Landry v. Pediatric Servs. of Am., Inc.

• Decision Date: 06 April 2016
• Docket Number: No. 15–899.,15–899.
• Citation: 189 So.3d 540
• Parties: Camille LANDRY, Individually and on Behalf of her Minor Child, Tai Landry, and Ryan Landry, Individually and on Behalf of his Minor Child, Tai Landry v. PEDIATRIC SERVICES OF AMERICA, INC., PSA of Lafayette, LLC, Dr. Cong Vo, Dr. Rosaire Belizaire, Dr. Vasanth Nalam, and Louisiana Patient's Compensation Fund.
• Court: Court of Appeal of Louisiana — District of US

189 So.3d 540

Camille LANDRY, Individually and on Behalf of her Minor Child, Tai Landry, and Ryan Landry, Individually and on Behalf of his Minor Child, Tai Landry

v.PEDIATRIC SERVICES OF AMERICA, INC., PSA of Lafayette, LLC, Dr. Cong Vo, Dr. Rosaire Belizaire, Dr. Vasanth Nalam, and Louisiana Patient's Compensation Fund.

No. 15–899.

Court of Appeal of Louisiana, Third Circuit.

April 6, 2016.

James P. Lambert, Lafayette, LA, for Plaintiff/Appellant, Camille Landry, individually and on behalf of her minor child, Tai Landry.

John L. Hammons, Nelson & Hammons, Shreveport, LA, for Plaintiff/Appellant, Ryan Landry, individually and on behalf of his minor child, Tai Landry.

Nadia M. de la Houssaye, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., Lafayette, LA, for Defendant/Appellee, Louisiana Patient's Compensation Fund on behalf of Dr. Vasanth Nalam.

J. Michael Veron, J. Rock Palermo, III, Veron, Bice, Palermo, & Wilson L.L.C., Lake Charles, LA, for Defendant/Appellee, Pediatric Services of America, Inc.

Monica A. Frois, Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C., New Orleans, LA, for Defendant/Appellee, Pediatric Services of America, Inc.

Marc W. Judice, James J. Hautot, Jr., Judice & Adley, Lafayette, LA, for Defendants/Appellees, Dr. Rosaire J. Belizaire and Dr. Cong T. Vo.

Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.

GENOVESE, Judge.

In this suit seeking to nullify the judgment rendered in an underlying medical malpractice and general negligence action, Plaintiffs, Camille Landry, individually and on behalf of her minor child, Tai Landry, and Ryan Landry, individually and on behalf of his minor child, Tai Landry (collectively Landry), appeal the trial court's judgment on cross-motions for summary judgment denying Landry's motion for summary judgment and granting the motion for summary judgment of Defendant, Pediatric Services of America, Inc. (PSA), thereby dismissing Landry's claims against PSA. PSA has answered the appeal relative to the trial court's grant of Landry's motion to strike an affidavit offered in support of its motion. For the reasons that follow, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

The minor child, Tai Landry, was admitted to Women's and Children's Hospital in Lafayette, Louisiana, where she came under the care and treatment of several physicians. She was administered supportive care with medical equipment provided by PSA. As a result of alleged medical malpractice, Landry filed suit, naming several treating physicians as defendants and asserting a general negligence claim against PSA.

The underlying lawsuit was tried over the course of several weeks before a jury, which returned a verdict attributing one hundred percent of the fault to a nonparty physician. Thereafter, a lengthy procedural history followed, the details of which are set forth in a prior opinion of this court in Landry v. Pediatric Services of America, Inc., 14–376 (La.App. 3 Cir. 10/15/14), 149 So.3d 1012, writs denied, 14–2381, 14–2385 (La.1/9/15), 157 So.3d 1112.

The instant matter was instituted by a "Petition to Annul Judgment Pursuant to La.C.C.P. Article 2004" filed by Landry, which alleged that the judgment should be rendered null due to ex parte communication occurring during the jury trial between the trial judge, Judge Broussard,¹ and a sitting juror, Kim Mayer (now Kim Gisclaire), which the trial court did not disclose to the parties. Neither party disputes that there was ex parte communication between the judge and Ms. Gisclaire; rather, the issue presently before this court is whether the ex parte communication resulted in "[a] final judgment obtained by fraud or ill practices" and, therefore, constitutes a nullity pursuant to La.Code Civ.P. art. 2004(A)as a matter of law.

Landry filed a motion for summary judgment which was supported, in part, by an affidavit of the former juror, Kim Mayer Gisclaire, and an affidavit of Casey Blanchette, Judge Broussard's law clerk during the jury trial. PSA filed a cross- motion for summary judgment, which was supported by accompanying exhibits including an affidavit of Kizzy Dixon, the foreperson of the jury. Landry, thereafter, moved to strike the affidavit of Ms. Dixon as inadmissible.

