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ALETA MILLET v. JOSHUA M. PALMINTIER, MONICA G. MOTON AND ABC INSURANCE COMPANY
Plaintiff-appellant, Aleta Millet (“Millet”), appeals the trial court's April 12, 2022 judgment, which granted the Motion for Summary Judgment on No Medical Expert filed by defendants-appellees, Joshua M. Palmintier (“Palmintier”) and Monica G. Moton (“Moton”), and dismissed Millet's legal malpractice claims with prejudice. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On March 10, 2014, Millet allegedly underwent an external levator resection performed by Kevin Kirchner, M.D. Millet asserts, immediately following the procedure, she began having complications including the inability to completely close her eyelids, and continues to have trouble closing her eyes, requiring eye drops throughout the day and resulting in loss of vision.
On or about March 9, 2015, Millet filed a complaint against Dr. Kirchner and his purported employer, Leader, Balkan & Hendricks, APMC, d/b/a New Orleans Eye Specialists (“New Orleans Eye Specialists”) with a Medical Review Panel (“MRP”). The MRP met on October 1, 2018, and rendered the following Opinion and Reasons, which were mailed on October 29, 2018:
The evidence does not support the conclusion that the defendants, ․ NEW ORLEANS EYE SPECIALISTS AND DR. KEVIN R. KIRCHNER, failed to meet the applicable standard of care as charged in the complaint.
1. Based upon the records provided, Dr. Kirchner properly evaluated the patient and performed the surgery within the standard of care.
2. Proper medications and follow-up care were appropriate.
3. The patient experienced a known outcome of eyelid surgery, i. e. [sic], dry eye and mild lagophthalmos. Dr. Kirchner properly advised the patient to heal prior to any additional procedures. The patient discontinued follow-up with Dr. Kirchner.
4. All staff at ․ New Orleans Eye Specialists performed their duties within the standard of care.
On January 4, 2019, Millet, through Palmintier and Moton, fax-filed 1 a petition for damages in the Twenty-Third Judicial District Court for the Parish of Ascension (“the Medical Malpractice Petition”), naming Dr. Kirchner, New Orleans Eye Specialists, and Ophthalmic Mutual Insurance Company as defendants (collectively “the Medical Defendants”) and alleging negligence including the failure to act with the required degree of care. The Medical Malpractice Petition alleged Millet was domiciled in Ascension Parish; Dr. Kirchner was domiciled and resided at 130 Metairie Court, Metairie, Louisiana 70001 in Jefferson Parish; New Orleans Eye Specialists was a domestic corporation having appointed Robert J. Balkan, M.D., 2504 Audubon Trace, Jefferson, Louisiana 70121, as its agent for service of process; and Ophthalmic Mutual Insurance Company was a foreign insurer having appointed the Louisiana Commissioner of Insurance as its agent for service of process. However, the Medical Malpractice Petition requested service on the Medical Defendants through their counsel of record, Rodney A. Seydel, Jr. Thereafter, via correspondence dated and fax-filed 2 March 19, 2019, Millet's counsel requested service on Dr. Kirchner at 130 Metairie Court, Metairie, Louisiana 70001 and on New Orleans Eye Specialists and Ophthalmic Mutual Insurance Company through their respective agents for service of process.
Millet alleged that the Medical Malpractice Petition was filed in an improper venue and the Medical Defendants were not served within the prescriptive period; therefore, she contends prescription was not interrupted, and her medical malpractice claim was dismissed as prescribed. Therefore, on January 3, 2020, Millet filed a petition for damages, naming Palmintier, Moton, and their liability insurer as defendants. Millet alleged causes of action for legal malpractice and fraud.
On February 8, 2022, Palmintier and Moton filed a Motion for Summary Judgment on Estoppel, a Motion for Summary Judgment on No Change in Position, a Motion for Summary Judgment on No Legal Expert, and pertinent herein, a Motion for Summary Judgment on No Medical Expert. In their Motion for Summary Judgment on No Medical Expert, they asserted Millet would not have won the underlying suit, where she had no medical expert to prove breach of the standard of care and causation in the medical malpractice action and, thus, could not establish causation for purposes of her legal malpractice claim. The following documents were filed with the Motion for Summary Judgment on No Medical Expert: a copy of the Legal Malpractice Petition and various attachments thereto including, but not limited to, the Medical Malpractice Petition and the March 19, 2019 correspondence requesting service; Palmintier's affidavit, attaching the MRP's Opinion and Reasons; and Plaintiffs Answers and Responses to the Defendants’ Interrogatories and Requests for Production in the legal malpractice proceeding, stating, in pertinent part, “[a]t this time, the Plaintiff has not determined what expert will be retained and in what field ․”
On March 18, 2022, Millet mailed a copy of Plaintiff's Memorandum in Opposition to Defendants’ Four (4) Motions for Summary Judgment to counsel for Palmintier and Moton. Millet argued therein that she has established a prima facie case of negligence against Palmintier and Moton, and the burden of proof shifted to them, regarding the success or failure of the underlying claim. She further asserted the evidence of her injuries is in her medical records, and the interpretation of her medical records does not require specialized medical knowledge, as her subsequent treating physicians allegedly stated her injuries resulted from the March 10, 2014 surgery. Millet argued this is a case of obvious negligence, and the medical records are sufficient for a lay person to infer negligence without expert testimony.
