372 So.3d 7
La. Ct. App.2023Background
- On April 22–23, 2019, John Robinson Jr. and Kim Ishman ate fried oysters in Bogalusa and thereafter developed symptoms they allege were food poisoning. Robinson sought emergency treatment.
- Plaintiffs sued Cheng, LLC (owner of Dragon Palace Restaurant) for damages, alleging the oysters were undercooked at Dragon Palace.
- Cheng moved for summary judgment arguing plaintiffs had sued the wrong restaurant, asserting Robinson told medical providers he had eaten at a Mexican restaurant.
- Cheng did not attach certified or authenticated medical records to its motion; instead it cut-and-pasted excerpts of purported clinical notes into its memorandum. Plaintiffs filed no opposition and did not appear at the summary judgment hearing.
- The trial court granted summary judgment for Cheng. On appeal the First Circuit held Cheng’s embedded excerpts were not admissible summary-judgment evidence and that Cheng failed to meet its initial burden, so the grant of summary judgment was reversed and the case remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cheng met its summary-judgment burden to negate the plaintiffs' claim of where they ate | Robinson/Ishman: genuine factual dispute exists; petition/interrogatories say Dragon Palace | Cheng: medical notes show Robinson reported eating at a Mexican restaurant, so plaintiffs sued wrong defendant | Held: Cheng failed to meet initial burden—no admissible evidence (only unauthenticated excerpts) to negate plaintiffs' claim; SJ reversed |
| Whether excerpts of medical records embedded in a memorandum are admissible on summary judgment | Plaintiffs: such excerpts are not certified or authenticated and thus inadmissible | Cheng: argued the excerpts reflect what Robinson told providers and should be considered | Held: Court refused to consider cut-and-pasted excerpts as admissible evidence; certified/authenticated records required (absent waiver) |
| Whether the court must consider unauthenticated documents when no objection is made | Plaintiffs: object and assert lack of authenticity; in this case court need not treat pasted excerpts as documents | Cheng: relies on La. C.C.P. art. 966(D)(2) and some precedent saying courts may consider unobjected-to documents | Held: Majority declined to treat pasted excerpts as usable documents and assigned no evidentiary value; concurrence noted prior First Circuit practice but agreed result on discretion |
| Whether any admissible evidence supports dismissal | Plaintiffs: petition and interrogatory answers support liability against Cheng | Cheng: claimed medical notes rebut plaintiffs' account (but did not authenticate them) | Held: Only admissible evidence favored plaintiffs; material fact remains about where oysters were eaten, so SJ inappropriate |
Key Cases Cited
- Judd v. State, Department of Transportation and Development, 663 So. 2d 690 (La. 1995) (certified hospital records are inherently reliable and admissible as prima facie proof)
- Raborn v. Albea, 221 So. 3d 104 (La. App. 1 Cir. 2017) (on admissibility and certification of medical records for summary judgment)
- Tennie v. Farm Bureau Property Insurance Company, 327 So. 3d 1020 (La. App. 1 Cir. 2021) (consideration of uncertified medical records where no timely objection was made)
- Jackson v. St. Mary Parish Government, 349 So. 3d 69 (La. App. 1 Cir. 2022) (unsworn or unverified documents have no evidentiary value unless not objected to)
- May v. Carson, 348 So. 3d 88 (La. App. 1 Cir. 2022) (trial court abuses discretion if it denies objection to uncertified medical record used in summary judgment)
- Crockerham v. Louisiana Medical Mutual Company, 255 So. 3d 604 (La. App. 1 Cir. 2018) (movant must submit sufficient admissible evidence to carry initial summary-judgment burden)
- McDowell v. Feldman, 341 So. 3d 71 (La. App. 1 Cir. 2021) (discussed scope of considering embedded materials in memoranda; cited in concurrence and distinguished by majority)
- Jefferson v. Nichols State University, 311 So. 3d 1083 (La. App. 1 Cir. 2020) (standard of appellate de novo review of summary judgment)
- Lucas v. Maison Insurance Company, 358 So. 3d 76 (La. App. 1 Cir. 2022) (documents not on Article 966(A)(4) list must be authenticated to have evidentiary effect in summary-judgment proceedings)