prescription IV pain medication, hospitalization and recovery. Additionally, Mr. McGuire testified about the pain in his jaw and how it prevented him from eating.

The terms "extreme physical pain" as used in the statute refers to "a condition which most people of common intelligence can understand ..." State v. Legendre , 522 So.2d 1249, 1251 (La. App. 4 Cir. 1988), quoting State v. Thompson , 399 So.2d 1161, 1168 (La.1981). A fractured jaw, requiring hospitalization and corrective surgery, as well as the administration of intravenous pain medication during the hospitalization, would certainly meet the statutorily required element of "extreme physical pain" to those of even "common intelligence." Accordingly, we find that the jury's conclusion that Mr. Bibbins intentionally inflicted serious bodily injury on Mr. McGuire is supported by the record, and viewing the evidence in the light most favorable to the prosecution, jury could conclude that the State proved the essential elements of the crime beyond a reasonable doubt.

Self-defense

Mr. Bibbins next contends that the State failed to establish "that the alleged second degree battery was not justified beyond a reasonable doubt" given that Mr. Bibbins acted in self-defense. Mr. Bibbins contends that "[t]he State had the burden to rebut self-defense."

Under La. R.S. 14:18, '[t]he fact that an offender's conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct." Self-defense, or "[t]he use of force or violence upon the person of another is justifiable under either of the following circumstances" when it is "committed for the purpose of preventing a forcible offense against the person." La. R.S. 14:19 A(1)(a). Our jurisprudence reflects that, when a defendant asserts that he acted in self-defense in a homicide case, the State bears the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. State v. Jefferson , 04-1960, p. 10 (La. App. 4 Cir. 12/21/05), 922 So.2d 577, 587-588.

When a case does not involve a homicide, "the defense of self-defense requires a dual inquiry; an objective inquiry into whether the force used was reasonable under the circumstances; a subjective inquiry into whether the force was apparently necessary." State v. Freeman , 427 So.2d 1161, 1163 (La. 1983). The Freeman Court did not enunciate a definitive rule on the issue of who bears the burden of proving self-defense, stating that "[t]he burden of persuasion in proving self-defense in a non-homicide situation pursuant to La. R.S. 14:19, which entails a subjective as well as an objective inquiry, could arguably, in fairness to the State, be upon the defendant, since a subjective inquiry is involved." Id at p. 1163. However, the Court concluded that it need not resolve the issue, "for irrespective of who bears the burden in this case, and even assuming that the State has the burden of proving beyond a reasonable doubt in this non-homicide situation that defendant did not act in self-defense, we conclude that the State has carried its burden of proof." Id.

This Court has similarly not adopted a firm rule on this issue and noted, in State v. Boudreaux , 08-1504 (La. App. 4 Cir. 9/29/10), 48 So.3d 1144, that cases in this circuit have differed on the issue. However, as in Freeman , the Boudreaux Court concluded that, where the circumstances are such "that viewing all the evidence in a light most favorable to the prosecution, any rational trier of fact could have concluded beyond a reasonable doubt that the defendant did not act in self-defense," it need not make a determination as to which party bears the burden of proof of self-defense. Id. , 08-1504, p. 32, 48 So.3d at 1162.

Mr. Bibbins' claim of self-defense is based on Mr. McGuire's testimony that he "tried to swing at [Mr. Bibbins] first." This statement, however, must be considered in the context of Mr. McGuire's other testimony. Mr. McGuire was consistent and unyielding as to what led him to swing at Mr. Bibbins, although he made no contact. According to Mr. McGuire, he was at a yard sale and he observed Mr. Bibbins drive by in his BMW, stop and exit the vehicle. Mr. McGuire was well familiar with Mr. Bibbins, as he had seen him in the neighborhood. According to Mr. McGuire's testimony, Mr. Bibbins "ran up on [him] ... from around the corner ... look[ing] like he was running to try to attack [him]." Mr. McGuire again testified that "it looked like he was coming to attack [him]" and that because he "can't run cuz' [he has] no cartilage in [his] knees and so, ... when he got close to [him] [he] just tried to swing on him first." However, "[he] missed" and when "[Mr. Bibbins] swung he connected."

When Mr. McGuire was questioned about Mr. Bibbins' claim that he was the aggressor, Mr. McGuire explained:

I don't appreciate nobody running up on me and especially a little teenagers.... I ain't did nothing wrong, but I'm not gonna let anybody just beat me down ....

Based on the circumstances of this case, whether the State bore the burden of proving beyond a reasonable doubt that Mr. Bibbins did not act in self-defense, or whether Mr. Bibbins bore the burden of proving by a preponderance of the evidence that he did act in self-defense, viewing all the evidence in a light most favorable to the prosecution, we find that any rational trier of fact could have concluded beyond a reasonable doubt that the defendant did not act in self-defense.

This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER 2

In his next assignment of error, Mr. Bibbins argues that his conviction should be aside because the trial court erred in allowing evidence or other crimes and bad acts.

The admissibility of evidence of other crimes, wrongs or acts, is governed by La. C.E. art. 404, which provides, in subpart B(1) that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." Other crimes evidence, however, may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident ...." La. C.E. art. 404 B(1).

As a general rule, "evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant." State v. Hills , 99-1750, p. 5 (La. 5/16/00), 761 So.2d 516, 520 ; State v. Baudier , 00-1108, p. 6 (La. App. 4 Cir. 5/23/01), 789 So.2d 696, 702. "In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a man of criminal [bad] character, evidence of the commission of other crimes [bad acts] is inadmissible unless the evidence has an independent relevancy besides simply showing a criminal disposition." State v. Rubens , 10-1114, p. 21 (La. App. 4 Cir. 11/30/11), 83 So.3d 30, 46, quoting State v. Lafleur , 398 So.2d 1074, 1080 (La.1981).