Palmintier and Moton replied that, even assuming a prima facie case of negligence against them exists, they have met their burden by producing expert evidence that Dr. Kirchner did not breach the standard of care or cause Millet's damages in the underlying medical malpractice action. They argued Millet's medical records do not constitute sufficient evidence to contradict the expert opinion of the MRP, because the records do not opine on a breach of the standard of care and a lay person cannot perceive negligence in the physician's conduct herein without expert testimony. Palmintier and Moton argue that Millet cannot meet her burden of proving the element of causation in her legal malpractice claim without an expert's opinion to support her underlying claim of medical malpractice.
The motions for summary judgment were heard on April 4, 2022. At the hearing, counsel for Palmintier and Moton introduced exhibits,3 and Millet's counsel introduced an affidavit of Millet with attachments including medical records. At the hearing, the trial court granted the Motion for Summary Judgment on No Medical Expert and noted the remaining summary judgment motions were moot. The trial court found Millet failed to retain a medical expert to demonstrate Dr. Kirchner or another healthcare provider breached the standard of care in order to prove causation in the legal malpractice case. The trial court further found there was no evidence to rebut the MRP's report, and the “chief physician's report” was insufficient.
On April 12, 2022, the trial court signed a judgment, ordering, in pertinent part, that “the ‘Motion for Summary Judgment on No Medical Expert’ filed on behalf of the Defendants, JOSHUA M. PALMINTIER and MONICA G, MOTON, is GRANTED, and the Plaintiffs legal malpractice claims are hereby dismissed with prejudice.”
The appellate record shows that, on April 14, 2022, Millet filed a copy of her previously mailed opposition memorandum. The appellate record, however, does not reflect that any attachments/exhibits were filed with her opposition into the record below.4
Millet appeals the trial court's April 12, 2022 judgment, assigning as error the trial court's granting of the Motion for Summary Judgment on No Medical Expert that dismissed her legal malpractice case. Millet asserts the trial court erred in relying solely on the MRP's report and erred in stating her treating physicians’ reports were insufficient to rebut the MRP's report. Millet argues she presented factual support sufficient to establish she will be able to satisfy her evidentiary burden at trial, where the reports of her treating physicians show there is a genuine issue of material fact between what the MRP read in merely reviewing her medical records as opposed to what her treating physicians found after examination and treatment of her.
On August 24, 2022, this court issued a Rule to Show Cause Order, noting from a review of the face of the April 12, 2022 judgment, it was not possible to
determine if the dismissal of the plaintiff's legal malpractice claim resolved thes entirety of her claims or if a La, Code Civ. P. art. 1915(B) designation was needed. This court ordered the parties to show cause by briefs whether the appeal should or should not be dismissed. In their respective briefs, the parties agreed the judgment was final, as it dismissed all of Millet's claims against Palmintier and Moton. However, this court determined the April 12, 2022 judgment required the consideration of extrinsic sources in order to determine whether it resolved all of the plaintiff's claims against the defendants; thus, an interim order was issued, on September 30, 2022, remanding the matter for the limited purpose of instructing the trial court to issue an amended judgment.
On October 13, 2022, the trial court signed an amended judgment, stating, in pertinent part, “the ‘Motion for Summary Judgment on No Medical Expert’ filed on behalf of the Defendants, JOSHUA M. PALMINTIER and MONICA G. MOTON, is hereby GRANTED, and all of Plaintiff ALTEA MILLET'S claims against the Defendants, JOSHUA M, PALMINTIER and MONICA G. MOTON, are hereby dismissed with prejudice.” We find the October 13, 2022 judgment is final and appealable, since it dismisses all of Millet's claims against the defendants, Palmintier and Moton, with prejudice. See La. Code Civ. P. art. 1915(A)(1) and (A)(3). Accordingly, we maintain the appeal.
