Eva Jeanette Carrier and Jack Carrier VS Robert D. Westerman, D.D.S., Ltd., A Professional Corporation, Unknown Dental Laboratory, XYZ Insurance Company and UVW Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 1615 EVA JEANETTE CARRIER AND JACK CARRIER VERSUS n l I j ROBERT D WESTERMAN DDS LTD A Professional UNKNOWN DENTAL LABORATORY kYf Corporation XVZ INSURANCE CO AND UVW INSURANCE CO On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 542 194 Division 1 24 Honorable R Michael Caldwell Mary E Heck Barrios Denham Springs Judge Presiding Attorney for Plaintiffs Appellants LA Eva Jeanette Carrier And Jack Carrier Leonard A Young Bienvenu Foster New Orleans Attorney Ryan 8r O Bannon Robert D Westerman DDS Ltd LA BEFORE for Defendant Appellee PARRO McCLENDON AND WELCH JJ Judgment rendered JUN 1 7 2009 PARRO J appeal Eva Jeanette Carrier and her husband the Carriers in favor of Robert D claims against him jurisprudence we DDS Ltd Westerman After de a affirm the novo Dr summary judgment dismissing all of their Westerman review of the record and a applicable statutes and judgment BACKGROUND Dr were sued measured fitted Westerman was were for summary of the area The device bridge and installed was her constructed by Burbank and was The Carriers guilty of medical malpractice and that both judgment filed was by Dr Westerman an internal Dr Westerman LPLA reasons that the Carriers had produced measuring and fitting of the device The evidence submitted against Dr Westerman expert testimony that Dr no defective that there was his follow up was by Dr it A care signed May The court noted in oral point that he had breached the standard of or in A motion bridge from Mrs Carrier s mouth to fracture at that weak allowing the bridge installing the device and joint had been poorly soldered during construction by Burbank or and alleged that Dr guilty of fault under the Louisiana Products Liability Act appeared that bridge and their insurers injured by Dr Westerman Westerman showed that when he removed the of the Burbank bridge fractured the Carriers after Mrs Carrier s dental by mouth in the Burbank Burbank Dental Laboratory Inc Westerman was a care Westerman defect in his s design applicable to dentists in judgment dismissing the Carriers claims 14 2008 and the Carriers filed this appeal APPLICABLE LAW Summary Judqment A motion for summary relief prayed for by U S A A Ins Co summary a de La novo 11 1 21 04 864 So 2d 129 using the 137 procedural device used for all a is no 29 06 consideration of whether summary La is litigant when there 06 0363 judgments judgment genuine issue of material fact 950 So 2d 544 546 same judgment is Appellate part of the Duncan v courts review criteria that govern the trial court appropriate Costello A motion for summary 2 or v s Hardy 03 1146 judgment should only be if the granted pleadings depositions answers to interrogatories and admissions is no together with the affidavits if any show that there fact and that the movant is entitled to summary ccP bear the burden of summary matter of law See LSA proof remains with the movant However if the movant will not proof at trial judgment the on the matter that is before the court movant s burden on the motion does not all essential elements of the adverse point out to the court that there is elements essential to the adverse adverse party fails to party s claim action party s claim action produce factual support sufficient LSA C C P art 966 C pointing at trial The burden 2 require him Samaha case Once the motion for summary party the failure of the non v Rau judgment negate but rather to support for one or more Thereafter if the defense no genuine issue of material moving party may be discharged by 2 26 08 support the 07 1726 La has been properly supported by the moving 977 So 2d 880 moving party to produce evidence of dispute mandates the granting of the motion La 6 30 00 to to establish that he will be able there is the the motion for out to the district court that there is an absence of evidence to nonmoving party s 0078 on or on defense or absence of factual an satisfy his evidentiary burden of proof fact as a material art 966 B The burden of to judgment as to genuine issue file on Babin v a 886 material factual Winn Dixie Louisiana Inc 00 764 So 2d 37 40 Medical Malpractice Medical malpractice is defined in LSA R S 40 41 1299 A 13 as any unintentional tort or any breach of contract based on health professional services rendered by a health care provider to a all The elements of a statutorily defined degree of care medical as a health patient legal responsibility provider arising from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient including of care or malpractice action that follows 1 the a care plaintiff is required to establish degree of knowledge or skill possessed ordinarily exercised by physicians dentists optometrists or or community or locale and under similar circumstances 3 2 the chiropractic physicians licensed to practice in the state of Louisiana and actively practicing similar are in a that the defendant