The opinion
RAYMOND A. CRAWFORD AND ALICE CRAWFORD
VERSUS
WILLIAM KARL ORDOYNE, JR., M.D. AND LALLIE KEMP
REGIONAL MEDICAL CENTER, THROUGH THE STATE OF
LOUISIANA, LSU HEALTH CARE SERVICE DIVISION
Judgment Rendered: MAR 2 0 2025
MEMEW
On Appeal from the
2 1 st Judicial District Court
Parish of Tangair)a St te-_
161fT
The Honorable Charlotte H. Foster, Judge Presiding
Joseph R. Ward, Jr.
Attorney for Plaintiffs -Appellants,
Covington, Louisiana
Raymond A. Crawford and Alice
Crawford
Liz Murrill
Attorneys for Defendants -Appellees,
Attorney General William Karl Ordoyne, Jr., M.D. and
Bryan J. Knight
Lallie Kemp Regional Medical Center,
Mark E. Kaufman
through the State of Louisiana, LSU
Special Assistant Attorneys General Health Care Services Division
New Orleans, LA
BEFORE.-
WOLFE, MILLER, AND GREENE, Ji.
azollm
Plaintiffs/appellants, Raymond A. Crawford (" Mr. Crawford") and Alice
Crawford ( collectively, " plaintiffs"),
appeal from a judgment of the trial court
granting both a motion in limine and a motion for summary judgment in favor of
defendants/ appellees, William Karl Ordoyne, Jr., M.D. (" Dr. Ordoyne") and Lathe
Kemp Regional Medical Center, through the State of Louisiana, LSU Health Care
Services Division (" Lallie Kemp") (
collectively, " defendants"), thereby dismissing
plaintiffs' claims against defendants with prejudice.
For the following reasons, we
reverse.
L41191 Itall of If Q
On June 13, 2012, Mr. Crawford underwent a laparoscopic left inguinal hernia
repair performed by Dr. Ordoyne at Lallie Kemp. During the surgery, Dr. Ordoyne
used mesh which he attempted to " tack" into the appropriate anatomical structures
within Mr. Crawford' s body. Immediately following the procedure, Mr. Crawford
experienced " extreme and constant pain"
in his left lower abdomen and scrotum, as
well as rectal bleeding, but was assured by Dr. Ordoyne that this was expected and
would resolve in time.
After several months of continued pain, and following
subsequent consultations with other physicians, Mr. Crawford returned to Dr.
Ordoyne, who advised Mr. Crawford that the surgical tacks used in the June 13, 2012
procedure were recommended to him by Lathe Kemp and that he would not have
otherwise used them.
Dr. Ordoyne performed a second laparoscopic inguinal hernia
repair on October 26, 2012, during which the (alleged inappropriately placed) tacks
used in the June 13,
2012 surgery were replaced and a new mesh was cut and
implanted.
Subsequently, on December 23, 2013, Mr. Crawford underwent a third
surgery, performed by a surgeon other than Dr. Ordoyne, during which the initial
mesh implanted by Dr. Ordoyne was removed, as well as additional tacks from both
surgeries.
It was noted at the time that the mesh was attached to the abdominal wall
2
and that a " large ball of mesh with
an associated area of inflammation" was found
and removed.
As a result of the pain experienced by Mr. Crawford, plaintiffs timely
requested that a medical review panel be convened to review their claims of
negligence against Dr. Ordoyne in his failure to properly perform the June 13, 2012
surgery and negligence against Lallie Kemp by recommending the use of improper
surgical tacks to Dr. Ordoyne. A medical review panel was selected, and an attorney
chairperson was appointed, but the panel expired by operation of law on February 7,
2015, without the panel considering evidence or issuing an opinion. On April 13,
2015, plaintiffs filed the instant medical malpractice suit, alleging that Dr. Ordoyne
breached the standard of care during the June 13,
2012 surgery by improperly
tacking mesh to inappropriate anatomical structures.' Plaintiffs further alleged that
Lallie Kemp, Dr. Ordoyne' s employer at the time, failed to supervise Dr. Ordoyne
and was vicariously liable for his negligence. Plaintiffs alleged that Mr. Crawford
experienced significant pain immediately following the surgery and has undergone
numerous surgeries, including the subsequent removal of one of his testicles, all of
which have been unsuccessful in relieving his pain.'
