SAMUELS v. DOCTORS HOSPITAL, INC.

INGRAHAM, Circuit Judge:

Appellant J. D. Samuels, Jr. brought this diversity action for medical malpractice against Dr. Warren D. Long, Dr. Heinz K. Faludi, and Doctors Hospital, Inc., and their respective insurers, St. Paul Fire & Marine Insurance Company (St. Paul), Hartford Fire Insurance Company (Hartford) and Insurance Company of North America (INA).1 The district court granted the identical motions for summary judgment presented by St. Paul, Hartford and Dr. Faludi, on the ground that the opposing deposition testimony of Mr. Samuels' non-resident medical expert witnesses was inadmissible at trial under the Louisiana locality rule and thus insufficient to establish a genuine issue of material fact under Fed.R.Civ.P. 56(e).2 Subsequent to the district court's entry of judgment and pending this appeal, the Louisiana Supreme Court abrogated the locality rule for medical specialists. Ardoin v. Hartford Accident & Indemnity Co., La., 360 So.2d 1331 (1978). The question presented by this appeal is whether Ardoin applies retroactively in a diversity case, so as to render admissible and competent the deposition testimony offered by Mr. Samuels. We hold that the abolition of Louisiana's locality rule is retroactive in diversity cases, reverse the district court's entry of summary judgment and remand for trial.

Mr. Samuels entered Doctors Hospital in Shreveport, Louisiana, on January 27, 1974, for a routine3 laminectomy. Dr. Warren D. Long, a neurosurgeon, performed the surgery on January 28. Three days later, on January 31, Dr. Long left Mr. Samuels in the care of his colleague, Dr. Heinz K. Faludi, so that he could fulfill a prior commitment to deliver a lecture at Vanderbilt University.

While under the care of Dr. Faludi, Mr. Samuels developed a fever and numbness in his legs. When Long returned on February 3, he performed emergency surgery to treat an epidural tissue abscess. The surgery was unsuccessful. Mr. Samuels is now a permanent paraplegic with brain damage.

On January 28, 1975, Mr. Samuels filed suit against the two neurosurgeons and the hospital and their respective insurers. He alleges that Dr. Long and Doctors Hospital were negligent in failing to insure that the operation was conducted in a sterile environment and that Dr. Faludi was negligent in failing to timely detect the onset of a staph infection.

Pursuant to a joint stipulation, the district court entered an order of dismissal of the complaint against the physicians personally. Doctors Hospital and its insurer, INA, then filed cross-claims against St. Paul, Hartford and Dr. Faludi.

When it was discovered that Mr. Samuels intended to rely upon the testimony of two non-resident neurosurgeons who had never been licensed to practice in Louisiana, Dr. Gerald F. Winkler and Dr. James G. Wepsic,4 St. Paul, Hartford and Dr. Faludi filed a motion for a protective order to exclude their testimony, in view of Louisiana's adherence to the locality rule in medical malpractice cases. The district court issued a memorandum ruling granting the protective order on June 23, 1976. Samuels v. Doctors Hospital, 414 F.Supp. 1124 (W.D.La.,1976).

St. Paul, Hartford and Dr. Faludi then filed motions for summary judgment against Mr. Samuels and Doctors Hospital and INA, accompanied by deposition testimony and supporting affidavits. In opposition, Mr. Samuels offered the deposition testimony of the two non-resident neurosurgeons, while Doctors Hospital and INA contended that issues of material fact between Doctors Hospital and Mr. Samuels should bar summary judgment on the cross-claims. The district court entered summary judgment in favor of St. Paul, Hartford and Dr. Faludi on November 4, 1976, holding that the deposition testimony offered by Mr. Samuels could not establish the existence of genuine issues of material fact under Rule 56(e) since the testimony was inadmissible at trial.

