244 So. 3d 441
La. Ct. App.2018Background
- One-year-old Jessica Thompson died after nurse practitioner Bernard Gaudin administered vaccinations during a pediatric visit; parents (Petrie and Bertha Thompson) allege vaccinations were given under contraindicated conditions and against the mother’s objections.
- Plaintiffs sued Gaudin, his employer The Center, and supervising physician Dr. Henry Peltier; a medical review panel found no breach by The Center or Dr. Peltier and that vaccinations were appropriate.
- Gaudin moved for summary judgment arguing plaintiffs had no expert to establish standard of care, breach, or causation.
- Plaintiffs submitted an affidavit from board-certified pediatrician Robert S. Chabon, M.D., opining Gaudin breached the standard of care by vaccinating Jessica against her mother’s objections and that the vaccinations caused Jessica’s death.
- Gaudin objected to the affidavit on form, timeliness, and admissibility grounds but then waived those objections at the summary judgment hearing except for the affidavit’s substantive sufficiency; the trial court admitted the affidavit but found it conclusory and granted summary judgment for Gaudin.
- The appellate court reversed, holding that because the affidavit was admitted (objections waived/overruled), the court must consider it and, construing in plaintiffs’ favor, the affidavit created a genuine issue of material fact on breach and causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs presented admissible expert evidence to defeat summary judgment | Chabon’s affidavit shows Gaudin breached standard of care and vaccines caused death | Affidavit is untimely, improper form, conclusory, and lacks factual/methodologic support | Affidavit was admitted; because objections were waived/overruled, court must consider it and it creates a genuine issue of material fact |
| Whether expert must explicitly state nurse-practitioner standard and familiarity | Chabon, a pediatrician, may testify about overlapping pediatric standards and attested care fell below standard | Chabon didn’t identify NP-specific standard or explain familiarity with NP standard | Court: specialist in related field may testify about overlapping areas; reasonable inference Chabon understands applicable standard suffices at summary judgment stage |
| Whether conclusory expert affidavits can defeat summary judgment post-2015 Art. 966D(2) | Even if brief, admitted affidavit need not contain full methodological detail at summary judgment; merits tested later | Conclusory affidavits are legally insufficient to create material issues of fact | Court: after admission, assessment of credibility/weight is improper at summary judgment; admissibility challenges must be timely; admitted affidavit can preclude summary judgment |
| Whether causation was sufficiently addressed in affidavit | Chabon opined vaccinations resulted in death based on record review | Defendant: affidavit fails to explain how vaccines caused death | Court: affidavit’s causation opinion, when admitted and viewed favorably to plaintiffs, is sufficient to create a genuine issue for trial |
Key Cases Cited
- In re Succession of Beard, 147 So.3d 753 (La. App. 1 Cir. 2014) (appellate de novo review of summary judgment)
- Independent Fire Ins. Co. v. Sunbeam Corp., 755 So.2d 226 (La. 2000) (formal defects in affidavits waived if not timely objected to; assume affiants credible)
- Samaha v. Rau, 977 So.2d 880 (La. 2008) (elements of medical malpractice claim)
- Smith v. Our Lady of the Lake Hosp., Inc., 639 So.2d 730 (La. 1994) (summary judgment: no weighing credibility or testimony)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (U.S. 1993) (expert admissibility standard)
- State v. Foret, 628 So.2d 1116 (La. 1993) (Daubert–Foret standard referenced for expert testimony)
- Freeman v. Fon's Pest Mgmt., 235 So.3d 1087 (La. 2018) (application of Daubert–Foret in Louisiana)