Judgment rendered August 26, 2026.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.
No. 56,885-CA
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
ROSIE LEE CAUSEY EPPS Plaintiff-Appellant
versus
LOUISIANA DEPARTMENT OF Defendants-Appellees PUBLIC SAFETY AND
CORRECTIONS, STEVEN
VENTERS, UNION PARISH
DETENTION CENTER, AND
TAMRYA YOUNG
*****
Appealed from the
Third Judicial District Court for the
Parish of Union, Louisiana
Trial Court No. 49,204
Honorable Monique Babin Clement, Judge
*****
SMITH LAW FIRM, LLP Counsel for Appellant By: J. Arthur Smith, III
ROEDEL, PARSONS,
BLANCHE, FONTANA,
PIONTEK & PISANO, ALC
By: J. Arthur Smith, IV
CHARLES BRYAN RACER Counsel for Appellees, TIMOTHY R. WINN Louisiana Department of Assistant Attorneys General Public Safety and
Corrections and Tamrya
Young
HUDSON, POTTS Counsel for Appellee, & BERNSTEIN, LLP Steven Venters, MD
By: Gordon L. James
GOLD, WEEMS, BRUSER, Counsel for Appellees, SUES & RUNDELL, APLC Union Parish Detention By: Martha Rundell Crenshaw Center and
Joshua Joy Dara, Jr. Union Parish Detention
Randall Morgan Briggs Center Commission
Emily C. Lester
*****
Before COX, STEPHENS, and HUNTER, JJ.
HUNTER, J.
Plaintiff, Rosie Lee Causey Epps, appeals a district court judgment
granting motions for summary judgment filed by defendants, State of
Louisiana, through the Department of Public Safety and Corrections, and
Tamrya Young, and the Union Parish Detention Center. For the following
reasons, we reverse the judgment of the district court and remand this matter
for further proceedings.
FACTS
On November 20, 2015, 52-year-old Sonya Epps Gray had a
mammogram which showed she had a benign mass in her right breast with
“no evidence of malignancy.” The mammogram also revealed abnormalities
and an ultrasound was recommended. On December 1, 2015, she underwent
an ultrasound of her right breast which revealed she had “benign cysts” but
“no concerning masses or suspicious characteristics.” The ultrasound of the
left breast revealed “numerous simple appearing benign cyst[s] of varying
sizes” but “no concerning masses or suspicious characteristics” were noted.
In late 2015 or early 2016, Ms. Gray was arrested and detained at the
Union Parish Detention Center (“UPDC”). On May 18, 2016, a UPDC
nurse examined Ms. Gray and discovered the lump on her right breast.
Thereafter, defendant, Dr. Steven Venters, a UPDC physician, ordered a
mammogram, and a request for payment for the mammogram was submitted
to the Department of Public Safety and Corrections (“DPSC”). The request
for the mammogram was processed and denied by defendant, Tamrya
Young, a registered nurse formerly employed by DPSC. The stated reason
for the denial was that the mammogram constituted “routine primary care” and was not the financial responsibility of DPSC for inmates not housed at
state facilities.1
On November 15, 2017, Ms. Gray was sentenced to imprisonment and
was later transferred to the Richland Parish Detention Center. On August
21, 2018, Ms. Gray reported to medical providers that she had discovered a
large “knot the size of a fist” in her left breast. One week later, she reported
that breast had been “swollen” for approximately one week and appeared to
be “getting bigger.” On August 29, 2018, Ms. Gray underwent a
mammogram at Ochsner Health in Monroe, Louisiana, and the results of the
mammogram were “highly suggestive of malignancy.” A subsequent needle
biopsy revealed that Ms. Gray had triple negative invasive lobular cancer of
the left breast. After she was diagnosed, Ms. Gray was transferred to the
Louisiana Correctional Institute for Women in St. Gabriel, Louisiana, where
further testing revealed extensive metastasis to her bones and brain. Ms.
Gray was admitted into hospice care, and she died on December 10, 2018.