In support of their claims, plaintiffs retained Dr. Everett J. Bonner, Jr. (" Dr.
Bonner") as an expert.
Dr. Bonner reviewed Mr. Crawford' s medical records from
The one- year suspension of the running of prescription concerning a qualified health care
provider shall cease ninety days after the notification to all parties, by certified mail, from the
attorney chairman
40: 1231. 8( B)( 3).
the board regarding the dissolution ofthe medical review panel. See La. R.S.
2
Plaintiffs also alleged that Dr. Ordoyne failed to obtain informed consent from Mr. Crawford
prior to the June 13, 2012 surgery. However, plaintiffs' informed consent claims were dismissed
without prejudice by this court when it granted a writ application filed by Dr. Ordoyne and Lallie
Kemp and granted their exception ofprematurity based on the fact that the informed consent claims
were not submitted to the medical review panel. Raymond A. Crawford and Alice Crawford
vs. William Karl Ordoyne, Jr., M.D. and Lallie Kemp Regional Medical Center, through the
State of Louisiana, LSU Health Care Service Division, 2015- 1947 ( La. App. 1st Cir. 4/5/ 16)
unpublished writ action).
Plaintiffs also asserted medical malpractice claims against Dr. Ordoyne
in relation to the October 26, 2012 surgery he performed on Mr. Crawford. However, those claims
were dismissed pursuant to an April 29, 2020 consent judgment that granted a motion for partial
summary judgment filed by Dr. Ordoyne.
U
Lallie Kemp, St. Tammany Parish Hospital, and University Medical Center;
reviewed the deposition ofDr. Ordoyne; and conducted an independent examination
of Mr. Crawford. On July 28, 2022, Dr. Bonner issued a report and affidavit
regarding his findings, stating, "[ t]he surgery performed [ on June 13, 2012] appears
to have also fallen below the standard of care. Surgical tacks were placed too
laterally causing injury to the nerves in this region. This is a direct cause of [Mr.
Crawford' s] chronic pain and subsequent surgeries to include the removal ofhis left
testicle."
Citing a lecture given by a physician at the University of Wisconsin, Dr.
Bonner further opined that " Mr.
Crawford' s tacks were placed in the wrong
anatomical location.
This is supported by office notes, operative notes[,] and CT
scan of the abdomen." Dr. Bonner concluded, " Mr. Crawford' s chronic pain and
disability are a direct result from his initial hernia repair performed by Dr. Ordoyne
and multiple subsequent inguinal surgeries and orchiectomy. There is data to
support not using tacks for the laparoscopic
procedure especially laterally. The
lateral tack is known to cause nerve injury/pain.
It is my clinical opinion that this
was the causation for his initial complaints of severe pain."
In opposition to Dr. Bonner, defendants retained Dr. Karl LeBlanc (" Dr.
LeBlanc"),
who, in an affidavit dated January 11, 2024, likewise stated he reviewed
Mr. Crawford' s medical records and imaging studies from Lallie Kemp, University
Medical Center, St. Tammany Parish Hospital, as well as from Ochsner North Shore.
Dr. LeBlanc opined that "
the imaging studies, particularly the CT scans referenced
above, clearly show that all tacks used by Dr. Ordoyne were placed in the correct
anatomic location.
More specifically, there are no tacks inferior to the inguinal
ligament, no tacks inferior to the ileopubic tract, no tacks in the ' triangle of pain,'
and no tacks that are placed too far ' laterally."' Further, Dr. LeBlanc stated it was
his opinion "
that the imaging studies, particularly the CT scans referenced above,
clearly show that the tacks placed by Dr. Ordoyne during Mr. Crawford' s June 13,
1fl
2012 surgery were placed appropriately, in the correct anatomic location,, and well
within the standard of care."
