Carter v. Coca-Cola Refreshments U S A Inc

Filing 35

MEMORANDUM ORDER re 28 MOTION for Partial Summary Judgment filed by Coca-Cola Refreshments U S A Inc. IT IS ORDERED that, no later than June 22, 2016, Carter supplement her opposition memorandum and exhibits by filing a declaration o r affidavit from the custodian of records for Dr. McHugh that meets the requirements of Rule 803(6). If Carter does so, thereby providing competent evidence in opposition to CCR's Motion for Partial Summary Judgment, it is the intent of the Court to deny the motion. If Carter fails to do so, it is the intent of the Court to grant the motion. Compliance Deadline set for 6/22/2016. Signed by Judge Robert G James on 6/15/16. (crt,DickersonSld, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
LINDA CARTER

CIVIL ACTION NO. 15-1890

VERSUS

JUDGE ROBERT G. JAMES

COCA-COLA REFRESHMENTS
USA, INC.

MAG. JUDGE KAREN L. HAYES

MEMORANDUM ORDER
Pending before the Court is a Motion for Partial Summary Judgment [Doc. No. 28] filed by
Defendant Coca-Cola Refreshments USA, Inc. (“CCR”). Plaintiff Linda Carter (“Carter”) opposes
the motion.
I.

FACTS
On May 19, 2014, Carter was employed by Wal-Mart Stores, Inc. (“Wal-Mart”) and worked

at its store in Winnsboro, Louisiana. On that date, she alleges that she suffered injuries when she
was struck with an electric pallet jack operated by Christopher Anderson, a CCR employee.
On May 19, 2015, Carter filed a Petition in the Fifth Judicial District Court for the Parish of
Franklin, State of Louisiana, asserting a claim of negligence against CCR under the doctrine of
respondeat superior. In her Petition, Carter alleges that she suffered “severe injuries to her left
shoulder, back and neck” as a result of this incident. [Doc. No. 1, ¶ 3]. She seeks to recover
damages, including future medical expenses. [Doc. No. 1, ¶ 7].
In her deposition, Carter testified that both of her shoulders and back and neck were injured
as a result of the pallet jack incident. However, she admits that she has a history of neck, back, and
shoulder pain and medical treatment. Prior to the incident she was treated by an orthopedist, Dr.

John H. Fairbanks. Following the incident, Dr. Fairbanks continued to treat Carter for approximately
one year, through June 2015.
However, in April 2015, Carter also began treatment with Dr. Bernie McHugh, a
neurosurgeon. Dr. McHugh has treated Carter continuously since that time. Carter responded to a
request for an admission that no physician has recommended future medical treatment by stating that,
“[b]ased on conversations between [Carter] and her treating physician, Dr. Bernie McHugh, it is
[Carter’s] understanding that more likely than not she will be required to undergo surgery as a result
of the injuries sustained . . . He has also recommended that she undergo diagnostic testing in the
nature of a discography in order to help assess the nature and extent of the surgery procedure.” [Doc.
No. , Exh. C, response to Request for Admission No. 1; see also response to Request for Admission
Nos. 2 &3].
In a December 29, 2015 note, Dr. McHugh stated that a cervical discography would need to
be performed by another physician to explore the possibility of an anterior cervical discectomy and
fusion. Although Carter made a request for the discography through her employer, the request was
denied. Carter went forward with testing anyway on April 21, 2016.
On April 25, 2016, CCR filed the instant motion. CCR moves the Court to bar Carter from
claiming future medical expenses because she has failed to provide evidence that, to a reasonable
medical probability, she will require future medical treatment for her cervical condition, including
surgery, and any such future medical treatment is causally connected to the pallet jack incident.
On May 10, 2016, Carter filed an opposition memorandum [Doc. No. 33] to which she
attached her medical records from Dr. McHugh’s office. She included her May 5, 2016 progress
note, ostensibly signed by Dr. McHugh and Paula Wallace, his certified physician’s assistant, which
states as follows:
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Ms. Carter is followed in our office for cervical and lumbar spondylosis. She has
complaints of cervical and low back pain secondary to an on-the-job injury on
05-19-2014. Ms. Carter has undergone conservative treatment including physical
therapy as well as epidural steroid injections. Her chief complaint is cervical pain as
well as bilateral upper extremity redicular symptoms. Ms. Carter’s most recent
cervical MRI from July 8, 2015 shows cervical spondylosis at multiple levels with
degenerative disc disease greatest at C6/C7. Because the patient did not respond to
conservative treatment, we recommended a cervical discography by Dr. Forte at
Louisiana Pain Care and also a repeat cervical MRI. The patient has undergone the
discography. Ms. Carter comes in today to discuss those results. She is continuing
to have cervical and upper extremity symptoms. Neurologically, she is unchanged.
The patient’s discography was positive for concordant pain at C4/C5, C5/C6, and
C6/C7. Based on these results and the patients’s symptoms, the recommendation
is for a C4/C5, C5/C6, C6/C7 anterior cervical discetomy and fusion. I explained
the surgical procedure to the patient. I discussed with her the expectations of surgery
as well as the risks. The risks include bleeding, scarring, infection, chronic pain,
paralysis, vocal cord paralysis, stroke, and death with general anesthesia. She states
an understanding and wishes to proceed. We will submit a request to
Workmans’ Comp for C4/C5, C5/C6, C6/C7 ACDF. 1 The patient will also need
a repeat cervical MRI prior to surgery.
[Doc. No. 33, Exh. A (emphasis added].
On May 17, 2016, CCR filed a reply memorandum. [Doc. No. 34].
II.

