author: 2CHARLES R. JONES, Judge. 1TOBIAS, J.,

text:
    Fred THOMPSON v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2002-CA-1804.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 1, 2003.
    Gary M. Pendergast, New Orleans, LA, for PlaintiffiAppellee.
    Patrick R. Bossetta, Assistant City Attorney, Franz L. Zibilich, Chief Deputy City Attorney, Charles R. Rice, Jr., City Attorney, New Orleans, LA, for Defen-danVAppellant.

      (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS Jr.).
   2CHARLES R. JONES, Judge.

The New Orleans Police Department appeals the decision of the Civil Service Commission restoring to Officer Fred Thompson all back pay and benefits lost as a result of a disciplinary action taken against him. We affirm.

Officer Thompson was hired by the New Orleans Police Department (hereinafter the “NOPD”) on May 12, 1985. Officer Thompson was promoted to his current permanent status of Police Officer IV on February 12, 1993. On June 2, 2000, Officer Thompson responded to a trespassing complaint at 508 Adell Street. The complaint had come from an employee of the Housing Authority of New Orleans (hereinafter “HANO”). He went to the apartment where he came across an unknown substance that he believed, through his experience, not to be narcotics. Officer Thompson flushed the substance down the toilet. Two arrests were made; however, the substance could not be linked to either of the arrestees. A HANO employee called the NOPD and made a complaint in regard to the substance being flushed down the toilet.

A May 9, 2001 letter from the NOPD suspended Officer Thompson for seventy days for “neglect of duty”, effective June 3, 2001. Specifically, the letter | astated “... you (Officer Thompson) failed to bring the substance to Central Property and Evidence, for testing and to be destroyed. Furthermore, you failed to write a police report on the discovery.” Officer Thompson appealed the findings of the NOPD to the Civil Service Commission. The Civil Service Commission held a hearing on February 25, 2002, in which Officer Thompson’s appeal was granted and his back pay and benefits were restored. The NOPD now appeals the decision of the Civil Service Commission, arguing that the Commission acted arbitrary and capricious in their finding. We disagree.

The Civil Service Commission has a duty to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether punishment imposed is commensurate with the dereliction. Walters v. Department of Police of New Orleans, 454 So.2d 106 (La.1984). The appointing authority has the burden of proving by the preponderance of the evidence that occurrence of the complained of activity and that the conduct complained of impaired the efficiency of the public service. Cittadino v. Department of Police, 558 So.2d 1311 (La.App. 4 Cir.1990). In reviewing the decisions of a Civil Service Commission, a reviewing court should not reverse a Commission conclusion as to the existence or absence of cause for dismissal, unless the decision is arbitrary, capricious or an abuse of the Commission’s discretion. Jones v. Louisiana Department of Highways, 259 La. 329, 250 So.2d 356 (1971); Konen v. New Orleans Police Department, 226 La. 739, 77 So.2d 24 (1954).

LOfficer Thompson was an employee of the NOPD for sixteen years. The parties stipulated at the hearing that the seventy-day suspension was the first disciplinary action taken against him while employed with the NOPD. Further, the parties stipulated to Officer Thompson’s reference to the NOPD’s disciplinary guidelines for “neglect of duty” under Chapter 26.2. He explained that there are three categories of offenses specified, and that a first offense case for a minor violation would result in a letter of reprimand for five days. There were no objections by either party during the course of the hearing.

After review of the record, we agree with the Civil Service Commission when it stated in its decision that:

From the facts provided, we cannot conclude that the appellant neglected his duty. There is no factual basis to explain why the Appellant should have taken possession of an unknown substance that was not believed to be illegal.... The Appointing Authority has failed to establish by a preponderance of evidence that the Appellant neglected his duty.'

Considering the evidence presented at trial and the record before us, the Civil Service Commission did not act arbitrarily nor capriciously in its finding, and we have no cause to reverse its opinion.

Decree

For the reasons stated herein, we affirm the decision of the Civil Service Commission restoring all back pay and benefits to Officer Fred Thompson.

AFFIRMED.

TOBIAS, J., concurs and assigns reasons.

1TOBIAS, J.,

concurs and assigns reasons.

I respectfully concur.

This court held in Stevens v. Department of Police, 2000-1682, p. 8 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 627:

The public puts its trust in the police department as a guardian of its safety, and it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. Newman [v. Dept. of Fire, 425 So.2d 753 (La.1983) ] .... Indeed the [Civil Service] Commission should give heightened regard to the appointing authorities that serve as special guardians of the public’s safety and operate as quasi-military institutions where strict discipline is imperative.

