author: |1MAX N. TOBIAS, JR., Judge.

text:
    Sandra Roth Wife of/and William B. HAENSEL, Jr. v. STATE of Louisiana, Through UNIVERSITY HOSPITAL OF NEW ORLEANS (a/k/a Charity Hospital of New Orleans), ABC Insurance Company, Christopher C. Nabors, Amica Mutual Insurance Company, and Other Parties to be Named Hereafter.
    No. 2003-CA-1282.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2004.

      Charles A. Kronlage, Jr., Kronlage & Kronlage, APLC, New Orleans, LA, for Plaintiffs/Appellants, Sandra Roth, Wife of and William B. Haensel, Jr.
    Richard P. Ieyoub, Attorney General, William S. Culver, Jr., Assistant Attorney General, New Orleans, LA, for Defendant/Appellee, the State of Louisiana, through University of New Orleans, a/k/a Charity Hospital of New Orleans.
    (Court Composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., and Judge EDWIN A. LOMBARD).
   |1MAX N. TOBIAS, JR., Judge.

The plaintiffs, Sandra Roth, wife oi/and William B. Haensel, Jr. (hereinafter “the plaintiffs” or “the Haensels”), appeal from a judgment rendered in favor of the defendant, State of Louisiana, through University Hospital of New Orleans (a/k/a Charity Hospital of New Orleans) (hereinafter “Charity”), which dismissed their suit with prejudice. For the reasons below, we affirm the trial court.

On 17 February 1995, at approximately 1:50 a.m., the plaintiffs’ daughter Michelle, a guest passenger in a vehicle operated by defendant Christopher C. Nabors (hereinafter “Nabors”) and insured by Arnica Insurance Company (hereinafter “Arnica”), died by drowning when the vehicle plunged into Bayou St. John in Orleans Parish. Nabors was able to extricate himself from the vehicle, but did not attempt to rescue Michelle Haensel, who was apparently trapped by her seat belt.

Upon arrival at the scene, officers of the New Orleans Police Department (“NOPD”) and emergency personnel detected the odor of alcohol on Nabors’ 12breath. In addition, they found him to be combative, abusive, and with slurred speech. Nabors was transported to Charity for medical attention.

When Nabors first arrived at Charity’s emergency room, he was treated by Jean Friday, M.D., who testified that Nabors was “very intoxicated,” that she could smell alcohol on his breath and his person, and that he was abusive and combative. Dr. Friday testified that she did not know Nabors, the details of the accident, the identity of the victim, or the victim’s parents at the time of Nabors’ arrival in the emergency room.

Dr. Friday routinely inserted an IV into Nabors’ arm and drew blood for testing before hooking up the IV fluids. She did not recall whether she drew blood for a blood alcohol sample, although she thought she had ordered one. Nabors’ medical records are silent with respect to any samples drawn for blood alcohol, although the record is clear as to the other blood tests ordered by Dr. Friday. Upon completion of her initial exam and insertion of the IV, Dr. Friday requested Lee Lenahan, M.D., to assume care of Nabors, due to his combative nature.

At approximately 3:55 a.m., Dr. Lenahan took a sample of Nabors’ blood at the request of the NOPD. The blood sample was then transported for testing to NOPD’s lab, resulting in a report of .04% blood alcohol level (“BOL”) for Nabors.

IgNabors was subsequently charged with a violation of La. R.S. 14:32.1, Vehicular Homicide. At his arraignment, Nabors plead “not guilty;” the plaintiffs, their family, and a number of friends were in the courtroom when the charges against him was read and knew that alcohol was an element of vehicular homicide. Mr. Haensel testified at the trial of this matter that he was aware that vehicular homicide was a charge against persons under the influence of alcohol at the time of the arraignment.

On 1 May 1995, the plaintiffs’ attorney sent a demand letter to Arnica that stated that the plaintiffs were aware that Nabors had been drinking on the night of the accident and that they may be entitled to punitive damages under La. C.C. art. 2315.4. Unquestionably, the plaintiffs and their attorney knew prior to settlement that alcohol played a role, perhaps major, in this accident.

LVarious motion hearings were held in criminal court, at which time the evidence and testimony confirmed that Nabors had been drinking immediately before the accident. The plaintiffs and their family were present in court for all motion hearings. On 12 September 1995, the plaintiffs settled their claims against Nabors and Arni-ca for $305,000.00; the Haensels signed a “Mutual Receipt and Release,” whereby they gave up all claims against Nabors and Arnica, specifically including claims for punitive damages under La. C.C. art. 2315.4. The Haensels testified that they knew their punitive damage claims would be waived before they signed the releases.

Nabors’ trial began on 27 November 1995, and he was convicted of vehicular homicide the next day. The plaintiffs and their family sat through the entire trial. At his sentencing on 16 February 1996, Nabors pleaded for leniency, stating that he was highly intoxicated at the time of the accident.

The instant suit was filed on 19 May 1996, in which the plaintiffs alleged that Nabors’ blood alcohol sample obtained by Charity for the NOPD was tampered with or contaminated by unknown Charity personnel that resulted in a BOL of only .04%. The plaintiffs further allege that as a direct result of the conspiracy by unknown Charity personnel to tamper with and/or contaminate Nabors’ blood alcohol sample, they were unaware that Nabors was intoxicated at the time of the accident and they were deprived of their right to pursue punitive ^damages and further general damages for their daughter’s pain and suffering, as well as damages for loss of love, affection, and society. The prayer for relief sought “all damages and punitive damages to which they may be found entitled.”

A bench trial took place on 25 February and 2 March 2003; judgment was rendered in favor of the defendants, dismissing the plaintiffs’ claims with prejudice. The trial court issued extensive written reasons on 20 March 2003, in which it stated in pertinent part:

It must be said, then, that these plaintiffs, in particular, have left no stone unturned or ignored in each and every step of the events following this accident, from date of the accident to the present date. There can be no doubt that they received more than sufficient notice, on a consistently repetitive basis prior to their settlement with Nabors’ insurer and the accompanying waiver of claims for punitive damages that alcohol was intricately involved in this accident. Their allegations that they were deprived of information concerning the involvement of alcohol, therefore, are totally without merit. They made an informed settlement and waiver of claims for punitive damages, and cannot claim that any alleged conspiracy in the emergency room of Charity deprived them of knowledge necessary for them to pursue Nabors’s insurer for punitive damages.
Plaintiffs’ allegations of conspiracy are without merit; it is hard to imagine that any emergency room personnel formed an intent to deprive these plaintiffs of punitive damages in connection with this accident, then discussed it, agreed to a course of action and performed an act specifically intended to result in the deprivation of punitive damages to plaintiffs. Further, there can be no doubt that plaintiffs were fully informed of the involvement of alcohol in this accident from virtually the next day following the accident and continuously from that date forward until the date, seven months later, when they settled with Nabors’ insurer and released claims to punitive damages. Even if there had been a conspiracy, arguably, then, it had no effect upon plaintiffs’ knowledge of the involvement of alcohol in this matter. | fiAccordingly, plaintiffs’ claims are dismissed with prejudice.

The plaintiffs have filed the instant appeal and assign three errors for review. First, they contend that the trial court erred by imposing an erroneous burden of proof on the plaintiffs. Second, they argue that the trial court improperly restricted the pleadings to punitive damages alone and failed to consider the claim for general damages. Finally, the plaintiffs contend that the trial court abused its discretion by finding that the blood sample drawn in the emergency room by Dr. Lenahan was done so under the direct supervision of a NOPD officer.

We apply the clearly wrong/manifestly erroneous standard of review to the factual findings of the trial court.

In the first and second assignments of error, the plaintiffs argue that the trial court only considered their cause of action for conspiracy and ignored the cause of action against Charity for general damages, as expressed in the petition and as demonstrated at trial. Their claim for general damages, the plaintiffs contend, is not based on “alcohol involvement,” but on Charity’s own breach of duty to them, by gross negligence and/or intentional spoliation of Nabors’ blood alcohol sample.

In response, Charity argues that the only cause of action set forth in the plaintiffs’ petition was conspiracy and that the trial court correctly applied the law and burden of proof.

Article 891 of the Louisiana Code of Civfi Procedure provides in pertinent part:

The petition shall comply with Articles 853, 854, and 863, and, whenever applicable, with Articles 855 through 861. .It shall set forth the name, surname, and domicile of the parties; shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence [7that is the subject matter of the litigation; shall designate an address, not a post office box, for receipt of service of all items involving the litigation; and shall conclude with a prayer for judgment for the relief sought. Relief may be prayed for in the alternative.

We have carefully reviewed the plaintiffs’ petition and do not find a claim for negligence that would support an award of general damages. In particular, the plaintiffs’ petition alleges:

7.
Plaintiffs aver that such a gross inconsistency could only have occurred by tampering with plaintiffs [sic] blood/sample, or by orchestrating events prior to, during, or after withdrawal of the blood sample, to deliberately dilute same so that Nabors would benefit by a low alcohol reading.
8.
Plaintiffs further aver that the only place that such tampering could have occurred was in the emergency room of University Hospital, after Nabors was brought there by the EMS personnel; Nabors was, at the time, an intern at Charity Hospital, and was known to the other interns, medical doctors and nurses who were on duty when Nabors was brought in.
' 9.
Plaintiffs now aver that certain parties, whose identities are presently unknown, conspired to dilute Nabors’ blood/alcohol content, and by doing so, destroyed crucial evidence which would have made them aware that Nabors’ actions were under the heavy influence of intoxicating beverages, and that such information would have allowed them to pursue a claim for punitive damages against Nabors and his automobile liability insurer, and further general damages related to their daughter’s own pain and suffering, and their loss of her love, affection and society.

| sHowever, even assuming that the petition was amended to conform the evidence presented at trial, the record does not support a finding of negligence on the part of Charity.

