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

• Decision Date: 19 February 2020
• Docket Number: 19-796
• Parties: CAMILLE LANDRY, ET AL. v. PEDIATRIC SERVICES OF AMERICA, INC., ET AL.
• Court: Court of Appeal of Louisiana — District of US

CAMILLE LANDRY, ET AL. v. PEDIATRIC SERVICES OF AMERICA, INC., ET AL.

19-796

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

February 19, 2020

NOT DESIGNATED FOR PUBLICATION

ON APPLICATION FOR SUPERVISORY WRIT FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. 2013-2251, HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE

SYLVIA R. COOKS JUDGE

Court composed of Sylvia R. Cooks, John D. Saunders, Elizabeth A. Pickett, John E. Conery, and Kent D. Savoie, Judges.

WRIT GRANTED AND MADE PEREMPTORY. WE REQUEST THE LOUISIANA SUPREME COURT APPOINT A JUDGE AD HOC FROM OUTSIDE THE FIFTEENTH JUDICIAL DISTRICT COURT TO HEAR THE NULLITY ACTION.

Savoie, J., concurs in the result.

Pickett, J., dissents and would deny the writ.

John L. Hammons

Cornell R. Flournoy

William W. Murray, Jr.

Nelson & Hammons, APLC

315 S. College Road, Suite 146

Lafayette, LA 70503

(337) 534-0515

Attorneys for Plaintiffs-Applicants,

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

Marc W. Judice

James J. Hautet

P.O. Box 51769

Lafayette, LA 70505-1769

(337) 235-2405

Attorneys for Defendants-Respondents

Dr. Rosaire Josseline Belizaire and

Dr. Cong T. Vo

Nadia De La Houssaye

Jones Walker, L.L.P.

600 Jefferson Street, Suite 1600

Lafayette, LA 70502

(337) 539-7600

Attorney for La. Patient's Comp. Fund,

On behalf of Dr. Vasanth Nalam

J. Michael Veron

J. Rock Palermo III

Vernon, Bice, Palermo & Wilson

721 Kirby Street

P.O. Box 2125

Lake Charles, LA 70602

(337) 310-1600

Attorneys for Defendant-Respondent,

Pediatric Services of America, Inc.

Ashley M. Scott

Matthew C. Juneau

Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.

201 St. Charles Avenue, Suite 3600

New Orleans, LA 70170-3600

(504) 566-5200

Attorneys for Defendant-Respondent,

Pediatric Services of America, Inc

Cooks, J.

Some background information is necessary to understand this protracted litigation which this court has had before it numerous times. In the underlying suit,¹ 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 Plaintiffs), sued a medical equipment provider and doctors alleging negligent injury which caused their child's brain damage. After trial by jury, Judge Ed Broussard (Judge Broussard) rendered judgment for Defendants² consistent with the jury's verdict. Plaintiffs appealed. This court affirmed the judgment. Plaintiffs then filed a petition to annul the judgment upon discovery of the trial court's failure to disclose an ex parte communication between juror Kim Mayer Gisclaire (Gisclaire) and Judge Broussard during the underlying jury trial. Defendant filed a peremptory exception of no cause of action. The nullity action was assigned to Judge Ed Rubin (Judge Rubin) who sustained Defendants' peremptory exception. Plaintiffs appealed and this court reversed and remanded. See Landry v. Pediatric Servs. of Am., Inc., et al, 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. Plaintiffs and Defendants then filed crossmotions for summary judgment. Judge Rubin granted summary judgment in favor of Defendants and denied Plaintiffs' motion for summary judgment. Plaintiffs appealed. A panel of this court (Cooks, Genovese and Peters) affirmed the denial of Plaintiffs' motion for summary judgment and reversed the granting of Defendants' motion for summary judgment. The case was again remanded. See Landry v. Pediatric Servs. of Am., Inc. et al., 15-899 (La.App. 3 Cir. 5/6/16), 189 So.3d 540 writs denied, 16-785,16-845 (La. 6/17/16), 192 So. 3d 771, 773. In that ruling this court found "The undisputed facts in this case are that there was ex parte communication between Ms. Gisclaire and Judge Broussard and that the communication was not disclosed to the parties during the course of the trial." Id. at 545. The content of this communication was set forth in Gisclaire's affidavit.³ We further said:

We find that the content of the ex parte communication was not simply "administrative" or "managerial in nature[.]" Delo Reyes, 9 So.3d at 892. To the extent that the discussions raised legitimate questions on the suitability of Ms. Gisclaire to continue to serve as a juror, and her obvious concern about doing so, this ex parte communication gave rise to legal issues which should have been disclosed to the parties when they became known to the trial court. At that point in the trial, the questionable propriety of Ms. Gisclaire remaining as a juror should have been made known to the attorneys, and the attorneys should have been given the opportunity to explore further the nature and extent of Ms. Gisclaire's fitness and ability to continue to serve as a fair and impartial juror in this trial. Given these facts, we readily find that the trial court proceeded improvidently and erred in instructing Ms. Gisclaire not to reveal her concerns to her fellow jurors and in failing to make a full disclosure to the attorneys of the information relayed to it. This occurrence constituted a procedural defect that occurred during the course of this trial.

