Carlisle v. Normand, et al

Filing 355

ORDER AND REASONS - IT IS ORDERED that the Motion for Partial Summary Judgment Based on Prescription (Rec. Doc. 280 ) is GRANTED. Plaintiff's claims for any sanctions imposed before April 27, 2015, for Plaintiff's initial evaluation, and for any treatment or lack thereof by the McNair Defendants before April 27, 2015 are DISMISSED WITH PREJUDICE, as set forth in document. Signed by Judge Jane Triche Milazzo on 8/30/2018. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TAYLOR CARLISE

CIVIL ACTION

VERSUS

NO: 16-3767

NEWELL NORMAND, ET AL

SECTION: “H”(1)

ORDER AND REASONS
Before the Court is a Motion for Partial Summary Judgment Based on
Prescription filed by Defendants Joe McNair, McNair & McNair, LLC, and
Philadelphia Insurance Company (Doc. 280). For the following reasons, the
Motion is GRANTED.
BACKGROUND
The facts and procedure of this case are set forth in this Court’s Order
and Reasons of December 19, 2017 and Order and Reasons of October 31, 2017
and need not be repeated here. 1 For the purposes of this Motion, it is relevant
that the only remaining claims against Defendants Joe McNair, McNair &
McNair, LLC, and Philadelphia Insurance Company (collectively, the “McNair

1

See Docs. 178, 231.

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Defendants”) are those by Plaintiff Taylor Carlisle for professional negligence.
Additionally, the following relevant facts are undisputed. Joe McNair
evaluated Plaintiff for acceptance into the Drug Court program on January 29,
2013. As a part of the Drug Court program, Plaintiff was sanctioned with
community service on May 20, 2013, June 17, 2013, November 7, 2013,
November 15, 2013, January 27, 2014, and February 19, 2014. 2 Plaintiff was
sanctioned with jail time on August 20, 2013, and July 22, 2014, also as a part
of the Drug Court program. 3
The McNair Defendants now move for partial summary judgment that
Plaintiff Carlisle’s negligence claims arising from the actions of the McNair
Defendants taken before April 27, 2015 have prescribed. Specifically,
Defendants seek judgment dismissing Plaintiff’s claims based on any failure to
properly evaluate Plaintiff for the Drug Court program, for any treatment that
Plaintiff did or did not receive before April 27, 2015, and for any sanctions
imposed on Plaintiff before April 27, 2015. Plaintiff opposes the Motion.
LEGAL STANDARD
Summary judgment is appropriate if “the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations. . . , admissions, interrogatory answers, or other materials” “shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” 4 A genuine issue of fact exists only “if
the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” 5

2
3
4
5

Doc. 284-1 at 11.
Doc. 248-1 at 11–12.
FED. R. CIV. P. 56.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 6 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 7 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 8 “In response to a
properly supported motion for summary judgment, the nonmovant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the nonmovant on all issues as to which the
nonmovant would bear the burden of proof at trial.” 9 The Court does “not . . .
in the absence of any proof, assume that the nonmoving party could or would
prove the necessary facts.” 10 Additionally, “[t]he mere argued existence of a
factual dispute will not defeat an otherwise properly supported motion.” 11
LAW AND ANALYSIS
Under Louisiana law, the prescriptive period for medical malpractice
actions is one year from the time the Plaintiff discovered the act, omission, or
neglect that caused his injury. 12 The period applies to “all healthcare providers

Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
8 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
9 Johnson v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
10 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 393–94 (5th Cir. 2000) (quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
11 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
12 LA. REV. STAT. § 9:5628(A).
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. . . defined in R.S. 40:1231.1.” 13 Included within the meaning of “health care
provider” under Louisiana Revised Statutes 40:1231.1(10) are social workers
and licensed professional counselors. 14 Plaintiffs do not dispute that McNair is
a licensed professional counselor (“LPC”). 15 Instead, Plaintiffs argue that
McNair is not the type of LPC covered by the statute. 16 But Plaintiff’s
argument is meritless. Louisiana Revised Statutes 40:1231.1(10) expressly
includes “licensed professional counselor[s].” McNair is an LPC. 17 Therefore,
the prescriptive period for medical malpractice actions applies to Plaintiff’s
claims. 18
“Prescription commences when a plaintiff obtains actual or constructive
knowledge of facts indicating to a reasonable person that he or she is the victim
of a tort. . . . Constructive knowledge is whatever notice is enough to excite
attention and put the injured party on guard and call for inquiry.” 19 “[I]n order

