The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CLINTON EVANS et al. CIVIL ACTION
VERSUS NO. 18-8972
JOSEPH LOPINTO et al. SECTION: “G”(1)
ORDER AND REASONS
In this litigation, Plaintiffs Clinton Evans and Jeresa Morgan (collectively, “Plaintiffs”)
bring claims individually and on behalf of their deceased son, Jatory Evans (“Evans”), against
Defendants CorrectHealth Jefferson (“CHJ”), Jefferson Parish, Sheriff Joseph Lopinto
(“Lopinto”), Corrections Administrator and Deputy Chief Sue Ellen Monfra (“Monfra”), Deputy
Christopher Mayeaux (“Mayeaux”), Dr. William Lo (“Dr. Lo”), David Jennings (“Jennings”), and
Ironshore Specialty Insurance Co. (“Ironshore”) (collectively, “Defendants”).1 Plaintiffs allege
that Defendants failed to properly monitor Evans while he was incarcerated in Jefferson Parish
Correctional Facility (“JPCC”) and that their acts or omissions lead to Evans’ death by suicide.2
Pending before the Court is Defendants CHJ, Ironshore, Jennings, Dr. Lo and Ironshore’s
(collectively “CHJ Defendants”) “Motion for Summary Judgment On Plaintiffs’ State Law
Claims.”3 Considering the motion, the memoranda in support and in opposition, and the applicable
law, the Court grants the motion in part and denies it in part.
1 Rec. Doc. 6 at 2–5.
2 Id. at 1.
3 Rec. Doc. 112.
1
I. Background
A. Factual Background
The Amended Complaint alleges that Evans was a pre-trial detainee in the custody and care
of the Jefferson Parish Sheriff’s Office at JPCC when he died by hanging in his cell on September
27, 2017.4 Plaintiffs allege that Evans had an extensive history of PTSD for which he had
previously been treated with medication.5 Plaintiffs aver that Evans reported numerous incidents
of mental distress while at JPCC.6 For example, Plaintiffs assert that Evans was seen by Social
Worker David Jennings after reporting that he felt like he was going crazy, could not sleep, and
described other PTSD symptoms, and Jennings referred him to a psychiatrist to be evaluated for
psychosis.7 In December 2016, Plaintiffs allege Evans reported that he was having headaches and
experiencing feelings of “jitteriness and shaking.”8 In February 2017, Plaintiffs aver that Evans
was seen by Jennings after reporting that he was having flashbacks of his deployment to
Afghanistan.9 Plaintiffs assert that Jennings “simply noted that [Evans] was in no acute distress.”10
The following day, Plaintiffs allege that Evans again reported that he was “having visions from
[his] Afghanistan events (deployment) and other events,” and that he had “painful knots in his
4 Rec. Doc. 38.
5 Id. at 5.
6 Id. at 6.
7 Id.
8 Id.
9 Id.
10 Id.
2
arms and legs.”11 Plaintiffs aver that he also reported not being able to sleep.12 Plaintiffs allege
that Evans was not seen by Jennings or Dr. Lo in response to these reports.13
Plaintiffs allege that on March 25, 2017, Evans was placed on suicide watch after wrapping
a towel around his neck.14 Plaintiffs aver that the reason for his placement on suicide watch was
listed as “severe depression.”15 Plaintiffs contend that Evans was never seen by Dr. Lo or any other
psychiatrist while on suicide watch.16 Rather, Plaintiffs aver that two days after being put on
suicide watch, Evans was seen by Jennings, who then discharged Evans.17 Plaintiffs allege that his
discharge did not include any kind of “step-down process,” and that Evans did not receive a follow
up visit which he was supposed to have a week after discharge.18
Plaintiffs aver that on May 10, 2017, Evans reported “multiple nightmares, anxiety issues,
depression with [his] thoughts, [and] thinking about [his] own death.”19 Nevertheless, Plaintiffs
allege that Evans was not seen by Jennings until May 17.20 Plaintiffs aver that during this visit,
Evans noted that his mother and sister were “the reasons that he did not act on his thoughts of