We have carefully reviewed the trial transcript in which the testimony uniformly revealed that IV fluids would likely contaminate a blood alcohol sample taken above an IV site. While Dr. Lenahan could not say for certain that he drew the blood alcohol sample above the IV site without first stopping the infusion of IV fluids, it appears more likely than not that such occurred. Despite this evidence, however, the plaintiffs did not prove negligence on the part of Charity and/or its employees.

Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under La. C. C. art. 2315. In order for liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard [ sconduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault v. Merchants & Farmers Bank & Trust Company, 2001-2217, p. 6 (La.4/3/02), 816 So.2d 270, 275-76.

The threshold question in any duty-risk analysis is whether the defendant owed a duty to the plaintiff. Id. at p. 7, 816 So.2d at 276. Therefore, we must determine whether Charity owned a duty to the Haensels when it drew the blood alcohol sample in question.

We know of no statutory or jurisprudential authority that would support a finding that Charity owed a duty to the plaintiffs under this set of facts. The only instance that we could find where a doctor was held liable to a third party was in Hutchinson v. Patel, 93-2156 (La.5/23/94), 637 So.2d 415: when a psychotherapist breaches the duty to warn third parties of a threat of violence communicated by a psychiatric patient. However, in Hutchinson, 93-2156 at p. 1 637 So.2d at 417-18, the Supreme Court held that the Medical Malpractice Act applies exclusively to claims arising from injuries to or death of a patient where such claims are brought by the patients themselves, their representatives on the patient’s behalf, or other persons with claims arising from injuries to or death of a patient. Of course, the plaintiffs in the instant matter did not bring a medical malpractice action against Charity. However, absent an intentional tort, which was not proven at trial, there simply was no duty to the Haensels by Charity. Neither they nor their daughter were patients of the medical facility. Any duty owned by Charity and its employees was to Nabors as a patient of the hospital on the night of the accident.

|inEven if we were to fashion some kind of duty, we do not find that Charity’s and/or its employees’ conduct was either a cause-in-fact or legal cause of the plaintiffs’ injuries. The plaintiffs’ injuries were caused by the reprehensible conduct of Nabors, not the botched blood alcohol sample. The plaintiffs chose to settle with Nabors and Arnica seven months after the accident. They could have waited until after Nabors’ criminal trial by merely filing suit to interrupt prescription. The record is clear that they knew at the time of the settlement that Nabors’s blood alcohol sample had been contaminated and was of no value in determining his actual BOL. In addition, it is only speculation that an accurate BOL would have induced Nabors to plead guilty before his scheduled trial date.

In any event, it is not obvious from the record that even an earlier guilty plea would have spared the plaintiffs any suffering, as they contend. As noted by the trial court in its written reasons for judgment: “[T]he plaintiffs have, despite the criminal conviction of Nabors, their settlement for $305,000.00 with Nabors’ insurer, steadily maintained their obsession with every fact of their daughter’s death.” While we cannot begin to appreciate the grief suffered by the Haensels, the law does not support their claims against Charity. Consequently, we find the assignments of error are without merit.

Finally, the plaintiffs contend that the trial court erred in finding that the blood alcohol sample was drawn “under the direct supervision of NOPD Officer Brian Frere,” when no such evidence was introduced at trial. We agree. However, based on the above, it is harmless and we find the assignment of error is without merit.

InBased on the foregoing, we affirm the judgment of the trial court, each party to bear its own costs.

AFFIRMED.

      . Both Nabors and Arnica were dismissed with prejudice from the instant suit based on a settlement agreement entered into with the plaintiffs on 12 September 1995.

      . Dr. Friday ordered tests to determine clotting ability, total blood count, and a "chem. 7,” to determine an electrolytes level. Dr. Friday found out later that the latter sample was not tested due to a "lab accident.”

      . All medical testimony was to the effect that a blood sample taken above an IV site would be subject to contamination from the IV fluids.

      . La. R.S. 14:32.1 provides in pertinent part:
      A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exists:
      (1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662.
      (2) The operator’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood....

      . In fact, the Haensels contacted Mothers Against Drunk Driving ("MADD”) before the arraignment to insure that a-MADD representative was present at the arraignment and at all further court-proceedings.

      . La. C.C. art. 2315.4. provides as follows:
      In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor Vehicle was a cause in fact of the resulting injuries.

      . La. C.C.P. art. 1154 provides as follows
      When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.


source: Caselaw Access Project

author: hLEON A. CANNIZZARO; JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Floyd M. GIBSON.
    Nos. 2003-KA-0647, 2003-KA-0648.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2004.

      Eddie J. Jordan, Jr., District Attorney, Claire Adriana White, New Orleans, LA, for Appellee, State of Louisiana.
    Sheila C. Myers, New Orleans, LA, for Defendant/Appellant, Floyd Gibson.
    . (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.).
   hLEON A. CANNIZZARO; JR., Judge.

The defendant, Floyd M. Gibson; was convicted of one count of theft of an amount exceeding $500 in violation of La. R.S. 14:67 and of one count of the unauthorized practice of law in violation of La. R.S. 37:213. Mr. Gibson is appealing his convictions.

STATEMENT OF THE CASE

Mr. Gibson was initially charged with theft of more than $500 in violation of La. R.S. 14:67. A day later he was charged with practicing law without a license in violation of Lá. R.S. 37:213. Mr. Gibson pleaded not guilty to both charges. A motion to suppress evidence was heard and denied. Mr. Gibson waived his right to a trial by jury and was'tried by the judge, who found him guilty as charged on both counts. Mr. Gibson was sentenced to serve one year at hard labor on the conviction of theft, and he was sentenced to serve sixteen months at hard labor on the conviction of practicing law without a license. A motion for a new trial and a motion to have his sentence imposed after a pre-sentence investigation report were both denied. Mr. Gibson was, however, granted the right to such a report, Lbut this was granted after the imposition of his sentence. Mr. Gibson has also filed a'motion in the district court for the reconsideration of his sentence; but the motion has been deferred pending the outcome of this appeal.

STATEMENT OF THE FACTS

After signing the Orleans Parish Criminal Sheriffs logbook of visitors to the Orleans Parish Prison and indicating in the logbook that he was an attorney visiting clients, Mr. Gibson met with Henry Williams, Jr., who had been arrested and incarcerated a few days earlier. According to Mr. Williams’ testimony at trial, Mr. Gibson “represented himself as an attorney and that he will help me with my case as far as getting it expunged off my record and help me get out of jail.” Mr. Gibson gave"Mr. Williams a business card, which had Mr. Gibson’s name and the words “attorney at law” printed on it. Mr. Gibson also asked Mr. Williams to have his wife contact him so that arrangements could be made for Mrs. Williams to pay Mr. Gibson. Mr. Gibson would then proceed to'have Mr. Williams released from jail.

After the, meeting with Mr. Williams, Mr. Gibson contacted Kristine T. Williams, Mr. Williams’ wife. Mrs. Williams went to Mr. Gibson’s office on three consecutive days and gaye him cash at each visit in the amount of $500, $500, and $239, respectively, for the purpose of obtaining her husband’s release from jail. Mr. Gibson gave Mrs. Williams receipts for each of the three payments, and these receipts were introduced into evidence at .trial.

Mrs. Williams testified at trial that her friend, Anndrea' Irons, a licensed bail bondsman, arranged for her husband to be released from jail on his own recognizance after Mr. Gibson failed to have Mr. Williams released. After her husband was released, Mrs. Williams told Mr. Gibson that she | ¡¡wanted the money that she had given him returned to her, because he had done nothing to obtain her husband’s release. Mr. Gibson agreed to give back to Mrs. Williams only $450 of the $1,239 that she had paid him. .

In response to Mr. Gibson’s refusal to return all of the money, Mrs. Williams contacted the Office of the Orleans Parish District Attorney. The investigator in the economic crime unit of the district attorney’s office who was assigned to investigate Mrs. Williams’ complaint testified at trial. The investigator testified that she had contacted the Louisiana State Bar Association and had learned that Mr. Gibson had been disbarred. A certificate from the bar association to that effect was introduced into evidence at trial along with Mr. Gibson’s business card, containing the words “attorney at law”. The investigator testified that she had also contacted the Louisiana Department of Insurance and learned that Mr. Gibson was not a licensed bail bondsman. At trial representatives of both the bar association and the insurance department corroborated the investigator’s testimony.

The investigator further testified at trial that after she had completed her investigation, she obtained a warrant for Mr. Gibson’s arrest on charges of the unauthorized practice of law, the theft of $789, and the illegal consideration of bail bonds. She stated that she then contacted Mr. Gibson, who came to the district attorney’s office where he was arrested.