We note that "the admissibility of the additional other crimes evidence will not be disturbed absent an abuse of discretion." State v. Altenberger , 13-2518, p. 8 (La. 4/11/14), 139 So.3d 510, 515-16, citing State v. Scales , 93-2003, pp. 4-5 (La. 5/22/95), 655 So.2d 1326, 1330-31.

Prior to trial in this matter, on August 19, 2016, the State filed a Notice of Intent to Use Evidence of Similar Crimes, Wrongs and/or Acts, seeking to admit the other crimes evidence to prove intent and identity. Attached to its Notice were copies of documents, including police reports substantiating the other crimes evidence. During the course of trial, the trial court indicated that the evidence would be admissible. The trial court advised that, with respect to the other crimes evidence, it would provide an appropriate charge during the jury instructions.

At trial, the State introduced evidence through various police officers and detectives of several other arrests and incidents: a February 24, 2008 arrest for possession with intent to distribute marijuana and illegal carrying of a weapon; an April 13, 2008 arrest for shooting during a second-line parade for which he pleaded guilty to aggravated battery and received a five year sentence; a December 17, 2013 arrest for narcotics and parole violations which occurred while Mr. Bibbins was driving a black BMW; four traffic violations (March 27, 2013, December 11, 2014, December 15, 2014 and February 28, 2015) all of which occurred while Mr. Bibbins was driving a black BMW; and an August 3, 2015 shooting.

At the end of trial, the trial court gave the following instructions to the jury with respect to the other crimes evidence:

... the court will read evidence that the defendant was involved in the commission of offenses other than the offense for which he is on trial is to be considered only for a limited purpose and the sole purpose for which such evidence may be considered as to whether it tends to show and then I will say "identity." And again, remember the accused is only on trial for the offense charged. You may not find him guilty of this offense merely because he may have committed another offense....

After our review of the record, we find that the evidence was properly admitted to prove identity.

At trial, Mr. McGuire was clearly reluctant to testify against Mr. Bibbins. When questioned by the State as to how his jaw became broken, Mr. McGuire testified that "[s]ome man attacked me." At trial, he could not recall making a 911 call on the date of the incident, and, when a recording of the 911 call was played for the jury, in which the caller identified himself as "Keith McGuire," Mr. McGuire was asked if that was the 911 call he made. He replied that he couldn't remember because it was more than two years ago. When asked if he could recognize his voice, Mr. McGuire stated, "[n]ot really."

On the 911 call, Mr. McGuire was asked whether he could identify the man who struck him, and he replied, "[n]ot really, I see him around." At trial, Mr. McGuire explained this statement in identifying the man who struck him: "I seen him around the neighborhood. He lives in that neighborhood." In the 911 call, Mr. McGuire also indicated that the man who struck him drives a black BMW.

When questioned about his statement identifying the man who struck him as "Mo," Mr. McGuire indicated that he could not recall making that statement to the officer who interviewed him. He also testified initially that he could not recall making an identification from a line-up at his home of the man who struck him. When the audio recording made during that line-up procedure was played for him, Mr. McGuire identified his voice only by saying that he "guess[ed]" it was his voice because it "sound[ed] like [him]." However, he stated that the recording did not remind him of the line-up procedure because "it was so long ago." While in the recording, he identified the picture of the man who struck him, at trial, when asked if he had made that identification, Mr. McGuire stated "I don't know. It's two years ago." He later testified, again evasively, about who had struck him: "If that's who I identified, that's who broke my jaw."

Mr. McGuire ultimately admitted that he knew Mr. Bibbins' mother (and, had had a few dates with her) and that she had "paid [him] off" so that he would not testify at trial.

Upon further questioning, when asked if he had been able to give the name of the man who struck him to the doctors at the hospital, Mr. McGuire stated "[n]o. Just the name Mo." He then testified that Mo had "run up on me. And then that's when I swung. Cuz' he was running up on me."

Mr. McGuire did not identify anyone other than a man whose nickname is "Mo" as the person who struck him. Accordingly, that identity was not clearly established by Mr. McGuire. By way of the other crimes evidence, the State established that the man nicknamed "Mo" and who drives a black BMW is Mr. Bibbins; without that other crimes evidence, there is a lack of evidence linking the person nicknamed "Mo" with Mr. Bibbins.

As concerns the December, 2013 arrest of Mr. Bibbins, New Orleans Police Department ("NOPD") Detective Walter Edmonds testified that he arrested Mr. Bibbins at his residence, which he indicated was two blocks away from where Mr. McGuire was struck. When he arrived at the residence, he saw a black BMW. During the course of his investigation, Det. Edmonds learned that the BMW was owned by Mr. Bibbins. This evidence corroborates Mr. McGuire's testimony of having seen Mr. Bibbins in the neighborhood.

Similarly, the officers who testified as to Mr. Bibbins various traffic violations identified Mr. Bibbins as the driver of a black BMW.

As to the 2008 shooting at the second line parade, Sgt. Wayne DeLarge testified that, during his investigation, the perpetrator was identified as "Mo." He learned "the real identity" of "Mo" when "the shooting victim identified Mo as one Johnquell Bibbins." Likewise, Det. Joseph Jefferson, who was familiar with Mr. Bibbins from previous encounters also testified that "Johnquell Bibbins goes by the nickname of "Mo."

As concerns the August 3, 2015 shooting, Detective Joseph Jefferson testified that he learned the identity of the shooting suspect as "Mo," who drove a "black luxury vehicle." He ultimately tied the vehicle and the nickname to Mr. Bibbins.

Based on the foregoing, we do not find that the trial court abused its discretion in allowing the other crimes and acts into evidence to establish Mr. Bibbins' identity, particularly given the trial court's limiting jury instruction.

Moreover, even if the trial court erred in allowing the evidence, the admission of other crimes evidence is subject to harmless error analysis. State v. Copelin , 16-0264, p. 22 (La. App. 4 Cir. 12/7/16), 206 So.3d 990, 1006, writ denied , 17-0047 (La. 9/29/17), 227 So.3d 286. The erroneous admission of evidence requires reversal only where there is a reasonable possibility that the evidence might have contributed to the verdict. State v. Ruffin , 11-0135, p. 20 (La. App. 4 Cir. 12/21/11), 82 So.3d 497, 511, citing State v. Casey, 99-0023, p. 13 (La. 1/26/00), 775 So.2d 1022, 1033. "The relevant inquiry is whether the reviewing court may conclude the error was harmless beyond a reasonable doubt ... i.e. was the guilty verdict actually rendered unattributable to the error." Id.