11 Id. at 7.
12 Id.
13 Id.
14 Id.
15 Id.
16 Id. at 8.
17 Id.
18 Id. at 8–9.
19 Id.
20 Id. at 9.
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suicide.”21 Nevertheless, Plaintiffs assert that Jennings reported that Evans was in no acute
distress.22
Plaintiffs allege that on May 28, 2017, Evans requested a mental health referral.23 Plaintiffs
aver that Evans saw Dr. Lo and reported that he was having nightmares and flashbacks.24 Plaintiffs
assert that Dr. Lo noted “an impression of a mood disorder . . . and an anxiety disorder,” and
prescribed Risperidone.25 Nevertheless, Plaintiffs allege that Evans “continued to experience
significant periods of despondence and expressed to others that a desire to commit suicide was
always in the back of his mind.”26 Additionally, Plaintiffs aver that Evans was placed on suicide
watch for a second time on September 1, after a member of the defense team reached out to a JPSO
deputy expressing concerns that Evans might harm himself.27 Plaintiffs allege that Evans was seen
by Jennings on September 1, and that Jennings “scored his suicide risk as low with a note to follow
up with the mental health provider.”28 Plaintiffs allege that he was kept on suicide watch for nearly
21 Id.
22 Id.
23 Id.
24 Id.
25 Id. at 9–10.
26 Id. at 10.
27 Id.
28 Id.
4
a week and, although he was seen by nurses, he did not see Jennings or Dr. Lo, nor did he receive
counseling or other therapy.29
Plaintiffs aver that Jennings discharged Evans on September 6, 2017, stating that Evans
told him he was “good,” had no intention of harming himself, and had hope for his future.30
Plaintiffs assert that throughout the rest of September, Evans was in “acute and increasing
psychological distress” which Plaintiffs allege other JPCC detainees began to notice.31 Plaintiffs
allege that Evans saw Dr. Lo again on September 14, 2017, during which Dr. Lo increased Evans’
medication.32
Plaintiffs aver that on the night before he died, Evans expressed his intent to kill himself to
other detainees.33 Furthermore, Plaintiffs allege that he was “very quiet and withdrawn” on the day
he died and that other detainees were concerned about his change in behavior.34 Plaintiffs aver that
shortly after roll call on September 27, 2017, Evans blocked the view into his cell with a blanket,
in violation of JPSO policy.35 Nevertheless, Plaintiffs allege that Mayeaux, the guard on duty, did
nothing to remove the blanket.36 Plaintiffs aver that other detainees began to become concerned
29 Id.
30 Id. at 11.
31 Id.
32 Id. at 12.
33 Id.
34 Id.
35 Id.
36 Id.
5
about Evans, and tried to alert Mayeaux, who was unresponsive.37 When detainee Furnell Daniel
was permitted to leave his cell, approximately an hour after roll call, he learned of the concerns
for Evans’ safety and went to check on him.38 Plaintiffs aver that he looked behind the blanket and
saw Evans with the sheet around his neck and his head slumped to one side.39 Plaintiffs allege that
he immediately began shouting and motioning to Mayeaux.40 Thus, Plaintiffs aver that Mayeaux
was alerted to Evans’ condition no later than between 4:18 and 4:20 PM.41 Plaintiffs allege that
Mayeaux delayed for “at least five to six minutes” before calling for assistance.42
B. Procedural Background
On September 26, 2018, Plaintiffs filed a Complaint in this Court.43 On December 7, 2018,
Plaintiffs filed the First Amended Complaint, which was identical to the original Complaint.44 On
January 24, 2019, Defendant Jefferson Parish filed a Motion to Dismiss and a request for oral
argument on the motion.45 The Court heard oral argument on the Motion to Dismiss on February
27, 2019,46 and then denied the motion without prejudice and gave Plaintiffs thirty days to amend