Additionally, in opposition to Dr. Bonner, Dr. Ordoyne also signed an
affidavit on January 10, 2024, stating he is board certified in general surgery, and
that he performed " hundreds, likely over a thousand, inguinal hernia repair surgeries
over the course of [his] career." After reviewing Mr. Crawford' s medical records
from Lallie Kemp, University Medical Center, Ochsner North Shore, and St.
Tammany Parish Hospital, Dr. Ordoyne opined that the tacks he placed during Mr.
Crawford' s June 13, 2012 surgery were visible in CT scans performed at the above-
mentioned medical providers and that they are in the correct anatomic location. Dr.
Ordoyne concluded, "[ t] he CT scans [. ..]
clearly show that the tacks I placed during
Mr. Crawford' s June 13, 2012 surgery were placed within the standard of care and
in the correct anatomic location."
Dr. Bonner was deposed on December 11, 2023, and was specifically asked
about the tack placement by defendants' counsel. Dr. Bonner confirmed that
metallic, surgical tacks would be visible on a CT scan but admitted that he did not
review any ofMr. Crawford' s actual radiology scans, only the reports. Nevertheless,
after a review of Mr. Crawford' s symptoms, the medical records presented to him,
and an independent medical examination, Dr. Bonner ultimately testified that the
cause of Mr. Crawford' s pain and numerous follow-up procedures was due to a
surgical tack being placed too far laterally within Mr. Crawford' s body, and which
was placed within the " triangle of pain."
5
On January 12, 2024,
defendants filed a motion in limine pursuant to
Louisiana Code of Civil Procedure article 1425( F)',
seeking a prohibition on any
testimony or opinions which may be provided by Dr. Bonner. Pertinent herein,
defendants challenged Dr. Bonner' s methodology, arguing:
As to tack placement, Dr. Bonner' s only substantive opinion is that a
surgical tack used by Dr. Ordoyne in the June 13, 2012 surgery was
placed too far laterally in the ' triangle of pain.' Dr. Bonner
acknowledges that Mr. Crawford' s CT scan and imaging studies would
show whether there actually were tacks within the triangle of pain.
However, Dr. Bonner has never looked at the imaging to see where the
tacks are located.
Defendants continued, contending: " Dr.
Bonner' s supposition as to where Dr.
Ordoyne placed surgical tacks, particularly in light of CT imaging that Dr. Bonner
has never reviewed and unrefuted expert testimony confirming that the CT imaging
does not show what Dr. Bonner assumes it would, is nothing short of conjecture and
must be excluded." The same day, defendants contemporaneously filed a motion
for summary judgment, adopting the arguments presented in their motion in limine,
and claiming that if such motion is granted, " plaintiffs will not have the expert
testimony necessary to meet their burden of proof."
Defendants' motion for summary judgment and motion in limine was heard
on February 14, 2024. Concerning defendants'
motion in limine regarding Dr.
Bonner' s affidavit, the trial court stated as follows:
Okay. Look, I got —I' ve looked at this and I' ve thought about this and
so I' m granting the Daubert [ motion]. I mean, I don' t —how in the
world did Dr. Bonner —and he qualified his opinion
saying, ' Well, if
the CT shows this and this, and the CT shows this and this,' and he' s
never looked at the CT, I don' t think his testimony is based on sufficient
facts and data. So I' m granting the Daubers [ motion], not talking about
Dr. Bonner' s qualifications at all, but there' s critical information out
Louisiana Code of Civil Procedure article 966( D)( 3) provides that, "[
ilf a timely objection is
made to an expert' s qualifications or methodologies in support of or in opposition to a motion for
summary judgment, any motion in accordance with Article 1425(F) to determine whether the
expert is qualified or the expert' s methodologies are reliable shall be filed, heard, and decided prior
to the hearing on the motion for summary judgment,"
371, § Additionally, prior to La. Acts 2024, No.
