K.P. v. LeBlanc et al
ORDER & REASONS: ORDERED that the 84 Motion for Summary Judgment filed by the plaintiffs, Hope Medical Group for Women, D.B., M.D. and K.P. M.D. is GRANTED. FURTHER ORDERED that the 89 Motion for Summary Judgment filed by thedefendants, Lorraine LeBlanc, Clark Cosse, Melanie Firmin, Vincent Culotta, William Schumacher, Joseph Donchess, Dianne Viator, Daniel Lennie and Manuel DePascual, in their official capacities as members of the Louisiana Patient Compensation Fund Oversight Board is DENIED. FURTHER ORDERED that within ten days the parties confer and provide the Court with a proposed judgment and injunction, approved as to form. Signed by Judge Helen Ginger Berrigan on 3/1/12. (reference: 07-879)(PLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
HOPE MEDICAL GROUP FOR WOMEN,
NO. 07‐879 c/w 10‐511
Pertains to 07‐879
LORRAINE LEBLANC, ETC., ET AL
SECTION “C” (4)
ORDER AND REASONS
This matter comes before the Court on motion for summary judgment filed by
the plaintiffs, Hope Medical Group for Women (“Hope Medical”), D.B., M.D. and K.P.,
M.D. and motion for summary judgment filed by the defendants, Lorraine LeBlanc, in
her official capacity as Executive Director of the Louisiana Patient Compensation Fund
Oversight Board and Clark Cosse, Melanie Firmin, Vincent Culotta, William
Schumacher, Joseph Donchess, Dianne Viator, Daniel Lennie and Manuel DePascual, in
their official capacities as members of the Louisiana Patient Compensation Fund
Oversight Board. Rec. Docs. 84, 89. Having considered the record, the memoranda of
counsel and the law, the Court finds that summary judgment in favor of the plaintiffs is
appropriate for the following reasons.
The individual plaintiffs are physicians enrolled in Louisiana Patient’s
Compensation Fund (“Fund”) who challenge the constitutionality of La. Rev. Stat.
9:2800.12 (“Act 825ʺ),1 which provides patients with a claim against abortion providers
and which denies abortion providers the benefits of the Fund and Medical Malpractice
Act, La. Rev. Stat. § 40:1299.47 (“Med‐Mal Act”) to abortion‐related claims. The
plaintiffs seek a declaration that Act 825 is unconstitutional. The defendants are the
The statute provides in relevant part as follows:
A. Any person who performs an abortion is liable to the mother of the unborn
child for any damage occasioned or precipitated by the abortion, which action survives
for a period of three years from the date of discovery of the damage with a peremptive
period of ten years from the date of the abortion.
B. For purposes of this Section:
(1) “Abortion” means the deliberate termination of an intrauterine human
pregnancy after fertilization of a female ovum, by any person, including the pregnant
woman herself, with an intention other than to produce a live birth or to remove a dead
(2) “Damage” includes all special and general damages which are recoverable in
an intentional tort, negligence, survival, or wrongful death action for injuries suffered
or damages occasioned by the unborn child or mother.
(3) “Unborn child” means the unborn offspring of human beings from the
moment of conception through pregnancy and until termination of the pregnancy.
C. (1) The signing of a consent form by the mother prior to the abortion does
not negate this cause of action, but rather reduces the recovery of damages to the extent
that the content of the consent form informed the mother of the risk of the type of
injuries or loss for which she is seeking to recover.
(2) The laws governing medical malpractice or limitations of liability thereof
provided in Title 40 of the Louisiana Revised Statutes of 1950 are not applicable to this
executive director and members of the Louisiana Patient’s Compensation Fund
Oversight Board (“Board”). The plaintiffs sue over the Board’s application of Act 825
to a claim made by a former patient, whose Med‐Mal claim is pending in state court.
Although the Board convened a medical review panel to assess that claim in response to
this lawsuit, it has reserved the right to refuse payment if it later determines that the
claim is not subject to the Med‐Mal Act.
These motions pick up where K.P. v. LeBlanc, 627 F.3d 115 (5th Cir. 2010)2 and
Okpalobi v. Causeway Medical Suite, 981 F.Supp.2d 977 (E.D.La. 1998), aff’d 190 F.3d 337
(5th Cir. 337 (5th Cir. 1999), vacated on other grounds, 244 F.3d 405 (5th Cir. 2001)(en banc),
left off. After Judge Ralph E. Tyson dismissed the complaint in this matter based on
Eleventh Amendment immunity, the Fifth Circuit found that immunity lacking on
appeal, and additionally held that this suit was not moot and that the plaintiffs had
standing to sue under Article III. K.P., 627 F.3d at 120‐24. The plaintiffs acknowledge
the existence of that opinion and their memoranda, in all other respects, present
arguments nearly identical to those initially presented to Judge Tyson. Rec. Docs. 52,
The Fifth Circuit docket sheet in this matter indicates that a “Revised Published
Opinion” was filed on January 12, 2011. That opinion bears a filing stamp dated
November 23, 2010, is not reported separately on Westlaw but was published by Lexis,
2010 U.S.App. LEXIS 26940. In any event, the revised opinion appears substantively
identical to the original November 23, 2010 published opinion, to which this Court will
continue to make reference.
