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

• Decision Date: 15 October 2014
• Docket Number: No. 14–376.,14–376.
• Citation: 149 So.3d 1012
• Parties: Camille LANDRY, et al. v. PEDIATRIC SERVICES OF AMERICA, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

149 So.3d 1012

Camille LANDRY, et al.

v.PEDIATRIC SERVICES OF AMERICA, INC., et al.

No. 14–376.

Court of Appeal of Louisiana, Third Circuit.

Oct. 15, 2014.

John L. Hammons, Nelson & Hammons, Shreveport, LA, for Plaintiffs/Appellants, Ryan Landry, et al.

James P. Lambert, Lafayette, LA, for Plaintiffs/Appellants, Camille Landry, et al.

J. Michael Veron, J. Rock Palermo, III, Veron, Bice, Palermo & Wilson, L.L.C., Lake Charles, LA, for Defendants/Appellees, PSA of Lafayette, LLC PSA of Lafayette, LLC, Pediatric Services of America, Inc.

Monica A. Frois, Brandy N. Sheely, Baker Donelson Bearman Caldwell & Berkowitz, P.C., New Orleans, LA, for Defendants/Appellees, PSA of Lafayette, LLC, PSA of Lafayette, LLC, Pediatric Services of America, Inc.

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

Nadia de la Houssaye, Jones Walker, L.L.P., Lafayette, LA, for Defendants/Appellees, Louisiana Patient's Compensation Fund, Dr. Vasanth Nalam.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and MARC T. AMY, Judges.

Opinion

AMY, Judge.

The plaintiffs filed a petition seeking to annul an underlying judgment rendered following a jury trial. The plaintiffs alleged that, during the trial, a juror spoke to the trial court regarding her concerns about continuing to serve on the jury and that the trial court did not advise the parties of that conversation. This decision not to disclose the juror communication, the plaintiffs argued, constituted a conditionrendering the judgment null under La.Code Civ.P. art. 2004. The trial court dismissed the plaintiffs' petition after sustaining the defendants' motion to strike the affidavit of the juror and, in turn, the defendants' exceptions of no cause of action. The plaintiffs appeal. For the following reasons, we reverse the ruling of the trial court and remand for further proceedings.

Factual and Procedural Background

The plaintiffs, Camille Landry and Ryan Landry, are the parents of a minor child who experienced breathing distress and, ultimately, brain damage from a hypoxic brain injury. The plaintiffs filed the underlying matter seeking damages related to that condition from various health care providers and a medical equipment provider. Following a multi-week trial, the jury returned a verdict attributing the fault to a nonparty physician. That verdict was affirmed on appeal. See Landry v. PSA of Lafayette, LLC, 12–277 (La.App. 3 Cir. 11/7/12), 120 So.3d 707. Thereafter, the plaintiffs filed a writ application with the Supreme Court of Louisiana.

Before resolution of that writ application, however, the plaintiffs filed a “Petition to Annul Judgment Pursuant to La.C.C.P. Article 2004.” In that separate proceeding, the plaintiffs alleged that during the course of trial, one of the jurors approached the initial trial court judge and first informed him that the multi-week trial had created difficulties with her work schedule. Later, and at issue here, the juror informed the trial judge that during the course of the presentation of evidence she had identified her name and writing on hospital records for the minor child that were published to the jury. She also explained that she recalled having a conversation with fellow nurses about one of the child's medical conditions. Referencing the attached affidavit of the juror, the petition suggested that the juror expressed to the trial judge “that she did not feel it was appropriate since she had actually treated the child and recalled having discussed the condition of ‘cortical thumb’ with other nurses.”

The petition alleged that the trial judge “responded to [the juror] that she was not to disclose this information to any other jurors and also told her that he was not going to disclose this fact to the lawyers representing the litigants. He then instructed her to continue to serve as a juror.” The plaintiffs asserted, however, that the trial judge “had a legal obligation to notify the parties and to allow them to question this juror in open court.” The failure to do so, the plaintiffs alleged, tainted the verdict and rendered the judgment “null as a matter of law.” For these reasons, the plaintiffs sought a full trial on the petition to annul judgment and a declaration that the underlying judgment is .