37 Id. at 13.
38 Id.
39 Id.
40 Id.
41 Id.
42 Id.
43 Rec. Doc. 1.
44 Rec. Doc. 6.
45 Rec. Docs. 16, 17.
46 Rec. Doc. 22.
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the Complaint.47 On March 27, 2019, Plaintiffs filed a Second Amended Complaint, changing
Plaintiffs’ allegations against Jefferson Parish, but maintaining the same allegations against the
other defendants.48 Thus, the claims involved in this case are outlined below:
• Count 1: Section 1983 claim “Based on Establishment of a System in which Prisoners are
Denied Appropriate Protection from Harm” against Defendants Lopinto and JP.49
• Count 2: Section 1983 claim “Based on Failure to Supervise other Defendants to Ensure
Patients Received Appropriate Care and Supervision to Protect Patients from Harm”
against Defendants Lopinto, Monfra, and CHJ. 50
• Count 3: Section 1983 claim “Based on Deliberate Indifference to Mr. Evans’
Constitutional Right to Protection from Harm” against Defendants Lopinto, Monfra,
Mayeaux, Lo, Jennings, CHJ, and JP.51
• Count 4: Violation of the Americans with Disabilities Act and Section 504 of the
Rehabilitation Act “by discriminating against and failing to accommodate a disability”
against Lopinto and JP.52
• Count 6:53 Monell claim under § 1983 “based on establishment of policies, patterns, or
practices pursuant to which inmates with serious mental health conditions are denied access
to appropriate medical care and prevention from harm” against Defendants Lopinto,
Monfra, and CHJ.54
• Count 7: Medical Malpractice claim against Defendants CHJ, Lo, and Jennings.55
47 Rec. Doc. 25.
48 Rec. Doc. 38.
49 Id. at 26–27.
50 Id. at 28–29.
51 Id. at 29–30.
52 Id. at 30–32.
53 Plaintiffs’ Second Amended Complaint mistakenly skips count 5.
54 Rec. Doc. 38. at 32–33.
55 Id. at 33.
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• Count 8: Negligence and/or Intentional Tort claim against all Defendants.56
On March 6, 2019, CHJ Defendants filed a Motion to Dismiss.57 The Court denied the motion
without prejudice and stayed the case pending the completion of a medical review panel.58 On July
27, 2021, the Court lifted the stay.59
On May 3, 2022, CHJ Defendants filed the instant Motion for Summary Judgment.60 On
May 10, 2022, Plaintiffs opposed the motion.61 On May 17, 2022, with leave of Court, CHJ
Defendants filed a reply.62
II. Parties’ Arguments
A. CHJ Defendants’ Arguments in Support of the Motion for Summary Judgment
CHJ Defendants contend that Plaintiffs’ medical malpractice claims should be dismissed.63
CHJ Defendants argue that to establish a medial malpractice claim under Louisiana law, a plaintiff
must prove (1) the applicable standard of care; (2) that the defendant breached that standard of
care; and (3) that there was a causal connection between the breach and the resulting injury.64
56 Id. at 34.
57 Rec. Doc. 27.
58 Rec. Doc. 54.
59 Rec. Doc. 57.
60 Rec. Doc. 112.
61 Rec. Doc. 128.
62 Rec. Docs. 137, 160.
63 Rec. Doc. 112-1 at 3.
64 Id.
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Plaintiffs further contend that in most cases, expert testimony is required in order for a plaintiff to
prevail.65
CHJ Defendants argue that Plaintiffs cannot establish a medical malpractice claim for two
reasons. First, CHJ Defendants argue that the Medical Review Panel determined that there was
“no medical negligence and/or breach in the standard of care on the part of [CHJ] Defendants.”66
Second, CHJ Defendants argue that Plaintiffs have no expert testimony on the issue of medical
causation.67 CHJ Defendants contend that neither of Plaintiffs’ experts address the issue of medical
causation.68 As to Dr. Metzner, CHJ Defendants argue that he “does not issue any opinion on [CHJ
Defendants’] treatment of [Evans], whether [CHJ Defendants’ treatment] met the standard of care,
or the causation of [Evans’] suicide.”69 As to Dr. Elliott, CHJ Defendants argue that his opinions
are “conclusory” and “speculative” such that they are insufficient to establish the causation
element.70 Therefore, because Plaintiffs do not have expert testimony on medical causation, CHJ
Defendants argue that they are entitled to summary judgment on Plaintiffs’ medical malpractice
claim.