SUMMARY JUDGMENT AND THE STANDARD OF REVIEW
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, p. 6 (La. 5/8/19), 282 So.3d 1034, 1038 (per curiam). After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. Code Civ. P. art. 966(A)(4). However, the court shall consider any documents filed in support of or in opposition to the motion for summary judgment to which no objection is made. See La. Code Civ. P. art. 966(D)(2).
The burden of proof on a motion for summary judgment rests with the mover. La. Code Civ. P. art. 966(D)(1). 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 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, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. Code Civ. P. art. 966(D)(1).
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, p. 7 (La. App. 1st 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 Health System, Inc., 2019-0577, p. 4 (La. App. 1st Cir. 2/21/20), 298 So.3d 191, 194, writ denied, 2020-00480 (La. 6/22/20), 297 So.3d 773. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, summary judgment is appropriate. Id. at 194-195. A fact is “material” when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Id. at 195. Simply put, a “material” fact is one that would matter at a trial on the merits. Id. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Id. 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. Bryant v. Premium Food Concepts, Inc., 2016-0770, p. 3 (La. App. 1st Cir. 4/26/17), 220 So.3d 79, 82, writ denied, 2017-0873 (La. 9/29/17), 227 So.3d 288.
To establish a claim for legal malpractice, a plaintiff must prove: (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney; and (3) loss caused by that negligence. Costello v. Hardy, 2003-1146, p. 9 (La. 1/21/04), 864 So.2d 129, 138. A plaintiff can have no greater rights against attorneys for the negligent handling of a claim than are available in the underlying claim. Id. at pp. 9-10, 864 So.2d at 138. Causation, of course, is an essential element of any tort claim. Jenkins v. St. Paul Fire & Marine Insurance Co., 422 So.2d 1109, 1110 (La. 1982). However, once the client has proved that his former attorney accepted employment and failed to assert the claim timely, then the client has established a prima facie case that the attorney's negligence caused him some loss, since it is unlikely the attorney would have agreed to handle a claim completely devoid of merit. Id. Once the plaintiff makes a prima facie case of malpractice, the burden of proof shifts to the defendant attorney, who bears the burden of proving that the client could not have succeeded on the original claim. See Prestage v. Clark, 97-0524, p. 9 (La. App 1st Cir. 12/28/98), 723 So.2d 1086, 1091 n. 9, writ denied, 99-0234 (La. 3/26/99), 739 So.2d 800. Accordingly, when the plaintiff proves that negligence on the part of his former attorney has caused the loss of the opportunity to assert a claim and thus establishes the inference of causation of damages resulting from the lost opportunity for recovery, an appellate court (viewing the evidence on the merits of the original claim in the light most favorable to the prevailing party in the trial court) must determine whether the negligent attorney met his burden of producing sufficient proof to overcome plaintiff s prima facie case. Jenkins, 422 So.2d at 1110.
The parties do not dispute an attorney-client relationship existed between them. Millet's responses to interrogatories reflect she signed a contingency contract in August 2014, regarding the injuries allegedly sustained as the result of Dr. Kirchner's negligence. Moreover, Palmintier and Moton admit they represented Millet in her lawsuit against the Medical Defendants, and they undisputedly filed the Medical Malpractice Petition.
It also appears the untimeliness of the Medical Malpractice Petition is conceded for purposes of the instant analysis. At the summary judgment hearing, counsel for Palmintier and Moton stated, “So for the purposes of this motion for summary judgment, the attorney negligence would be assumed so we don't need to address that aspect,” In this regard, Palmintier and Moton assert that, should a prima facie case of negligence against them exist, they met their burden by producing expert evidence that Dr. Kirchner did not breach the standard of care or cause Millet's damages in the underlying medical malpractice action. Accordingly, we pretermit discussion of the timelines of the Medical Malpractice Petition and, for purposes of the instant analysis, treat the burden of proof as having shifted to Palmintier and Moton to prove Millet could not have succeeded on the original claim. See Jenkins, 422 So.2d at 1110.
In a medical malpractice action against a physician, the plaintiff must establish by a preponderance of the evidence the applicable standard of care, a violation of that standard of care, and a causal connection between the alleged negligence and the plaintiff's injuries resulting therefrom. Guardia v. Lakeview Regional Medical Center, 2008-1369, p. 4 (La. App. 1st Cir. 5/8/09), 13 So.3d 625, 628; see also La. R.S. 9:2794(A). Expert testimony generally is 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. Schultz v. Guoth, 2010-0343, p. 7 (La. 1/19/11), 57 So.3d 1002, 1006-1007. Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body, from which a lay person can infer negligence. Pfiffner v. Correa, 94-0924, p. 9 (La. 10/17/94), 643 So.2d 1228, 1233. Failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary are also examples of obvious negligence which require no expert testimony to demonstrate the physician's fault. Id. at 1234. Likewise, where the defendant/physician testifies as to the standard of care and his breach thereof, expert testimony is also unnecessary to establish a malpractice claim. Id.