Mr. Gibson represented himself at trial, and he offered a testimonial statement. He said that when he visited Mr. Williams in jail, he had just recently been disbarred and that he was at the prison to visit some former clients in connection with the transfer of their cases after his disbarment. Mr. | ¿Gibson also testified that he was in the process of starting a new business to support his family. He testified that he had contacted a number of people and had done research himself, regarding the type of business that he could conduct using the skills that he had learned as a lawyer without violating the prohibition against practicing law without a license. He stated that he was seeking a license as a bail bondsman and that he hoped to assist attorneys with investigational matters in connection with their cases.

Mr. Gibson testified that someone, whose name he could not recall, had referred him to Mr. Williams, and while he was at the prison visiting former clients, Mr. Gibson met with him. Mr. Gibson defended himself by saying that while both Ms. Irons and Mrs. Williams were in his office, Ms. Irons had offered to write a bail bond for Mr. Williams. He testified that he had returned to Mrs. Williams all of the money that she had given to him that was still in his possession at the time that she demanded a refund. According to Mr. Gibson’s testimony, the remainder of the money that Mrs. Williams had paid to him was given to Ms. Irons to write a bail bond.

Ms. Irons testified at trial that she was a licensed bail bondsman who obtained a recognizance bond from a judge so that Mrs. Williams’ husband could be released from jail. She stated that she had collected no money from Mrs. Williams. She also testified that she had not been in Mr. Gibson’s office at any time when Mrs. Williams was present. She did admit, however, that she had been to Mr. Gibson’s office in the past in connection with her bail bond business. Therefore, she admitted that Mrs. Williams could have been at Mr. Gibson’s office when she was there and that she might not have noticed Mrs. Williams’ presence.

When Mrs. Williams was questioned, regarding Ms. Irons’ presence at Mr. Gibson’s office while she was there, Mrs. Williams stated that Ms. Irons 1 Bwas there on one occasion. She also testified that she was not surprised to see Ms. Irons at Mr. Gibson’s office, because she knew that Ms. Irons had worked with Mr. Gibson in the past in connection with obtaining bonds for his clients. Mrs. Williams further testified that she had never signed a retainer agreement with Mr. Gibson, but she did insist that Mr. Gibson told her that he was an attorney.

At the conclusion of the trial, the judge found Mr. Gibson guilty as charged on both counts. He was later sentenced to serve one year at hard labor for theft and sixteen months at hard labor for the unauthorized practice of law.

ERRORS PATENT

Sentencing Delay

La.C.Cr.P. art. 873 provides as follows:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

In State v. Augustine, 555 So.2d 1331, 1334 (La.1990), the Louisiana Supreme Court held that the trial courts failure to observe the twenty-four hour delay did not constitute harmless error even where the defendant failed to raise that issue on appeal. In Augustine, however, the defendant did challenge his sentence on appeal. The Supreme Court, therefore, held that the error in Augustine was not harmless.

|fiIn State v. Collins, 584 So.2d 356 (La.App. 4th Cir.1991), this Court discussed the Augustine case as follows:

In State v. Augustine, 555 So.2d 1331 (La.1990), the Supreme Court held that the trial court’s failure to observe the twenty-four hour delay did- not constitute harmless error, even if the defendant did not raise that issue as error on appeal, where the defendant challenged his sentence on appeal. In the present case, defendant does not challenge his sentence and he does not raise as error the failure of the trial court to wait twenty-four hours before imposing sentence. Therefore, this error is harmless.

584 So.2d at 359.

In the instant case the trial court denied Mr. Gibson’s motion for a new trial immediately before he was sentenced. Because there is no indication in the record that Mr. Williams waived the delay required under La.C.Cr.P. art. 873, the failure to comply with that article is an error patent. Mr. Gibson, however, has not challenged his sentence, and he does not raise as error the failure of the trial court to wait twenty-four hours before imposing sentence. Therefore, this error is harmless under this Court’s ruling in the Collins case. See also, e.g., State v. Burbank, 2001-0831, p. 7 (La.App. 4 Cir. 2/27/02), 811 So.2d 1112, 1117.

Sentencing Error

Mr. Gibson was sentenced to sixteen months at hard labor on the conviction of practicing law without a license. The penalty for violating the provisions of La. R.S. 37:213 that prohibit the practice of law without a license do not, however, provide for sentencing at hard labor. La. R.S. 37:213(C) provides that “[a]ny natural person who violates any provision of this Section shall be fined not more than one thousand dollars or imprisoned for not more than two years, or both.” Therefore, it was an error for the trial court judge to have sentenced Mr. Williams to hard labor in connection with |7his conviction of the unauthorized practice of law. Mr. Williams’ sentence for that conviction must be vacated.

Double Jeopardy

This Court has recognized the violation of a defendant’s constitutional rights regarding double jeopardy as an error patent. State v. Thomas, 99-2219, p. 4 (La.App. 4 Cir. 5/17/00), 764 So.2d 1104, 1108; State v. Harris, 98-2932 (La. 4 Cir. 5/3/00), 761 So.2d 662. See also State ex rel. Adams v. Butler, 558 So.2d 552, 553, n. 1 (La.1990), where the Supreme Court stated that “[djefendant’s guilty pleas do not foreclose his double jeopardy challenge ... because the convictions for attempted first degree murder and the underlying felony of armed robbery constitute a violation of double jeopardy apparent on the face of the record.” (Emphasis added.) Because Mr. Gibson has raised the issue of double jeopardy as an assignment of error on appeal, we will address that issue as an assignment of error.

DISCUSSION

Assignment of Error

Mr. Gibson has made only one assignment of error on appeal. In this assignment, he has alleged that his convictions of both theft and the unauthorized practice of law violate the constitutional prohibitions against placing a person in jeopardy twice for the same offense.

Prohibition against Double Jeopardy

The United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The Louisiana Constitution provides that “[n]o person shall be twice placed in jeopardy for the same offense, except on his application for a new trial, when a mistrial is declared, or when a motion in arrest of judgment is sustained.” La. Const, art. 1, § 15.

| sArticle 591 of the Louisiana Code of Criminal Procedure also provides that “[no] person shall be twice put in jeopardy of life or liberty for the same offense” except in the case of a defendant’s motion for a new trial, an arrest of judgment, or a mistrial. La.C.Cr.P. art. 596 establishes the requirements for double jeopardy as follows:

Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

Although article 596 speaks of double jeopardy in terms of a second prosecution for the same offense, the jurisprudence clarifies that the prohibition against double jeopardy also protects an accused from multiple punishment for the same criminal conduct. In State v. Murray, 2000-1258 (La.9/18/01), 799 So.2d 453, the Louisiana Supreme Court stated that “[t]he Double Jeopardy Clauses of the federal and Louisiana constitutions not only prohibit successive trials for the same offense but also ‘protect! ] against multiple punishments for the same offense.’ ” 2000-1258, p. 3, 799 So.2d at 454, citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnote omitted).

Determination of Double Jeopardy

Two separate tests are used to determine whether doúble jeopardy exists. These tests are the Blockburger test, also known as the additional fact test, and the same evidence test.

|flThe Blockburger test was described as follows by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

The Blockburger or “ ‘additional fact’ test requires that, when conduct constitutes a violation of two or more distinct statutory provisions, the provisions must be scrutinized to confirm that each demands proof of an additional fact.” State v. Sandifer, 95-2226, pp. 4-5, 679 So.2d 1324, 1329.

The same evidence test was explained by the Louisiana Supreme Court in State v. Steele, 387 So.2d 1175 (La.1980) as follows:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant
can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.

Id. at 1177. The Supreme Court also explained in Steele that “[sjeparate statutory crimes need not be identical in constituent elements or in actual proof to be the same within the meaning of the constitutional prohibition.” Id. See also State v. Doughty, 379 So.2d 1088, 1090 (La.1980).

Louisiana courts have used ' both the Blockburger test and the same evidence test to evaluate claims of double jeopardy. See, e.g., State v. Murray, 2000-1258 (La.9/18/01), 799 So.2d 453; State v. Vaughn, 431 So.2d 763, 766 (La.1983); State v. Harris, 98-2932, p. 6 (La. 4 Cir. 5/3/00), 761 So.2d 662, 666. The same evidence test was recently used by the ^¡¡Louisiana Supreme Court. State v. Cotton, 2000-0850 (La.1/29/01), 778 So.2d 569.

Analysis

In the instant case Mr. Gibson was convicted of the unauthorized practice of law and the theft of more than $500. La. R.S. 37:213(A) proscribes the unauthorized practice of law as follows:

No ... person, who has not been first duly and regularly licensed and admitted to practice law by the supreme court of this state.shall:
(1) Practice-law.
(3) Hold himself ... out to the public as being entitled to practice law.
(4) Render or furnish legal services or advice.
(5) Assume to be an attorney at law or counselor at-law.
(6) Assume, use ... the title of lawyer, attorney ... in such manner as to convey the impression that he is a practitioner of law....

La. R.S. 14:67(A) defines theft in relevant part as “taking of anything of value which belongs to another ... by means of fraudulent conduct, practices, or representations.” It is essential that there be “[a]n intent to deprive the other person permanently of whatever may be the subject of the misappropriation or taking.” Id.

Applying the Blockburger test in the instant case, we have determined that the prosecution of Mr. Gibson for the two offenses of the unauthorized practice of law and of theft violated the double jeopardy provisions in the federal and state constitutions. The Blockburger test requires that for double jeopardy to attach in the instant case, Mr. Gibson’s conduct in representing himself to be an attorney and taking money from Mrs. Williams under the pretense that he would perform legal work for her husband’s benefit had to violate both the prohibition against the unauthorized practice of law and the | n prohibition against theft by misrepresentation. We find that this conduct did violate both prohibitions.