Furthermore, "[a] reviewing court should consider the importance of the evidence to the State's case, the presence or absence of additional corroboration of the evidence, and the overall strength of the State's case." State v. Massey , 11-358, pp. 35-36 (La. App. 5 Cir. 3/27/12), 97 So.3d 13, 36.

In Ruffin , this Court found that testimony from a witness that, "within a week of the shooting, arrived at her doorstep with a gun looking for [one murder victim]" to be harmless error. Id. , 11-0135, pp. 18-20, 82 So.3d at 510. This finding was based on ample other evidence of the defendant's guilt, such as his admission that he shot the victims (even though he claimed self-defense).

Here, Mr. McGuire's unrefuted testimony in this case identifying Mr. Bibbins as the man who punched him and broke his jaw supported the jury's finding Mr. Bibbins as charged. We find, as the Court did in Ruffin , that his conviction for second degree battery was unrelated to the other crimes evidence offered by the State. See also, Copelin , 16-0264, p. 37, 206 So.3d at 1012 ("[c]onsidering the strength of the evidence the State presented at trial against Mr. Copelin, we cannot conclude the jury verdict was attributable to the error of admitting the other crimes evidence").

Nor are we persuaded by Mr. Bibbins' argument that the trial court committed reversible error in failing to give limiting instructions to the jury on each occasion that the State introduced other crimes evidence, citing State v. Miller , 98-0301 (La. 9/9/98), 718 So.2d 960, 962 ("the court must, at the request of the defendant, offer a limiting instruction to the jury at the time the evidence is introduced"). The Louisiana Supreme Court in State v. Maise, 00-1158, p. 14 (La. 1/15/02), 805 So.2d 1141, 1151, overruled on other grounds by State v. Bernard , 09-1178, p. 7 (La. 3/16/10), 31 So.3d 1025, 1030, indicated that because the "trial judge charged the jury at the conclusion of trial, ... the procedural deficiency, failure to give the limiting instruction, is not sufficient grounds to warrant reversal." Id. , p. 15, 805 So.2d at 1152. See also , State v. Dixon , 17-422, pp. 7-8 (La. App. 5 Cir. 3/14/18), 241 So.3d 514, 521 (" the limiting instruction before jury deliberations cured the procedural error of the trial court in not giving a limiting instruction at the time the other crimes evidence was introduced").

In the instant matter, the trial court instructed the jury that it "may not find [Mr. Bibbins] guilty of this offense merely because he may have committed another offense." This limiting instruction cured any defect in the trial court's failure to give the same instruction for each other crime or act introduced into evidence.

This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER 3

In his next assignment of error, Mr. Bibbins maintains that the trial court erred in admitting the incident report and 911 recording because they were not properly authenticated, rendering the evidence inadmissible hearsay. He argues that Officer Walter Powers' testimony that he did not record the 911 call precludes Powers' ability to authenticate the evidence.

At the outset, we note the well-settled principle that "[a] trial court has great discretion in determining whether a sufficient foundation has been laid for the introduction of evidence." State v. Pollard , 14-0445, p. 17 (La. App. 4 Cir. 4/15/15), 165 So.3d 289, 301.

To be admissible at trial, demonstrative evidence must first be authenticated. State v. Green , 10-1355, p. 8 (La. App. 4 Cir. 6/22/11), 69 So.3d 695, 701. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. La. C.E. art. 901(A). As we indicated in Green , "it must first be established that the object sought to be introduced is more probably than not connected with the case, but a lack of positive identification of demonstrative evidence or its chain of custody goes to the weight of the evidence, not to its admissibility, and the connection of the evidence to the case is a factual matter determined by the trier of fact." Id. , 10-1355, p. 9, 69 So.3d at 701.

La. C.E. art. 901 B(5) provides the following as an example of authentication or identification conforming with the requirements: identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. Thus, a witness' identification of his voice and that of the defendant "was sufficient to authenticate the recorded conversations." State v. Martin , 13-0115, p. 10 (La. App. 4 Cir. 12/4/13), 131 So.3d 121, 128, writ denied , 14-0004 (La. 6/13/14), 140 So.3d 1186.

Mr. Bibbins concedes the business records exception to the hearsay rule but points out the exception requires that the custodian of records appear at trial to properly authenticate and verify the records, La. C.E. art. 803(6). He argues that the custodian must be able to say that the record, document or recording was made at or near the time it was received, is made and kept in the course of a regularly conducted business activity, and it was the regular practice of that business activity to make and to keep the recordings or record. He further argues that because neither Sgt. Powers nor his department made or kept the incident recalls and 911 records, the recording was not authenticated and its introduction violated the confrontation clause of the Sixth Amendment.

At trial, Sergeant Powers testified that he is employed in the Communications Center of the NOPD. In that capacity, he is a custodian of records for incident recall reports and recorded 911 calls. He testified that all 911 calls received by the department are recorded and assigned an item recall number for future investigative purposes. Each call generates an incident recall report which contains information pertinent to the call - the number called, the date the call was made and the name of the caller. These 911 calls are computerized in the regular course of business and can be generated on request. The calls and incident recalls are then routinely turned over to the NOPD, which maintains the evidence through its regular course of business.

In this case, Sgt. Powers listened to the 911 call and reviewed the incident recall prior to trial. He confirmed the association of the incident report to this case by its item number, indicating that the information in the report corresponded with the 911 call.

More importantly, Mr. McGuire, himself, identified his voice on the 911 calls. Accordingly, there can be no genuine issue as to the authenticity of the calls or the incident recall report. We find no abuse of the trial court's discretion in admitting the 911 call and the incident recall report.