Two arguments have been advanced on this appeal: (1) that in view of the intervening Ardoin decision, the deposition testimony of the out-of-state neurosurgeons offered by Mr. Samuels in opposition to the motions for summary judgment creates a genuine issue of material fact; and (2) that the deposition testimony and affidavits offered by St. Paul, Hartford and Dr. Faludi are insufficient to support their motions for summary judgment, because they are either self-serving or conclusory.5 Since we find for the appellants on the first question, we need not address the second.

In granting summary judgment against Mr. Samuels, Doctors Hospital and INA, the district court relied primarily upon the Louisiana Supreme Court's opinion in Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953). Meyer described the standard of care to which a physician, surgeon or dentist should be held as "the degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality." 73 So.2d at 782 (emphasis added).6 Since Mr. Samuels' medical experts, Dr. Winkler and Dr. Wepsic, were not ordinarily employed as neurosurgeons in Shreveport, the district court properly excluded their testimony under Meyer.

While the instant case was pending in the district court, the Louisiana Legislature enacted a medical malpractice statute, La.Rev.Stat.Ann. § 9:2794 (West), which described the standard of care as follows:

The district court held that the new statute "does not control this controversy, for the statute was passed after the occurrence of the events which led to this law suit." Samuels v. Doctors Hospital, 414 F.Supp. at 1127. At the time of the district court's decision, no Louisiana appellate court had construed the new statute, much less considered its retroactivity.

Pending appeal of the instant case, the Louisiana Supreme Court did have occasion to review the medical malpractice statute. Ardoin v. Hartford Accident & Indemnity Co., La., 360 So.2d at 1340, expressly overruled Meyer v. St. Paul-Mercury Indemnity Co., supra:

360 So.2d at 1340. The court further held that the statute should apply retrospectively. Id. at 1339.

The policies underlying Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), require a federal court exercising diversity jurisdiction to apply the law of the state as interpreted by the state's highest court. Where a state's highest court would give retroactive application to a new standard of care, a federal court in a diversity case is required to do so. Downs v. J. M. Huber Corp., 580 F.2d 794, 796 (5th Cir. 1978).7 Since Mr. Samuels would be entitled to a reversal of the district court's entry of summary judgment if he had filed his action in the Louisiana state courts, he is entitled to nothing less in the federal courts.8

The Supreme Court in Erie was not confronted with a change in state law during the course of the litigation. When the issue was squarely presented, the Supreme Court held that "the duty rests upon federal courts [in diversity cases] to apply state law under the Rules of Decision statute in accordance with the then controlling decision of the highest state court." Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543, 61 S.Ct. 347, 350, 85 L.Ed. 327 (1941) (emphasis added). In Vandenbark, the Supreme Court reversed a lower court's dismissal of a personal injury action for failure to state a claim cognizable under Ohio law, when pending the appeal the Ohio Legislature amended the Workmen's Compensation Act to expressly recognize such an action. In applying the Vandenbark rule, this court recently reversed the district court's entry of judgment on a directed verdict in a wrongful death action, where pending the appeal the Texas Supreme Court recognized a new standard of care owed by occupiers of land to business invitees. Downs v. J. M. Huber Corp., 580 F.2d at 796.9 See also Hathcock v. Commercial Union Ins. Co., 576 F.2d 653 (5th Cir. 1978). The same principle requires a reversal of the entry of summary judgment in the instant case, given the Louisiana Supreme Court's intervening recognition of a new standard of care owed by medical specialists to their patients.

Guided by the Erie doctrine and the Vandenbark rule, we hold that the abolition of the locality rule in Louisiana medical malpractice litigation applies retrospectively in federal as well as state courts. Consequently, the deposition testimony of out-of-state neurosurgeons offered by Mr. Samuels is admissible and competent to oppose the appellees' motions for summary judgment. Furthermore, the deposition testimony offered by Mr. Samuels establishes the existence of genuine issues of material fact. Accordingly, we reverse the entry of summary judgment against Mr. Samuels, Doctors Hospital and INA and remand to the district court for further proceedings consistent with this opinion.

REVERSED and REMANDED.