Following a hearing, the trial court entered a minute entry granting Landry's motion to strike Ms. Dixon's affidavit, denying Landry's motion for summary judgment, and granting PSA's motion for summary judgment. The trial court signed a concomitant judgment on June 3, 2015, from which Landry has appealed, and from which PSA has answered the appeal.

ASSIGNMENTS OF ERROR

Landry presents the following assignments of error for our review:

I. The trial court in the nullity action committed reversible error in denying [Landry's] Cross[-]Motion for Summary Judgment after [D]efendant, [PSA,] judicially admitted (in writing and in open court) all key "operative facts giving rise to [Landry's] right to assert the nullity action."

II. The trial court in the nullity action committed reversible error by ruling that the admitted ex parte communication between the trial judge and the civil juror and the admitted failure of the trial judge to inform the parties of the juror's concerns over her continued jury service did not, as a matter of law, constitute a violation of Louisiana Code of Civil Procedure Article 1769(B).

III. The trial court in the nullity action committed reversible error in ruling that [Landry was] barred from asserting the nullity action due to [the] alleged failure to exercise due diligence to uncover and expose in voir dire the future concerns of the juror which led to the admitted ex parte communication with the trial judge.

IV. The trial court in the nullity action committed reversible error in ruling as a matter of law that there existed no causal connection between the alleged ill practice and (through violation of La.[Code Civ.P. art.] 1769(B)) and [sic] the verdict rendered by the civil jury in the underlying trial.

V. The trial court in the nullity action committed reversible error in ruling that [Landry] failed to show facts which proved [Landry was] prejudiced by the ex parte conversation.

In its Answer to Appeal, PSA asserts error by the trial court in granting Landry's motion to strike the affidavit of the jury foreman, Ms. Dixon. Specifically, PSA contends the trial court so erred "because the affidavit does not reveal any statements made during deliberations or any juror's mental process[,] and because the content of the affidavit is admissible to show that there was no 'outside influence' brought to bear on the deliberations."

LAW AND DISCUSSION

At the outset, we acknowledge PSA's contention that Landry does "not have the right to appeal" because "the denial of a motion for summary judgment is an interlocutory ruling from which no appeal may be taken[.]" However, we disagree.

Generally, pursuant to La.Code Civ.P. art. 968, the denial of a motion for summary judgment is an interlocutory judgment from which an appeal may not be taken. However, when there is also an appeal from a final judgment, such as a trial court's grant of summary judgment, an appellate court may also review the interlocutory ruling. See In re Succession of Carlton, 11–288 (La.App. 3 Cir. 10/5/11), 77 So.3d 989, writ denied, 11–2840 (La.3/2/12), 84 So.3d 532.

Mackmer v. Estate of Angelle, 14–665, p. 1 (La.App. 3 Cir. 12/10/14), 155 So.3d 125, 126 n. 2, writ denied, 15–69 (La.4/2/15), 176 So.3d 1031.

On appeal, Landry argues that "PSA made very significant admissions in their 'Statement of Uncontested Facts[,]' which was pleaded with the Motion for Summary Judgment." The purported admissions were: (1) that the ex parte communication "occurred after the jury had been sworn, after the presentation of evidence began, and prior to jury deliberations[;]" and, (2) that the trial court judge instructed the juror "not to reveal her involvement in the care of [the] minor child or her discussion with a co-worker regarding 'cortical thumb.' " We agree with Landry that these facts "giv[e] rise to [Landry's] right to assert the nullity action." (emphasis added). That was the issue before this court in Landry, 149 So.3d at 1019, wherein another panel of this court reasoned:

Certainly, as recounted by the juror in the affidavit and repeated in the petition, the juror "expressed some discomfort with continuing to serve as a juror" to the trial judge because of the revelations regarding her potential involvement in the care of the child and that "she did not feel that it was appropriate[.]" While these statements are perhaps vague and not ultimately indicative that the juror had become unable or unqualified to serve due to bias, the statements are not insignificant. Thus, we find that they are sufficient to allege the existence of a cause of action on the issue of whether some improper procedure or practice deprived the plaintiffs of an opportunity to consider/challenge the juror's continued service.

While these undisputed facts were held to be sufficient for purposes of stating a cause of action, the issue now before this court is whether Landry is entitled to summary judgment. We, therefore, find no merit to this contention.

Therefore, in this appeal, we must decide whether the ex parte communication between the trial judge and the juror rises to the level of an "ill practice" to support a nullity action. La.Code Civ.P. art. 2004(A). For the reasons that follow, based upon our de novo review of the record,² we find that genuine issues of material fact remain which preclude the grant of summary judgment in favor of either party.

Relying in large part on the earlier opinion of this court, Landry argues that because an ex parte communication occurred, and because it was not revealed to the parties, these facts are sufficient to trigger La.Code Civ.P. art. 1769(B)and, ultimately, La.Code Civ.P. art. 2004. However, Landry is incorrect in stating that "whenever...