ASSIGNMENT OF ERROR NUMBER 4

In his last assignment of error, Mr. Bibbins maintains that the sentence he received "is excessive, cruel and unusual punishment. Conceding that he did not receive the maximum sentence available, he nevertheless argues that the minimum sentence (of four years, or at the most, six years) "was the most appropriate." His argument focuses on Mr. McGuire's statement that he forgave Mr. Bibbins for the incident, Mr. McGuire's full recovery, and the fact that no weapons were involved in the incident.

This Court recently reiterated the well-settled standard for evaluating an excessive sentence claim:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that "[n]o law shall subject any person to ... excessive ... punishment." (Emphasis added.) Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno , 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann , 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker , 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462, cf. State v. Phillips , 02-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.

State v. Doucette , 17-0501, p. 10 (La. App. 4 Cir. 5/23/18), 243 So.3d 704, 711, quoting State v. Smith , 01-2574, pp. 6-7 (La. 1/14/03), 839 So.2d 1, 4 (emphasis in original).

Our review of the record in this case reflects that the sentence imposed in this case was within the range provided by the legislature. Mr. Bibbins was convicted of second degree battery, which, under La. R.S. 14:34.1, carries a sentence of not more than two thousand dollars or imprisonment with or without hard labor, for not more than eight years or both. His initial sentence of five years at hard labor, thus, fell within the scope of this statute.

As a second felony offender (and at the time of his October 5, 2017 sentencing), La. R.S. 15:529.1 A(1) provided as follows:

If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

Accordingly, in Mr. Bibbins' case, the statute provided a sentencing range of four to sixteen years. The trial court sentenced Mr. Bibbins to ten years, which is well within the statutory limits, and in fact, is six years below the maximum sentence allowed for a conviction as a second offender.

Our jurisprudence reflects that, for legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const. art. I, § 20, i.e., when it imposes "punishment disproportionate to the offense." State v. Soraparu , 97-1027 (La. 10/13/97), 703 So.2d 608 (quoting State v. Sepulvado , 367 So.2d 762, 767 (La. 1979) ).

In State v. Batiste , 06-0875, p. 18 (La. App. 4 Cir. 12/20/06), 947 So.2d 810, 820, this Court further explained that a reviewing court may not set aside a sentence for excessiveness if the record evidences a factual basis for the sentence imposed, even if there has not been full compliance with La. C.Cr.P. art. 894.1 :

An appellate court reviewing a claim of excessive sentence must determine whether the trial court adequately complied with the statutory guidelines in La. C.Cr.P. art. 894.1, as well as whether the facts of the case warrant the sentence imposed. State v. Landry , [2003-1671 (La. App. 4 Cir. 3/31/04), 871 So.2d 1235] supra ; State v. Trepagnier , 97-2427 (La. App. 4 Cir. 9/15/99), 744 So.2d 181. However, as noted in State v. Major , 96-1214, p. 10 (La. App. 4 Cir. 3/4/98), 708 So.2d 813 :
The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos , 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).
If the reviewing court finds adequate compliance with art. 894.1, it must then determine whether the sentence the trial court imposed is too severe in light of the particular defendant as well as the circumstances of the case, "keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged." State v. Landry , 2003-1671 at p. 8, 871 So.2d at 1239. See also State v. Bonicard , 98-0665 (La. App. 4 Cir. 8/4/99), 752 So.2d 184.

In the instant matter, the trial judge did not articulate any reasons for Mr. Bibbins' sentence. A review of our case law regarding excessive sentences reflects that the overwhelming majority of the cases concern whether the record justifies the imposition of maximum sentences. Here, the trial court did not impose the maximum sentence and, under the circumstances of this case, we cannot say that the trial court abused its broad discretion in doing so.

Mr. Bibbins' sentence is in line with sentences imposed on similarly situated defendants. See State v. Haydin , 17-234 (La. App. 5 Cir. 12/20/17), 235 So.3d 1293 (ten years at hard labor not excessive for second degree battery conviction; defendant was larger in stature than victim and punched her in the face which broke her nose, caused her eyes to swell, knocked her to the ground, and caused her extreme physical pain that required medical attention; defendant received a mid-range sentence, and he was a multiple offender with prior felony convictions); State v. Kirkland , 42,397 (La. App. 2 Cir. 8/15/07), 962 So.2d 1173 (second-felony-offender sentence for second-degree battery of ten years in prison at hard labor was not excessive for a defendant, who was 25 years old, hit 70-year-old victim in his face and caused numerous broken bones and loss of vision, defendant had a significant criminal history, including two prior felony convictions, and at least two of defendant's prior probationary periods were terminated unsatisfactorily).

Here, the victim, Mr. McGuire, a sixty year old man, was at a yard sale and in no way provoked or acted in a manner to precipitate Mr. Bibbins' actions. Mr. Bibbins, then twenty-seven years old, acted in utter disregard for Mr. McGuire's well-being and caused a fractured jaw, which required surgery. We believe that the facts of this case warrant the sentence imposed and that record clearly shows an adequate factual basis for the sentence imposed by the trial court.

Moreover, Mr. Bibbins received a mid-range sentence, six years less than the maximum sentence to which he was exposed.

This assignment of error has no merit.

CONCLUSION

For the reasons set forth herein, we affirm Mr. Bibbins' conviction and sentence.

AFFIRMED

      Officer Daniel Oquendo, who was the first responder and interviewed Mr. McGuire while he was in the hospital, testified that Mr. McGuire advised him that "he used to buy drugs from" Mr. Bibbins and that, "he refused to buy" them from him anymore and that Mr. Bibbins "was upset over that."

      In fact, the State obtained a material witness bond and had Mr. McGuire arrested and held trial to ensure his testimony at trial.

      The admission that Mr. Bibbins' mother had paid him off was made during a recording of a conversation had with his sister while Mr. McGuire was in jail. Mr. McGuire positively identified his voice in that recording.