Additionally, under the Blockburger test, unless the offense of the unauthorized practice of law and the offense of theft each require proof of an additional fact that the other does not, double jeopardy is applicable. In the instant case, the conviction for theft required additional facts that the conviction of the unauthorized practice of law did not. The additional facts that had to be proved were that Mr. Gibson took money from Mrs. Williams and that he had the intent to permanently deprive her of that money. The conviction for the unauthorized practice of law did not, however, require proof of an additional fact. The same facts that were used to prove the theft proved the unauthorized practice of law, and proof of the latter offense did not require the proof of any additional fact. Therefore, under the Blockburger test, Mr. Gibson’s right not to be exposed to double jeopardy was violated.

Applying the same evidence test, we reach the same result as we reached with the Blockburger test. The elements necessary to prove the theft charge against Mr. Gibson were (1) that he took money from Mrs. Williams, (2) that he induced her to give him the money by fraudulently representing himself to be an attorney, and (3) that he had an intent to deprive her permanently of the money taken. To prove that Mr. Gibson engaged in the unauthorized practice of law, it was necessary to prove that Mr. Gibson fraudulently represented himself to be an attorney. Therefore, the evidence necessary to prove the theft charge also proved the charge of the unauthorized practice of law. Because the same evidence was needed to prove both charges, the same evidence test was satisfied.

| ^Remedy for Violation of Double Jeopardy Prohibition

Because Mr. Gibson’s right not to be placed in jeopardy twice for the same offense was violated, one of his convictions must be vacated. In State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990), the Louisiana Supreme Court stated that “[t]o remedy a violation of double jeopardy, this court has followed a procedure of vacating the conviction and sentence of the less severely punishable offense, and affirming the conviction and sentence of the more severely punishable offense.” Id. at 553. The Supreme Court also stated, however, that “[ajlthough this general rule will provide a clear resolution in most cases, re-sentencing according to the original sentencing scheme will not be possible in all cases.” Id. at 554.

In the instant case Mr. Gibson was sentenced to sixteen months for the conviction of the unauthorized practice of law but only one year for the conviction of theft. Because the trial court judge imposed a more severe penalty for the less severely punishable offense and a less severe penalty for the more severely punishable offense, the judge’s original sentencing scheme may be defeated if we proceed under the general rule and affirm Mr. Gibson’s sentence for the more severely punishable offense.

In the Adams case, the Supreme Court stated as follows:

When restructuring the sentence under the general rule is not feasible, courts should have the flexibility to implement the original sentencing scheme to the greatest extent possible. To accomplish this, courts should affirm the conviction with the more severe actual sentence, even though it may require vacating the conviction for the more severely punishable offense.

Id. (Emphasis in original.) See also State v. Thomas, 99-2219, p. 6 (La.App. 4 Cir.5/17/00), 764 So.2d 1104, 1108-9.

We believe that the instant situation is one in which the general rule regarding resentencing after a finding of double jeopardy should be modified as discussed in the Adams case to facilitate the trial court judge’s original sentencing scheme. Mr. Gibson’s conviction of theft should, therefore, be reversed, but his conviction of the unauthorized practice of law should be affirmed.

CONCLUSION

Based on the foregoing discussion, we hereby reverse Mr. Gibson’s conviction and vacate his sentence in connection with the theft charge. We hereby affirm Mr. Gibson’s conviction of the unauthorized practice of law, but we vacate the sentence imposed for that conviction, because Mr. Gibson was improperly sentenced to serve the sentence at hard labor. Finally, we remand this case so that the trial court can resentence Mr. Gibson for the conviction of the unauthorized practice of law. Because the trial court ruled that Mr. Gibson is entitled to a pre-sentence investigation report, the trial court should consider this report in determining Mr. Gibson’s sentence.

AFFIRMED IN PART; REVERSED IN PART; SENTENCES VACATED; AND REMANDED FOR RESENTENC-ING.

      . A separate case was filed for each charge. The charges were consolidated in the district court, and they were tried together.

      . Mrs. Williams gave Mr. Gibson $1,239, and he returned $450 to her, leaving $789 outstanding.

      . That charge was refused by the district attorney's office, and Mr. Gibson was not prosecuted for the illegal consideration of bail bonds.

      . In State v. Martin, 93-1915 (La.App. 4 Cir. 9/29/94), 643 So.2d 830, this Court noted that the Augustine case was legislatively overruled. A defendant must file, a motion to reconsider a sentence within 30 days of its imposition in accordance with' La.C.Cr.P. 881.1. Otherwise, the defendant is precluded from challenging the sentence on appeal. 93-1915, pp. 2-3, 643 So.2d at 832.

      . The penalty for the unauthorized practice of law is imprisonment for not more than two years or a fine of not more than one thousand dollars or both. La. R.S. 37:213(C).

      . The penalty for the theft of $500 or more is imprisonment with or without hard labor for not more than ten years or a fine of not more than three thousand dollars or both. La. R.S. 14:67(B)(1).


author: JACHARLES R. JONES, Judge.

text:
    Walter PENA v. James T. WILLIAMS, M.D., the Saint Paul Insurance Company, William Batherson, Spine Care Plus, Inc., and XXX Insurance Company.
    No. 2003-CA-0982.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2004.

      Richard C. Trahant, Metairie, LA, for Plaintiff/Appellant.
    Gregory J. McDonald, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, LA, for Appellee, Dr. Jerome Malina.
    Frank M. Buck, Jr., New Orleans, LA, for Defendants/Appellees, William Bather-son and Spine Care Plus, Inc.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD).
   JACHARLES R. JONES, Judge.

The Appellant, Walter Pena, appeals the judgment of the district court granting the Exception of Prescription and the motions for summary judgment filed by the Appel-lees, Dr. William Batherson, Dr. Jerome Malina, and Spine Care Plus, Inc. After a review of the record, we affirm the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

Walter Pena sustained serious injuries in an automobile accident on July 14, 1994. As a result of the accident, Mr. Pena retained counsel who referred him to Dr. Barry Bordenaro for treatment of his injuries. Dr. Bordenaro treated Mr. Pena’s injuries until November 18, 1994. However, on November 10, 1994, eight days prior to his medical release by Dr. Bordenaro, Mr. Pena presented to Dr. James T. Williams, an Independent Medical Examiner specializing in orthopedics, as requested and selected by State Farm Mutual Automobile Insurance Company. After examining Mr. Pena, Dr. Williams did not recommend any additional orthopedic treatment. Mr. Pena thereafter reported to Dr. Bordenaro that he was experiencing involuntary twisting of his head to the left. Dr. Bordenaro recommended that Mr. Pena be examined by an orthopedic specialist and discharged him. Mr. Pena did not follow the recommendation of Dr. Bordenaro | ..since just eight days prior he was examined by an orthopedic specialist, Dr. Williams, who did not make any further orthopedic recommendations. Mr. Pena changed lawyers, and his newly retained counsel referred him to the Spine Care Plus, Inc., for treatment. For reasons unknown, the Spine Care Plus, Inc., treated Mr. Pena without having received medical records from Dr. Bordenaro. During the period of medical care provided by the Spine Care Plus, Inc., Mr. Pena was first treated by Dr. Jerome Malina, and then by Dr. William Batherson. Mr. Pena’s treatment with Dr. Batherson ended on January 30, 1995. The next day, Mr. Pena presented to Charity Hospital, where Dr. Daniel Kim, a neurosurgeon, diagnosed him as having a severe rotary subluxation at the C-l, C-2 level of the cervical spine.

Mr. Pena instituted a medical malpractice suit against Dr. Williams, the Independent Medical Examiner, arising from the examination in which Dr. Williams recommended no further orthopedic treatment. Initially, the district court dismissed the suit for no cause of action. Dr. Williams alleged in his exception that no doctor-patient relationship existed between the two, therefore, Dr. Williams’ treatment of Mr. Pena was not covered by the Medical Malpractice Act. This Court reversed the judgment of the district court dismissing the suit, and the Louisiana Supreme Court denied writs.

Mr. Pena, subsequently, instituted a claim with the Louisiana Patient’s Compensation Fund against Dr. Williams. On October 26, 1998, the medical review panel found that “[t]he evidence does not support the conclusion that the defendant, DR. JAMES T. WILLIAMS, failed to meet the applicable standard of care as charged in the complaint.”

|3On November 12, 1998, Mr. Pena re-instituted suit by filing a new Petition for Damages naming Dr. Williams, Dr. Bath-erson, Dr. Malina, and the Spine Care Plus, Inc. Mr. Pena and Dr. Williams reached a settlement, and Dr. Williams consequently was dismissed from the suit. Dr. Malina filed a Motion for Summary Judgment. Thereafter, Dr. Batherson filed a Motion for Summary Judgment and Exception of Prescription. Both motions were set for hearing on January 24, 2003. On March 10, 2003, the district court granted the motions and the exception. Mr. Pena now appeals the judgment of the district court dismissing Dr. Bather-son, Dr. Malina, and the Spine Care Plus, Inc., from the suit.

DISCUSSION

De novo is the standard of review for motions for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230.