CHJ Defendants further argue that they are entitled to summary judgment on Plaintiffs’
negligence and intentional conduct claims in Count 8. 71 First, CHJ Defendants argue that a claim
65 Id. at 3–4.
66 Id. at 4.
67 Id.
68 Id. at 5.
69 Id.
70 Id.
71 Id. at 6.
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of negligence regarding medical care is properly considered a claim of medical malpractice, and
therefore Plaintiffs cannot assert a claim of negligence independent of their medical malpractice
claims.72 Second, CHJ Defendants contend that “there is no evidence in the record supporting
Plaintiffs’ position that [CHJ Defendants] acted intentionally or maliciously in treating [Evans].73
Rather, CHJ Defendants assert that the Medical Review Panel opinion “shows that in all instances
during his incarceration, [Evans’] concerns were heard, assessed, and rapidly addressed in an
appropriate manner.”74 Therefore, CHJ Defendants argue that they are entitled to summary
judgment on these claims.
B. Plaintiffs’ Arguments in Opposition to the Motion for Summary Judgment
In opposition, Plaintiffs contend that Dr. Elliott’s testimony is sufficient to establish
medical causation.75 Plaintiffs contend that they need only prove that CHJ Defendants’ negligence
caused a “loss of a chance of survival” “in any degree.”76 Plaintiffs argue that Dr. Elliott’s opinions
are sufficient to meet this standard. Plaintiffs highlight that CHJ Defendants’ conduct increased
the risk that Evans would kill himself after discharge from suicide.77 Specifically, Plaintiffs point
out Dr. Elliott’s opinion that Jennings and Dr. Lo could have taken various steps that would have
“alleviated the symptoms of depression and lessened the risk of suicide.”78 Furthermore, Plaintiffs
72 Id.
73 Id.
74 Id. at 6–7.
75 Rec. Doc. 128 at 8.
76 Id.
77 Id. at 10.
78 Id.
10
highlight Dr. Elliott’s opinion that CHJ Defendants’ conduct “reduced Evans’ chance to survive
his suicidality.”79 Plaintiffs assert that Dr. Elliott’s opinions are “grounded in the medical record,
facility records, and testimony given in this case.”80
As to negligence, Plaintiffs “concede that their state law negligence claims against Dr. Lo
and Mr. Jennings sound in malpractice and are thus subsumed” by their medical malpractice
claim.81 However, Plaintiffs contend that their claim that CHJ inadequately staffed JPCC is “a
claim for general negligence not subsumed by the Louisiana Medical Malpractice Act.”82
C. CHJ Defendants’ Arguments in Further Support of the Motion
In reply, CHJ Defendants argue that Plaintiffs have relied on Dr. Elliott’s “untimely
Supplemental Expert Report that was produced on May 5, 2022–long after Plaintiffs’ Expert
Report Deadline of March 24, 2022 and two days after the deadline to file Motions for Summary
Judgments and a Daubert Motion challenging Dr. Elliott’s opinions.”83 Thus, CHJ Defendants
contend that the opinions in the supplemental report should be discarded, and the Court should
grant summary judgment on Plaintiffs’ medical malpractice claims.84
CHJ Defendants reiterate that Plaintiffs cannot establish that Evans’ suicide was caused by
substandard care.85 CHJ Defendants note again that Dr. Metzner “does not issue any opinion on
79 Id. at 13.
80 Id.
81 Id.
82 Id. at 13.
83 Rec. Doc. 160 at 1–2.
84 Id.
85 Id. at 2.
11
[CHJ Defendants’] treatment of [Evans] or whether it met the standard of care.”86 CHJ Defendants
further argue that Dr. Elliott’s opinions are based on a disagreement with the medical care
provided.87 CHJ Defendants contend that Dr. Elliott’s “only opinion regarding the standard of
care” is that Dr. Lo’s “three month follow up schedule was inappropriate,” and argues that Dr.
Elliott did not state that this caused Evans’ suicide.88
As to CHJ’s negligence, CHJ Defendants contend that Plaintiffs’ claim fails because
Plaintiffs do not have expert testimony regarding the inadequacy of JPCC’s staffing.89 CHJ
Defendants argue that Plaintiffs’ claim that JPCC was inadequately staffed is “solely
speculation,”90 and therefore Plaintiffs’ claim should be dismissed.