The basis for the Motion for Summary Judgment on No Medical Expert is that Millet would have been unsuccessful on her underlying medical malpractice suit, where she has no expert to establish a breach of the standard of care by Dr. Kirchner and the MRP opinion establishes Dr. Kirchner did not breach the standard of care. Attached to the motion for summary judgment were the MRP Opinion and Reasons as well as Millet's interrogatory responses, stating she has not determined what expert would be retained and in what field.
On appeal, Millet argues the trial court failed to accord the medical records of her treating physicians greater weight and probative value than the decision of the MRP, and her medical records create a genuine issue of material fact herein. Additionally, she asserts interpretation of her medical records does not require specialized medical knowledge, and a lay jury can perceive the negligence herein.5
The MRP has the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. See _La. R.S. 40:1231.8(G). Any report of the expert opinion reached by the MRP shall be admissible as evidence in any action subsequently brought by the claimant in a court of law. See La. R.S. 40:1231.8(H). The MRP Opinion and Reasons herein state “[t]he evidence does not support the conclusion that the defendants, ․ NEW ORLEANS EYE SPECIALISTS AND DR. KEVIN R. KIRCHNER, failed to meet the applicable standard of care as charged in the complaint.” The MRP further noted: “․ Dr. Kirchner properly evaluated the patient and performed the surgery within the standard of care”; “[p]roper medications and follow-up care were appropriate”; “[t]he patient experienced a known outcome of eyelid surgery, i. e. [sic], dry eye and mild lagophthalmos”; “Dr. Kirchner properly advised the patient to heal prior to any additional procedures”; “[t]he patient discontinued follow-up with Dr. Kirchner”; and “[a]ll staff at ․ New Orleans Eye Specialists performed their duties within the standard of care.” Breach of the standard of care is an essential element of a medical malpractice action. See e.g. Jones v. Baton Rouge General Medical Center-Bluebonnet, 2020-1250, p. 5 (La. App. 1st Cir. 6/4/21), 327 So.3d 512, 516; see also La. R.S. 9:2894(A). Thus, we find Millet could not have succeeded on her underlying medical malpractice claim without establishing a breach of the standard of care. Accordingly, when faced with the MRP opinion attached to Palmintier's and Moton's Motion for Summary Judgment on No Medical Expert, Millet was required to produce factual support sufficient to establish the existence of a genuine issue of material fact regarding a breach of the standard of care that caused her alleged injuries. See La. Code Civ. P. art. 966(D)(1).
Pointing to various medical records, Millet argues a genuine issue of material fact exists, and no expert testimony is required, as her subsequent treating physicians noted her eye condition resulted from the March 10, 2014 procedure. However, as outlined above, the appellate record does not reflect any medical records were filed with the opposition, and they cannot be considered herein.6 See La. Code Civ. P. art. 966(D)(2). Accordingly, we find Millet has not produced factual support sufficient to establish the existence of a genuine issue of material fact as to whether or not Dr. Kirchner breached the standard of care. Additionally, contrary to Millet's assertions, we find the instant case is not one of obvious negligence where a lay person can infer negligence without expert guidance, as Dr. Kirchner has not testified as to the standard of care and his breach thereof and, per the MRP, dry eye and mild lagophthalmos are known outcomes of eyelid surgery.7
After a thorough review of the record, we conclude that the circumstances of this case do not fall within the category of exceptions to the general rule requiring expert medical testimony to establish breach of the standard of care. Thus, under the circumstances presented herein, Millet was required to come forward with medical expert testimony sufficient to establish the existence of a genuine issue of material fact regarding a breach of the standard of care that caused her alleged injuries. She failed to do so. The unrebutted opinion of the MRP was that the evidence did not support the conclusion that Dr. Kirchner or New Orleans Eye Specialists breached the standard of care. Accordingly, we find Palmintier and Moton have established Millet could not have succeeded on the original medical malpractice claim, and summary judgment was proper herein.
For the reasons set forth herein, the appeal is maintained, and the trial court's October 13, 2022 amended judgment, which granted the Motion for Summary Judgment on No Medical Expert filed by defendants-appellees, Joshua M. Palmintier and Monica G. Moton, and dismissed all of the claims of plaintiff-appellant, Aleta Millet, against defendants-appellees, Joshua M. Palmintier and Monica G. Moton, with prejudice, is affirmed. Costs of this appeal are assessed against plaintiff-appellant, Aleta Millet.
