Breaux, et al v. USA, et al

*District Judge of the Western District of Louisiana, sitting by
designation.
**Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
November 11, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 03-50037
ANDRE J. BREAUX; VIRGINIA BREAUX
Plaintiffs - Appellants
VERSUS
UNITED STATES OF AMERICA; HEALTHSOUTH TEXAS LIMITED PARTNERSHIP,
doing business as Healthsouth Sports Medicine & Rehabilitation
Center; CHAD R. MALESICH, Physical Therapist
Defendants - Appellees
Appeal from the United States District Court
For the Western District of Texas, San Antonio
SA-00-CV-1483-EP
Before DAVIS and EMILIO M. GARZA, Circuit Judges and LITTLE*,
District Judge.
PER CURIAM:**
The only question presented in this case is whether the
district court abused its discretion in refusing to accept a

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supplemental affidavit of an expert filed in support of a motion
for reconsideration of the court’s order granting summary judgment
in favor of the defendant. At the time the district court ruled on
the motion for summary judgment, the plaintiff had not submitted
summary judgment evidence establishing the requisite standard of
care in this action alleging failure to properly treat and care for
the plaintiff. After the court ruled on the motion, the plaintiff
then moved for reconsideration and for the first time attached an
affidavit purporting to establish the requisite standard of care.
At the time the affidavit was filed, the time allotted for
discovery had passed and the trial was imminent. Under these
circumstances we conclude that the district court did not abuse its
discretion in refusing to accept the plaintiff’s new evidence filed
in support of the motion for reconsideration.
AFFIRMED.

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