LAW AND ANALYSIS
A.

Standard of Review

Under Federal Rule of Civil Procedure 56(a), “[a] party may move for summary judgment,
identifying each claim or defense--or the part of each claim or defense--on which summary judgment
is sought. The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The
moving party bears the initial burden of informing the court of the basis for its motion by identifying

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The Court notes that by submitting a request to Carter’s workers’ compensation insurer,
Dr. McHugh is presumably providing some assurance that her surgery was necessitated by the
injury Carter received on the job.
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portions of the record which highlight the absence of genuine issues of material fact. Topalian v.
Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting
that a fact cannot be . . . disputed must support the assertion by . . . citing to particular parts of
materials in the record . . . ).
If the moving party can meet the initial burden, the burden then shifts to the nonmoving party
to establish the existence of a genuine issue of material fact for trial. Norman v. Apache Corp., 19
F.3d 1017, 1023 (5th Cir. 1994).
In considering the factual positions of the parties, the Court follows the procedures set forth
in Rule 56(c):
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may
object that the material cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may
consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose
a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify
on the matters stated.

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B.

TESTIMONY OF TREATING PHYSICIAN ON CAUSATION AND FUTURE
MEDICAL TREATMENT

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship
between the accident and any alleged injuries. American Motorist Insurance Co. v. American
Rent-All, Inc., 579 So.2d 429 (La.1991); Methvin v. Ferguson, 35,138 (La. App. 2d Cir. 09/26/01),
796 So.2d 712; Harper v. Garcia, 32,142 (La. App. 2d Cir. 08/18/99), 739 So.2d 996. The plaintiff
satisfies this burden by proving through medical and lay testimony that it was more probable than
not that the injury was caused by the accident. Maranto v. Goodyear Tire & Rubber Co., 94-2603
(La.02/20/95), 650 So.2d 757. Although the law recognizes a presumption that a medical condition
producing disability is presumed to have resulted from an accident, this presumption applies only
if, prior to the event, the injured person was in good health, but shortly after the accident the
disabling condition appears and continuously manifests itself. Housley v. Cerise, 579 So.2d 973
(La.1991); see also O'Riley v. City of Shreveport, 30,107 (La.App.2d Cir.1/23/98), 706 So.2d 213.
Even if the presumption applies, a plaintiff is still required to provide “medical evidence establishing
a causal connection between [plaintiff’s] medical condition and the accident." Vargas v. Lee, 317
F.3d 498, 502 n.3 (5th Cir. 2003).
In this case, Carter admits that she had a history of back, neck, and shoulder problems prior
to the incident, and she had been treated for those issues previously. Thus, she is not entitled to
application of the Housley presumption.
CCR has properly placed the issue of Carter’s inability to show that she has a need for future
medical treatment and that the future treatment is causally related to the pallet jack incident before
the Court on its motion. The burden is on Carter to provide countervailing evidence. Sandifer v.
Wise, 2000-0293 (La. App. 4 Cir. 2/7/01), 780 So. 2d 1099, 1103. To meet her burden, Carter

