258 So. 3d 88
La. Ct. App.2018Background
- Lori Mariakis presented to North Oaks ED in July 2009 with abdominal/vaginal pain, was discharged twice, later developed ascites and died in August 2009 after transfer to another hospital.
- Plaintiffs (her sons/estate) filed a medical malpractice claim; a medical review panel issued a unanimous opinion that North Oaks met the standard of care.
- Plaintiff designated Dr. Liebermann as his expert, but the trial court excluded his testimony via a Daubert ruling on February 15, 2017.
- North Oaks moved for summary judgment arguing that, without an admissible expert, plaintiff could not meet the elements of a medical-malpractice claim; plaintiff opposed with an affidavit by Dr. Robert West and later filed Dr. West’s unsigned medical report as a supplement.
- North Oaks objected that Dr. West’s affidavit was conclusory and that the report was not properly sworn; it did not timely object to the report in a reply memorandum.
- The trial court granted summary judgment for North Oaks; the appellate court vacated and remanded, holding that Dr. West’s affidavit plus the unsworn but unopposed expert report created a genuine issue of material fact sufficient to defeat summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff may oppose summary judgment with a new expert after discovery closed | West’s affidavit and supplemental expert report create material factual disputes on standard of care and causation | Discovery closure and untimeliness bar West’s testimony; his affidavit is conclusory and lacks factual support | Court: Timeliness not dispositive here; West’s affidavit plus unobjected-to report suffice to create genuine issue of material fact |
| Whether Dr. West’s affidavit satisfies La. C.C.P. art. 967(A) | Affidavit states he reviewed records, renders opinions, and reserves right to supplement with a report | Affidavit is conclusory, fails to identify records, standard of care, or factual bases—insufficient to defeat SJ | Court: Affidavit alone was deficient, but supplementation by the signed report (to which no timely objection was made) cured the deficiency |
| Admissibility/evidentiary weight of an unsworn expert report filed in opposition to SJ | The report supplements the affidavit as promised and is properly considered where no objection was timely filed | The report is not an affidavit or other permitted document and thus has no evidentiary value on summary judgment | Court: Under La. C.C.P. art. 966(D)(2), documents to which no timely objection is made must be considered; therefore the report was considered |
| Whether the medical review panel opinion alone entitles defendant to summary judgment | Panel opinion is admissible but does not foreclose plaintiff if competent contrary expert evidence exists | Panel opinion was the only expert opinion remaining after exclusion of Liebermann | Court: Panel opinion did not mandate SJ because West’s report and affidavit raised a disputed material fact about breach and causation |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (establishes federal standard for admissibility of expert testimony referenced for Daubert analysis)
- Pfiffner v. Correa, 643 So.2d 1228 (La. 1994) (limited exceptions to expert requirement for "obviously careless acts")
- Samaha v. Rau, 977 So.2d 880 (La. 2008) (moving party in medical-malpractice SJ must show plaintiff cannot meet burden; burden shifts to plaintiff)
- McGlothlin v. Christus St. Patrick Hosp., 65 So.3d 1218 (La. 2011) (medical review panel opinion is admissible expert evidence)
- Adolph v. Lighthouse Prop. Ins. Corp., 227 So.3d 316 (La. App. 1st Cir. 2017) (procedural rules on objections and consideration of evidence on SJ)
- Unifund CCR Partners v. Perkins, 134 So.3d 626 (La. App. 1st Cir. 2013) (unsworn documents generally have no evidentiary value on SJ)