On December 10, 2019, Ms. Gray’s mother, Rosie Lee Causey Epps,
filed a survival and wrongful death lawsuit arising from the death of her
daughter. She alleged that Gray should have received annual mammograms
due to a mass in her right breast, and the mammograms would have detected
the cancer that Gray later developed in her left breast. UPDC, Dr. Venters,
DPSC, and Young were named as defendants. Plaintiff alleged that Young
and DPSC were negligent in incorrectly determining that the requested
mammogram constituted routine primary care and in denying the request,
1
In his deposition, Dr. Venters testified that he did not follow up on the denial because Ms. Gray informed him she had a mammogram and ultrasound of the right breast in November, and “everything was okay.” Therefore, he did not believe an additional mammogram was “necessary at that time.” Dr. Venters also admitted that no follow up with additional mammography was done within 12 months.
2
and they failed to provide Ms. Gray with any testing, treatment, or care for
her breast cancer. She alleged that UPDC was negligent for refusing to
provide Ms. Gray with a mammogram as ordered by the physician, failing to
perform any follow-up care for the lump in her right breast, and failing to
transfer Ms. Gray to a medical facility that would have provided her with
proper medical care. Further, plaintiff alleged that Dr. Venters was
negligent for failing to make reasonable efforts to ensure that Ms. Gray
received a mammogram, such as transferring her to a medical facility and for
failing to respond to her subsequent complaints about the knot in her breast. 2
Subsequently, plaintiff amended the petition to add as a defendant the Union
Parish Detention Center Commission, alleging the entity was responsible for
maintaining, operating, or supporting UPDC.
On June 14, 2021, the district court issued an order regarding various
exceptions and discovery motions. At issue was DPSC’s contention that it
did not owe a duty to provide care for Ms. Gray when the mammogram was
requested in 2016 because, at that time, Ms. Gray was a pretrial detainee and
was not in the custody of DPSC. Further, the Richland Parish Detention
Center is not run by DPSC; it is run by the Richland Parish Sheriff’s Office.
In response to DPSC’s arguments, the district court stayed any ruling on
whether DPSC owed a duty, pending further discovery on whether any
practice, policy, or contract established a duty to provide medical care to
detainees or inmates at UPDC. The court allowed plaintiff to depose Young,
a representative from UPDC, and a representative of the UPDC Commission
2
The proceedings have been stayed regarding Dr. Venters pending a decision from a medical review panel.
3
“regarding the existence of any policy or agreement that may or may not
exist with DPSC as well as any standard practice that exist[s].”
On November 22, 2021, UPDC filed a motion for summary judgment
on the issue of causation. UPDC argued that plaintiff has the burden of
proving, through medical testimony, that the failure to secure a mammogram
caused or contributed to Ms. Gray’s development of breast cancer and her
ultimate death. According to UPDC, plaintiff was unable to produce expert
medical evidence sufficient to prove medical causation.
On January 27, 2022, Young and DPSC (collectively “DPSC”) filed a
motion for summary judgment, arguing that UPDC was not a state facility,
and plaintiff had not presented any evidence to establish that either DPSC or
Young owed a duty to provide medical care to Ms. Gray. DPSC also argued
that no genuine issue of material fact exists to establish that the failure to
approve the mammogram of the right breast caused or contributed to the
development of triple negative invasive lobular breast cancer in the left
breast. In support of the motion, DPSC submitted the affidavit of Dr. Scott
Boniol, an oncologist/hematologist. Dr. Boniol attested that he had
reviewed Ms. Gray’s medical records and concluded that her “development
of inflammatory breast cancer in the left breast in 2018 bears no causal
relationship to the decision not to perform a mammogram in June 2016”
while Gray was incarcerated at UPDC. He also attested that the 2016
records showed no need for further testing because Ms. Gray’s previous tests
were completed less than a year before and were negative for breast cancer.
Plaintiff filed a motion to strike the motions for summary judgment,
or alternatively, requested the trial court to issue a protective order and
continuance to permit her the opportunity to obtain all discovery necessary
4
to prove the elements of her case. Plaintiff argued that she had obtained a
preliminary report from a medical expert; however, DPSC had refused to
respond to certain requests for discovery concerning medical reimbursement
schedules governing payment for medical services at UPDC,
communications between DPSC and UPDC relating to medical standards of
care, and regulations regarding standards of medical care provided to
incarcerated persons at UPDC from 2015-17. In support of the opposition to
the motion for summary judgment, plaintiff attached an affidavit from her
counsel in which he attested, inter alia: (1) the district court had issued an
order limiting discovery to resolve what, if any, duty DPSC and UPDC
owed to Ms. Gray; (2) plaintiff had not submitted her findings regarding the
status of discovery; therefore, discovery on the issue of duty was
incomplete; (3) UPDC’s motion for summary judgment was based solely on
causation; and (4) discovery on the issue of causation had not begun.
