In Barrilleaux v. Board of Supervisors of Louisiana State University, 2015 WL 18714813 (La App. 1 Cir. 4/24/15), the Court was asked to consider what impact a summary judgment in favor of one defendant would have upon a hypothetical allocation of fault to that same defendant at a later date.

In Barrilleaux, Dr. Bass moved for summary judgment, arguing that the plaintiff lacked any expert evidence to demonstrate a deviation in the standard of care.  While the plaintiff advised that they had no opposition to the motion, they requested that the trial court include a provision in its order affirmatively stating that the Motion for Summary Judgment was granted because the facts showed that Dr. Bass was not at fault.  Under LSA-C.C.P. art. 966(G), when such a finding has been made, this finding will preclude a later offering of evidence as to that party’s fault.  Stated differently, Art. 966(G) precludes the “empty chair defense” to the remaining defendants.

The trial court struck out the “966(G) language” in the proposed judgment because its ruling was based upon the lack of any evidence offered to show a deviation in the standard of care by Dr. Bass. Therefore, the remaining defendants could, at a later date, argue that Dr. Bass was at fault. On this subject, the trial judge stated as follows:

I am not declaring that [Dr. Bass] was not at fault, I am just declaring that there is no genuine issue of material fact, but that – you don’t have an expert and can’t prove the standard of care at this time. Maybe Chabert, and I am not sure that it would be appropriate, but maybe they can at trial produce evidence to show that the fault in this case lies with [Dr. Bass].

The Barrilleaux Court affirmed the trial court’s refusal to make a 966(G) designation that Dr. Bass was not at fault.