John Robinson Jr and Kim R. Ishman v. Cheng LLC and ABC Insurance Company ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
DOCKET NUMBER
2022 CA 1130
JOHN ROBINSON JR. AND KIM R. ISHMAN
VERSUS
CHENG LLC AND ABC INSURANCE COMPANY
Judgment Rendered:
JUL 10 2023
ON APPEAL FROM THE
22N° JUDICIAL DISTRICT COURT, DIVISION A
WASHINGTON PARISH, LOUISIANA
DOCKET NUMBER 114685
HONORABLE RAYMOND S. CHILDRESS, JUDGE PRESIDING
Lillian M. Ratliff Attorney for Plaintiffs -Appellants
Bogalusa, Louisiana John Robinson, Jr. and Kim R. Ishman
Stacie J. Fitzpatrick Attorney for Defendant -Appellee
Metairie, Louisiana Cheng, LLC
BEFORE: McCLENDON, HOLDRIDGE, and GREENE, JJ.
GREENE, I
Two restaurant patrons appeal a summary judgment rendered in favor of the
owner of the restaurant where the patrons allegedly contracted food poisoning. After
review, we reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
John Robinson, Jr. and Kim R. Ishman filed a petition for damages against Cheng,
LLC ( Cheng), the owner of Dragon Palace Restaurant, located in Bogalusa, Louisiana.
They alleged that, on April 23, 2019, they ate fried oysters at Dragon Palace Restaurant,
after which they both became ill with food poisoning. They also alleged that Mr.
Robinson sought treatment at the Pearl River County Emergency Room.
Cheng answered the petition and admitted that it owned Dragon Palace
Restaurant. However, Cheng later filed a motion for summary judgment seeking
dismissal of the plaintiffs' claims. Cheng argued that the plaintiffs sued the wrong
defendant, because when Mr. Robinson sought treatment at the Pearl River County
Emergency Room, and later from a second medical provider, he reported that he had
eaten at a Mexican Restaurant in Bogalusa, not at Dragon Palace Restaurant.
The plaintiffs did not file an opposition to Cheng' s motion nor did they or their
counsel appear at the scheduled summary judgment hearing. The trial court heard
argument from Cheng' s counsel, and, on December 16, 2021, signed a summary
judgment in Cheng' s favor, dismissing the plaintiffs' claims against Cheng with prejudice.
The plaintiffs appeal the adverse summary judgment, primarily arguing there are
genuine issues of material fact as to the identity of the restaurant where they ate the
oysters that caused their food poisoning. Because we reverse the summary judgment
on this basis, we need not address the plaintiffs' remaining arguments.
SUMMARY JUDGMENT
Appellate courts review the grant or denial of summary judgment de novo under
the same criteria governing the trial court's consideration of whether summary judgment
is appropriate. Jefferson v. Nichols State University, 19- 1137 ( La. App. 1 Cir. 5/ 11/ 20),
311 So. 3d 1083, 1085, writ denied, 20- 00779 ( La. 11/ 4/ 20), 303 So. 3d 623. A court
and admissible
shall grant summary judgment if the pleadings, memorandum,
Fa
supporting documents show there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law. See La. C. C. P. art. 966( A)( 3) and
4); Jefferson, 311 So. 3d at 1085. The summary judgment movant maintains the
burden of proof. La. C. C. P. art. 966( D)( 1). Nevertheless, if the movant will not bear
the burden of proof at trial on the issue before the court on the motion, his burden is
satisfied by pointing out an absence of factual support for one or more elements
essential to the adverse party's claim, action, or defense. La. C. C. P. art. 966( D)( 1).
Thereafter, the adverse party must produce factual support sufficient to establish he
will be able to satisfy his evidentiary burden at trial. If the adverse party Fails to meet
this burden, there is no genuine issue of material fact, and, if appropriate, the court
shall render summary judgment against him. La. C. C. P. arts. 966( D)( 1) and 967( 6).
Under La. C. C. P. art. 966( A)( 4), certified medical records are among the
supporting documents admissible for summary judgment purposes.' A certified medical
record is one that is " signed by the administrator or the medical records librarian of the
hospital [ or health care provider] in question." See La. R. S. 13: 3714(A); 2 Raborn V.