Mr. Pena has raised the following two issues on appeal: 1.) whether the district court erred by granting the Exception of Prescription in favor of Dr. Batherson, Dr. Malina, and the Spine Care Plus, Inc.; and 2.) whether the district court erred by granting the Motion for Summary Judgment in favor of Dr. Batherson, Dr. Mali-na, and the Spine Care Plus, Inc.? However, the crux of the matter is whether the peremptive period of three years lapsed between the date the injury occurred and the filing of the suit with respect to Dr. Malina, Dr. Batherson, and the Spine Care Plus, Inc., in 1998.

pThe Supreme Court recently reiterated the difference between preemption and prescription in State Board of Ethics v. Ourso, 2002-1978, p. 4 (La.4/9/03) 842 So.2d 346, 349, where the Supreme Court stated:

Peremption differs from prescription in several respects. Although prescription prevents the enforcement of a right by legal action, it does not terminate the natural obligation (La. Civ.Code art. 1762(1)); preemption, however, extinguishes or destroys the right (La. Civ. Code Art. 3458). Public policy requires that rights to which preemptive periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a preemptive period. It may not be interrupted or suspended; nor is there provision for its renunciation. And exceptions such as contra non valentem are not applicable. As an inchoate right, prescription, on the other hand may be renounced, interrupted, or suspended; and contra non valentem applies an exception to the statutory prescription period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues. Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291, 1298 (citing Hebert v. Doctors Memorial Hospital, 486 So.2d 717, 723 (La.1986)).

La. R.S. 9:5628(A) specifically sets forth a prescriptive period of one year from the date of injury or date of discovery, and a preemptive period of three years. La. R.S. 9:5628(A) states that:

No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect. [Emphasis added]

IfiClearly, medical malpractice complainants only have three years to file suit against a medical tortfeasor, regardless of the whether 'there were grounds for interruption of prescription, date of discovery, etc. In the instant case, Mr. Pena filed suit on November 12, 1998, more than three years after the date of injury, which occurred on July 14, 1994. Thus, the preemptive period precludes Mr. Pena from prevailing. Had Mr. Pena filed his claim within the preemptive period, a discussion of whether interruption occurred would be required. However, in light of the strict application of preemptive periods, Mr. Pena had to file his claim within three years of the date of injury in order to maintain his claim. Thus, the claim filed by Mr. Pena was preempted and the Exception of Prescription and the motions for summary judgment were properly granted.

DECREE

For the reasons stated herein, the judgment of the district court is affirmed.

AFFIRMED.

      . Note: The judgment fails to list the Attorney for Dr. Malina, although the body of the judgment states that it is granting a "... Motion for Summary Judgment seeking to dismiss Drs. Batherson and Malina of Spine Care Plus, Inc.” Further, two separate motions for summary judgment were filed by Dr. Malina and Dr. Batherson, and only Dr. Batherson filed an exception of prescription.


author: | MAMES F. McKAY III, Judge.

text:
    Kenneth JOHNSON v. Henry MELTON, individually and d/b/a Action Demolishing Company, Action Demolishing Company, John Smith, Essex Insurance Company and ABC Insurance Company.
    No. 2003-CA-1132.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2004.

      Frank M. Buck, Jr., New Orleans, LA, for Plaintiff/Appellee.
    Gerald A. Melchiode, Julie Eustis Vaici-us, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, MOON LANDRIEU, Judge Pro Tempore).
   | MAMES F. McKAY III, Judge.

The defendants, Henry Melton, Action Demolishing Company and Essex Insurance Company, appeal the judgment of the trial court awarding $20,000.00 in damages to the plaintiff, Kenneth Johnson.

STATEMENT OF THE CASE

Kenneth Johnson occupied and operated an auto garage at 1840 Thalia Street, a building adjacent to Henry Melton’s two-story building on the corner of Thalia Street and Oretha Castle Haley Boulevard. The plaintiff argues that on or about November 28, 1999, the defendant, Henry Melton, while in the process of demolishing this building, through his own company d/b/a/ Action Demolishing Company, which was insured by Essex Insurance Company, caused personal injuries to him and damage to his garage. Specifically, the plaintiff alleges that he sustained injuries to his neck when he was hit in the head by a board that fell from the ceiling of his garage, which was a result of the defendant, Henry Melton, performing the demolition. Additionally, he asserts that as a result of this demolition project his building received physical damage from Henry Melton’s |2building leaning on his garage wall causing structural damage that required substantial remedial work. In particular, it is alleged that this damage resulted after the second story of defendant’s building was demolished and caused the first floor to lean against the plaintiffs wall. The plaintiff asserts that the wall was leaning on his wall from November of 1999 through March of 2000 and that the damages manifested themselves in various ways including leaks in the building in the corner where the most stress was applied, boards falling from the ceiling and various cracks in the walls and ceiling support structures. The plaintiff also alleges that the defendant was apprised of this situation but continued the demolition and salvaging of his building.

ACTIONS OF THE TRIAL COURT

The trial court rendered judgment in favor of the plaintiff and cast the defendant for $20,000.00 in damages. This judgment was inclusive of both general and special damages. It is from this judgment that the defendants now appeal.

ASSIGNMENT OF ERRORS

The appellants assign error in that they argue that the trial court committed manifest error by creating facts not supported by the evidence and in determining that

the plaintiffs testimony was credible in its awarding of damages for repairs to his building and for personal injuries. Further, they assert that the trial court erred in allowing deposition testimony of Kenny Sheppard to be admitted into evidence.

[.STATEMENT OF THE LAW

The standard of review for factual findings in this case is the manifestly erroneous or clearly wrong standard.

In our three-tiered judicial system, findings of fact are allocated to the trial courts. It is a well-settled principle that an appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly wrong. Rosell, supra at 845; Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra at 1333. Where the factfinder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra at 844. The reviewing court must always keep in mind that if a trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if convinced that if it had been sitting as trier of fact, it would have weighed the evidence differently. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990).
For the reviewing court, the issue to be resolved is not whether the trier of fact was wrong but whether the factfinder’s conclusions were reasonable. Stobart, supra at 883; Theriot v. Lasseigne, 640 So.2d 1305 (La.1994).

Normally, the appellate court standard of review for factual findings is that of manifest error. Nevertheless, when the trial court commits legal error, de novo review is triggered. Hoskins v. Hoskins, 36,031 (La.App. 2 Cir. 4/5/02), 814 So.2d 773; Guillory v. Wal-Mart Stores, 2001-127 (La.App. 3 Cir. 10/3/01), 796 So.2d 772; Roger v. Dufrene, 1997-1946 (La.App. 4 Cir. 9/9/98), 718 So.2d 592.

I ¿DISCUSION

In the appellants’ first assignment of error they argue that the trial court judgment is not supported by the facts nor the evidence. They first argue that the trial court erred in awarding damages for repairs to the plaintiffs building. There was conflicting testimony and evidence presented to the court concerning the wall in question. The plaintiff offered the deposition testimony of Kenny Sheppard, the plaintiffs repairman, that the estimated cost of the repairs to the plaintiffs building would be $19,340.00. Conversely, upon an inspection of the site, the defendants’ experts, Steve Klepeis and Lenny Quick, determined that the plaintiffs building was in such disrepair that the damages were pre-existing and included termite damage, water damage and poor maintenance. The defendants’ investigating witness, Mr. Quick, asserts that even if at some point the walls did touch that no damage occurred.

On January 16, 2003, the trial judge visited the site of the accident and noted that the wall of Mr. Johnson’s garage, which is directly adjacent to Mr. Melton’s property that was being demolished, looked as if it had sustained some contact. The trial court evaluated the site condition and the witnesses and determined that the defendants’ demolition project did indeed cause damage to the plaintiffs property.

As to the issue of the plaintiffs asserted personal injuries resulting from a fallen board, the defendants contest the plaintiffs account. The defendants assert Isthat this accident never occurred. Furthermore, they argue that the plaintiffs evidence of injury is based only on sporadic visits to Dr. Stephen Bower at Spinal Care Plus, for just over five months at a cost of $1,375.00. Additionally, they argue that the plaintiff had numerous other personal injury claims that spanned from 1988 through 2001, although he was not under medical treatment for previous injuries at the time of the incident in question.

After a visit to the site the trial court noted the area of the ceiling where a board had fallen and that debris had made contact with the plaintiffs premises. Clearly, the trial court believed the plaintiffs version of the accident and that he had in fact been injured by falling debris.

Ail of the above argument goes, to a determination of fact and to the credibility of the witnesses. We conclude that the trial court was neither clearly wrong nor manifestly erroneous in its judgment.

The defendants also argue -that the trial court committed legal error in admitting into evidence the deposition testimony of Kenny Sheppard, evaluating the physical damages to the plaintiffs building, in that he is not an expert consistent with Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

As to the issue of who should or should not be allowed to testify as an expert, it is very well established in the case law that the trial court has discretion and will not be reversed on appeal absent clear error. Ballam v. Seibels Bruce Ins. Co., 97-1444, p. 4 (La.App. 4 Cir. 4/1/98), 712 So.2d 543, 546, citing Mistich v. Volkswagon of Germany, Inc., 95-0939 (La.1/29/96), 666 So.2d 1073. Furthermore, The Court in Daubert suggested the following factors in evaluating scientific expert testimony: 1) the “testability” of the expert’s theory or technique; 2) whether the theory or technique has been subjected to peer review and' publication; 3) the known potential rate of error; and 4) whether the methodology is generally accepted by the scientific community. Daubert, 509 U.S. at 592-94, 113 S.Ct. at 2796-97. However, Daubert made clear that its list of factors was meant to be helpful, not definitive. Kumho Tire Co., LTD. v. Carmichael, 526 U.S. 137, 151, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999). The Supreme Court in Kumho explained the purpose of Daubert as follows:

The objective of Daubert’s gatekeep-ing requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. We conclude that the trial must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. The trial court must have the same kind of latitude in deciding how to test an expert’s reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert’s relevant testimony is reliable. Our opinion in [, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)] makes clear that a court of appeals is to apply an abuse of discretion standard when it “review[s] a trial court’s decision to admit or exclude expert testimony.” That standard applies as much to the trial court’s decisions about how to determine reliability as to its ultimate conclusion. Whether Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad discretion. Kumho, 526 U.S. at 152-53, 119 S.Ct. at 1176.