58, 84, 86. The defendants, however, present virtually identical arguments untainted by
the Fifth Circuit’s opinion, which appears to have clearly rejected some of their
arguments. Rec. Docs. 54, 60, 87, 107, 108.3
In response to the Court’s order for an explanation for the omission, the
defendants advise that no mention of the Fifth Circuit opinion was made in their
memoranda because, in part, “[t]he Article III issues — mootness, standing, ripeness –
were not before the Fifth Circuit on appeal” and that “the Fifth Circuit engaged in
supposition outside of the record in making its determination.” Rec. Doc. 114 at 3‐4.
“While the defendants concede that the Fifth Circuit discussed mootness and standing
in its opinion, neither issue was properly before the Court and neither party had been
given the opportunity to make a record for appellate review.” Rec. Doc. 114 at 6.4 The
defendants apparently assumed in their memoranda on remand that this Court would
ignore the Fifth Circuit opinion because the defendants did.
This Court is bound by the Fifth Circuit. It finds that the appellate opinion and
mandate issued in this matter resolves the issues of mootness/prematurity, Article III
The State of Louisiana through James D. “Buddy” Caldwell adopted the defense
opposition to the plaintiffs’ motion for summary judgment. Rec. Doc. 108.
The defendants admit that they did raise the issue of mootness in their appellate
brief, but only for a “limited purpose.” Rec. Doc. 114 at 3.
jurisdiction and standing (injury‐in‐fact, causation and redressability), and the Court
disagrees with the defendants’ repeated arguments pertaining to those issues. Rec.
Docs. 60 at 2‐5, 6‐15; 87 at 2‐13; Rec. Doc. 107 at 2‐12.5 For purposes of completeness,
this Court alternatively adopts the reasoning of the Fifth Circuit opinion on those issues
as its own.
The similarity between this case and the Okpalobi litigation was acknowledged on
appeal when the Fifth Circuit raised the issue of standing and Article III jurisdiction
“because of the similarity of the present action to a case [Okpalobi] heard en banc by this
court in 2001.” K.P., 627 F.3d at 122. The Fifth Circuit also recognized “the statute
clearly prohibits use of the Fund for abortion claims that are brought under Section
9:2800.12.” Id. at 121.
There is no dispute that the constitutionality of Act 825 was squarely at issue in
the Okpalobi case. There, the district court issued an injunction against the defendants
based on findings that included that it was void‐for‐vagueness for due process
purposes. Okpalobi, 981 F.Supp.2d 977 (E.D.La. 1998). The panel affirmed and found
the statute facially unconstitutional for a number of reasons particularly relevant here:
the statute placed undue burden on a woman’s right to choose to have an abortion
Hereinafter, the Court will refer to the most recently filed versions of the
motions and oppositions only.
before viability, the statute was adopted with the purpose of interfering with that right;
the statute was unconstitutionally vague for due process purposes and is a strict
liability statute. Okpalobi, 190 F.3d at 354‐60. The en banc court opinion, written by the
author of the dissent in the panel opinion, began with the observation that “[a]lthough,
in this facial attack on the constitutionality of the statute, consideration of the merits
may have strong appeal to some, we are powerless to act except to say that we cannot
act ...” Okpalobi, 244 F.3d at 409. “It is important to keep in mind that anyone exposed
to actual liability under this statute has immediate redress ‐ that is to say, a defendant
sued by a private plaintiff under Act 825 can immediately and forthwith challenge the
constitutionality of the statute.” Id. at 429, fn 40.
This is the challenge anticipated by the en banc Okpalobi opinion. This Court
chooses to address the plaintiffs’ motion first. To the fullest extent possible, this Court
adopts the reasoning of the panel opinion in Okpalobi, 190 F.3d 337 (5th Cir. 1999) to the
overlapping issues presented in these motions.6
First, the plaintiffs argue that § 9:2800.12 is void‐for‐vagueness under the Due
An exceptional amount of time has been provided to present argument in this
matter before and after transfer to the undersigned, and any argument not made by any
party is deemed waived.