      La. C.E. art. 803 provides, in pertinent part, that:
      ...[t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness:
      (6) Records of regularly conducted business activity . A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule.

      We note initially that Mr. Bibbins did not file a motion to reconsider sentence which, as provided by La. C.Cr.P. art 881.1, must be filed within thirty days of sentencing to be preserved for the appeal of any claim as to sentencing. This Court has held that the failure to file a motion to reconsider sentence or to object to the sentence at the time it is imposed precludes a defendant from raising a claim about his sentence on appeal. State v. Stewart , 04-2219 (La. App. 4 Cir. 6/29/05), 909 So.2d 636, 641. In this case, although Mr. Bibbins did not file a motion to reconsider sentence, the record shows that after the trial judge imposed the multiple offender sentence, defense counsel objected to the sentence. This Court has found that an objection lodged after sentencing was sufficient to preserve the claim of constitutional excessiveness. State v. Robair , 13-0337, p. 8 (La. App. 4 Cir. 1/15/14), 133 So.3d 96, 102, citing State v. Miller , 00-0218, p. 8 (La. App. 4 Cir. 7/25/01), 792 So.2d 104, 111.

      La. C.Cr.P. art. 894.1 C requires "[t]he court [to] state for the record the considerations taken into account and the factual basis therefor in imposing sentence."

      We further note that there is case law indicating that a defendant's criminal history is arguably sufficient on its own to justify a maximum sentence. See State v. Zeno , unpub. 17-1134 (La. App. 3 Cir. 5/2/18), 2018 WL 2054865. In this case, the record includes the Mr. Bibbins' arrest for possession with intent to distribute marijuana and illegal carrying of a weapon; a 2010 guilty plea to aggravated battery for which he received a five-year sentence; a 2014 guilty plea to possession of marijuana; his involvement in a shooting in 2015; and numerous traffic violations stops.


author: Judge Dale N. Atkins

text:
    Diana DERUISE-PIERCE, Surviving Spouse of Roy T. Pierce v. UNIVERSITY HEALTHCARE SYSTEM, L.C. D/B/A Tulane University Hospital and Clinic, University Medical Center Management Corporation d/b/a University Medical Center New Orleans, Davis Wendell Ogitani, M.D., Brian Conkerton, R.N. and Danielle Williams-Johnson, R.N.
    NO. 2018-CA-0160
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 24, 2018
    M. Suzanne Montero, Warren A. Forstall, Jr., LAW OFFICES OF CHIP FORSTALL, 320 North Carrollton Avenue, Suite 200, New Orleans, LA 70119 John D. Sileo, Casey W. Moll, LAW OFFICE OF JOHN D. SILEO, LLC, 320 North Carrolton Avenue, Suite 100, New Orleans, LA 70119 COUNSEL FOR PLAINTIFF/APPELLANT
    Christopher M. Moody, Albert D. Giraud, MOODY LAW FIRM, 1250 S.W. Railroad Avenue, Suite 170, Hammond, LA 70403 Jeff Landry, Attorney General, Scott G. Jones, Special Assistant Attorney General, LAW OFFICE OF SCOTT G. JONES, 1414 Gause Boulevard, Suite 8, Slidell, LA 70458 COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins )
   Judge Dale N. Atkins

Plaintiff, Diana Deruise Pierce ("Plaintiff"), appeals two summary judgments dismissing her medical malpractice action against defendants, University Medical Center New Orleans, University Medical Center Management Corporation, Dr. Davis Wendell Ogitani, Brian Conkerton, R.N., and Danielle Johnson, R.N. (collectively, "Defendants"), with prejudice. For the following reasons, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

This is a medical malpractice case that arises as a result of treatment rendered to the decedent, Roy Pierce ("Mr. Pierce"), at University Medical Center in New Orleans in late December of 2012 and early January 2013.

Mr. Pierce originally presented to LSU Interim Public Hospital on December 27, 2012, for an outpatient EGD. On admission, he was awake, alert, and able to communicate and give consent for medical treatment. He complained of abdominal pain, fatigue, dark urine, and shortness of breath. The initial workup of Mr. Pierce showed that he was anemic, in renal failure, hyponatremiac, and had elevated BUN/creatinine levels. A CT of his abdomen and pelvis showed a large mass in his bladder with a fistula (tunnel) to his colon. Rather than immediately performing the EGD, Mr. Pierce was admitted for a comprehensive workup and placed under the care of Defendant Dr. Ogitani. As part of this comprehensive medical workup, he was referred to Interventional Radiology for placement of a Perm-A-Cath (central line) for hemodialysis, which was scheduled for the morning of January 3, 2013.

The deposition testimony of Dr. Benjamin Cooper ("Dr. Cooper"), an Interventional Radiology Fellow, reflects that on the evening before the procedure was scheduled, Dr. Cooper was advised that Mr. Pierce was medically stable and able to consent to the treatment. However, overnight, from January 2, 2013 through January 3, 2013, Mr. Pierce's vital and mental status severely deteriorated. Medical records indicate that Mr. Pierce's blood pressure dropped by over 20 points from 4:46 p.m. on January 2, when it was 93/64, pulse 112, to 5:57 a.m. on January 3, when it was 71/46, pulse 83. He was also unable to walk without assistance, and at one point he fell while being assisted from the bathroom to the bed. He was assisted to the floor by the nurse, and then back to bed with the aid of three nurses and one transport employee. The nurse's notes reflect that the physician was on the unit and present while Mr. Pierce was assisted back to bed.

Despite this acute change in status, the Defendants did not change the treatment plan or render different treatment, such as a transfer to the Critical Care unit, but instead adhered to the original plan to go forward with the central line. Thus, on the morning of January 3, 2013, Mr. Pierce was sent on a gurney to the Radiology Department with a hospital escort (described as "Transport," essentially a porter), who was neither a registered nurse nor a doctor.