Even though strict discipline is required in the administration of a police department, the record on appeal in this case contains no evidence explaining why the appointing authority found that a seventy-day suspension was warranted in Officer Thompson’s case. Under Chapter 26.2 of the disciplinary guidelines of the New Orleans Police Department, Officer Thompson would at most be guilty of a first offense minor violation of the prohibition against neglect of duty, the maximum penalty for which is a suspension of not more than five days and the minimum penalty for which is a reprimand. The Commission was required, in my opinion, to reverse the penalty imposed by the appointing authority because no evidence was presented at the hearing justifying it or any other penalty.


source: Caselaw Access Project

author: 2FITZSIMMONS, J.

license: Public Domain

text:
    Ron OLIVER v. CAL DIVE INTERNATIONAL, INC.
    No. 2002 CA 1122.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.
    Rehearing Denied May 30, 2003.

      L. Clayton Burgess, Lafayette, Kreig A. Breaux, New Iberia, Counsel for Plaintiff-Appellee Ron Oliver.
    Ralph E. Kraft, F. Douglas Gatz, Jr., Ray F. Lucas, Lafayette, Cameron B. Simmons, New Iberia, Counsel for Defendant Appellant Cal Dive International, Inc.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   2FITZSIMMONS, J.

Cal Dive International, Inc. (Cal Dive) appeals the grant of a default judgment rendered against it in favor of Ron Oliver (Mr. Oliver). Following this court’s consideration of the record and the issues presented on appeal, the trial court judgment is affirmed in part, reversed in part, amended in part, and remanded in part.

Cal Dive asserts the following five assignments of error on appeal: (1) the trial court erred in admitting medical evidence submitted by plaintiff/appellee, Mr. Oliver, in support of the default judgment; (2) the trial court erred in granting Mr. Oliver a default judgment for personal injury when he failed to establish a prima facie case of liability and damages, and the judgment entered by the trial court was contrary to the law and evidence; (3) the trial court erred in granting a default judgment for personal injury in the amount of $2,274,403.00 upon the evidence presented at the hearing for the confirmation of default; (4) the trial court erred in failing to grant a new trial on the peremptory grounds provided in La. C.C.P. art.l972(l) or the discretionary grounds provided in La. C.C.P. art.1973; and (5) the trial court erred by permitting the judge in Division B to hear and decide the motion for new trial rather than the judge in Division G, to whom the case was allotted.

Although Cal Dive includes in its assigned errors an alleged failure by Mr. Oliver to establish a prima facie ease of liability, the argument on behalf of Cal Dive is limited to the issue of damages. Therefore, this court accepts, and affirms; the lower court finding that Mr. Oliver’s neuropathy in his thumb was causally related to decompression sickness while diving in September 2000, and that he was a seaman.

\ MEDICAL EVIDENCE

In conjunction with the confirmation of default, Mr. Oliver submitted the .following documents into the record: medical records from Culicchia Neurological Clinic, where Maria Carmen Espíritu, M.D. treated him; medical records from John P. Simanonok, M.D.; a radiology report of an MRI by Joan Wojak, M.D.; a report by G. Randolph Rice, Ph.D, economist; a report by Glenn M. Hebert, MRC, whose specialty was vocational rehabilitation; and federal income tax returns from several years. The medical records indicate that Mr. Oliver was “a commercial diver who suffered an episode of decompression sickness [from which] he is left with a residual neurological deficit in the left upper extremity, specifically over the area of the left thumb.”

The general statutory regulations for the admissibility of hospital records are located in La. R.S. 13:3714, which states, in part:

Whenever a certified copy of the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question, or a copy of a bill for services rendered, medical narrative, chart, or record of any ... health care provider ... is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents ....

The medical records exception obviates the need for laying a foundation for admissibility. Judd v. State, Department of Transportation and Development, 95-1052, p. 6 (La.11/27/95), 663 So.2d 690, 694.

Admissible evidence in a confirmation of default is, additionally, regulated by La. C.C.P. art. 1702. Section B(2) of that code article provides the following in pertinent part: “When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand.” Thereafter, section D contains the following directive: “When the demand is based 14upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony.”