degree either lacked this diligence along of with his best knowledge judgment care LSA the 5 R a s or reasonable use the failure to exercise this 997 So 2d 729 Correa v 1233 731 plaintiff must establish the standard of and care 94 0924 Thomas 08 2807 and 08 0927 Anderson v writ denied 94 0963 that or not that standard lay person a was infer can Samaha 977 So 2d at 884 2 10 06 a See care causal La 94 0992 La breached La 1st Cir App 999 SO 2d 761 1 30 09 Expert testimony is generally required to establish the applicable standard of whether degree alleged negligence and the plaintiffs injuries resulting Pfiffner negligence 643 So 2d 1228 11 3 08 as a skill or failed to by the doctor of that standard of violation connection between the doctor 10 17 94 the Summarizing 9 2794 A that and or plaintiff suffered injuries that would not otherwise have been incurred applicable to the doctor from care application of that skill and 3 that in the proximate result of this lack of knowledge of skill or except where the negligence is care so and obvious negligence without the guidance of expert testimony also Fagan v LeBlanc La 04 2743 1st Cir 928 So 2d 571 575 see App Louisiana Products Liability Act The LPLA provides the authority for claims against manufacturers for damages Louisiana Revised Statute 9 2800 52 states that the allegedly caused by their products LPLA is the exclusive basis of caused by their products be proven the claimant s 3 this claimant damage or Morin Zefal 114 damage characteristic claimant s The elements of by the claimant 2 liability against manufacturers for damages from injuries are was someone from else proximately caused by a 04 0120 See La 3 manufacturer of the characteristic of the product unreasonably dangerous use LSA R S 02 2136 La of the 9 2800 54 A 19 04 The first element that must be proven the a reasonably anticipated Christophe Todson Inc 119 writ denied of action under the LPLA that must the defendant is the manufacturer of the 1 rendered the arose a cause 4 the 03 v Poutrait 868 So 2d 869 SO 2d 858 by the claimant is that the defendant is product causing plaintiffs harm 4 12 product product by the Matherne App 1st Cir and product Id Under LSA R S 9 2800 53 1 a manufacturer is entity who is in the business of manufacturing a product for Manufacturing a product means placement into trade or commerce producing making fabricating constructing designing remanufacturing reconditioning or refurbishing a product a person or Louisiana Revised Statute 9 2800 53 l b further defines A seller of product a who exercises control design construction characteristic of the causes a influences over or a or quality of the product that is seller manufacturer and who is in the business of to another person or entity in a conveying title professional a See LSA R S 9 2800 52 1 statute further service to or even to entity who is possession of a not a product The LPLA excludes from if the service results in However that exclusion is provides that the LPLA does apply they assume the or person exchange for anything of value provisions those who provide product as damage According to LSA R S 9 2800 53 2 its manufacturer qualified a in that the providers of professional services if status of a manufacturer as defined in R S 9 53 2800 1 ANALYSIS The Carriers had the burden of under either medical motion for summary malpractice support for product liability causes but was one or more required to point was of action judgment Dr Westerman did not have elements of their claims factual or proving that Dr Westerman to liable to them Therefore in his negate all essential out to the court an absence of elements essential to their claims Dr Westerman supported his motion for summary judgment with his affidavit Mrs Carrier s deposition and the Carriers answers through February 2005 to interrogatories he had His affidavit stated that from been involved in the appliances for Mrs Carrier Those appliances were with which he had been six years services and products doing business for were of ordering and fitting of dental constructed consistently high quality August 2004 by Burbank a company during which period Burbank All of the dental s appliances constructed by Burbank for installation in Mrs Carrier s mouth appeared to be of good quality when inspected by Dr Westerman and there in the dental were no obvious bridge that is the subject of this lawsuit If there 5 was or patent defects any defect in the bridge when Dr received Westerman the defect it Finally Dr Westerman averred that at all discernable he adhered to the latent was times while In acknowledged that she still believed Dr Westerman records to any dental was a that expert had told her Dr Westerman standard of care or and that she believed the deposition expert for examination s other dentist failed to do she good dentist that she had not sent Dr Westerman no nor Carrier s Mrs readily treating Mrs Carrier applicable standards of dentistry and neither did anything that caused the bridge work to fail not and s or evaluation work did not meet the problem with