Albea, 16- 1468 ( La. App. 1 Or. 5/ 11/ 17), 221 So. 3d 104, 111- 12. When a hospital
record is so certified, it is considered inherently reliable; no foundation, beyond
certification, is required for the hospital record' s admissibility. See Judd v. State,
Department of Transportation and Development, 95- 1052 ( La. 11/ 27/ 95), 663 So. 2d
1 The only documents that may be filed in support of or in opposition to a motion for summary judgment
are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records,
written stipulations, and admissions. La. C. C. P. art. 966( A)( 4). If a document is not included in La. C. C. P.
art. 966( A)( 4)' s exclusive list of admissible summary judgment evidence, the party filing that document
must properly authenticate it by attaching it to an affidavit or deposition that fulfills that purpose, and
then file the authenticating affidavit and attached document, or the authenticating deposition and
attached document, with his motion or opposition. See La. C. C. P. art. 966 - 2015 Revision Comment ( c);
also see Lucas v. Maison Insurance Company, 21- 1401 ( La. App. 1 Cir. 12/ 22/ 22), 358 So. 3d 76, 90
noting that a deposition is proper summary judgment evidence under La. C. C. P. art. 966( A)( 4), and
documents not included in La. C. C. P. art. 966( A)( 4)' s exclusive list may be filed, if properly authenticated
by an affidavit or deposition to which they are attached).
2 Louisiana Revised Statutes 13: 3714( A) provides:
Whenever a certified copy of the chart or record of any hospital, signed by the
administrator or the medical records librarian of the hospital in question, or a copy of a
bill for services rendered, medical narrative, chart, or record of any other state health
care provider, as defined by R. S. 40: 1299. 39( A)( 1) and any other health care provider
as defined in R.S. 40: 1299.41( A), certified or attested to by the state health care provider
or the private health care provider, is offered in evidence in any court of competent
jurisdiction, it shall be received in evidence by such court as prima facie proof of its
contents, provided that the party against whom the bills, medical narrative, chart, or
record is sought to be used may summon and examine those making the original of the
bills, medical narrative, chart, or record as witnesses under cross- examination.
3
690, 694; also see Zavala v. St Joe Brick Works, 07- 2217 ( La. App. 1 Cir. 10/ 31/ 08),
999 So. 2d 13, 18, writ denied, 08- 2827 ( La. 1/ 30/ 09), 999 So. 2d 762.
On the other hand, an uncertified medical record is not among the supporting
documents admissible under La. C. C. P. art. 966(A)( 4). If a timely objection is made to
an uncertified medical record, a trial court abuses its discretion in denying a summary
judgment opponent's timely objection to that record. May v. Carson, 21- 1156 ( La. App.
1 Cir. 8/ 2/ 22), 348 So. 3d 88, 93, writ denied, 22- 01394 ( La. 11/ 22/ 22); 350 So. 3d 497.
However, under La. C. C. P. art. 966( D)( 2), if no timely objection is made to a party's
filing of an uncertified medical record, a court deciding a motion for summary judgment
shall consider it to determine if it has evidentiary value. See Jackson v. St. Mary Parish
Government, 21- 1317 ( La. App. 1 Cir. 8/ 10/ 22), 349 So. 3d 69, 75, n. 5, writ denied, 22-
01380 ( La. 11/ 16/ 22), 349 So. 3d 1004 ( while a court considers documents to which no
objection is made, unsworn or unverified documents filed in support of and in opposition
to summary judgment have no evidentiary value); Tennie v. Farm Bureau Property
Insurance Company, 20- 1297 ( La. App. 1 Cir. 6/ 4/ 21), 327 So. 3d 1020, 1027, n. 5, writ
denied, 21- 00949 ( La. 10/ 19/ 21), 326 So. 3d 231 ( considering uncertified medical
records filed in opposition to a motion for summary judgment, based on mover's failure
to object).
In this case, the only actual documents Cheng filed in support of its motion for
summary judgment were the plaintiffs' petition and each plaintiff's answers to
interrogatories. In these documents, both plaintiffs state that they ate undercooked
fried oysters at Dragon Palace Restaurant and later became ill. However, in an attempt
to show that the plaintiffs did not eat at Dragon Palace Restaurant, Cheng argued, in
its summary judgment memorandum, that Mr. Robinson reported to two medical
providers that he had eaten at a Mexican restaurant ( not at Dragon Palace) before
becoming ill. Notably, Cheng did not attach a certified copy, an uncertified copy, or
even a actual, complete copy of any medical record to support this assertion. Rather,
Cheng merely referenced excerpts from two purported medical records that it cut,
pasted, and embedded in its memorandum.