Landry, 189 So.3d at 546 (emphasis added).

The majority reasoned that this finding was not the end of the inquiry and further found:

The matter before us is an appeal of cross motions for summary judgment, not an appeal of the underlying jury verdict. In the instant case, Landry seeks to annul the judgment in the underlying action on the grounds that it was obtained by an ill practice. La.Code Civ.P. art. 2004(A).⁴ In Wright v. Louisiana Power & Light, 06-1181, pp. 12-13(La.3/9/07) 951 So.2d 1058, 1067 (footnote omitted), our supreme court has set forth the following relative to such a nullity action:

In Johnson v. Jones-Journet, 320 So.2d 533 (La.1975), this Court reviewed the historical development of C.C.P. art. 2004 and noted that the jurisprudence under Art. 607 of the Code of Practice (the source of present C.C.P. art. 2004) established the following criteria for an action in nullity: (1) that the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) that the enforcement of the judgment would have been unconscionable and inequitable. Since that time, this Court has accepted those two requirements as the necessary elements in establishing a nullity action under Art. 2004. See Gladstone v. American Auto. Ass'n, Inc., 419 So.2d 1219 (La.1982); Kem Search[, Inc. v. Sheffield, 434 So.2d 1067 (La.1983) ]; Bell Pass Terminal, Inc. v. Jolin, Inc., 01-0149 (La.10/16/01), 800 So.2d 762.

However, those cases also further defined the types of conduct required to establish those two elements depending on the type of fraud or ill practice alleged. This Court has held that "the article is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations where a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable." Power Marketing [Direct, Inc. v. Foster, 05-2023, p. 13 (La.9/6/06), 938 So.2d 662, 671]; Kem Search, supra at 1070 (citing Chauvin v. Nelkin Ins. Agency, Inc., 345 So.2d 132 (La.App. 1 Cir.), writ denied, 347 So.2d 256 (La.1977)); see also, Schoen v. Burns, 321 So.2d 908 (La.App. 1 Cir.1975); St. Mary v. St. Mary, 175 So.2d 893 (La.App. 3 Cir.1965); Tapp v. Guaranty Finance Co., 158 So.2d 228 (La.App. 1 Cir.1963), writ denied, 245 La. 640, 160 So.2d 228 (1964).

Because the matter before us is an action in nullity, the critical inquiry is whether the procedural defect which occurred during the trial rises to the level of an ill practice and, thus, constitutes a nullity under the pertinent statute and the jurisprudence. Landry answers this inquiry in the affirmative and concludes that because an ill practice occurred,the underlying judgment is null under La.Code Civ.P. art. 2004. Of course, PSA reaches the contrary conclusion, and argues that it has not been shown that Ms. Gisclaire was unable or disqualified to serve as mandated by La.Code Civ.P. art. 1769(B). There is obviously a question of material fact as to whether the procedural defect rises to the level of an ill practice.

Id. at 546-47.

Thus, the majority found neither side was entitled to summary judgment. Judge Cooks concurred with extensive written reasons. In her concurrence, Judge Cooks explained that juror Gisclaire "can testify to no more than she has already stated in her affidavit." Id. at 549. Further, she explained:

The only thing Gisclaire may testify to is whether any outside influence was brought to bear. What does this mean in this case? There is no assertion here that the bailiff acted improperly or that any outside party threatened the juror. The only possible outside influence here was revealed by Gisclaire when she told the trial judge that she had direct knowledge of the child's treatment, knew the hospital and the doctors being sued and had worked with them in this very case. What impact this relationship and knowledge had on Gisclaire's ultimate participation in jury deliberation and reaching a verdict is not discoverable because the Code of Evidence prevents inquiry into her thought processes.

Id. at 549-50.

In effect, Gisclaire was a potential witness in the underlying medical malpractice action. Moreover, she called into question in an ex parte conference with Judge Broussard during the trial whether she could reasonably be expected to remain impartial because she realized she had worked closely with the Defendants on the child subject of the litigation. As Justice Marshall wrote long ago, "the great value of a trial by jury lies in its fairness and impartiality," Able v. Vulcan Materials Co., 11-448, p. 9 (La.App. 1 Cir. 2/8/12), 94 So.3d...