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intends to offer Dr. McHugh’s testimony on treatment and findings and causation. She cites the
Court to her medical records from Dr. McHugh, including his May 5, 2016 progress note.
However, as CCR points out, the medical records are not competent summary judgment
evidence in their present form. Medical records may be admissible as an exception to the hearsay
rule under Federal Rule of Evidence 803(6), which provides in pertinent part:
Records of Regularly Conducted Activity. A memorandum, report, record, or data
compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made
at or near the time by, or from information transmitted by, a person with knowledge,
if kept in the course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum, report, record,
or data compilation, all as shown by the testimony of the custodian or other qualified
witness or by certification that complies with Rule 902(11), Rule 902(12) or a statute
permitting certification, unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness. . . . .
The May 5, 2016 progress note was provided to the Court, along with other medical records from
Dr. McHugh’s office and a signed certification from the purported custodian at his office. Although
the records are accompanied by a certification designed to address the requirements of Rule 803(6)
(and its state law counterpart) and the certification is signed and dated by the custodian, the
certification is not in the form of a declaration pursuant to 28 U.S.C. § 17462 or an affidavit. Thus,

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In lieu of an affidavit, in federal court, 28 U.S.C. § 1746 provides:

Wherever, under any law of the United States or under any rule, regulation, order,
or requirement made pursuant to law, any matter is required or permitted to be
supported, evidenced, established, or proved by the sworn declaration,
verification, certificate, statement, oath, or affidavit, in writing of the person
making the same (other than a deposition, or an oath of office, or an oath required
to be taken before a specified official other than a notary public), such matter may,
with like force and effect, be supported, evidenced, established, or proved by the
unsworn declaration, certificate, verification, or statement, in writing of such
person which is subscribed by him, as true under penalty of perjury, and dated, in
substantially the following form:
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the medical records are hearsay and cannot serve as competent evidence to oppose a Motion for
Partial Summary Judgment.
Upon review, the Court finds that Carter’s medical records from Dr. McHugh, if properly
supported by a declaration or affidavit, raise a genuine issue of material fact for trial that Carter
needs future medical treatment, including surgery, for her condition, and that her medical treatment
by Dr. McHugh was necessitated by the pallet jack incident. Therefore, in the interest of justice and
pursuant to Federal Rule of Civil Procedure 56(e)(1), the Court will give Carter “an opportunity to
properly support or address” this issue.3
For the foregoing reasons,
IT IS ORDERED that, no later than June 22, 2016, Carter supplement her opposition
memorandum and exhibits by filing a declaration or affidavit from the custodian of records for Dr.
McHugh that meets the requirements of Rule 803(6). If Carter does so, thereby providing competent
evidence in opposition to CCR’s Motion for Partial Summary Judgment, it is the intent of the Court

...
(2) If executed within the United States, its territories, possessions, or
commonwealths: “I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on (date).
(Signature)”.
The certification provided spells out the requirements of Rule 803(6) and is signed and dated.
However, it does not contain the statement that “I declare under penalty of perjury that the
foregoing is true and correct” and, therefore, cannot be considered as an unsworn declaration.
3

Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .
(1) give an opportunity to properly support or address the fact. . . .” FED. R. CIV. P. 56(e)(1).
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to deny the motion. If Carter fails to do so, it is the intent of the Court to grant the motion.
MONROE, LOUISIANA, this 15th day of June, 2016.

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