I
In the first excerpt, shown below, a person named Julie D. Bogdan, PA -C,
apparently authored an April 25, 2019 " Clinical Note," noting that Mr. Robinson stated
that he " ate oysters for dinner at YoYos in Bogalusa on Monday 4/ 22/ 19 and the next
day began with abdominal pain, nausea, vomiting and diarrhea [ from] food poisoning."
Clinical NvtaY
Programs Wates — — - —
Jut1a 4 liSoQdarl, PA -C at 4t25= 11 1430
Version 1 of I
Author Julle D Boptfgn, PA -C Semce: — Author Typo; Physirien Assistant .
Filed: 04125119 1690 Enwuntss pale. 41``2512019 Status: Signed
Editor; Julie D 6ogdon, PA -C { Physician Asslslanq
John E Robinson Jr. 47 y.o. male Presents for PRCHER follow-up for likely acute gastroenterltislabdorninal pain,
States ate oysters for dinner at YAVos in i3ogalusa on Monday 4122119 and the next day began with abdominal
pain, nausea, vomiting and diarrhea) for food poisoning. Denies fever; Treatment with Cipro, K tab, 4ontyl, IV
hydration; Incidental findings on C7 were minimally enlarged prostate, renal cyst and hepatic Cyst; Today pt will
having abdominal pain with only 2 eplsodas of diarrhea, but denies N1V, Denies recent ETOH use
nw417-- 6 A - 1.... rk.-- k1:,... 1 J- a
In the second excerpt, shown below, a person named Dr. Everett H. Crawford
apparently authored a May 9, 2019 " Clinical Note," stating that Mr. Robinson " described
an acute illness that began on the morning after he ate supper at a Mexican restaurant."
Pr% ir" I; Notas
Everett H Ctawl4rd, MD at SM4014 0430
Va' l618n 2 of 2
Author: £ u0ratt k{ Crawro999 So. 2d at 18. An excerpt from an
uncertified medical record is not admissible evidence for summary judgment purposes.
Raborn, 221 So. 3d at 111- 12. Thus, a fortiori, we conclude that an excerpt from an
uncertified purported medical record, merely cut, pasted, and embedded in a
memorandum is not a medical record at all and not admissible evidence for summary
judgment purposes.' On de novo review, therefore, we do not consider the excerpts
referenced in Cheng' s summary judgment memorandum.
Based on the admissible summary judgment evidence, we conclude Cheng is not
entitled to summary judgment, because it failed to carry its initial summary judgment
burden by submitting supporting documents suff=icient to resolve all material t=actual
issues. See Crockerham v. Louisiana Medical Mutual Company, 17- 1590 ( La. App. 1
Cir. 6/ 21/ 18), 255 So. 3d 604, 608. The only admissible summary judgment evidence in
the record, i.e., the plaintiffs' petition and interrogatory responses, indicates that the
plaintiffs ate undercooked oysters at Dragon Palace Restaurant in Bogalusa and later
became ill. There is no admissible evidence indicating that they ate at a Mexican
Restaurant or any place other than Dragon Palace Restaurant. Because Cheng' s
admissible summary judgment evidence is insufficient to resolve material factual issues
3 In McDowell v. Feldman, 21- 0462 ( La. App. 1 Cir. 12/ 22/ 21), 341 So. 3d 71, 76, writ denied, 22- 00158
La. 3/ 15/ 22), 334 So. 3d 394, this Court affirmed a summary judgment in favor of a medical clinic, finding
an absence of factual support for the essential element of the actual or constructive knowledge of a
hazardous condition by the owners, or anyone affiliated with the clinic. In dicta in a footnote, the
McDowell court, 334 So. 3d 75, n. 2, noted that the plaintiff had not objected to photographs embedded
in the owner's reply memorandum. The McDowell court also appeared to indicate that, had it addressed
the hazardous condition element of plaintiff's claim, it would have considered the photographs. Id, We
under La. C. G. P. art. 966( 6)( 3), no additional documents may be filed with a reply
note that,
memorandum; thus, we question whether photographs embedded in a reply memorandum should be
considered. However, the instant case is distinguishable from McDowell, and we need not address this
issue, because the instant case deals with a movant's initial motion for summary judgment containing
embedded excerpts from incomplete, uncertified medical records and not photographs embedded in a
movant's reply memorandum.