What happened next is unclear from the record. Plaintiff alleges that Mr. Pierce was parked and left alone and unattended in the hallway-acutely hypotensive and in an altered mental state, until he was found by Dr. Cooper, alone and unattended, at approximately 8:00 a.m. on January 3, 2013. Defendants argue that there is no evidence that Mr. Pierce was left unattended, and in support of this, reference portions of Dr. Cooper's deposition testimony that were not included in the record on appeal. Thus, whether or not Mr. Pierce was left unattended in his severely deteriorated state is simply not clear from the record.

The deposition testimony does establish that upon finding Mr. Pierce, Dr. Cooper called for Defendant Davis Ogitani, M.D., the primary care doctor assigned to Mr. Pierce, and had an emergency consent executed to place the central line so that Mr. Pierce could receive treatment for his deteriorating condition. Mr. Pierce went into cardio-pulmonary arrest as they were transferring him to the radiology table, and heroic efforts to resuscitate him were futile. Mr. Pierce died on the table in the radiology suite.

In his deposition, Dr. Cooper also testified that it was unusual for someone incapable of consenting to be sent to radiology, that the change in the patient's condition overnight had not been conveyed to him, and as a result the patient was "not in the place where that patient should [have been] in that moment." Dr. Cooper also testified that he agreed with the statement that Mr. Pierce should not have been transported to the radiological suite in the condition he was in, because he was unstable, and further testified that Mr. Pierce's blood pressure reflected a dangerously hypotensive state. He also stated that he could not say one way or the other whether Mr. Pierce would have had a better chance of surviving if he had been in the ICU rather than the radiology suite. As well, he acknowledged that the medical record doesn't indicate that Mr. Pierce was transported or attended by anyone other than a standard escort (transport employee).

Subsequent to Mr. Pierce's death, a request for review of the Plaintiff's malpractice claims was filed before a medical review panel. An opinion was rendered by the medical review panel on April 20, 2016, concluding that none of the Defendants deviated below the standard of care, and that the decedent was properly monitored, and all physician orders were timely and appropriately followed.

On August 16, 2016, Plaintiff (Mr. Pierce's widow) filed a petition for damages. On October 18, 2016, Defendants, University Medical Center New Orleans and University Medical Center Management, filed for summary judgment. Shortly thereafter, Defendants Ogitani, Conkerton, and Johnson also filed a motion for summary judgment. The motions were originally set for hearing on December 2, 2016, but were continued at Plaintiff's request to March 3, 2017, and then to May 19, 2017. They were then continued without date to allow Plaintiff to conduct further discovery. On October 23, 2017, the summary judgments were re-set for December 1, 2017. Prior to that hearing, on November 29, 2017, Plaintiff filed a motion to continue the summary judgment hearing, as well as a statement of material facts in dispute, asserting a single material fact in dispute, as follows: "Whether the defendants ... breached the standard of care when they transported and abandoned Roy Pierce in the hallway outside of the Radiology suite when he was in an acutely decompensated, mentally altered hypotensive state." On November 30, 2017, one day before the hearing, Plaintiff filed an opposition to the motions. It is undisputed that no Independent Medical Expert testimony was provided in support of Plaintiff's opposition.

The Court, ruling from the bench, denied the motion to continue, and granted both summary judgment motions, signing the judgment as to the hospital defendants on December 1, 2017, and as to the remaining practitioner defendants on December 19, 2017. The December 19, 2017 judgment also denied the motion to continue. This timely appeal followed.

ASSIGNMENTS OF ERROR

Plaintiff has asserted the following assignments of error on appeal. First, that the district court erred in ruling that an independent medical expert is necessary to establish the standard of care in a medical malpractice case when the breach is objective and apparent and negligence can be reasonably inferred. Second, that the district court erred in ruling that Dr. Cooper was not a medical expert who established the standard of care and its breach, and in ruling that no genuine issue of material fact existed regarding whether or not the Defendants breached their standard of care. Third, Plaintiff asserts that the district court erred in not granting the Plaintiff a continuance of the hearing on the Motion for Summary Judgment, as discovery had not been completed.

DISCUSSION

We review the grant or denial of a motion for summary judgment de novo. Independent Fire Ins. Co. v. Sunbeam Corp. , 1999-2181, 1999-2257, p. 7 (La. 2/29/00), 755 So.2d 226, 230. A motion for summary judgment should 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 moving party bears the burden of proof. However, 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. Subsequently, if the non-moving party fails to provide factual evidence to establish that s/he will be able to satisfy the evidentiary burden of proof at trial, no genuine issue of material fact exists, and summary judgment is proper. La. C.C.P. art. 966 (D)(1).

"In a 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 a genuine issue of triable fact remains." Deroche v. Tanenbaum , 2013-0979, p. 11 (La. App. 4 Cir. 12/18/13), 131 So.3d 400, 408 (citing Hines v. Garrett , 2004-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 ). "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." Id. (citing Willis v. Medders , 2000-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050 ). Whether a particular fact in dispute is "material" for summary judgment purposes is determined in light of the substantive law applicable to the case. Id. (citing Richard v. Hall , 2003-1488, p. 5 (La. 4/23/04), 874 So.2d 131, 137 ).

To prevail in a medical malpractice case, a plaintiff must prove all three of the following elements by a preponderance of the evidence: (1) the applicable standard of care expected of physicians in his medical specialty, (2) a violation of that standard of care, and (3) a causal connection between the alleged negligent treatment and the plaintiff's injuries. La. R.S. 9:2794 ; Pfiffner v. Correa , 94-0924, 94-0963, 94-0992, p. 8 (La. 10/17/94), 643 So.2d 1228, 1233.

While expert testimony is generally required to establish malpractice, "[t]he jurisprudence has also recognized that there are situations in which expert testimony is not necessary." Pfiffner, 94-0924 at p. 9, 643 So.2d at 1233. For instance, expert testimony is not required where the physician does an obviously careless act, from which a lay person can infer negligence. Id. (citing Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 719 (La. 1986) ). "Failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, ... [is] also [an] example[ ] of obvious negligence which require[s] no expert testimony to demonstrate the physician's fault." Id. , 94-0924 at p. 9, 643 So.2d at 1234. "Likewise, where the defendant/physician testifies as to the standard of care and his breach thereof, see, e.g., Riser v. American Medical Int'l Inc., 620 So.2d 372, 377 (La. Ct. App. 5th Cir.1993), ... expert testimony is also unnecessary to establish a malpractice claim." Pfiffner, 94-0924 at p. 9, 643 So.2d at 1234.