Id. § 9:5628(C). See also Novak v. Lafayette City-Par. Consol. Gov’t, No. CIV.A. 09-1098,
2011 WL 3489857, at *5 (W.D. La. Mar. 3, 2011) (“La. R.S. 9:5628 requires a medical
malpractice action to be filed within one year and is applicable to all listed healthcare
providers, whether they are ‘qualified’ health care providers under the MMA, La. R.S.
40.1299.41, et seq., or not.”), report and recommendation rejected in part on other grounds
sub nom. Novak v. Lafayette Par. Consol. Gov’t, No. CIV.A. 09-1098, 2011 WL 3490269
(W.D. La. Aug. 9, 2011).
14 LA. REV. STAT. § 40:1231.1(10).
15 Doc. 284 at 1.
16 Id.
17 Doc. 280-7 at 1.
18 It is worth noting that, although interesting, Plaintiff’s argument that the Medical
Malpractice Act’s (“MMA”) prescriptive period should not apply is largely inconsequential.
If it did not apply, Louisiana’s general one-year liberative prescriptive period for delictual
actions would apply, and the result would be the same for the tort claims. See LA. CIV.
CODE art. 3492. Plaintiff also makes a one-sentence argument that Plaintiff’s claims arise
from the contractual plea agreement between Plaintiff and the Drug Court. Yet none of
Plaintiff’s various complaints filed in this case allege that either the McNair Defendants
were party to Plaintiff’s plea agreement or that the plea agreement contained an obligation
that the McNair Defendants treat Plaintiff in a certain way. Therefore Plaintiff’s claims do
not sound in contract. Even if they did, the MMA’s prescriptive period applies to breach of
contract claims, and the result would be the same. See LA. REV. STAT. § 9:5628(A).
19 Campo v. Correa, 828 So. 2d 502, 510–11 (La. 2002).
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for the prescriptive period to commence, the plaintiff must be able to state a
cause of action—both a wrongful act and resultant damages.” 20 “[P]rescription
does not run as long as it was reasonable for the victim not to recognize that
the condition may be related to the treatment.” 21 Similarly, prescription does
not commence until a reasonable person would be on notice that the treatment
may have been negligent. 22
Usually the party asserting prescription bears the burden of proof, but
“if prescription is evident on the face of the pleadings, the burden shifts to the
plaintiff to show the action has not prescribed.” 23 Plaintiff filed his Complaint
on April 27, 2016. Plaintiff’s Complaint alleges that he was evaluated for the
Drug Court program on January 24, 2013. 24 Plaintiff’s Complaint alleges that
he received sanctions for not complying with Drug Court rules on eight
occasions between January 2013 and April 2016. 25 Plaintiff now admits that
eight of the sanctions he received were imposed before April 27, 2015.
Plaintiff’s Complaint is therefore prescribed on its face with regard to
Plaintiff’s initial program evaluation and the sanctions that were imposed
before April 27, 2015. Accordingly, with respect to claims based on the
evaluation or those sanctions, Plaintiff must “allege facts with particularity
which indicate that the injury and its causal relationship to the alleged
misconduct were not apparent or discoverable until within the year before the
suit was filed.” 26

Jimerson v. Majors, 211 So. 3d 651, 655 (La. App. 2 Cir. 2017).
Campo, 828 So. 2d at 513 (quoting Griffin v. Kinberger, 507 So. 2d 821, 823 (La. 1987)).
22 Id.
23 Carter v. Haygood, 892 So. 2d 1261, 1267 (La. 2005).
24 Doc. 117 at 27.
25 See Doc. 1 at 18–19.
26 Campo, 828 So. 2d at n.9.
20
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The first part of a cause of action in tort is damage. 27 The harm that
Plaintiff suffered was immediately apparent. Plaintiff states that “[t]he
damage alleged is inter[ ]alia the loss of his liberty and the emotional,
economic, and personal consequences flowing from that loss of liberty.” 28 There
is no question of fact that Plaintiff immediately knew that his liberty had been
curtailed when he was sanctioned. That other damage was incurred later does
not change the commencement of prescription. 29
The second part of a cause of action in tort is a wrongful act. 30 Plaintiff
argues that prescription did not commence to run until Plaintiff obtained his
Drug Court probation record. Before then, Plaintiff argues, Plaintiff did not
know, and could not have reasonably discovered, the role that the McNair
Defendants played in the sanctions that he received, the professional
obligations that the McNair Defendants owed Plaintiff, the allegedly illegal
nature of the sanctions, or the fact that Plaintiff had the legal right to challenge
the sanctions. In short, Plaintiff argues that he didn’t know that the McNair
Defendants committed a wrongful act. But Plaintiff’s subjective knowledge or
perceptive ability are irrelevant. 31 Prescription commenced when Plaintiff was
aware of facts that would put a reasonable person on notice that the McNair
Defendants committed wrongful acts that contributed to Plaintiff’s damage. 32

See Jimerson, 211 So. 3d at 655.
Doc. 284 at 11.
29 Hogg v. Chevron USA, Inc., 45 So. 3d 991, 1001 (La. 2010) (“It is firmly established that,
in cases in which a plaintiff suffers some but not all of his damages, prescription runs from
the date on which he first suffers actual and appreciable damage, even though he may
thereafter come to a more precise realization of the damages he has incurred or incur
further damage as a result of the completed tortious act.”).
30 See Jimerson, 211 So. 3d at 655.
31 See Krolick v. State ex rel. Dep’t of Health & Human Res., 790 So. 2d 21, 28 (La. App. 1 Cir.
2000) (“One may not escape the commencement of prescription by attempting to establish
that their ability to comprehend and evaluate the facts is inferior to that possessed by a
reasonable man.”).
32 See Campo, 828 So. 2d at 513.
27
28