G
regarding the identity of the restaurant where the plaintiffs allegedly contracted food
poisoning, we find the trial court erred in granting summary judgment in favor of Cheng.
CONCLUSION
For the foregoing reasons, we reverse the trial court's December 16, 2021
judgment and remand this matter for further proceedings. We assess appeal costs to
Cheng, LLC.
REVERSED AND REMANDED.
7
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 1130
JOHN ROBINSON ] R. AND KIM R. ISHMAN
VERSUS
CHENG LLC AND ABC INSURANCE COMPANY
0CCTendon, J., concurring.
Louisiana Code of Civil Procedure article 966( D)( 2) provides that on a motion for
summary judgment the court shall consider any document to which no objection is
made. The majority avoids application of this mandate by finding that the excerpts of
medical records copied into the defendant's memorandum are not documents.
However, in McDowell v. Feldman, 2021- 0462 ( La. App. 1 Cir. 12/ 22/ 21), 341 So -3d
71, 75 n. 2, writ denied, 2022- 04158 ( La. 3/ 15/ 22), 334 So -3d 394, because there was
no objection, this court considered unauthenticated photographs embedded in a party' s
reply memorandum in support of summary judgment. Further, in Tennie v. Farm
Bureau Property Ins. Co., 2020- 1297 ( La. App. 1 Cir. 6/ 4/ 2].), 327 So -3d 1020, 1027
n. 5, writ denied,, 2021- 00949 ( La. 10/ 19/ 21), 326 So. 3d 231, in light of the " shall
consider" language in Article 966( D)( 2), this court determined that it would consider
uncertified medical records on a motion for summary judgment where no objection was
made to same. Therefore, based on the jurisprudence of the First Circuit, without an
en banc hearing, it appears we are bound to consider the medical record excerpts
incorporated into the defendant's memorandum. However, even considering these
embedded excerpts, consisting of uncertified medical records, what, if any, evidentiary
value should be assigned is within the court's discretion. Finding no evidentiary value, I
concur in the result reached by the majority.
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
DOCKET NUMBER
2422 CA 1130
JOHN ROBINSON JR. AND KIM R. ISHMAN
VERSUS
CHENG LLC AND ABC INSURANCE COMPANY
HOLDRIDGE, J. concurs.
Louisiana Code of Civil Procedure article 966( A)(4) provides an exclusive list
ofthe documents that may be filed in support or opposition to a motion for summary
judgment. With both the motion and opposition, documents containing evidence
may be filed to support the positions of either of the parties. La. C. C. P. art. 966( B)
1) and ( 2). No documents may be filed with a reply memorandum. La. C. C. P. art.
966( B)( 3). The comments to Article 966 make clear that " a memorandum is not a
pleading or evidence" but is a " proper document that can be used by a party to
advance his arguments in support of or opposition to the motion." See La. C. C.P.
art. 966, Comments - 2015, comment (c). The memorandum in a summary judgment
case is like the opening statements and closing arguments made by an attorney in a
trial. Evidence cannot be introduced in an opening statement or closing argument.
Likewise, evidence cannot be introduced in a memorandum since it is the arguments
of the parties. I agree with the majority' s analysis that any alleged evidence that is
merely cut, pasted and embedded in a memorandum is not ... admissible evidence
for summary judgment purposes." I further agree with the majority that this court
should not follow the dicta in McDowell v. Feldman, 21- 0462 ( La App. 1 Cir.
12122121), 341 So. 3d 71, 75 n.2, writ denied, 22- 00158 ( La. 3115122), 334 So. 3d
394, wherein the court discussed whether photos embedded in a reply memorandum
may be considered if no objection is raised. Alleged evidence embedded in
memorandum is not evidence and therefore should never have any evidentiary value,
but is merely the argument used to advance the position of the parties before the
court.