Further, plaintiff argued that the affidavit of her expert oncologist, Dr.
Gerald Miletello, presented a genuine issue of material fact regarding
whether the failure to conduct yearly mammograms led to a lost chance of
survival. Dr. Miletello opined that had Ms. Gray received yearly
mammograms while incarcerated, the cancer in her left breast would have
been discovered sooner, and she would have potentially lived longer.
According to Dr. Miletello, patients “live years with triple negative
inflammatory breast cancer if it is diagnosed in a timely fashion.”
Following a hearing, the district court granted the motions for
summary judgment. The court also denied plaintiff’s request to submit a
supplemental affidavit from Dr. Miletello, finding that La. C.C.P. art. 966
does not permit such affidavits after the hearing on the motion for summary
5
judgment. The court also denied plaintiff’s request for further discovery on
the issue of causation. The court concluded:
The medical evidence in this case established that there was no
causation between any of defendants’ alleged failures to
provide medical care to this plaintiff and her development of
inflammatory LEFT breast cancer in 2018 nor to the
prevention, diagnosis, or plaintiff’s death from said breast
cancer. Plaintiff has failed to meet her burden of showing,
through expert medical testimony, that there is a genuine issue
of material fact as to causation in this matter.
The district court dismissed all claims against UPDC, the UPDC
Commission, and DPSC with prejudice. The wrongful death and survival
claims against Young were also dismissed with prejudice.3
Plaintiff appeals.
DISCUSSION
Plaintiff contends, inter alia, the district court erred in granting the
motion for summary judgment. She argues that genuine issues of material
fact exist as to causation.
A summary judgment is reviewed on appeal de novo, with the
appellate court using the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate, i.e., whether
there is any genuine issue of material fact and whether the movant is entitled
to judgment as a matter of law. Samaha v. Rau, 07-1726 (La. 2/26/08), 977
So. 2d 880; Logan v. Richland Par. Hosp., 56,127 (La. App. 2 Cir. 4/9/25),
408 So. 3d 1208, reh’g denied (5/15/25), writ denied, 25-00760 (La.
10/1/25), 417 So. 3d 570. A motion for summary judgment shall be granted
if the motion, memorandum, and supporting documents show that there is no
3
The claims against Young under 42 U.S.C. § 1983 remain, and the claims against Dr. Venter were referred to a medical review panel for consideration.
6
genuine issue as to a material fact and that the mover is entitled to judgment
as a matter of law. La. C.C.P. art. 966(A)(3); Staten v. Glenwood Reg’l
Med. Ctr., 53,220 (La. App. 2 Cir. 1/29/20), 290 So. 3d 280, writ denied, 20-00591 (La. 9/23/20), 301 So. 3d 1184.
The burden of proof on a summary judgment motion remains with the
mover. La. C.C.P. art. 966(D)(1). However, if the moving party will not
bear the burden of proof on the issue at trial and points out that there is an
absence of factual support for one or more elements essential to the adverse
party’s claim, action, or defense, then the nonmoving party must produce
factual support sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial. Id.; Staten, supra. If the opponent of the
motion fails to do so, there is no genuine issue of material fact and summary
judgment should be granted. Staten, supra.
A fact is “material” when its existence or nonexistence may be
essential to plaintiff’s cause of action under the applicable theory of
recovery. Peironnet v. Matador Res. Co., 12-2292 (La. 6/28/13), 144 So. 3d
791. McGee v. Ashford Place Apartments, LLC, 54,795 (La. App. 2 Cir.
11/16/22), 351 So. 3d 899. A genuine issue is one regarding which
reasonable persons could disagree; if reasonable persons could reach only
one conclusion, there is no need for a trial on that issue and summary
judgment is appropriate. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.
2d 764; McGee, supra.