Clearly, this matter is discretionary with the trial court, especially in this situation, a bench trial, to do otherwise would hamstring the trial court’s [7discretionary authority. It is obvious that the trial court took a hands on approach in visiting the accident and was better able to evaluate the situation and the credibility of the witnesses and experts. The weight to which he allowed the deposition testimony of Kenny Sheppard and its reliability to affect the judgment is undeterminable. Therefore, consistent with the above jurisprudence, we cannot find that the trial court was clearly wrong and therefore find no merit in the defendants’ argument.

CONCLUSION

The trial court heard the testimony, observed the demeanor of the witnesses and had an opportunity to visit the site and observe the condition of the building. Thus, he was in the best position to make a finding of fact. Based on the law and evidence, the trial court found in favor of the plaintiff in the amount of $20,000.00. The trial court did not elaborate on the specifics of the amount of the judgment other than to say that it was inclusive of general and special damages, with interest and costs from the date of judicial demand with all costs to be paid by the defendants.

We have reviewed the record thoroughly and find nothing that would be considered either clearly wrong or even unreasonable in the trial court’s findings. The trial court chose a permissible view of these facts and had a reasonable basis to do so. Thus, we may not reverse. Accordingly, this judgment is affirmed.

AFFIRMED.

      . The accident, which allegedly caused injury to the plaintiff, was not witnessed.

      . Kenny Sheppard is the repairman that did numerous repairs to the plaintiff's building and testified as to the estimated cost of repairs.

      . This amount was later clarified to reflect that that estimate included repairs that were not related to the instant accident.


author:
JjCHARLES R. JONES, Judge.
      L MURRAY, J.,

text:
    Melinda CHRISTIANA and Nicholas Christiana, Jr. v. SOUTHERN BAPTIST HOSPITAL and the Administrator of the Tulane Educational Fund d/b/a Tuliane Medical Center.
    No. 2003-C-1880.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2004.

      Thomas B. Calvert, Thomas B. Calvert, APLC, Metairie, LA, for Plaintiffs/Respondents.
    Susan E. Henning, James A. Cobb, Jr., Emmett, Cobb, Waits & Kessenich, New Orleans, LA, for Defendant/Relator.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge JAMES F. McKAY III).
   JjCHARLES R. JONES, Judge.

The relator, Southern Baptist Hospital, seeks to invoke our supervisory jurisdiction to review of the judgment of the district court granting the respondents’, Melinda Christiana and Nicholas Christiana Jr. (hereinafter “the Christianas”), motion for partial summary judgment, having found the inapplicability of La. R.S. 9:2797 and La. C.C. art. 2322.1 (hereinafter “the Blood Shield Statutes”), to the respondents’ claims for damages arising out of injuries allegedly caused by a contaminated blood transfusion. We grant the relator’s writ application and vacate the judgment of the district court.

Procedural History

On August 11,1992, the Christianas filed a petition for damages against the Relator, Southern Baptist Hospital (hereinafter “Baptist”), and the Administrators of the Tulane Educational Fund, d/b/a Tulane Medical Center (hereinafter “Tulane”). Baptist initially filed an Answer, averring that at all pertinent times it was a qualified health care provider under the Louisiana Medical Malpractice Act, and thus entitled to the limitation of liability set forth therein. The district court granted the Christianas motion to strike that portion of Baptist’s Answer, and Baptist sought review of that judgment in writ no. 2002-C-2750. This Court ^denied the writ application, citing Patin v. Administrators of Tulane Educational Fund, 99-3027 (La.App. 4 Cir. 8/16/00), 770 So.2d 816. Baptist filed writs with the Louisiana Supreme Court. The Supreme Court denied writs on May 23, 2003, noting that Baptist had an “adequate remedy on appeal.”

The Christianas subsequently filed a Motion for Partial Summary Judgment on June 18, 2003, seeking a favorable judgment that the Blood Shield Statutes were not applicable to the Christianas’ strict liability claims against Baptist for the distribution of the alleged contaminated blood products received by Mrs. Christiana in 1984. Noting that the court had already concluded that Baptist was a distributor of blood, the Christianas stated that at the time of the blood transfusion, the Blood Shield Statutes did not include distributors in the class of health care providers protected by the statute. The district court rendered a judgment granting the Christi-anas’ Motion for Partial Summary Judgment. It is from this judgment that Baptist seeks review.

Facts

The Christianas maintained that Melinda Christiana was diagnosed with the human immunodeficiency virus (HIV) in 1988. She stated that she contracted the condition from one or more transfusions of HIV-tainted blood received on September 27, 1984, while she was a patient undergoing treatment for acute leukemia at Tulane. The transfused blood received by Mrs. Christiana consisted of ten units of red blood cells, thirty units of platelet concentrates and ten units of | Splatelets from platelet pheresis. Eleven units of the platelet concentrates came from blood drawn, screened, and tested by Baptist, and the remainder of the blood products came from blood drawn, screened, and tested by Tulane. Arguing that the tainted blood received by Melinda Christiana was manufactured, distributed and/or supplied by Tulane and/or Baptist, the plaintiffs asserted causes of action in strict liability as well as negligence.

Discussion

La. C.C.P. art.1915 provided that judgments granting motions for partial summary judgment under La. C.C.P. art. 966 were considered final judgments. Thus, in Douglass v. Alton Ochsner Medical Foundation, 96-2825 (La.6/13/97), 695 So.2d 953, the court held that the proper vehicle for seeking review of such judgments was by appeal. However, shortly after Douglass was decided, the legislature enacted La. Acts 1997, No. 483, § 2, amending La. C.C. P. arts. 966 and 1915. The amendment to La. C.C.P. art. 966 made it clear that the district court had the authority to grant a partial summary judgment. The amendment to La. C.C.P. art.1915 made it clear that the grant of a partial summary judgment disposing of a particular issue was no longer considered a final appealable judgment unless the parties agreed that it was final or the trial court designated the judgment as a final judgment, after making an express determination that there was [4“no just reason for delay.” Pursuant to La. C.C.P. art. 1915, as amended by. La. Acts 1997, No. 483, § 2, the judgment granting the Chris-tianas’ Motion for Partial Summary Judgment is not a final appealable judgment. Since a court of appeal has plenary power to exercise supervisory jurisdiction over district courts and may do so at any time, the issue of whether this Court should exercise its supervisory jurisdiction to review such judgments appears to be left to the sound discretion of the court. Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981).

In their Motion for Partial Summary Judgment, the Christianas alleged that the provisions of La. R.S. 9:2797 and La. C.C. art. 2322.1, which prohibit the imposition of strict liability in cases involving the distribution of blood, do not apply to their strict liability claims against Baptist for the distribution of defective blood products. In support of their motion, the Christianas alleged that it was undisputed that: 1) Baptist distributed eleven units of platelets to Tulane on or [sabout 9/27/84; 2) these platelets were transfuse to plaintiff, Melinda Christian; 3) at the time of the conduct giving rise to the plaintiffs’ claims, La. R.S. 9:2797 and La. C.C. art. 2322 did not provide a defense for strict liability claims for. the distribution of defective blood products; and 4) in 1990, the Louisiana Legislature amended La. R.S. 9:2797 and La. C.C. art.2322 to include a defense to strict liability claims based on the distribution of defective blood products.

The Christianas further contend that because the word “distribution” was not included in La. R.S. 9:2797 or La. C.C. art. 2322 until 1990, the statutes did not cover the distribution of defective blood products prior to that time. Noting that the statutes in effect at the time of the transfusion govern this-action, the Christianas argue that because Baptist was a distributor of blood products to Tulane, the Blood Shield Statutes did not apply to Baptist.

It is undisputed that a cause of action in strict tort liability is a vested property right, and that laws enacted after the cause of action arises cannot be retroactively applied to divest the plaintiff of his vested right in his. cause of action. Fan cheaux v. Alton Ochsner Medical Foundation Hospital & Clinic, 470 So.2d 878 (La. 1985). Accordingly, the parties agree that the law in effect as of 1984 when the blood transfusion took place is the law that governs the case. While neither of the parties dispute the fact that Baptist would be considered a distributor of blood, both disagree on the issue of whether the strict liability prohibition contained in the Blood Shield Statutes in effect in 1984 applied to distributors of blood.

| RThe Blood Shield Statute, former La. C.C.P. art. 1764, was enacted by the legislature in 1968, and subsequent statutes on the issue were later enacted. However, the only “Blood Shield Statutes” at issue in this case are the ones in existence in 1984, when Mrs. Christiana received her blood transfusions. In 1984, the law on strict liability was codified in La. R.S. 9:2797, as amended by Acts 1982, No. 204. This statute was originally added pursuant to the passage of 1981 Acts no. 331, § 1. La. C.C. art. 2322.1, containing almost identical language, which was also added to the Civil Code that same year pursuant to the passage of 1981 Acts, No. 611, § l. As amended and reenacted in 1982, La. R.S. 9:2797 provided in relevant part:

Section 1. R.S. 9:2797 is hereby amended and reenacted to read as follows:
§ 2797. Users of blood, organs, or tissue; viral diseases
Strict liability or liability of any kind without negligence shall not be applicable to physicians, hospitals, hospital blood banks, or non-profit community blood banks in the screening, processing, transfusion, or medical use of human blood and blood components of any kind and the transplantation or medical use of any human organ, human tissue, or approved animal tissue which results in transmission of viral disease undetectable by appropriate medical and scientific laboratory tests.