Lastly, CHJ Defendants argue that Plaintiffs did not respond to CHJ Defendants’
contention that Plaintiffs’ claim for intentional conduct should be dismissed.91 CHJ Defendants
contend that, because Plaintiffs made no argument in opposition, the claim should be dismissed.92
III. Legal Standards
Summary judgment is appropriate when the pleadings, discovery, and affidavits
demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as
86 Id. at 3.
87 Id.
88 Id. at 3.
89 Id.
90 Id. at 4.
91 Id.
92 Id.
12
a matter of law.”93 To decide whether a genuine dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrain[s] from making credibility determinations
or weighing the evidence.”94 All reasonable inferences are drawn in favor of the nonmoving
party.95 Yet “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”96
If the entire record “could not lead a rational trier of fact to find for the non-moving party,” then
no genuine issue of fact exists and, consequently, the moving party is entitled to judgment as a
matter of law.97 The nonmoving party may not rest upon the pleadings.98 Instead, the nonmoving
party must identify specific facts in the record and articulate the precise manner in which that
evidence establishes a genuine issue for trial.99
The party seeking summary judgment always bears the initial responsibility of showing the
basis for its motion and identifying record evidence that demonstrates the absence of a genuine
issue of material fact.100 “To satisfy this burden, the movant may either (1) submit evidentiary
documents that negate the existence of some material element of the opponent’s claim or defense,
93 Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
94 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008) (citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
95 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Reeves, 530 U.S. at
150).
96 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
97 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l Bank of
Ariz. v. Cites Serv. Co., 391 U.S. 253, 289 (1968)).
98 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
99 See id.; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
100 Celotex, 477 U.S. at 323.
13
or (2) if the crucial issue is one on which the opponent will bear the ultimate burden of proof at
trial, demonstrate that the evidence in the record insufficiently supports an essential element of the
opponent’s claim or defense.”101 If the moving party satisfies its initial burden, the burden shifts
to the nonmoving party to “identify specific evidence in the record, and to articulate” precisely
how that evidence supports the nonmoving party’s claims.102 The nonmoving party must set forth
“specific facts showing the existence of a ‘genuine’ issue concerning every essential component
of its case.”103
The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied
merely by creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,
by unsubstantiated assertions, or by only a scintilla of evidence.”104 Moreover, the nonmoving
party may not rest upon mere allegations or denials in its pleadings.105
IV. Analysis
CHJ Defendants move for summary judgment on Plaintiffs’ medical malpractice,
negligence, and intentional conduct claims.106 Each claim is addressed in turn.
A. Medical Malpractice
To prevail on a medical malpractice action under Louisiana law, a plaintiff must prove (1)
101 Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (quoting Little, 939 F.2d at 1299).
102 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris
v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
103 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
104 Little, 37 F.3d at 1075 (internal citations and quotation marks omitted).
105 Morris, 144 F.3d at 380.
106 Rec. Doc. 112.
14
the standard of care applicable to the defendant; (2) that the defendant breached that standard of
care; and (3) that there was a causal connection between the breach and the resulting injury.”107
“Expert testimony is generally required to establish the applicable standard of care and whether or
not that standard was breached, except where the negligence is so obvious that a lay person can
infer negligence without the guidance of expert testimony.”108
CHJ Defendants primarily argue that Plaintiffs do not offer any expert testimony that there
was a causal connection between a breach of the standard of care and the resulting injury.109 In
opposition, Plaintiffs highlight several of Dr. Elliott’s opinions that bear on causation. For
example, Plaintiffs note Dr. Elliott’s opinion that had Evans received “counseling, appropriate
medication, and placement in a cell with proper supervision and monitoring,” this “would have
alleviated the symptoms of depression and lessened the risk of suicide. All of these actions would
have reduced the risk of self-harm.”110 Dr. Elliott further stated that CHJ Defendants could have
“reduced the risk of suicide” by taking a number of additional measures.111 In addition, he stated
that had Evans received “adequate care, including treatment with an antidepressant, [Evans’]
emotional state could have been changed and Evans could have made a different decision about
ending his life.”112 In sum, Dr. Elliott explained that CHJ Defendants’ conduct “reduced Evans’