Process Clause of the Fourteenth Amendment because its uncertainty threatens to
inhibit the exercise of constitutionally protected rights and its imposition of liability
without fault subjects the statute to stringent vagueness scrutiny. Rec. Doc. 84 at 12‐
13. They argue that the statute fails to provide adequate notice to plaintiffs and other
abortion providers regarding how to avoid liability, lends itself to arbitrary and
discriminatory enforcement, and fails to give them fair warning that they will be treated
as non‐qualified for purposes of the Med‐Mal Act. Id. at 13. The plaintiffs cite to both
the Okpalobi panel and en banc decisions as primary support for these arguments. Rec.
Doc. 84 at 13‐17.
In opposition to this argument, the defendants argue that the statute is not void‐
for‐vagueness because it does not impose strict liability and does not invoke strict
scrutiny. They next argue that the statute defines how liability can be avoided via its
“informed consent” provisions, and provides notice that certain procedures may not
qualify for the limitations afforded under the Med‐Mal Act. Rec. Doc. 107 at 24‐29.
The defendants argue that the analysis set forth in the panel opinion in Okpalobi, 190
F.3d 337 (5th Cir. 1999), should be rejected because the panel opinion was vacated en
banc for lack of jurisdiction. See Rec. Doc. 107 at 12‐14.
The argument presented by the defendants was rejected before and is
unsupported by this Court’s reading of the statute. Contrary to the defendants’
arguments, the Fifth Circuit’s opinion in this matter restated that “Section 9:2800.12 ...
provides that no standard of care will apply to damages resulting from abortions.”
K.P., 627 F.3d 121. Again, this Court fully adopts the reasoning of the panel opinion in
Okpalobi on the issue of the statute’s imposition of strict liability and unconstitutional
vagueness.7 Okpalobi, 190 F.3d at 357‐59.
Thus, the Act provides a cause of action (1) to women who have had an
abortion (2) against the physician who performed the abortion (3) for any
damage caused by the procedure to the woman or the “unborn child” ‐ a
cause of action that (fatally, as seen below), contains no standard of care,
no mens rea requirement, and no indication whatsoever regarding the
steps a physician may take to avoid liability (other than to cease and desist
from performing abortions). The issue of informed consent only enters
the picture to reduce, not bar, damages regarding the types of injuries of
which the physician informed the woman prior to the abortion.
Id. at 357. “[I]t is impossible to tell what conduct will incur liability under the act.” Id.
at 359. “We conclude that the Act’s lack of scienter requirement creates a strict liability
statute” that “exacerbates vagueness...” Id. at 360.
Even the en banc decision in Okpalobi noted that “all claims brought pursuant to
Act 825 are exempt from Title 40.” Okpalobi, 244 at 422, fn 29 (emphasis original). Judge
Dennis noted in his dissent that the panel decision in Okpalobi found that Act 825
presents a form of strict liability while noting that the plaintiffs’ former patient is
presenting an ordinary medical malpractice claim against the plaintiffs in order to
invoke ordinary medical malpractice law rather than Act 825. K.P., 627 F.3d at 125‐26.
This Court also finds that Act 825 is unconstitutionally vague.
The plaintiffs argue next that Act 825 places an unconstitutionally undue burden
on a woman’s right to an abortion in violation of the Due Process Clause under Planned
Parenthood of Southeaster Pennsylvania v. Casey, 505 U.S. 833 (1992). They argue that its
purpose and effect is to provide that obstacle, as recognized by the panel in Okpalobi.
Rec. Doc. 84 at 17‐23.
The defendants argue that Act 825 inures to the benefit of those seeking abortions
because the plaintiffs have no constitutional right to perform abortions and Act 825 “is
essentially an informed consent statute, but one which imposes civil liability upon a
physician failing to provide informed consent.” Rec. Doc. 87 at 14. “Mere exposure to
a lawsuit cannot be considered an undue burden.” Id. The defendants also argue that
the plaintiffs are able to buy insurance and have suffered no injury. Rec. Doc. 87 at 15‐
The defendants’ arguments were squarely rejected in the panel opinion in
Okpalobi, 190 F.3d at 354‐356. “In short, Act 825ʹs structure and language put the lie to
the State’s insistence that the legislation is designed merely to enhance the information
furnished to women seeking abortions. Id. at 356. “[I]t is undeniable that the provision
is designed ... to ensure that a physician cannot insulate himself from liability by
advising a woman of the risks, physical or mental, associated with abortion.” Id. “To
the contrary, if Act 825 were to go into effect, it undoubtably would drive Louisiana’s
qualified and responsible abortion providers out of business, thereby imposing an
undue burden on a woman’s right to seek an abortion.” Id. This Court agrees with the
panel’s approval of the district court finding that, in effect, the statute “significantly
reduces the number of abortion providers in Louisiana because it “sets a standard no
physician can meet and creates a climate in which no provider can possibly operate.”