1, La. Code Civ. P. art. 1425(F)( 1) provided, in pertinent part, that " falny part may file a
motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the
methodologies
Louisiana Code employed by such witness are reliable under Article 702 through 705 of the
of Evidence."
on
there that' s never been provided to him and he already qualified his
opinion based on what the CT scans might show.
So I' m granting the
Daubert [motion].
Thereafter, the trial court also granted defendants' motion for summary judgment,
stating: "[
U]nfortunately, you now no longer have an expert opinion to offer in
support of this. This is not a situation where a layperson can testify.
You' re going
to have to have medical testimony." On February 21, 2024, the trial court signed a
judgment granting defendants' motion to strike Dr.
Bonner' s testimony, and
specifically prohibited plaintiffs from offering "the testimony of [Dr. Bonner] in any
form in this matter."
The judgment further granted defendants' motion for summary
judgment, dismissing all of plaintiffs' claims against them with prejudice. Plaintiffs
now appeal, assigning error to the trial court' s exclusion of the affidavit of Dr.
Bonner and the granting of summary judgment in favor of defendants despite the
existence of genuine issues of material fact.
RE=
REMMZE=
A motion for summary judgment is a procedural device used when there is no
genuine issue of material fact for all or part of the relief prayed for by a litigant.
Murphy v. Savannah, 2018- 0991 ( La. 5/ 8/ 19), 282 So.3d 1034, 1038. After an
opportunity for adequate discovery, a motion for summary judgment shall be granted
if the motion, memorandum, and supporting documents show there is no genuine
issue of material fact and that the mover is entitled to judgment as a matter of law.
La. Code Civ. P. art. 966( A)(3);
Campbell v. Dolgencorp, LLC, 2019- 0036 ( La.
App. 1st Cir. 1/ 9/ 20), 294 So. 3d 522, 526.
The burden ofproof on a motion for summary judgment rests with the mover.
La. Code Civ. P. art. 966( D)( 1).- Lucas v. Maison Insurance Co.,
2021- 1401 ( La.
App. I st Cir. 12/ 22/22), 358 So. 3d 76, 84.
Nevertheless, if the mover will not bear
the burden of proof at trial on the issue that is before the court on the motion for
VA
summary judgment, the mover' s burden on the motion does not require him to negate
all essential elements of the adverse party' s claim, action, or defense. Instead, after
meeting his initial burden of showing that there are no genuine issues of material
fact, the mover may point out to the court that there is an absence of factual support
for one or more elements essential to the adverse party' s claim, action, or defense.
Thereafter, summary judgment shall be granted unless the adverse party can produce
factual evidence sufficient to establish the existence of a genuine issue of material
fact or that the mover is not entitled to judgment as a matter of law.
See La. Code
Civ. P. art. 966( D)( 1); Lucas, 358 So.3d at 84.
Appellate courts review evidence de novo, under the same criteria that govern
the trial court' s determination of whether summary judgment is appropriate. Leet
v. Hospital Service District No. 1 of East Baton Rouge Parish, 2018- 1148 ( La.
App. Ist Cir. 2/ 28/ 19), 274 So. 3d 583, 587.
In ruling on a motion for summary
judgment, the court' s role is not to evaluate the weight of the evidence or to make a
credibility determination, but instead to determine whether or not there is a genuine
issue of material fact.
Collins v. Franciscan Missionaries of Our Lady of the
Lake Health System, Inc.,
2019-0577 ( La. App. 1st Cir. 2/21/ 20, 298 So3d 191,
194, writ denied, 2020-00480 ( La. 6/ 22/ 20), 297 So. 3d 773. Because it is the
applicable substantive law that determines materiality, whether a particular fact in
dispute is material can be seen only in light of the substantive law applicable to the
case. Chapman v. Haynes, 2022-0288 (La. App. I st Cir. 9/ 16/ 22), 352 So3d 1023,
1027.
Medical Malpractice
To establish a claim for medical malpractice,
a plaintiff must prove the
following by a preponderance of the evidence: ( 1) the standard of care applicable to
the defendant; (
2) the defendant breached that standard of care; and ( 3) there was a
causal connection between the breach and the resulting injury. See La. R.S.