The Christianas correctly note that the word “distribution” is not listed in the above-cited language. Rather the word “distribution” was not included in the Blood Shield Statutes until 1990 when the Legislature passed Act. No. 1091, §§ |7land 2, which amended and reenacted La. R.S. 9:2797 and La. C.C. art. 2322.1. House Bill No. 1657. That act, which provided the language for both provisions as they now exist, reads in pertinent part, as follows:

AN ACT
To amend and reenact Civil Code Article 2322.1 and R.S. 9:2797, relative to offenses and quasi offenses; to provide for limitation of liability of users of blood, organs, and tissue; to provide for standards of screening, procurement, and processing of blood, organs, and tissue; and to provide for related matters.
Be it enacted by the Legislature of Louisiana:
Section 1. Civil Code Article 2322.1 is hereby amended and reenacted to read as follows:
Art. 2322.1 Users of blood, organs, or tissue; a medical service
The screening, procurement, processing, distribution, transfusion, or medical use of human blood and blood components of any kind ... by physicians, dentists, hospitals, hospital blood banks, and nonprofit community blood bans is declared to be, for all purposes whatsoever, the rendition of a medical service by each and every physician, dentist, hospital, hospital blood band, and nonprofit community blood bank participating therein, and shall not be construed to be and is declared not to be a sale. Strict liability and warranties of any kind without negligence shall not be applicable to the aforementioned who provide these medical services.
Section 2. . R.S. 9:2797 is hereby amended and reenacted to read as follows:
§ 2797. Users of blood, organs, or tissue; a medical service
The screening, procurement, processing, distribution, transfusion, or medical use of human blood and blood components of any kind ... by physicians, dentists, hospitals, hospital blood banks, and nonprofit community blood banks is declared to be, for all purposes whatsoever, the rendition of a medical service by each and every physician, dentist, hospital, hospital blood bank, and nonprofit community blood bank participating therein, and shall not be construed to be and is declared not to be a sale. Strict liability and warranties [sof any kind without negligence shall not be applicable to the aforementioned who provide these medical services.

In their opposition memorandum, the Christianas argue that the 1990 amendment to the statutes is remedial, and that prior to that time, the statutes did not cover distributors. However, the Christia-nas cite no cases wherein any court held that the 1990 amendment was remedial. There are also no jurisprudence stating that hospitals and hospital blood banks that distribute blood were not covered by the strict liability provisions of the 1982 Blood Shield Statutes.

Alternatively, the Christianas cite Popich Bros. Water Transport, Inc. v. Gulf Coast Marine, Inc., 1997-0902 (La.App. 4 Cir. 1/14/98), 705 So.2d 1267, for the proposition that the inclusion of the word distribution in the 1990 amendment clearly indicates that the Legislature intended to change the law to include distributors as of that date. Although the Christianas use Popich to support their argument, their reliance upon this case is misplaced. Po-pich involved the deletion of statutory language requiring brokers to investigate insurers. Because the legislature changed the statute and deleted the provision providing for such a requirement, the district court concluded that the legislature was presumed to have intended to change the law.

In amending the Blood Shield Acts in 1990, the legislature did not simply delete or add a provision that expressly covered distributors of defective blood. Rather, the legislature rewrote the entire section. Although neither the Christianas nor Baptist provided documents detailing the legislative history of the Blood Shield Statutes, Baptist argues that one purpose of the 1990 amendment is to incorporate provisions of the earlier 1968 Blood Shield Statute and the 1982 Blood Shield Statute into the same sections of the law. It notes that the wording added to |flthe Blood Shield statute in 1990, lifted from the 1968 blood shield statute (former La. C.C. art. 1764)) the pronouncement that activities involving blood by healthcare providers and nonprofit community blood banks were not to be construed as the “sale” of blood, and “warranties” would not be applicable to those activities. The Christianas argue that the 1990 amendment also eliminated the provision in the 1982 statute, which limited the exemption from strict liability to transfusion-acquired “viral diseases undetectable by appropriate medical and scientific laboratory tests.”

A review of the language contained in the 1990 amendment supports Baptist’s argument that one reason for the amendment was to incorporate some of the language from the earlier 1968 Blood Shield Statute. In Reed v. St. Charles General Hospital, 2001-1148 (La.App. 4 Cir. 3/27/02), 815 So.2d 319, this Court acknowledged the major change made by the 1990 amendment to the Blood Shield Statutes on the law regarding strict liability. In considering the prescriptive period applicable to a strict liability claim for damages caused by contracting AIDS from a blood transfusion that occurred in 1985, this court stated:

In 1982, strict liability claims for blood transfusions were not abolished by statute, but were restricted to cases where viral diseases and infectious agents were “detectable” by appropriate medical and scientific tests. It was not until 1990 that strict liability for blood transfusions was statutorily abolished .... (emphasis added)

Id. at p. 3, 815 So.2d at 321.

| inWhile recognizing that the 1982 Blood Shield Statutes contained a more restrictive type of strict liability than provided by the 1990 amendment, this Court was not called upon to address the issue of whether distributors were covered by the restrictive type of strict liability found in the Blood Shield Statutes prior to the 1990 amendment. In fact, it appears that the issue of whether the earlier statutes covered distributors has apparently only been mentioned in one reported case. In LeBlanc v. Meza, 92-1040 (La.App. 3 Cir. 6/16/93), 620 So.2d 521, the Third Circuit in dicta expressly refused to read La. R.S. 9:2797 to exclude claims for distribution of defective blood. The patient in LeBlanc alleged that she became infected with the HIV virus by virtue of a blood transfusion received in 1985. She and her husband sued the hospital where the transfusion took place and the various physicians who treated her. The defendants contended that the hospital did not and could not have tested its blood supply for HIV until at least March 20, 1985, when a newly released test for detecting HIV in blood samples was received by distributors. In response to the plaintiffs’ strict liability claim against the hospital, the court stated, “Pursuant to La. R.S. 9:2797, we reject the plaintiffs’ strict liability claim against Lourdes [the hospital]. We decline to carve an exception out of § 2797 for the ‘distribution’ of defective blood.” Id. at 523.

In the present case, the Christianas argue that LeBlanc is not applicable because the defendant hospital in LeBlanc had a health care provider/patient relationship with the petitioner. Thus, this Court’s holding in Patin, in which we emphasized the need for a healthcare provider/patient relationship in medical malpractice cases, would not be applicable to a LeBlanc type situation.

InFurther, there is nothing in the 1982 Blood Shield Statutes to suggest the legislature intended to limit protection from strict liability claims to hospitals having a healthcare provider/patient relationship with the recipient of the transfusion. Rather, the 'language of the statute expressly covers hospitals, hospital blood banks, and non-profit community blood banks. If the legislature intended to only cover physicians and/or hospitals with a healthcare provider or patient client relationship with the patient, it could easily have said so as it did in the Medical Malpractice Act.

Moreover, the holding in Patín appears to have been severely diminished by the ruling in the more recent case of David v. Our Lady of the Lake Hospital, 2002-2675 (La.7/2/03), 849 So.2d 38, wherein the Supreme Court found that the plaintiffs action for damages allegedly resulting from á contaminated blood transfusion administered by a hospital in 1979 was barred by the three-year prescriptive period for medical malpractice actions of La. R.S. 9:5628. In reaching this conclusion, the court reasoned that the plain wording of the statutes demonstrated the statute applied to all actions arising out of patient care. The court stated: “The statute contains no qualifying or limiting language that would negate its application to a strict liability action brought against a hospital for an act arising out of patient care. The words “or otherwise” are all inclusive of actions regardless of the factual bases involved or the legal theories asserted. Further, applying the prescriptive period of LSA-R.S. 9:5628 to strict liability actions arising out of patient care is consistent with the legislative policy for which the statute was enacted, specifically, to avoid medical malpractice insurance crises, (citations omitted).” David, at p. 13, 849 So.2d at 47-48. Additionally, the court stated, “The placement of La. R.S. 9:5628 in Title 9 instead of in the MMA indicates a | ^legislative intent that the statute’s provisions apply to claims against “any ... hospital,” not just hospitals qualified under the MMA ...” Id. at p. 15, 849 So.2d at 49.

This same line of reasoning would seem to dictate that the 1982 Blood Shield Statute was applicable to all hospitals and all hospital blood banks. It is well settled that the meaning of a law must first be sought in the language employed. If the language is clear and unambiguous and application of the unambiguous statute does not lead to absurd results, the law shall be applied as written. David v. Our Lady of the Lake Hospital, Inc., 2002-1945 (La.7/2/03), 849 So.2d 38. Words and phrases are to be construed according to the common and approve usage of the language. Id. The proper connotation to be placed on a word in a statute does not depend on an isolated definition attributable to it; instead, the word and the context in which it is used shall be considered. Id.