107 Samaha v. Rau, No. 07-1726 (La. 2/26/08); 977 So. 2d 880, 883–84 (2008).
108 Id. at 884.
109 Rec. Doc. 112-1 at 4.
110 Rec. Doc. 126-2 at 14.
111 Id. at 16.
112 Rec. Doc. 128-2 at 4.
15
chance to survive his suicidality.”113
CHJ Defendants respond that Plaintiffs’ opposition “improperly rel[ies] on Dr. Elliott’s
untimely Supplemental Expert Report that was produced on May 5, 2022–long after Plaintiffs’
Expert Report Deadline of March 24, 2022, and two days after the deadline to file Motions for
Summary Judgment[] and a Daubert Motion challenging Dr. Elliott’s opinions.”114 CHJ
Defendants contend that the Court should not consider this report because it was untimely.115
To begin, the Court notes that not all of these opinions are from Dr. Elliott’s supplemental
report. In the original report that was disclosed by the March 24, 2022 deadline, Dr. Elliott
explained that had Evans’ received “counseling, appropriate medication, and placement in a cell
with proper supervision and monitoring,” this “would have alleviated the symptoms of depression
and lessened the risk of suicide. All of these actions would have reduced the risk of self-harm.”116
Dr. Elliott further stated that CHJ Defendants could have “reduced the risk of suicide” by taking a
number of additional measures.117 In any event, the Court may consider the additional statements
Dr. Elliott provided in the supplemental report because those statements are not new opinions, but
rather expand on the opinions set forth in the expert report.118
Lastly, CHJ Defendants contend that Plaintiffs have no expert testimony that CHJ
Defendants’ treatment of Evans fell below the standard of care because: (1) Dr. Metzner does not
113 Id. at 6.
114 Rec. Doc. 160 at 1–2.
115 Id.
116 Rec. Doc. 126-2 at 14.
117 Id. at 16.
118 See Rodgers v. Gusman, No. 16-16303, 2019 WL 3220107 at *6 (E.D La. July 17, 2019) (Brown, C.J.).
16
address the issue and (2) Dr. Elliott’s opinion is based on his disagreement with the medication
and the dosage that Dr. Lo prescribed for Evans. Although Dr. Metzner’s expert report is focused
on JPCC’s accreditation by the National Commission on Correctional Healthcare,119 and thus does
not concern whether CHJ Defendants breached the standard of care, Dr. Elliott’s report does.
Dr. Elliott’s report states at numerous points that Jennings and Dr. Lo’s conduct was below
the standard of care. For example, Dr. Elliott’s report states that Dr. Lo’s three-month follow up
schedule for Evans following Evans’ placement on Risperdol “did not meet the standard of
care.”120 He further stated that Dr. Lo’s evaluations of Evans were “inadequate in number” and
“inadequate in quality,” and thus “did not meet the standard of care.”121 Furthermore, he stated
that Jennings’ conduct “fell below the standard of care by failing to follow the recommendations
made by himself for increased frequency of clinical contact, and failure to follow policy regarding
daily monitoring of Evans while he was in the acute care infirmary for suicide watch.”122 Thus,
Dr. Elliott summarized that “[b]ased on the materials available to me, it is my opinion to a
reasonable degree of medical certainty, that neither the care provided by Dr. Lo nor the care
provided by Mr. Jennings met the standard of care required while Mr. Evans was in the custody of
the Jefferson Parish Sheriff’s Office.”123 Therefore, Plaintiffs have provided sufficient evidence
upon which a reasonable jury could find that Jennings’ and Dr. Lo’s conduct fell below the
119 Rec. Doc. 112-10. The Court also notes that Dr. Metzner’s report is subject to a motion in limine. However,
the Court is not relying on Dr. Metzner’s report in ruling on the instant motion.
120 Rec. Doc. 126-2 at 8.
121 Id. at 12.
122 Id. at 14.
123 Id. at 4.
17
standard of care.124
The Court acknowledges that the Medical Review Panel opinion concluded that CHJ
Defendants’ treatment of Evans did not fall below the standard of care.125 However, as the Court
explained in its May 31, 2022 Order and Reasons denying CHJ Defendants’ first motion for
summary judgment, “the Medical Review Panel’s determination is not conclusive proof . . . as to
whether there was medical malpractice.”126 The Court explained as follows:
The Louisiana Supreme Court has explained that although the panel’s opinion is
“admissible as evidence in any action subsequently brought” in court, the opinion
“shall not be conclusive.” Rather, “as with any expert testimony or evidence, the
medical review panel opinion is subject to review and contestation by an opposing
viewpoint,” and “the jury as trier of fact, is free to accept or reject any portion or
all of the opinion. In addition, Louisiana law permits a party to challenge the
board’s opinion if its decision was based on its resolution of disputed material facts.