1.1
9: 2794( A); Schultz v. Guoth, 2010- 0343 ( La. 1/ 19/ 11),
57 So. 3d 1002, 1006. In
motions for summary judgment in the context of medical malpractice, the burden of
proof does not require that the medical care provider disprove medical malpractice,
but only that the medical care provider raise as the basis of its motion that the
plaintiff cannot support his burden of proof at trial to demonstrate medical
malpractice.
See Samaha v. Rau, 2007- 1726 ( La. 2/ 26/08), 977 So. 2d 880, 887-
88; Methvien v. Our Lady of the Lake Hospital, 2022- 0398 ( La. App. 1st Cir.
11/ 4/22), 354 So. 3d 720, 723- 24.
Once the medical care provider has made a prima
facie showing that the motion should be granted, then the burden shifts to the
plaintiff to produce factual support sufficient to establish the existence of a genuine
issue ofmaterial fact or that the mover is not entitled to judgment as a matter of law.
See La. Code Civ. P. art. 966( D)( 1); Samaha, 977 So.2d at 887- 88.
It is well established that to meet the burden ofproofin a medical malpractice
action, the plaintiff generally is required to produce expert medical testimony. 4
Methvien, 354 So.3d at 724.
The jurisprudence has held that this requirement of
producing expert medical testimony is especially necessary when the defendant has
filed a motion for summary judgment and supported such motion with expert opinion
evidence that the treatment met the applicable standard of care. Boudreaux v. Mid -
Continent Casualty Company, 2005- 2453 ( La. App. 1st Cir. 11/ 3/ 06), 950 So. 2d
839, 844, writ denied, 2006- 2775 ( La. 1/ 26/ 07), 948 So. 2d 171. In the context of a
motion for summary judgment, such evidence may suffice to constitute aprimafacie
case that no issues of material fact exist.
See In re Medical Review Complaint by
Downing, 2021- 0698 ( La. App. 4th Cir. 5/ 26/ 22), 341 So. 3d 863, 870; Methvien,
354 So. 3d at 724.
4
Notably, thejurisprudence recognizes limited exceptions to the requirement ofexpert testimony
incanthose
inferinstances wherePfiffner
negligence. the claim arises out ofan "obviously careless act" from which a lay person
v. Correa, 94- 0924 ( La. 10/ 17/ 94),
643 5o.2d 1228, 1233- 34.
M
On appeal,
plaintiffs contend that the trial court erred in sustaining
defendants' motion to limine, thus prohibiting Dr. Bonner from offering an expert
opinion to support to plaintiffs' claims.
Any challenge to the qualifications or
methodology of the plaintiffs' expert should be filed in a pre-trial motion in
accordance with La. Code Civ. P. art. 1425( F). Louisiana Code of Civil Procedure
article 1425(F) sets out in detail the procedure which should be followed in order to
challenge the qualifications of an expert or the methodology used by the expert in
reaching his opinion. Adolph v. Lighthouse Property Insurance Corporation,
2016- 1275 ( La. App. 1st Cir. 9/ 8/ 17), 227
o.3d 316, 320; see also Dauhert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S -Ct. 2786, 125 L.Ed.2d
469( 1993).
The admissibility of expert testimony is governed by La. Code Evid. art. 7425,
which pertinently provided:
A. A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if,
I) The expert' s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine at fact in issue;
2) The testimony is based on sufficient facts or data;
3) The testimony is the product of reliable principles and
methods; and
4) The expert has reliably applied the principles and methods
the facts of the case. I
Article 702 creates a five -element test to determine the admissibility of expert
testimony.
The first element requires the expert witness to be qualified as an expert
by knowledge, skill, experience, training, or education.
Failure of the witness to
qualify as an expert pursuant to the introductory paragraph of Article 702( A) or
5 Prior to La. Acts 2024, No. 88, § 1.
ME
failure ofthe testimony to meet any ofthe indicia ofreliability or relevancy set forth
in Article 702( A)( 1) through ( A)(4)
will render the testimony inadmissible.