In applying these rules of statutory construction, it is apparent that the language of the 1982 statute clearly evidenced the legislature’s intention to shield “physicians, hospitals, hospital blood banks, and non-profit community blood banks” from claims of “[s]trict liability or liability of any kind without negligence ... in the screening, processing, transfusion, or medical use of human blood and blood components of any kind ... which results in transmission of viral disease undetectable by appropriated medical and scientific laboratory tests.” Notwithstanding the omission of the word distributor or distribution, the clear wording of the earlier 1982 statute appears to suggest the legislature intended to cover all hospitals and hospital blood banks. Assuming the legislative intent was to limit the statute to hospital distributors using their own blood, it is difficult to understand why the legislature would have included hospital blood banks, and nonj£rofit13 community blood banks as entities covered by the statutes. The sole function of these entities is to screen and process blood products. One would ordinarily not expect these entities to actually perform blood transfusions. Accordingly, the only logical interpretation to be reached considering all the words in the statute is that the intent was to cover all hospitals.

The result to be reached by holding that the statute does not cover distributors is absurd. Based on the plaintiffs’ reasoning, the statute would protect Tulane, the hospital actually performing the transfusion and the hospital that supplied most of the blood given to Mrs. Christiana, while Baptist, who merely supplied Tulane with a small portion of the blood used in the transfusion, would not be protected. Additionally, as in David v. Our Lady of the Lake Hospital, placement of the Blood Shield Statutes in Title 9 could also be said to be indicative of the legislature’s intent to protect all hospital blood banks, as well as other health care providers, who screen and process blood products from strict liability claims.

Although no other cases could be located wherein a court specifically addressed the issue of whether the 1982 versions of the Blood Shield Statutes abolished strict liability for distribution of defection blood products, the LeBlanc court’s conclusion that La. R.S. 9:2797 did not include any exception for distribution of defective blood is supported by the jurisprudence and the legislative history of the Blood Shield Statutes. The statutes were specifically enacted in response to DeBattista v. Argonaut-Southwest Insurance Co., 403 So.2d 26 (La.1981), wherein the Louisiana Supreme Court first enunciated the idea of strict liability for blood transfusion. Chauvin v. Sisters of Mercy Health System, St. Louis, Inc., 2001-1834 (La.App. 4 Cir. 5/8/02), 818 So.2d 833, 836, writ denied, 2002-1587 (La.9/30/02, 825 So.2d 1194). In DeBattista, the Louisiana Supreme Court affirmed the 114district court’s finding of no negligence on the part of the hospital, but found the defendants strictly liable in tort, holding that blood contaminated with hepatitis virus is defective, i.e., unreasonably dangerous to normal use. The Court recognized health care providers’ exposure to strict products liability claims arising out of defective blood transfusions, reasoning that “[a] distributor of blood is strictly liable in tort when blood he places on the market creates an unreasonable risk of harm to others and, in fact, results in injury or disease to a human being.” Id., 403 So.2d at 32; also see, Faucheaux v. Alton Ochsner Medical Foundation Hosp. and Clinic, 470 So.2d 878, 879 (La.1985).

The 1982 statute was clearly enacted to address the problems created by DeBattis-ta, a case involving liability for distribution of blood. The statute did not expressly make a distinction between hospitals that actually provided blood from their own blood banks and hospitals that obtained blood needed for transfusions from other hospital blood banks. Therefore, the district court erred as a matter of law in concluding that as of 1984, when the transfusion was received, strict liability applied.

DECREE

This Court grants the writ application of the Relator, Southern Baptist Hospital, and vacates the judgment of the district court granting a motion for partial summary judgment in favor of Melinda Chris-tiana and Nicholas Christiana, Jr.

WRIT GRANTED.

MURRAY, J., concurs with reasons.

L MURRAY, J.,

concurs with reasons.

Because I agree that the Blood Shield Statutes in effect in 1984, La. R.S. 9:2797 and La. C.C. art. 2322.1 govern the Chris-tianas’ strict liability claims against Baptist, a blood distributor, I concur in the result. Although those statutes did not include the word “distributor,” the Legislature clearly intended those statutes to cover a hospital that distributed blood to its patients. See Shortess v. Touro Infirmary, 520 So.2d 389, 391 n. 5 (La.1988)(de-scribing Louisiana’s Blood Shield Statutes in effect at that time as “immunizing] hospitals and blood banks from implied warranty and strict liability for transmission of undetectable diseases” and noting that “[generally, blood transfusions are characterized as services rather than sales”).

      . In Patin, the plaintiffs sued Tulane Medical Center and Touro Infirmary after Mr. Patin contracted the HIV virus from a blood transfusion he received in 1980 while a patient at Tulane. Touro had supplied the allegedly tainted blood. Touro filed an exception of prematurity, alleging that plaintiffs had not submitted their claim to a medical review panel as required under the Louisiana Medical Malpractice Act ("MMA”). This court held that the MMA did not apply to the claim against Touro because, although Touro was a "health care provider” under the MMA, there was no “health care provider-patient relationship” between Xouro and Mr. Patín, the Tulane patient who received the blood.

      . At that time, La. C.C.P. art.1915 provided in relevant part:
      A. A final judgment may be rendered and signed by the court, even though it may not grant ... all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
      # ^ !¡C #
      (3) Grants a motion for summary judgment, as provided by Articles 966 through 969....

      . La. C.C. P. art. 966 was amended to add section E, which states, "A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.”

      . La. C.C.P. art.1915 was amended to provide, in pertinent part:
      Art.1915. Partial judgment; partial exception; partial summary judgment
      A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court: (3) Grants a motion for summary judgment, as provided by Articles 966 through 969, including a summary judgment granted pursuant to Article 966(E).

      (B)(1) When a court renders a partial judgment or partial summary judgment ... the judgment shall not constitute a final judgment unless specifically agreed to by the parties or unless designated as a final judgment by the court after an express determination that there is no just reason for delay. (emphasis added) il) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal....

      . This same designation requirement is found in the current version of La. C.C.P. art.1915, as amended by La. Acts 1999, No. 1263 § 1. However, the 1999 act states that the act only applies to actions filed on or after the January 1, 2000 effective date of the amendment. Because the instant action was filed in 1992, the 1999 amendments do not apply. However, the 1997 amendment became effective on July 1, 1997, the date the governor signed the Act.

      . This court in Casey v. Southern Baptist Hospital, 526 So.2d 1332 (La.App. 4th Cir. 1988) found both acts unconstitutional because of procedural defects involved in the passage of the statutes. However, noting that La. R.S. 9:2797, which contained identical provisions of La. C.C. art. 2322.1, was amended and reenacted by Acts 1982, No. 204 § 1, effective July 15, 1982, the court concluded that its finding of unconstitutionality, insofar as it related to R.S. 9:2797, extended only until July 15, 1982.

      . The earlier Blood Shield Statute, La.C.C. art. 1764 (now repealed), was amended by Act 301 of 1968, adding section B, to provide as follows:
      Notwithstanding the provisions of Section A.2. of this Article, the implied warranties of merchantability and fitness shall not be applicable to a contract for the sale of human blood, blood plasma or other human tissue or organs from a blood bank or reservoir of such other tissues or organs. Such blood, blood plasma or tissue or organs shall not for the purposes of this Article be considered commodities subject to sale or barter but shall be considered as medical services.


author: ^MICHAEL E. KIRBY, Judge.

text:
    In re Arlene V. MERAUX.
    No. 2003-CA-0633.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2004.
    Joseph L. McReynolds, Kermit L. Roux, III, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Appellant Cheryl Cannella.
    Peter J. Butler, Peter J. Butler, Jr., Richard G. Passler, Breazeale, Sachse & Wilson, L.L.P., New Orleans, LA, for Ap-pellee Salvador E. Gutierrez, Jr., Curator for the Property and Affairs and under Curator for the person of the interdict, Arlene V. Meraux.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   ^MICHAEL E. KIRBY, Judge.

On January 9, 2004, this Court ordered appellant, Ms. Cheryl Cannella, to show cause why this appeal should not be dismissed as moot due to the December 2, 2003 death of Ms. Arlene Meraux, Ms. Cannella’s mother.

In response to our show cause order, Ms. Cannella asks this Court to nullify the trial court’s finding that Ms. Cannella was disinherited by Ms. Meraux, and to issue an order pursuant to La.Code of Civil Procedure article 4569 that Ms. Cannella be given a copy of the final accounting and report of the curators and the authority to examine all financial and medical records of the interdict, including records of all medications and medical treatment given to Ms. Meraux during the period of the interdiction.

This appeal involved only the propriety of the trial court’s decisions regarding the interdiction and curatorship of Ms. Meraux. With Ms. Meraux’s death, the issues of interdiction and curatorship are moot. Additionally, Ms. Cannella’s request for an order under Code of Civil Procedure article 4569 is denied because she did not raise this issue in her appeal. Furthermore, we find that Ms. Cannella’s request for an order under Code of Civil Procedure article 4569 is better addressed in the trial court.

|2For the foregoing reasons, this appeal is dismissed as moot.

APPEAL DISMISSED.