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As to the facts that were available to Plaintiff at the time of the
sanctions, Plaintiff offers no personal statement about his knowledge of the
McNair Defendants’ roles in Drug Court, only argument by counsel about what
Plaintiff knew. To support his argument that the role of the McNair
Defendants was not clear until the production of the “O’Brien record,” Plaintiff
makes only a general reference to documents filed under seal in a separate case
and not attached to Plaintiff’s memorandum. 33 Defendants assert that the
O’Brien record doesn’t even mention the McNair Defendants. 34 Regardless,
“Rule 56 does not impose upon the district court a duty to sift through the
record in search of evidence to support a party’s opposition to summary
judgment.” 35 Therefore Plaintiff’s vague reference to the O’Brien record does
not create an issue of fact. Plaintiff does attach an affidavit from Plaintiff’s
mother which includes the following, “My son has personally informed me that
during each appearance when the sanctions were meted out for noncompliance to the individuals in drug court, . . . McNair always played a
primary role – he was called to the bench routinely by the judge to consult
respecting what to do in connection with each case along with other
administrators.” 36
Based on the undisputed evidence submitted, there is no question of fact
that the involvement of the McNair Defendants in the sanctions Plaintiff
received from Drug Court was apparent enough that a reasonable person’s
attention would have been excited to the point of further inquiry. 37 Moreover,
Plaintiff has produced no evidence that the alleged negligence of the McNair

See Doc. 284 at 10.
Doc. 291 at 7.
35 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (quoting Skotak v.
Tenneco Resins, Inc., 953 F.2d 909, 915–16, n. 7 (5th Cir. 1992)).
36 Doc. 284-4 at 6.
37 See Campo, 828 So. 2d at 510–11.
33
34

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Defendants in evaluating Plaintiff for the Drug Court program or in providing
or failing to provide treatment during that period was not discoverable until
after April 27, 2015. Plaintiff alleges that the sanctions imposed by Drug Court
before April 27, 2015 are part of the damage that resulted from Plaintiff’s
initial evaluation and subsequent treatment. Therefore the constructive notice
of a potential negligence claim based on the sanctions applies to Plaintiff’s
claims based on the initial evaluation and therapy sessions before April 27,
2015 as well. The prescriptive period for any negligence claims involving a
sanction therefore commenced to run when Plaintiff received that sanction.
Accordingly, Plaintiff’s claims for any sanctions imposed before April 27,
2015, for Plaintiff’s initial evaluation, and for any treatment or lack thereof by
the McNair Defendants before April 27, 2015 have prescribed. Such claims are
dismissed with prejudice.
Furthermore, Plaintiff’s request to delay ruling on this Motion in order
to obtain additional discovery is denied. Federal Rule of Civil Procedure 56(d)
allows a court to delay consideration of a motion for summary judgment when
“a nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition.” 38 In order to obtain
relief, “the non-moving party must ‘set forth a plausible basis for believing that
specified facts, susceptible of collection within a reasonable time frame,
probably exist and indicate how the emergent facts, if adduced, will influence
the outcome of the pending summary judgment motion.’” 39 Plaintiff has
supported his request for delay with neither an affidavit nor a declaration.

38
39

FED. R. CIV. P. 56(d).
Am. Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013) (quoting
Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)).

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Even setting that aside, Plaintiff’s argument fails to identify the specific
facts that Plaintiff seeks and how those facts could influence the outcome of
the Motion. Plaintiff seeks to depose the counselors who conducted Plaintiff’s
therapy sessions to find out if they put Plaintiff on notice that any damage
Plaintiff sustained was attributable to them and to discover the “type of
treatment” that Plaintiff received during his entire time with the Drug Court.
This Court, however, has already determined without the testimony of the
therapists that Plaintiff had constructive notice of the McNair Defendants’
involvement. Plaintiff does not explain what they might say that would alter
that finding. Plaintiff also seeks the opportunity to submit a declaration from
Plaintiff. Plaintiff reports that the Bossier Parish Jail has not allowed Plaintiff
to privately converse with his counsel, preventing them from producing a
declaration at this point. Plaintiff argues that such a declaration would include
the fact that Plaintiff did have interactions with Defendant McNair during
specified time periods. But in reaching its conclusion, the Court did not rely on
any representation to the contrary. Accordingly, Plaintiff’s request for delay
under Rule 56(d) is denied.
CONCLUSION
For the foregoing reasons, Defendants’ Motion is GRANTED. Plaintiff’s
claims for any sanctions imposed before April 27, 2015, for Plaintiff’s initial
evaluation, and for any treatment or lack thereof by the McNair Defendants
before April 27, 2015 are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana this 30th day of August, 2018.

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____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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