Id., citing Okpalobi, 981 F.Supp. at 983‐84.
This Court also finds that Act 825 places an undue burden on a woman’s right to
seek an abortion.
The plaintiffs’ claim that Act 825 violates the Equal Protection clause did not
receive attention from the Fifth Circuit in either the Okpalobi opinions on on appeal in
this matter, although some facets of the Equal Protection arguments were addressed.
The plaintiffs argue that the statute treats abortion providers differently than all other
health care providers by excluding them from the legal and financial protections against
medical malpractice under the Med‐Mal Act and imposing a form of strict liability that
does not apply to any other medical provider. Rec. Doc. 84 at 24‐25. They argue that
the resulting classification does not rationally further any legitimate state interest. Rec.
Doc. 84 at 27‐28. Again, the defendants argue that the statute does not impart strict
liability and does not violate equal protection because the state’s goal of “informed
consent” is rationally related to the statute. Rec. Doc. 23 at 18‐23.
The Equal Protection Clause requires that all similarly situated persons be
treated substantially alike. Vulcan Materials Co. V. City of Tehuacana, 238 F.3d 382, 388‐
389. “[I]f a law neither burdens a fundamental right nor targets a suspect class, we will
uphold the legislative classification so long as it bears a rational relation to some
legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996). “By requiring that the
classification bear a rational relationship to an independent and legitimate legislative
end, we ensure that classifications are not drawn for the purpose of disadvantaging the
group burdened by the law.” Id. at 633. Where the law is the kind that “raise[s] the
inevitable inference that the disadvantage imposed is born of animosity toward the
class of persons affected,” the “‘desire to harm a politically unpopular group cannot
constitute a legitimate governmental interest.’” Id. at 634‐35, quoting Department of
Agriculture v. Moreno, 413 U.S. 528, 534 (1973).
This Court rejects the defendants’ proposed goal for Act 825 as providing
“informed consent” for the same reasons as those set forth by the Fifth Circuit in the
panel Okpalobi opinion. “The State’s explanation of Act 825ʹs purpose appears even
more disingenuous when read in pari materia with the Louisiana Woman’s Right to
Know Act,” which “specifies in a comprehensive list the information that a physician
must furnish to a woman seeking an abortion.” Okpalobi, 190 F.3d at 356‐57. “[T]he
State’s proffered legislative purpose simply is not credible.” Id. at 357. The defendants
are left with no proffered goal for the statute relative to the Equal Protection Claim, and
the Court finds that there is no rational basis between Act 825ʹs classification and its
In the defendants’ motion for summary judgment it argues that there is no equal
protection violation because the Equal Protection Clause applies to “persons,” not
“medical procedures,” and that Act 825 pertains to all physicians, with distinction only
as to the procedures they perform. However, the statute itself clearly applies to “[a]ny
person who performs an abortion ...” La. Rev. Stat. § 9:2800.12A. This argument is not
The defendants also argue in their motion for summary judgment that there is
no justiciable interest because the pendency of the underlying medical malpractice
claim renders the plaintiffs’ claims premature and otherwise moot, that the plaintiffs
lack standing and redressability is lacking, along with defense arguments pertaining to
constitutional issues raised by the plaintiffs in their motion. Those arguments have
been resolved by virtue of reference to the appellate mandate in this matter or with
This Court finds that Act 825 violates the Equal Protection Clause.
Permanent injunctive relief
The plaintiffs seek permanent injunctive relief in their motion, which is properly
supported in all respects. The defendants present no argument related to that request.
The Court construes the defendants’ silence as indicative of their consent, reserving
defendants’ arguments made on the substantive issues.
IT IS ORDERED that the motion for summary judgment filed by the plaintiffs,
Hope Medical Group for Women, D.B., M.D. and K.P. M.D. is GRANTED. Rec. Doc.
IT IS FURTHER ORDERED that the motion for summary judgment filed by the
defendants, Lorraine LeBlanc, in her official capacity as Executive Director of the
Louisiana Patient Compensation Fund Oversight Board and Clark Cosse, Melanie
Firmin, Vincent Culotta, William Schumacher, Joseph Donchess, Dianne Viator, Daniel
Lennie and Manuel DePascual, in their official capacities as members of the Louisiana
Patient Compensation Fund Oversight Board is DENIED. Rec. Doc. 89.
IT IS FURTHER ORDERED that within ten days the parties confer and provide
reference to the plaintiff’s motion.
the Court with a proposed judgment and injunction, approved as to form.
New Orleans, Louisiana, this 1st day of March, 2012.
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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