Although the panel’s opinion may be strong evidence against Plaintiffs’ claims to
the jury, at the summary judgment stage the Court must “refrain[] from making
credibility determinations or weighing the evidence.”
As explained in detail above, Plaintiffs have provided contrary evidence in the form of Dr. Elliott’s
opinions. Accordingly, there are material facts in dispute and CHJ Defendants are not entitled to
summary judgment on Plaintiffs’ medical malpractice claims.
B. Negligence
In actions for negligence, Louisiana law requires the plaintiff to show the following five
elements:
124 The Court acknowledges that at Dr. Elliott’s deposition, he contradicted the statement in his report that
Dr. Lo’s prescription and dosage of Risperdol violated the standard of care. However, as described above, Dr. Elliott
offered opinions of other conduct that fell below the standard of care. In any event, Dr. Elliott’s contradictory statement
regarding Dr. Lo’s prescription of Risperdol goes to Dr. Elliott’s credibility, and thus is not for the Court to resolve
on a motion for summary judgment.
125 Rec. Doc. 112-3.
126 Rec. Doc. 151.
18
(1) proof that the defendant had a duty to conform his conduct to a specific standard
(the duty element);
(2) proof that the defendant’s conduct failed to conform to the appropriate standard
(the breach element);
(3) proof that the defendant’s substandard conduct was a cause-in-fact of the
plaintiff's injuries (the cause-in-fact element);
(4) proof that the defendant’s substandard conduct was a legal cause of the
plaintiff’s injuries (the scope of liability or scope of protection element); and
(5) proof of actual damages (the damages element).127
In opposition to the instant motion, Plaintiffs “concede that their state law negligence claims
against Dr. Lo and Mr. Jennings sound in malpractice and are thus subsumed” by Plaintiffs’
medical malpractice claims.128 Accordingly, the Court grants CHJ Defendants’ motion to the
extent it seeks summary judgment on Plaintiffs’ negligence claims against Jennings and Dr. Lo.
Plaintiffs nonetheless contend that CHJ is liable for state law negligence for failure to
adequately staff JPCC. The Court agrees that the claim against CHJ is not subsumed by the medical
malpractice claim. The Louisiana Supreme Court has explained that the Louisiana Medical
Malpractice Act applies “only to claims ‘arising from medical malpractice,’ and that all other tort
liability on the part of the qualified health care provider is governed by general tort law.”129 CHJ
Defendants do not argue otherwise. Rather, CHJ Defendants argue that Plaintiffs’ “do not have
any evidence to support their position that JPCC was inadequately staffed.”130 CHJ Defendants
127 Long v. State ex rel. Dep’t of Transp. & Dev., No. 04-485 (La. 6/29/05); 916 So. 2d 87, 101.
128 Rec. Doc. 128 at 13.
129 LaCoste v. Pendleton Methodist Hosp., LLC., No. 07-0008 (La. 9/5/07); 966 So. 2d 519, 524.
130 Rec. Doc. 160 at 3.
19
contend Plaintiffs rely “solely on speculation.”131
The Court disagrees. First, there is substantial evidence from which a reasonable jury could
conclude that CHJ understaffed JPCC. As explained in the Court’s May 31, 2022 order, there is
evidence in the record that Jennings and Dr. Lo were the only mental health providers at JPCC,
and as a result, while Evans was on suicide watch the second time, he “wouldn’t have been seen
by a mental health professional person during that period” because “[i]t was a long weekend.”132
Furthermore, there is evidence in the record of a CHJ policy stating that “Level 1” patient
designation—which Evans received133—“requires that the medical provider evaluate that patient
every day when on site.”134 The reasonable inference to draw from this evidence, which the Court
must draw in Plaintiffs’ favor, is that JPCC was not sufficiently staffed to abide by this policy.