Finally, a medical review panel opinion is "admissible, expert medical evidence that may be used to support or oppose any subsequent medical malpractice suit." Samaha v. Rau , 2007-1726, p. 15 (La. 2/26/08), 977 So.2d 880, 890 (citing La. R.S. 40:1299.47(G) and (H) ). As with any other expert testimony or evidence, the medical review panel opinion is subject to review and contestation by an opposing viewpoint.

Because in this case Defendants will not bear the burden of proof at trial on the elements of the malpractice claim, they are required only to point to a lack of factual support for one or more elements to prevail on their summary judgment motion. Defendants have attempted to do so by pointing to the lack of medical expert testimony that Defendants violated the standard of care. Further, they point to the Medical Review Panel ("MRP") Opinion, which concluded that "nothing in the record ... indicate[d] that the hospital and/or its employees deviated from the standard of care," and that "[t]he patient was properly monitored," as un-rebutted prima facie proof of this contention.

Notwithstanding the conclusions of the MRP Opinion, in the instant case, we find that on the record before us, a genuine issue of material fact remains that prevents us from resolving the question of whether expert medical testimony was required to prove that a breach of the standard of care occurred. The evidence submitted simply does not conclusively establish whether Mr. Pierce, after severely decompensating overnight, was left unattended for a period of time in the hallway outside the radiology suite, and if so for how long, and all doubt must be resolved in Plaintiff's favor. Moreover, if that did in fact occur, and depending upon how long Mr. Pierce was left, such a failure may well be one of such obvious negligence that no expert testimony would be necessary to demonstrate a breach of the standard of care.

In addition, we note that that the portion of the deposition testimony of Dr. Cooper that is in the record supports an inference that the standard of care was not met. For instance, Dr. Cooper testified that it was unusual for someone incapable of consenting to be sent to radiology, that the change in the patient overnight had not been relayed to him, and as a result the patient was "not in the place where that patient should [have been] in that moment." Dr. Cooper also testified that he agreed with the statement that Mr. Pierce should not have been transported to the radiological suite in the condition he was in, because he was "unstable," and in fact, he testified that Mr. Pierce's blood pressure reflected a dangerously hypotensive state. While Defendants' opposition references purported testimony to the contrary from Dr. Cooper, it is not included in the record provided to us (and thus presumably was not considered by the district judge).

Accordingly, with respect to Plaintiff's first two assignments of error, we agree that the district court erred in ruling that an independent medical expert was necessary to establish the standard of care in this case, and that it was breached, because a fact issue remains about what actually occurred with Mr. Pierce and whether it was so egregious that expert testimony was unnecessary. Therefore, on the record before us, we conclude that summary judgment on those issues was not appropriate. Having so found, we pretermit consideration of the question whether Dr. Cooper was qualified as an expert and whether the trial court erred in denying a continuance.

We recognize, however, that in addition to proving a breach, Plaintiff must also prove that the breach was the cause of her husband's death. We acknowledge that this will be very difficult to prove without expert testimony, unless the evidence ultimately shows that Mr. Pierce's abandonment was for such a period and under such circumstances that a lay jury could infer causation as well as an expert could. See Pfiffner , 94-0924 at p. 9, 643 So.2d at 1234. However, this is not a determination we can make on the record before us. In addition to the dearth of facts in the record regarding what actually happened to Mr. Pierce after he was transported to the hallway outside of the radiology suite, the MRP Opinion did not address causation, nor did the district court (either at the hearing or in its signed judgment). Dr. Cooper's testimony on this point was scant and equivocal. On this record, and resolving all doubt in favor of the Plaintiff (as we must), we simply cannot conclude that summary judgment is appropriate at this juncture. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

BELSOME, J., CONCURS IN THE RESULT

LOBRANO, J., CONCURS IN THE RESULT.

JENKINS, J., DISSENTS WITH REASONS

BELSOME, J., CONCURS IN THE RESULT

I agree with the majority's decision to reverse and remand to the trial court. However, I would remand the case to allow the Plaintiff an opportunity to conduct additional discovery, pursuant to La. C.C.P. art. 966(A)(3).

Admittedly, a party does not have a right to delay a decision on a motion for summary judgment until discovery is complete. However, "the law does require that the parties be given a fair opportunity to present their case." Leake & Andersson, LLP v. SIA Ins. Co. (Risk Retention Grp.) , Ltd. , 03-1600, pp. 3-4 (La. App. 4 Cir. 3/3/04), 868 So.2d 967, 969 (citation omitted).

In the instant case, the record reveals that the Plaintiff did not have an adequate opportunity to present her case. First, no discovery cutoff, expert designation, or trial deadlines were established. Next, the Plaintiff took steps to conduct additional discovery and has indicated what additional discovery is needed. Finally, the discovery issue was raised with the trial court in the Plaintiff's motion to continue.

Notably, the Defendants filed two separate motions for summary judgment, each within ten days of answering the lawsuit. The motions for summary judgment were continued several times. Significantly, during the last continuance, the parties agreed to continue the summary judgment hearing without date to allow for additional discovery. However, the Defendants re-set their motions without notification to the Plaintiff.

The Civil District Court Local Rules require litigants to certify that discovery is complete before obtaining a trial date. However, when discovery is not complete, the trial court may set a pre-trial scheduling order to allow a sufficient amount of discovery to be completed before trial. See Civil District Court Local Rule 9.14. It is evident that the rule intends to afford litigants a fair opportunity for discovery and to present a case, in conformity with La. C.C.P. art. 966(A)(3). However, the discretionary nature of the rule leads to inconsistent application among the courts below. Certainly, a uniform rule would safeguard the discovery protections afforded under the law. Recognizing the absence of uniformity in setting discovery deadlines below and the parties' agreement to continue the hearing without date until discovery was complete, I find that additional time for discovery is warranted.