Furthermore, in determining whether an issue is genuine, a court
should not consider the merits, make credibility determinations, evaluate
testimony, or weigh evidence. McGee, supra; Marioneaux v. Marioneaux,
52,212 (La. App. 2 Cir. 8/15/18), 254 So. 3d 13. The prohibition on making
7
credibility determinations on summary judgment extends to expert affidavits
admitted without objection. McGee, supra; Aziz v. Burnell, 21-187 (La.
App. 3 Cir. 11/3/21), 329 So. 3d 963; Thompson v. Center for Pediatric and
Adolescent Med., LLC 17-1088 (La. App. 1 Cir. 3/15/18), 244 So. 3d 441.
Finally, the court must draw those reasonable inferences from the undisputed
facts which are most favorable to the party opposing the motion; likewise,
all doubt must be resolved in the opposing party’s favor. McGee, supra;
Wyrick v. Golden Nugget Lake Charles, LLC, 20-0665 (La. App. 1 Cir.
12/30/20), 317 So. 3d 708.
To determine liability in a negligence claim, we apply the duty-risk
analysis, which requires the plaintiffs to prove that the defendant’s conduct
was a cause-in-fact of the resulting harm, that defendant owed a duty of care
to the plaintiffs, that the duty was breached, and that the risk of harm was
within the scope of protection afforded by the duty breached. Mathieu v.
Imperial Toy Corp., 94-0952 (La. 11/30/94), 646 So. 2d 318; Baham v.
Compass Health Brand Corp., 54,693 (La. App. 2 Cir. 8/10/22), 345 So. 3d
1157; Carney v. Eldorado Resort Casino Shreveport, 48,761 (La. App. 2
Cir. 1/29/14), 132 So. 3d 546. A critical inquiry is whether a causal
relationship exists between the plaintiff’s harm and the alleged negligent
conduct of the defendant. Cause-in-fact is generally a “but for” inquiry,
which requires the plaintiff to show he or she would not have sustained the
injury but for defendant’s conduct. Baham, supra; Carney, supra. In a
negligence action, each inquiry must be affirmatively answered in order for
plaintiff to recover. Id.
In the instant case, the UPDC defendants filed a motion for summary
judgment, arguing that plaintiff had the burden of proving a causal
8
connection between Ms. Gray’s injury/death and the alleged negligent act,
and plaintiff “has not adduced any proof via affidavit or otherwise, of
medical causation.” The DPSC defendants moved for summary judgment,
in which they argued plaintiff failed to prove they had a duty to provide
medical care to Ms. Gray. They also argued that plaintiff failed to prove the
alleged negligence, i.e., the failure to provide a mammogram, caused Ms.
Gray’s injury and subsequent death.
In granting defendants’ motion for summary judgment, the district
court stated:
[Defense expert] Dr. Boniol4 provided a detailed summary of
the facts and medical overview in support of his specific
opinions related to whether or not Gray’s specific diagnosis
could have been connected with the alleged failure of the
defendants to provide a mammogram back in June of 2016, or
up until the time of her first complaint regarding her left breast
in 2018. Dr. Boniol did not discuss cancer in only general
terms but instead discussed Gray’s specific type of breast
cancer. He opined that inflammatory breast cancer is its own
distinct clinical entity. Inflammatory breast cancer is not a
result of neglected, ignored or untreated breast cancer. It is not
the natural progression of breast cancer to turn into
inflammatory breast cancer over time. Neglected breast cancer
is not the same thing as inflammatory breast cancer. Dr. Boniol
cited various studies and publications to support his statements
and opinions.
Although he clearly sets forth the distinction between
inflammatory breast cancer and the progression of noninflammatory breast cancer, he also sets forth the following
with regard to Gray’s right breast, based on his review of the
2015 mammogram and ultrasound and the 10/18/18 PET scan.
The 2018 PET scan showed no mass of adenopathy and the
benign lesions were similar in appearance to what they had
been in the 2015 mammogram. He noted that Gray never
developed a right breast cancer.
Dr. Boniol’s opinion is that her development of LEFT sided
inflammatory breast cancer did not occur until 2018. It is a
rapidly progressive, most often fatal disease, characterized by
4
Dr. Boniol is a board certified oncologist and hematologist, who attested that he has routinely diagnosed and treated all types of breast cancer in his practice.