The pivotal issue before this court is whether, in fight of the language enunciated in La. C.C.P. art. 1702 D, the submitted medical records were sufficient to establish the treating physician’s professional diagnosis or, alternatively, whether a sworn narrative report attesting to the validity of the records was required for the establishment, of prima facie evidence. See Bordelon v. Sayer, 2001-0717, pp. 5-6 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, 1236-1237, writ denied, 2002-1009 (La.6/21/02), 819 So.2d 340. The medical records indicate that following the mid-September 2000 incident, Mr. Oliver was treated by Dr. Simanonok on September 22, 2000 and October 6, 2000. On January 31, 2001, Dr. Simanonok wrote a letter in which he referred to Mr. Oliver’s medical status as follows: “Therefore, he is rendered unfit to dive and will no longer be able to work as a commercial diver.” A May 16, 2001 report to Cal Dive contains the following prognosis by Dr. Simanonok: “I suspect he will end up being permanently disqualified from diving duty.” Then in another letter, dated May 17, 2001, Dr. Simanonok states: “It is my opinion that Mr. Oliver is unfit to dive and will no longer be able to work as a commercial diver.”

Dr. Simanonok’s letters in the medical records were sufficient to establish prima facie proof that Mr. Oliver was permanently unable to pursue a career in “commercial diving.” Neither oral medical testimony nor a sworn narrative report was necessary. Therefore, the provisions of La. C.C.P. art. 1702 D are not apposite, and Dr. Simanonok’s written findings are admissible.

| ¡DAMAGES

The trial court awarded the following in damages:

Past Lost Wages $ 101,000.00
Past Medical Expenses $ 1,279.00
Past and Future Lost Employer-Paid Fringe Benefits $ 163,773.00
Future Lost Wages $1,358,351.00
Total Special Damages $ 1,624,403.00
Past Physical and Mental Pain and Suffering $ 250,000.00
Future Physical and Mental Pain and Suffering 250,000.00
Loss of Enjoyment of Life $ 150,000.00
Total General Damages $ 650,000.00
Total Award $2,274,403.00

Mr. Oliver tendered the report of G. Randolph Rice, Ph.D., an economist, who assumed that Mr. Oliver’s earnings were $97,500.00. Dr. Rice’s $97,500.00 annual income estimate is based on a report by Glenn M. Hebert, MRC, LRC. Mr. Hebert noted that, but for the accident, Mr. Oliver could have continued to work, earning $85,000.00 to $110,000.00 per year. Mr. Hebert also opined that Mr. Oliver had the “intellectual ability to reenter the labor market earning $7.00 to $8.00 per hour” as of June 2001. Mr. Hebert wrote that he did not know whether Mr. Oliver would be a candidate for any type of additional vocational training until he underwent anticipated “neurological testing”. When Dr. Rice projected the indicated annual income for Mr. Oliver’s work life expectancy, he used Mr. Hebert’s calculations to opine that Mr. Oliver was re-employable at $7.00 to $8.50 per hour. However, Dr. Rice failed to indicate the work life expectancy of a diver. Rather, Mr. Hebert obliquely stated that there is no reason why Mr. Oliver “could not have continued to work as a saturation diver and/or a diver until he elected to retire from this industry.” Furthermore, Dr. Rice ascribed the income ^potential that was indicated as of June 2001, which Mr. Hebert acknowledged failed to take into consideration possible vocational training.

Awards for lost future income are intrinsically insusceptible of mathematical exactitude. As such, the judiciary must exhibit sound discretion in rendering awards that are consistent with the record and do not impose a hardship upon either party. Steadman v. Georgia-Pacific Corporation, 95-1463, p. 11 (La.App. 1 Cir. 4/6/96), 672 So.2d 420, 426-427, writ denied, 96-1494 (La.9/20/96), 679 So.2d 440. Notwithstanding the legal premise that future lost wages need not be established with mathematical certainty, the existence of only circumspect and deficient information, on which Dr. Rice based his forecast of future lost wages, does not support the projected income with reasonable certainty, even at a prima facie level. See Haydel v. Hercules Transport, Inc., 94-1246, p. 30 (La.App.4/7/95), 654 So.2d 418, 435-436, writ denied, 95-1172 (La.6/23/95), 656 So.2d 1019. The trial court’s award of future lost wages in the sum of $1,358,351.00 and past and future lost employer paid fringe benefits (10% of gross wages into an employer contributed 401-K plan) in the sum of $163,773.00 is, therefore, an abuse of the court’s discretion. In all other respects, the trial court’s award of special damages, i.e., past lost wages and medical expenses, is not an abuse of discretion.

