Madison v. Ernest N. Morial Convent. Center

• Decision Date: 04 December 2002
• Docket Number: No. 2001-CA-1127.,No. 2000-CA-1929.,2000-CA-1929.,2001-CA-1127.
• Citation: Madison v. Ernest N. Morial Convent. Center, 834 So.2d 578 (La. App. 2002)
• Court: Court of Appeal of Louisiana
• Parties: Lillie MADISON, Edward Madison, III and Thaddeus I. Madison v. ERNEST N. MORIAL CONVENTION CENTER-NEW ORLEANS, New Orleans Public Facility Management, Inc., Ernest N. Morial New Orleans Exhibition Hall Authority, the City of New Orleans and Zulu Social Aid and Pleasure Club, Inc. Lillie Madison, Edward Madison, III and Thaddeus I. Madison v. Ernest N. Morial Convention Center-New Orleans, New Orleans Public Facility Management, Inc., Ernest N. Morial New Orleans Exhibition Hall Authority, the City of New <B>Orleans and Zulu Social Aid and Pleasure</B> Club, Inc.

834 So.2d 578

Lillie MADISON, Edward Madison, III and Thaddeus I. Madison v.ERNEST N. MORIAL CONVENTION CENTER-NEW ORLEANS, New Orleans Public Facility Management, Inc., Ernest N. Morial New Orleans Exhibition Hall Authority, the City of New Orleans and Zulu Social Aid and Pleasure Club, Inc.

Lillie Madison, Edward Madison, III and Thaddeus I. Madison v.Ernest N. Morial Convention Center-New Orleans, New Orleans Public Facility Management, Inc., Ernest N. Morial New Orleans Exhibition Hall Authority, the City of New Orleans and Zulu Social Aid and Pleasure Club, Inc.

No. 2000-CA-1929.

No. 2001-CA-1127.

Court of Appeal of Louisiana, Fourth Circuit.

December 4, 2002.

COPYRIGHT MATERIAL OMITTED

Clifford E. Cardone, Catherine Hilton, Cardone Law Firm, a PLC, New Orleans, LA, for Plaintiffs/Appellees.

Stephen N. Elliott, Ann M. Sico, Bernard, Cassisa, Elliott & Davis, Metairie, LA, for Ernest N. Morial Convention Center New Orleans, et al.

Terese M. Bennett, Gregory C. Weiss, Julie G. Hamner, Weiss & Eason, L.L.P., New Orleans, LA, for Administrators of the Tulane Educational Fund.

(Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III).

WILLIAM H. BYRNES III, Chief Judge.

¹The plaintiffs, the family of Edward Madison, Jr., filed a wrongful death and survival malpractice action in connection with the collapse from an apparent heart attack on February 12, 1994, and ensuing death a few minutes later of Edward Madison, Jr.He was fifty-five years old at the time and was attending the Zulu Social Aid and Pleasure Club Ball at the Earnest N. Morial Convention Center.Named as defendants were the City of New Orleans/ Emergency Medical Services (the "City"), the Ernest N. Morial Convention Center (the "Convention Center"), the New Orleans Public Facility Management, Inc.(managers of the Convention Center), and the Zulu Social Aide and Pleasure Club.All of the foregoing defendants may hereinafter be referred to collectively as the "Convention Center Defendants."Jo Deason("Nurse Deason"), the nurse on duty at the Convention Center that night, and her employer, The Administrators of the Tulane Educational fund d/b/a Tulane University Health Sciences Center f/d/b/a Tulane University Hospital and Clinic ("Tulane") were also named as defendants addition to the Convention Center defendants.Tulane does not dispute its liability for the actions of Nurse Deason should she be found liable.

There was a bifurcated trial with the judge determining the claim against the City, and the jury deciding the claim against the remaining defendants.The jury rendered a verdict in favor of the plaintiffs and against the defendant, Tulane.Pursuant thereto, a judgment of the trial court was signed awarding the plaintiffs $792,000.00²"together with interest from date of demand, reasonable expert fees and for all costs of these proceedings, subject to the limitations and benefits of La.R.S. 1299.41, et seq."It was further ordered that there be judgment in favor of the New Orleans Public Facility Management, Inc. and the Zulu Social Aid and Pleasure Club, dismissing plaintiffs' claims against those defendants, with prejudice "at plaintiffs' costs."Along the way, defendantmotions for a directed verdict and for a JNOV were denied.Tulane's order of suspensive appeal was signed on May 11, 2000.

The judge dismissed the claim against the City for the alleged negligence of the EMS crew.All fault was assigned to Tulane.The plaintiffs appeal of the dismissal of their claim against the City has been separately dismissed.

On June 13, 2000, the Convention Center Defendants filed a motion to assess costs against Tulane, seeking $58,000.00 in attorney's fees pursuant to an indemnification provision in the contract between Tulane and New Orleans Public Facilities Management, Inc.The trial court granted the motion of the Convention Center Defendant on March 5, 2001.Tulane's appeal from this judgment has been consolidated with the appeal on the merits.The Convention Center Defendants answered Tulane's appeal asking for damages for frivolous appeal and costs.