In response, Pediatric Services of America, Inc. (PSA), one of the defendants in the underlying matter, filed an exception of no cause of action and submitted that the plaintiffs' “nullity action is barred as a matter of law by its failure to exercise due diligence during voir dire. ” In a supporting memorandum, PSA developed the argument, noting that the subject juror stated in an affidavit attached to the petition that she had disclosed during voir dire that she previously worked as a neonatal nurse, had been employed at the hospital where the child was hospitalized, and that she worked certain cases with several of the defendant physicians. PSA noted therein that the juror did not otherwise retreat from her voir dire admission that she could be a fair and impartial juror. PSA further argued that, in light of the underlying facts revealed at voir dire, the petition does not allege anything regarding the juror's employment as a nurse that could not have been discovered with more fully developed voir dire questioning by the plaintiffs. Otherwise, PSA asserted that the plaintiffs did not demonstrate that there was any ill practice in the trial judge's decision not to reveal the conversation with the juror. Instead, PSA suggested that no “rule, regulation, or standard” required the trial court to alert the parties about the conversation with the juror. Finally, PSA argued that the petition did not contain any facts demonstrating a causal relationship between the decision not to disclose the conversation with the juror and the ultimate jury's verdict. Thus, PSA alleged in its exception, the petition does not set forth a cause of action.

Thereafter, two of the defendant physicians, Dr. Cong T. Vo and Dr. Rosaire Josseline Belizaire, filed a motion to strike/exclude the juror's affidavit and related allegations. Namely, the defendant physicians argued that the affidavit, attached to the plaintiffs' petition, violated La.Code Evid. art. 606(B) since it contained statements in an alleged attempt to “impeach the jury's verdict[.]” Therefore, the defendant physicians asked the trial court considering the petition to annul to strike the affidavit.

Additionally, the defendant physicians filed an exception of no cause of action and alternative motion for summary judgment. In their memorandum in support, the defendant physicians contend that the plaintiffs' petition largely advances conclusions and not underlying facts that would demonstrate the occurrence of an ill practice. As did PSA, the defendant physicians asserted that there was no legal obligation for the trial judge to reveal the juror disclosure to the parties, the affidavit did not indicate that the juror was not impartial, and the plaintiffs did not allege that the juror discussed her recollections with the other members of the jury. Finally, the defendant physicians also argued that a more complete voir dire process could have revealed the information discovered during the midst of trial. In support of their alternative motion for summary judgment, the defendant physicians attached excerpts from the portions of the jury voir dire in which the juror was questioned regarding her work as a neonatal nurse and her familiarity with some of the medical issues that would be before the court.

The petition to annul judgment was assigned to Judge Edward Rubin, who heard the motion to strike, exceptions of no cause of action and motion for summary judgment. Providing written reasons for ruling in a minute entry, Judge Rubin first granted the motion to strike, finding that the affidavit did, in fact, address areas prohibited by La.Code Evid. art. 606(B). The trial court further granted the defendants' exceptions of no cause of action and, in turn, determined that the defendant physicians' alternative motion for summary judgment was rendered moot. Following that ruling, Judge Rubin entered judgment sustaining a motion to strike the juror's affidavit and an exception of no cause of action filed by the Louisiana Patient's Compensation Fund and another defendant physician, Dr. Vasanth Nalam. The judgment indicated that it did so upon consideration of its previously rendered minute entry.

The plaintiffs appeal the judgments entered in favor of the various defendants and assign the following as error:

I. The trial court in the nullity action committed reversible error by striking the Affidavit of Kim Mayer Gisclaire, a civil juror in the underlying cause under Article 606(B)of the Code of Evidence. Since the Affidavit in no way related to jury deliberations but rather dealt with an undisclosed ex parte communication between the juror and the trial judge four days before the end of the trial concerning the juror's continued ability to be a fair and impartial juror. The trial judge in the nullity action committed reversible error since Article 606(B) of the Code of Evidence is simply not applicable to the Affidavit in question.

II. The trial court in the nullity action committed reversible error in granting an exception of no cause of action and in ruling that Judge Edward Broussard had no duty to advise counsel of record of an ex parte communication between himself and a trial juror who expressed doubts to him about her continued ability to be a fair and impartial juror, and in ruling as a matter of law that Judge Broussard had the legal discretion to decide unilaterally to allow the juror to continue to serve without advising counsel of record. The trial court in the ity action committed clear error since the failure of the judge in the underlying case constitutes a deprivation of the due process right to cross examine

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