her dental work was caused by the laboratory that made the dental bridge and not by Dr Westerman The Carriers orders written dental to Dr Westerman showing hearing the Carriers also filed to the motion In that which included to be configuration then wrote a a regarding the original and replacement copy of the interrogatories a laboratory did s answers to Dr Westerman replacement bridge and Burbank were to Burbank by Dr Westerman bridges Burbank opposed the motion supporting their opposition with copies of the not s answers to interrogatories an invoice from charge him for the On the morning of the transcript of Dr Westerman s deposition in opposition deposition he described the design process for the bridge determining the size of the bridge the materials to be used which teeth involved of the whether teeth existing teeth so modeling the bridge could be made to fit the patient He needed the prescription for the bridge and technicians determined exactly how it was to be sent it to a removed and laboratory where the laboratory to be made and how it was to be constructed from start to finish Most of the Carriers Westerman was a 1 Westerman was to hearing the motion based on their with the to have allegation that Dr bridge and that the court erred in several recognize that fact The Carriers assert that presumed The record indicates that on error are manufacturer of the dental particulars by failing Dr assignments of as a manufacturer knowledge of the defective condition of the agreement of Dr Westerman s counsel the judge had delayed judgment in order to allow the plaintiffs time to obtain for summary deposition 6 the this dental such bridge that the knowledge of the defect his fault or negligence fitting installation and the measurement not plaintiffs did or his breach of the standard of follow up or produce evidence of his have to care in provided to Mrs Carrier care They also contend that the court erred in requiring them to produce evidence that there was design of the dental bridge in order to impute liability to Dr defect in the a They claim the court erred in failing Westerman malpractice simply by virtue of implantation of Carrier Finally they argue that Dr Westerman knew or a to find that Dr Westerman committed a genuine issue of material fact exists should have known of the defect in the dental Concerning the product liability claims the plaintiffs Dr Westerman as a examined the statute convinced that Dr business of RS manufacturer in the as that term case 9 2800 53 1 a professional dental services to in the business of a conveying title to or possession of entity in exchange for anything of value Having we are of to those See LSA 2 Because of the in this 3 case he is not or commerce a seller a case 3 in the See LSA providing because he is not product to another person 5 R 9 2800 53 2 He which includes interrelationship between the medical malpractice causes of repairing by the or or replacing not for the product liability claims the Carriers Dictionary as e very business occupation carried on profit and involving the elements of bargain and sale barter exchange or traffic Black s Law Dictionarv 1500 7th ed 1999 Dr Westerman s practice clearly does not involve these elements as his service is provided to individual patients and does not place a product into the stream Trade and commerce for subsistence of is defined in Black s Law claims and the action asserted as or in the business charges his patients for his professional services this classification is crucial for both such conveying title He is or Although the by others in the business of patients in exchange for anything of value providing for his patients dental health damaged teeth he is not provides for his patients sometimes may include the implantation bridge involved in this possession classifying 2 installation of dental devices manufactured and sold to him dental on dentist whose business consists of Second he is not patients bridge depends First product for placement into trade Dr Westerman is to whether by the evidence of the facts established light as is defined in the LPLA Westerman does not fit that definition manufacturing dental work he prosthetic device into Mrs defective or commerce 7 transfer of title be a defined manufacturer influences a a emphasis added 5 R 9 2800 53 1 the provisions of the LPLA do might conceivably result in a pointed out to this court dental device in a patient has been classified cases in which such claims was a manufacturer care was See Huffaker 659 So 2d 544 and argument defined we we Rogers find as a Because the an has our or v v ABC Ins Co Synthes Ltd neither statutory 94 2345 626 So 2d 775 nor La In the only two care provider was a qualified La App 4th Cir 7 26 95 App 2nd Cir 1993 a manufacturer The Carriers have failed to establish that dismissal of this Westerman was Therefore the trial court s their as that term is they will be able to product liability claim against claim on summary appropriate Regarding the medical malpractice claim the evidence shows that the Carriers did not have