In addition, there is evidence in the record that on the day Jennings discharged Evans from
suicide watch, Jennings was in the infirmary from 9:15 AM and 9:33 AM to speak with six
detainees.135 The CHJ infirmary log book states that during this time, “Social Worker David
Jennings speaks with Suicide Inmates backed by Deputy T. Wilkerson.”136 It further states that at
9:33 AM, Jennings took three of the detainees off suicide watch, including Evans.137 Additionally,
there is evidence in the record that Dr. Lo was only present for about an hour per week. Plaintiff’s
131 Id. at 4.
132 Rec. Doc. 126-8 at 198.
133 Id. at 190.
134 Rec. Doc. 126-10 at 8.
135 Rec. Doc. 127-22 at 14–15.
136 Id. at 14.
137 Id. at 15.
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expert elaborated on the staffing at JPCC as follows:
Unfortunately it would have been difficult for Lo to see Evans or anyone else more
frequently in 2017 because of his schedule. There were approximately 1000
inmates at JPCC and, based on the literature concerning the prevalence of seriously
ill inmates incarcerated in jails, one would have expected approximately 150
inmates to have been experiencing symptoms of a serious mental illness. . . . Lo’s
nurse testified during deposition that Lo was often present for only an hour a week,
and Lo’s time records for September 2017 show he was present an average of 1.44
hours (86.4 minutes) a week. With a schedule of perhaps 12 patients on a particular
day, 1.44 hours would have permitted less than 10 minutes per inmate. Thus there
was very little time available to conduct a thorough evaluation or follow-up with a
seriously ill inmate.138
Though the Court acknowledges that CHJ Defendants, in a different motion for summary
judgment, dispute the amount of time Dr. Lo spent with Evans, this merely creates a dispute of
material fact that the Court cannot resolve on a motion for summary judgment. Accordingly, there
are material facts in dispute precluding summary judgment on the negligence claim against CHJ.
C. Intentional Conduct
Lastly, CHJ Defendants moved for summary judgment on Plaintiffs’ claim in Count 8 for
“Intentional Conduct Resulting in Injury,” arguing that there is no evidence that CHJ Defendants
“acted intentionally or maliciously” in treating Evans.139 Plaintiffs’ do not respond to CHJ
Defendants’ argument as to this claim, and thus appear to concede that the claim should be
dismissed. Because it is the nonmoving party’s burden to “identify specific facts in the record and
articulate the precise manner in which that evidence establishes a genuine issue for trial,”140 and
138 Rec. Doc. 112-11.
139 Rec. Doc. 112-1 at 3.
140 Celotex Corp., 477 U.S. at 325; Ragas, 136 F.3d at 458.
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Plaintiffs have not made any attempt to do so as to this claim, the CHJ Defendants are entitled to
summary judgment on this claim.
V. Conclusion
Based on the foregoing, the Court grants the motion in part and denies the motion in part.
The Court grants the motion as to Plaintiffs’ negligence claim against David Jennings and Dr.
William Lo because Plaintiffs conceded that the negligence claims as to Jennings and Dr. Lo 1s
subsumed by the medical malpractice claim. The Court also grants the motion as to Plaintiffs’
claims based on intentional conduct because Plaintiffs have failed to identify any evidence that
CHJ Defendants acted intentionally. The Court denies the motion in all other respects because
there are disputes of fact regarding Plaintiffs’ claim for medical malpractice and Plaintiffs’
negligence claim against CHJ. Accordingly,
IT IS HEREBY ORDERED that CHJ Defendants’ “Motion for Summary Judgment On
Plaintiffs’ State Law Claims”! is GRANTED IN PART and DENIED IN PART. The motion
is GRANTED to the extent it seeks dismissal of Plaintiffs’ negligence claim against David
Jennings and Dr. William Lo and Plaintiffs’ claim for intentional conduct against CHJ Defendants.
The motion is DENIED in all other respects.
NEW ORLEANS, LOUISIANA, this 24thday of June, 2022.
NANNETT LIVETTE BROWN □□□□
CHIEF JUDGE
UNITED STATES DISTRICT COURT
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