9
acute inflammatory changes of the breast presenting for medical attention within less than 3 months of developing the disease. This was consistent with Gray’s medical records which he
noted reflected a typical presentation of inflammatory breast cancer – there were no documented complaints related to her
breast following the May 2016 complaint until August of 2018
when she developed a lump in her left breast with swelling and discomfort which was noted on the 8/29/18 record at E.A.
Conway to have a one week history of complaint; on the
8/29/18 medical record it noted that Gray had reported feelings of a mass around her left nipple “for the last 2-3 months”; it was a very rapid onset with widespread metastasis to lymph
nodes, bones, and her brain. Dr. Boniol’s affidavit set forth that the inflammatory LEFT breast cancer was in no way related to
or correlates with her previous RIGHT breast issues. In his
opinion, Gray not having a mammogram in June of 2018
regarding a knot in her RIGHT breast had no causality to
the development of the inflammatory breast cancer in her
LEFT breast in 2018 nor to the prevention, diagnosis, or
her death from said breast cancer. In his medical opinion,
“even if she would have had breast cancer in her right
breast in 2016, that would not have resulted in
inflammatory breast cancer in 2018.”
***
In opposition to Defendants’ Motions for Summary Judgment,
the plaintiff submitted the Affidavit of Dr. Gerald Miletello.[5] *** [Dr. Miletello] opined that the “medical standard of care” requires that women forty years old and older have a
mammogram every year but gave no supporting authority for
this statement. Based on this personal opinion, Dr. Miletello believed that Gray should have had yearly mammograms
starting in 2016 despite the fact that she turned 40 years old in 2003. He provides no explanation for this contradiction.
Although he lists Dr. Boniol’s Affidavit as one of the
documents he reviewed in reaching his opinion, Dr. Miletello
did not set forth any specific facts or arguments to dispute or contradict Dr. Boniol’s opinion with regard to causation of
Gray’s inflammatory breast cancer. In fact, Dr. Miletello only mentions the fact that Gray had inflammatory breast cancer
twice in his thirty-two numbered statements, but even then does not discuss any specifics as to that particular type of breast cancer. His affidavit concludes with general blanket statements about breast cancer together with conclusory statements that
Gray’s situation “would have more than likely been” different had she received yearly mammograms. Although Dr. Miletello
stated that his opinion was based on a review of the medical
records, he did not specify any particular record or finding to support his opinion. He cites no supporting authority for any of the statements or opinions contained in his affidavit.
5
Dr. Miletello is a board certified medical oncologist.
10
***
As Dr. Miletello provided not specified basis for any opinion he
gave, his Affidavit is merely conclusory and devoid of facts to
support a conclusion of ultimate fact. As such, it is improper
evidence for summary judgment.
***
(Emphasis in original).
The record clearly establishes that yearly mammograms are indicated
for women over the age of 40. The record also establishes that Ms. Gray
was over the age of 40, and she was not provided with mammograms in
2016 or 2017. Dr. Boniol attested that the failure to provide a mammogram
of Ms. Gray’s right breast did not cause Ms. Gray to develop inflammatory
breast cancer in her left breast. Dr. Miletello attested that providing the
recommended annual mammography, presumably of both breasts, could
have led to an earlier detection of Ms. Gray’s cancer, and earlier detection
could have possibly extended her life. The determination of whether the
failure to provide mammograms caused or contributed to the delay in the
diagnosis, and Ms. Gray’s ultimate death, requires factual findings by a trier
of fact. We find there remain genuine issues of material fact that preclude
granting summary judgment, and the district court usurped the function of
the factfinder by improperly weighing the opinions set forth in the experts’
affidavits. It is within the purview of the factfinder to weigh the evidence
and expert opinions in order to determine whether plaintiff has met her
burden of proving the elements of her claims. A jury, as the trier of fact,
must consider the nature of the conduct of each party and the extent of the
causal relationship between the alleged conduct and the damages claimed.
Consequently, we reverse the district court’s ruling granting summary
11
judgment in favor of defendants, and we remand this matter for further
proceedings.
CONCLUSION
For the reasons set forth herein, the district court’s judgment granting
summary judgment in favor of the defendants and dismissing plaintiff’s
claims, and we remand this matter for further proceedings. Because the
plaintiff has been granted pauper status, costs of this appeal and expenses in
the lower court are assessed in accordance with La. C.C.P. art. 5188.
REVERSED AND REMANDED.
12