APPEAL MAINTAINED; AFFIRMED.
1. “Within seven days, exclusive of legal holidays, after the clerk of court receives the facsimile filing, all of the following shall be delivered to the clerk of court: ․ [t]he original document․”, [t]he fees for the facsimile filing and filing of the original document and “[a] transmission fee of five dollars.” See La. R.S. 13:850(B). A fax-filed document is only vested with force and effect if each requirement of La. R.S. 13:850(B) is met. Thurman v. Aguilar, 2021-1513, p. 6 (La. App. 1st Cir. 6/22/22), 343 So.3d 806, 813, writ denied, 2022-01109 (La. 11/1/22), 349 So.3d 8. Based on the summary judgment evidence, we cannot confirm whether the requirements of La. R.S. 13:850(B) were met.
2. See footnote 1, supra.
3. Nevertheless, the appellate record reflects Palmintier's and Moton's exhibits had already been filed with their Motion for Summary Judgment on No Medical Expert.
4. Under current summary judgment law, as enacted by 2015 La. Acts, No. 422, § 1, effective January 1, 2016, parties may not introduce summary judgment evidence at the hearing. Huggins v. Amtrust Insurance Co. of Kansas, Inc., 2020-0516, p. 5 (La. App. 1st Cir. 12/30/20), 319 So.3d 362, 366, n. 1; see also La. Code Civ. P. art. 966(A)(4) and (D)(2). Only documents actually filed in support of or in opposition to the motion for summary judgment may be considered by the trial court on a motion for summary judgment. See Tillman v. Nationwide Mutual Insurance Co., 2020-0250, p. 7 (La. App. 1st Cir. 2/22/21), 321 So.3d 1017, 1022, n. 5, writ denied, 2021-00429 (La. 5/25/21), 316 So.3d 446, Where the appellate record does not reflect any evidence was filed with Millet's opposition, it does not appear that Millet properly filed evidence in opposition to the Motion for Summary Judgment on No Medical Expert. Accordingly, on our review, we only considered the evidence that was attached in support of or in opposition to the motion. Id. However, as outlined herein, even if we were to consider Millet's opposition evidence, we find summary judgment still would be proper. See footnotes 6 and 7, infra.
5. Millet newly argues that the MRP exceeded its statutory authority due to an impermissible credibility determination; however, this issue was not raised below, and appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. See Sagona v. Sagona, 2021-0872, p. 3 (La. App. 1st Cir. 4/8/22), 341 So.3d 839, 841. Nevertheless, we find the MRP herein expressed its expert opinion that “[t]he evidence does not support the conclusion that the defendants ․ failed to meet the applicable standard of care as charged in the complaint,” See La. R.S. 40:1231.8(G). No summary judgment evidence reflects the MRP discredited any particular evidence submitted by Millet. Contra McGlothlin v. Christus St. Patrick Hospital, 2010-2775, pp. 13-14 (La. 7/1/11), 65 So.3d 1218, 1229 (by discrediting plaintiffs' evidence and relying strictly upon the medical records, the panel impermissibly rendered an opinion based on its resolution of an issue clearly and explicitly reserved to the jury).Millet also argues appellees violated Rule 2-12.5, Uniform Rules of Louisiana Courts of Appeal, as they “appear to be attempting to meet the requirement to negate all essential elements of the appellant's claim that they did not do before by making a new argument regarding the establishment of damages that was not raised in the appellant's error assignments.” (Internal footnote omitted.). However, we find no violation of Rule 2-12.5, where appellees’ argument, in this regard, was raised in the trial court and is responsive to appellant's assignments of error.
6. However, even if we were able to consider the medical records as excerpted in Millet's briefs and introduced into evidence at the summary judgment hearing, none opine that Dr. Kircher breached the standard of care. Thus, they would not create a genuine issue of material fact as to whether or not Dr. Kirchner breached the standard of care.
7. Additionally, if Millet's medical records could be considered, they note a prior medical history including, but not limited to, “Lasik OS,” “[d]ry eye OU,” “[p]unctal plugs OU,” and “BLL blepharoplasty >10 years ago and coronal forehead lift in Baton Rouge 2004.” Normally, in cases involving a patient with a complicated medical history and complex medical conditions, breach of the standard of care and causation are simply beyond the province of a lay person to assess without the assistance of expert medical testimony. Jones, p. 7, 327 So.3d at 517.
Response sent, thank you
Docket No: NO. 2022 CA 0822
Decided: December 22, 2022
Court: Court of Appeal of Louisiana, First Circuit.
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