Writ application denied.
In this medical malpractice case, Plaintiff filed a motion for summary judgment on the issue of informed consent; and Defendants filed a motion for partial summary judgment on the issue of causation. Plaintiffs motion for summary judgment was heard first, wherein Plaintiff filed depositions and various medical records. The trial court denied Plaintiffs motion for summary judgment. The trial court then heard and denied Defendants’ motion for partial summary judgment.
At the hearing on Defendants’ motion for partial summary judgment, Plaintiff acknowledges that he incorporated by reference in his opposition, the depositions and various medical records that he had already attached to his own motion for summary judgment, which was heard several days before Defendants’ motion for partial summary judgment. Defendants strongly objected to the trial court considering any of Plaintiffs medical documentation not attached to his opposition to Defendants’ motion for partial summary judgment. The transcript reflects that Defendants specifically requested a ruling from the trial judge as to which exhibits it was going to admit and not going to admit, as required by La.Code Civ.P. art. 966(D)(2). The trial court failed to do so. Defendants objected to no avail, and the trial court denied Defendants’ motion for partial summary judgment. The court of appeal, in a split decision, denied Defendants’ writ.
It is undisputed that Plaintiff cited and relied upon documents that were not filed with or attached to his opposition. Louisiana Code of Civil Procedure Article 966(B)(2) explicitly mandates that any documents submitted in support of or in opposition to a motion for summary judgment be filed into the record and served on all parties. Further, La.Code Civ.P. art. 966(D)(2) provides that the trial court may only consider those documents filed in support of or in opposition to the motion for summary judgment. Defendants are correct that in view of their timely objections, the trial court legally erred in considering the exhibits that were not properly filed with Plaintiffs opposition. Ironically, and somewhat amazingly, the trial court refused to rule on Defendants’ objections, and then turned around, and adopted Plaintiffs memorandum as its reasons for ruling.
Most disconcerting is the fact that this Court, in denying this writ, ignored the strict mandates of La.Code Civ.P. art. 966. Louisiana Code of Civil Procedure Article 966 neither allows nor authorizes, except by stipulation, any such reference to exhibits in a separate summary judgment proceeding. Though it may be trivial to some, in a summary judgment proceeding, I will maintain, by resolute adherence, the strict mandates and solemnity of summary proceedings as set forth in La.Code Civ.P. art. 966. Thus, I strongly dissent from the majoritys denial of this writ and would reverse the lower courts and grant Defendants’ motion for partial summary judgment on the grounds of Plaintiffs failure to present the legally required proof of causation.
Genovese, J., would grant and assigns reasons.
Crain, J., would grant.
McCallum, J., would grant.