Under these circumstances, summary judgment was premature. Consequently, the Plaintiff should be afforded a fair opportunity to present her case. See Crawford v. City of New Orleans , 01-0802, pp. 7-8 (La. App. 4 Cir. 1/23/02), 807 So.2d 1054, 1058 (where this Court reversed the granting summary judgment based on inadequate discovery where there was no trial set; the plaintiff identified the deposition testimony sought and the defendant agreed to participate; the plaintiff documented efforts to set the deposition; and the plaintiff filed a motion to continue due to the need for the requested discovery); Ainsworth v. American Home Assurance Company , 239 So.3d 359 (La. App. 4 Cir. 2/21/18), 243 So.3d 1061 (La. 6/1/18) (where this Court found summary judgment premature and remanded for additional discovery since there was no discovery or expert designation deadline, the discovery issue was raised, and the case was complex). Accordingly, I would reverse the trial court's ruling granting summary judgment and remand to allow the trial court to set a pre-trial scheduling order that would allow Plaintiff an adequate opportunity for additional discovery.

JENKINS, J., DISSENTS WITH REASONS

I respectfully dissent from the majority's conclusion that summary judgment is not warranted because there are genuine issues of material fact as to whether Plaintiff must present expert medical testimony to establish Defendants' standard of care, breach of that standard, and a causal nexus between the breach and Mr. Pierce's death.

Generally, expert testimony is required to prove the elements of a medical malpractice action, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228. In Pfiffner , the Supreme Court described the situations in which a plaintiff need not present an expert medical witness in a malpractice case: "Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient or leaving a sponge in a patient's body." Id. , 94-0924, p. 9, 643 So.2d at 1233.

In the instant case, however, the alleged malpractice was not the type of malpractice that was described in the Pfiffner case from which a layperson could infer negligence without the benefit of expert testimony. As in Pfiffner , Plaintiff alleges that her husband's death was caused by an unreasonable and unnecessary delay in diagnosis and treatment in circumstances involving a "complex medical condition," i.e., hypotension, anemia, renal failure, hyponatremia, elevated BUN/creatinine levels, a mass/fistula in the bladder, and ensuing vomiting, aspiration of vomit, and cardiac arrest. As stated in Pfiffner ,"[t]he causal connection between a patient's death and an unreasonable delay vis a vis a [physician's] diagnosis and treatment of a patient in circumstances involving a complex medical condition ... is simply beyond the province of lay persons to assess." Id., 94-0992, p. 10, 643 So.2d at 1234. See also Schultz v. Guoth , 10-0343, p. 12 (La. 1/19/11), 57 So.3d 1002, 1009 ("[A] causal nexus between delayed treatment and a patient's death is not obvious and requires expert testimony.").

Because of the complex medical and factual issues involved, I find that this is not a case of obvious negligence pursuant to the exception created in Pfiffner . Without a medical expert, Plaintiff cannot sustain her burden of proving malpractice.

I would affirm the trial court's judgment.

      University Healthcare System, L.C., d/b/a Tulane University Hospital and Clinic, an additional named defendant, was dismissed without prejudice on April 17, 2017.

      EGD (Esophagogastroduodenoscopy ) is a fluoroscopic diagnostic test to examine and visualize a patient's esophagus, stomach, and duodenum.

      Hyponatremia occurs when the concentration of sodium in the blood is abnormally low.

      In their brief, defense counsel points the Court to pages 47-48 of Dr. Cooper's deposition; however, these pages are not included with the excerpts of Dr. Cooper's testimony included in the appellate record.

      Diane Pierce on behalf of Roy Pierce v. Medical Center of Louisiana at New Orleans, et al. , Medical Review Panel number 13-MR-053.

      The statement of disputed facts specifically referenced the Deposition of Ben Cooper, M.D., at p. 27.

      We note that this is actually two assignments of error.

      Subsequent to the issuance of the Samaha opinion, section 1299 of title 40 was re-designated as section 1231. La. R.S. 40:1231.8(H) provides in part: "Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness."

      La. C.C.P. art. 966(A)(3) states: "After an opportunity for adequate discovery, 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."

      With respect to an inadequate discovery claim, this court has identified the following four relevant factors to be considered:
      (i) whether the party was ready to go to trial,
      (ii) whether the party indicated what additional discovery was needed,
      (iii) whether the party took any steps to conduct additional discovery during the period between the filing of the motion and the hearing on it, and
      (iv) whether the discovery issue was raised in the trial court before the entry of the summary judgment.
      Roadrunner Transp. Sys. v. Brown , 17-0040, pp. 11-12 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1273 (citation omitted).

      The Defendants, University Medical Center New Orleans and University Medical Center Management Corporation, filed its motion for summary judgment nine days after filing its answer, while Dr. Davis Ogitani and Danielle Johnson, R.N. filed their motion only two days after filing an answer to the lawsuit.

      Rule 9.14 states:
      All cases that have been allotted and all proceedings in connection therewith may, at the discretion of the Division Judge, be set for trial upon written motion filed by the counsel seeking such trial. In this instance, the motion to set shall be accompanied by a certificate that all parties have answered or preliminary defaults have been taken against them, including third-party defendants, all depositions and discovery have been completed, all exceptions and preliminary matters have been disposed of, and the matter is ready for a pre-trial conference or to be set for trial.
      Alternatively, after the completion of a sufficient amount of discovery that allows the lawyers/parties to reasonably anticipate the length of the trial, any party may seek a status conference for the purpose of selecting a trial date appropriately in the future, as well as cut off dates for witness lists, expert reports, and discovery. At this status conference, a date for a pretrial conference to occur shortly before trial may also be selected. The dates selected will be reduced to a scheduling order signed the by parties and the court.