The trial court granted the following general damage award to Mr. Oliver: past physical and mental pain and suffering, $250,000.00; future physical and mental pain and suffering, $250,000.00; and loss of enjoyment of life, $150,000.00. General damages involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle which cannot be measured definitively in terms of money. Turner v. Ostrowe, 2001-1935, p. 15 (La.App. 1 Cir. 9/27/02), 828 So.2d 1212, 1224, writ denied, 2002-2940 (La.2/7/03), 836 So.2d 107. Factors to be considered [7in assessing the quantum to be awarded for pain and suffering are the severity and duration thereof. Fleniken v. Entergy Corporation, 2000-1824, p. 29 (La.App. 1 Cir. 2/16/01), 780 So.2d 1175, 1194. Thus, the standard of review on appeal of general damage awards is concomitantly difficult to clarify and inherently nonspecific. Matos v. Clarendon National Insurance Company, 2000-2814, p. 4 (La.App. 1 Cir. 2/15/02), 808 So.2d 841, 845. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury, to the particular plaintiff, under the particular circumstances, that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Following the initial treatment for decompression sickness in the case at hand, the record contains no objective evidence of any physical injury other than to the left thumb. There is no documentation of the extent of past or future mental and physical pain and suffering beyond numbness in the left thumb; nor is there substantive evidence of any loss of enjoyment of life in the record. However, Mr. Oliver testified concerning the issue of general damages at the hearing. Moreover, in the judgment, the trial court judge referred to witness testimony as part of the basis for his judgment. Unfortunately, no transcript or narrative report was made of Mr. Oliver’s testimony.

The appellant bears the responsibility of securing either a transcript or a narrative of facts; therefore, an inadequacy in the record is imputable to the appellant. Carter v. Barber Brothers Contracting Co., Inc., 623 So.2d 8, 10 (La.App. 1st Cir.), writ denied, 629 So.2d 1180 (La.1993). In the absence of relevant Isportions of the transcript or a narrative report, this court does not possess the factual basis from which to determine whether the trial court abused its discretion in awarding Mr. Oliver $650,000.00 in general damages. Leger v. Lancaster, 423 So.2d 88, 89 (La.App. 1st Cir.1982). As a reviewing court, we are relegated to apply the presumption that the trial court’s judgment is supported by competent evidence and affirm the judgment. Succession of Populus, 95-1469, p. 4 (La.App. 1 Cir. 2/23/96), 668 So.2d 747, 749. Accordingly, the award for general damages is affirmed.

MOTION FOR NEW TRIAL

Louisiana Code of Civil Procedure article 1972 provides three peremptory grounds for the mandatory grant of a new trial: (1) when the verdict or judgment appears clearly contrary to the law and the evidence; (2) when the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; and (3) when the jury was bribed or has behaved improperly so that impartial justice has not been done. A judge also possesses the discretionary authority to grant a new trial “if there is good ground therefor .... ” La. C.C.P. art. 1973.

In accordance with our prior review of the awards, this court finds that the portion of the judgment awarding future wages and employer-paid fringe benefits is clearly contrary to the evidence and controlling law. The motion for new trial on these limited issues is hereby granted. The trial court’s denial of the motion for new trial is affirmed in all other respects.

COURT DIVISION

Cal Dive alleges that “[t]he trial court erred in permitting the judge in Division B to hear and decide the Motion for New Trial, rather than the Judge in Division G, to whom the case was allotted.” Mr. Oliver’s lawsuit was allotted to Division G of the Sixteenth Judicial District Court of the Parish of St. Mary. Judge 19Charles L. Porter served as the presiding judge of Division G. On November 6, 2001, Judge Porter signed an order for a preliminary default in favor of Mr. Oliver. Thereafter, acting as the duty judge for Division G, Judge Paul J. deMahay rendered a judgment confirming the default judgment against Cal Dive on December 7, 2001. Cal Dive filed a motion for new trial. On March 13, 20Ó2, Judge deMahay heard oral argument in open court on the motion for new trial. He then rendered judgment on the rule, denying Cal Dive’s motion for new trial.

Louisiana Code of Civil Procedure article 253.1 provides for random assignment of cases to the various divisions of the court. Moreover, La. C.C.P. art. 253.2 states in pertinent part: “After a case has been assigned to a particular section or division of the court, it may not be transferred from one section or division to another section or division within the same court, unless agreed to by all parties, or unless it is being transferred to effect a consolidation for purpose of trial ... [or when] the supreme court, by rule, [has established] uniform procedures for reassigning cases.... ” In addition, the local rules of the Sixteenth Judicial District Court contain a section entitled “Allotment of Civil Cases.” Section 3 of the local rules provides the following: “Once a case has been allotted all exceptions, motions, rules and trials on the merits shall be taken up by the Judge of the division to which the case is allotted, provided, however, that any uncontested matter, preliminary default or confirmation of default may be taken up before any division.”