Williams V. State Farm Mutual Automobile Insurance Company, 2020- 0787
La. App. 1st Cir. 3/ 11/ 21), 322 So. 3d 795, 798, citing, Blair v. Coney, 2019- 00795
La. 4/ 3/ 20), 340 So. 3d 775, 779.
It is well-established that the trial court is afforded wide discretion in
determining whether expert testimony should be admitted and who should or should
not be permitted to testify as an expert. The trial court performs the important
gatekeeping role of ensuring that any and all scientific testimony or evidence
admitted is not only relevant, but reliable. In reviewing the trial court' s
determination, this court must be cautious not to substitute its own factual finding
just because it may have decided the matter differently. Williams, 322 o. 3d at 798.
Although we note the deference afforded to the trial court, we nevertheless
find the trial court abused its discretion in excluding the expert opinion offered by
Dr. Bonner at this stage of the litigation.
While defendants argue that Dr. Bonner' s
testimony should be disregarded and inadmissible due to his failure to personally
review the actual CT radiology scans, we disagree. Dr. Bonner' s affidavit clearly
states that his opinions were formulated after reviewing the medical records
presented to him, which include the CT reports at issue, Dr. Ordoyne' s deposition,
as well as a personal examination of Mr. Crawford. Further, Dr. Bonner testified in
his deposition that he "
was not provided any imaging, just reports." Moreover, there
appears to be discrepancies on the dates of the CT scans reviewed by and attached
to Dr. Ordoyne' s and Dr. LeBlanc' s affidavits,
and a general lack of clear
identification on the CT scans provided by defendants.
Specifically, it is not clear
which scans correspond to which of Mr. Crawford' s three hernia repair surgeries.
Thus, the evidentiary value of the scans themselves is questionable.
11
Defendants do not attack Dr. Bonner' s qualifications, only his methodology
on the sole issue of his failure to review Mr. Crawford' s actual CT scans, and they
will have the opportunity at trial to attack Dr. Bonner' s opinions through " vigorous
cross- examination, presentation of contrary evidence, and careful instruction on the
burden of proof.[]" Blair, 340 So. 3d at 781. We further note that to exclude
plaintiffs'
expert at the summary judgment stage would improperly usurp the
function of the factfinder at trial, which is to weigh the evidence and expert opinions
in order to determine whether the plaintiffs have met their burden of proof. See
Carpenter v. Thomas, 2022- 0872 (La. App. 1st Cir. 3/ 13/ 23), 362 So3d 977, 985.
Accordingly, we find the trial court abused its discretion in granting the defendants'
motion in limine and thereby excluding Dr. Bonner' s testimony.
Analysis after De Novo Review
Considering our determination that the trial court abused its discretion in
excluding the expert affidavit and testimony of Dr. Bonner, and considering Dr.
Bonner' s affidavit on our de novo review, we find that plaintiffs met their burden of
producing factual support sufficient to establish the existence of a genuine issue of
material fact.
We further find that there are genuine issues of material fact as to
whether Dr. Ordoy-ne' s actions fell below the appropriate standard of care in placing
surgical tacks within Mr. Crawford' s body during the June 13, 2.012 laparoscopic
left inguinal hernia repair.
The evidence submitted by plaintiffs in opposition to
defendants' motion for summary judgment thus creates a genuine issue of material
fact precluding summary judgment.
For the above and foregoing reasons, we reverse the trial court' s February 21,
2024 judgment, which granted William Karl Ordoyne,, Jr.,
M.D. and Lallie Kemp
Regional Medical Center, through the State ofLouisiana, LSU Health Care Services
Division' s motion in limine and motion for summary judgment,
and thereby
12
dismissed all of Raymond A. Crawford and Alice Crawford' s claims against the
defendants with prejudice. Costs of this appeal are assessed to William Karl
Ordoyne, Jr.,
M.D. and Lallie Kemp Regional Medical Center, through the State of
Louisiana, LSU Health Care Services Division.
13