I.JUDGMENT OF MARCH 5, 2001

We shall take up the judgment on the motion to assess costs against Tulane first for the sake of simplicity.

LSA-C.C.P. art.2088(10) provides that the trial court retains jurisdiction to tax costs.We find that this is true even where the appellant takes a suspensive appeal.However, the jurisdiction retained is limited to taxing costs consistent with the judgement.In the instant case, the original judgement ordered that "the plaintiffs ... bear the costs of" the New Orleans Public Facility Management, Inc. and the Zulu Social Aid and Pleasure Club.Therefore, it was error for the trial court to subsequently tax costs to Tulane.We adopt the reasoning of the First Circuit in Miley v. U.S. Fidelity and Guaranty Co., 94-1204(La.App. 1 Cir.4/7/95), 659 So.2d 792, 799:

We first note that the trial court's judgment awarded all costs to the defendant.That award of costs is "reviewable under the appeal" by this court, C.C.P. art. 2088, and the trial court therefore lost jurisdiction over it (save to "set and tax", meaning to fix their amount and to decide whether or not collectible from the party cast for costs).To the extent that the trial court's second judgment, on the rule to tax (C.C.P. art.1920), cast defendant for, or denied defendant, taxable costs (such as jury costs and the reasonable costs of experts who testified at trial, but not of those who did not, nor of depositions not there introduced, R.S. 13:4533), it amounts to a partial reversal of the first judgment's award of all costs to defendant, and it is therefore null for lack of jurisdiction.[Emphasis added.]

LSA-C.C.P. art.1951 permits the amending of a final judgment of the trial court only to alter the phraseology (but not the substance) or to correct errors of calculation.Neither situation applies to the instant case.The taxing of costs to Tulane after already having cast the plaintiffs for costs amounts to a substantive amendment to the judgment, which may only be done pursuant to a timely application for a new trial or a timely appeal.State v. Star Enterprise, 95-2124(La.App. 4 Cir.8/7/96), 691 So.2d 1221.

For the foregoing reasons, the judgment of the trial court of March 5, 2001, is reversed.By finding as we have held for the appellant in this appeal, the Convention Center Defendants' answer to the appeal urging that it is frivolous is, per force, rejected.

II.THE JUDGMENT ON THE MERITS

This is basically a manifest error case, hinging on the resolution of conflicting testimony fact witness and expert witnesses.

The essence of plaintiffs' claim against Nurse Deason and her employer, Tulane, is that Nurse Deason, having been specially trained in Advanced Cardiac Life Support (ACLS) was negligent when she went to the decedent's aid in failing to bring with her or immediately call for the portable heart monitor/defibrillator which she had with her in the medical room a mere 70 feet away from the decedent's table at the festivities; and that this negligence was a substantial cause of the decedent's death and/or the cause of his loss of "chance of survival."³

As far as the time line of events, the parties are basically in agreement with everything from the moment Nurse Deason received the emergency call of "man down" at 2:05 a.m.The plaintiffs and defendants also agree that Nurse Deason arrived at the decedent's side in response to the emergency summons at 2:07 and that she called for an ambulance at 2:08 a.m.The main bone of contention between the parties as to the issue of timing is how much time elapsed between the time the decedent collapsed until the time Nurse Deason was summoned.The plaintiffs do not contend that Nurse Deason failed to respond promptly to the call of "man down."The plaintiffs contend that she was summoned almost immediately, within a minute or two of the collapse, right after 2:00 a.m. and that she responded promptly.The defendants contend that the collapse occurred much earlier and that by the time Nurse Deason was summoned it was too late for her to be of any assistance.

The defendants base their contention that the decedent collapsed earlier in the evening on the testimony of Mrs. Madison, the decedent's wife, that her husband collapsed shortly after 1:05 a.m., and the EMS report which reflects that at 2:17 a.m. the decedent had fixed and dilated pupils, indicating that he had been brain dead for at least half an hour.From these factors, defendants argue that by the time Nurse Deason arrived at 2:07 a.m., no chance of survival remained to the decedent.Naturally, if the decedent had no chance of survival when Nurse Deason arrived, then any negligence on her part could not have been a cause in fact of any damages claimed on behalf of the decedent or by the plaintiffs.

As to Mrs. Madison's testimony, it seems likely that she was just an hour off in her recollection or that she misspoke.It is not reasonable to assume that for approximately an hour no one called for an ambulance or some kind of emergency assistance.There is nothing in the testimony of any other witness, either fact or expert, from which it could be inferred that the decedent's collapse occurred any where near as early as 1:05 a.m.

Likewise, the fact finder did not have to accept at face value the vague and uncertain testimony of Dr. Hightower that he may have attempted to administer first aid assistance to the decedent for perhaps as long as 15 to 30 minutes before Nurse Deason arrived.Even if this were a de novo review, this Court would find that the most reasonable inferences to be drawn from the record as a whole coincide with the timeline propounded by the plaintiffs and adopted explicitly by the trial judge and implicitly by the jury.

As to the defendants contention that the decedent was already brain dead...