any other dentist review the medical establish that 4 jurisprudential support for the Carriers Dr At oral if even defective medical hospital on 4 as research revealed manufacturer satisfy their evidentiary burden of proof at trial standard of to him apply allegedly physician reject their claim that Dr Westerman is by the LPLA judgment manufacturer a made the issue of whether the health not resolved seller provider those claims had to be submitted to medical review panelS before suits could be filed Since were nor provider who installed health care non because he Further not although See LSA RS 9 2800 52 1 product a health Therefore the status of assume over or quality of the product that or portion of the statute irrelevant not he cannot product who exercises control in which cases seller a admittedly influenced the design of the dental bridge his The Carriers have not any Since he is not design construction professional service and did a defined in or seller of as a status renders the above cited his service product to them 5 R 9 2800 53 l b See LSA Westerman provides a characteristic of the damage causes Dr possession of or some care arguments aspect of Dr Westerman records in this Dr Westerman protections s counsel explained that of the Louisiana Medical 8 he is not Malpractice order to of Mrs Carrier breached the s treatment ordinarily exercised by dentists They have he does not claim the case in a not produced any evidence qualified health Act care provider so of fault negligence or of her mouth for the the original bridge in his evaluation of Mrs Carrier s dental bridge his design of the model of the bridge his was installed discovered his installation of the her They argue that such his removal of that replacement bridge presumed to have known that it was that there as a his manufacturer this bridge a faulty solder of an internal evidence that his joint He argument has over which he had on in participation no this issue the The Carriers also contend that when Mrs several months after the chip in the porcelain on original bridge the was chip that However Dr Westerman stated that such of many factors something hard being hit have been the first not have 5 no merit 5 or actions or the design or inactions was due to To show that they plaintiffs had to produce modeling was or materials presented Carrier returned to Dr installed a and he discovered Westerman a very small part of the bridge where the fracture later appeared he should have inferred from that result s control specifications caused the dental bridge to fail No such evidence the expert rejected the attempted presented evidence that the break proof at trial could carry their burden of some no something wrong with it While that may be true it is not possible for contributed to the failure or no Dr Westerman is they contend lay person to conclude from that failure that Dr Westerman caused because there is case have we was post operative treatment of Therefore Because of her after lay person could conclude from the failure of the bridge also claim that any was defective to establish his fault classification of Dr Westerman They or the manufacturer of that as care bridge when the problem proof is unnecessary in this dispute that the bridge failed and testimony is needed problems his preparation including falling In a more a Mrs serious defect existed at that site chip is not unusual and could have been Carriers grinding of teeth biting on hindsight he acknowledged that this chip may sign of the failure of the solder joint in the bridge but said he could predicted this result based The Carriers also contend that on an ordinary and minor chip in the porcelain simply by virtue of implantation of a defective prosthetic device into malpractice This suggests an absolute liability regardless of any fault on his part in the measurement design or installation of the dental bridge We find no legal 41 A 13 1299 support for this interpretation of LSA R S 40 9 Mrs Carrier Dr Westerman committed Only another dentist could evaluate whether such Westerman to a more serious testimony from another dentist However problem on evidence we proof at trial to the medical conclude that this is not the part of the health shown that as care provider the plaintiffs did produce can in this case the plaintiffs malpractice claims type of case satisfy Having evaluated the from which be inferred from the facts cannot The negligence plaintiffs on the have not they will be able to carry their burden of proof at trial that Dr Westerman breached the standard of care in his treatment of Mrs Carrier Therefore correctly entered summary judgment dismissing the plaintiffs claims not this issue Ultimately without expert testimony their burden of chip should have alerted Dr a medical the court malpractice against him CONCLUSION Based on the foregoing of the Carriers claims are we affirm the judgment of May against Robert D Westerman DDS Ltd assessed to the Carriers AFFIRMED 10 14 2008 dismissing all All costs of this appeal
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