Judge deMahay was authorized to render judgment confirming the default against Cal Dive when it was presented to him in his capacity as the duty judge acting on behalf of Division G. However, his extended role when he, thereafter, received oral argument in a contradictory hearing on the motion for hew trial and rendered a decision was effectively an improper interdivisional transfer of the case, as well as a violation of the dictates of the Sixteenth Judicial District Court’s local |inrule. State v. Sprint Communications Company, L.P., 96-3094, p. 6 (La.9/9/97), 699 So.2d 1058, 1063. This court has previously echoed the Louisiana Supreme Court’s emphasis that the concept of random assignment encompasses subsequent transfers to another division, which constitute a violation of public policy. Bourgeois v. Daigle, 97-2235, p. 5 (La.App. 1 Cir. 9/25/98), 720 So.2d 72, 74, writ denied, 98-3137 (La.2/5/99), 738 So.2d 11 (citing Sprint Communications Company, L.P., 96-3094, pp. 3-4, 699 So.2d at 1062).

In the instant case, however, Cal Dive failed to object to the interdivisional transfer of the case when it was discussed at the hearing on Cal Dive’s motion for new trial. Not until the instant appeal, was any formal challenge asserted. Thus, Cal Dive waived its right to object to the divisional transfer when it acquiesced to the forum at the trial level. Compare Bourgeois, 97-2235, pp. 10-11, 720 So.2d at 76-77; see also Roby v. Leonard, 209 So.2d 182, 184-185 (La.App. 1st Cir.1968).

In sum, the motion for new trial is granted to the limited extent of the issues of the awards for future lost income and the future lost employer-paid fringe benefits. These matters are remanded to the trial court for further proceedings consistent with this judgment. In all other respects, the trial court judgment is affirmed. Costs associated with this appeal are assessed equally to each party.

AFFIRMED, IN PART; REVERSED, IN PART; REMANDED, IN PART.

      . On July 20, 2001, after reviewing an unremarkable MRI, Dr. Maria Carmen Espíritu recommended an EMG nerve conduction study to rule out "cervical radiculopathy C5~ C6-C7”.

      . The introduced federal tax return W-2 forms for Mr. Oliver reflect income sums that range from $51,892.02 to $88,051.99 for the years 1994, 1995, 1998, 1999 and 2000. In 1999 and 2000, Mr. Oliver had earned $58,141.83 and $53,213.93 respectively.

      . Louisiana Code of Civil Procedure article 2131 provides: "If the testimony of the witnesses has not been taken down in writing!,] the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at anytime prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.”


text:
    Nancy LOCKETT and Ronny Lockett, Husband and Wife v. The STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2002 CA 0651.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.
    Rehearing Denied May 30, 2003.

      Leonard Cardenas, III, Baton Rouge, Counsel for Plaintiffs-Appellees Nancy Lockett and Ronny Lockett, Husband and Wife.
    Honorable Richard P. Ieyoub, Attorney General, E. Wade Shows, Ronnie J. Ber-thelot, Carlos A. Romanach, Special Assistant Attorneys General, Baton Rouge, Counsel for Defendant-Appellant The State of Louisiana, Department of Transportation and Development.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   2FITZSIMMONS, J.

The State of Louisiana, through the Department of Transportation and Development (DOTD), appeals a trial court judgment in which DOTD was deemed sixty-five percent at fault in a traffic accident. Nancy and Ronny Lockett have answered the appeal. Following our review of the record and law, this court affirms.

FACTUAL BACKGROUND

Katy Lockett, the daughter of Nancy and Ronny Lockett, was a passenger in a vehicle driven by Miranda Britt Rupnari-an. The vehicle proceeded in a southerly direction along Louisiana Highway 19, a four lane undivided highway. Highway 19 is controlled by traffic lights at its intersection with Groom Road. Turning vehicles are regulated by a “green ball” or “left turn yield on green” light, as opposed to a “left turn only” indicator. Mrs. Rupnarian was in the process of executing a left turn at the intersection of Highway 19 and Groom Road, when another vehicle, traveling in the outside lane of traffic in a northerly direction along Highway 19, collided with her vehicle. Katy Lockett died as a result of the accident. Katy’s parents, Nancy and Ronny Lockett, brought the instant lawsuit against DOTD, alleging that DOTD was responsible for the existence of an unreasonably dangerous condition at the intersection that was the cause of the accident.

Following a trial on the merits, the jury returned a verdict in favor of the Locketts. Miranda Britt Rupnarian was assessed thirty-five percent liability, and DOTD was assigned sixty-five percent liability. General damages in the sum of $500,000.00 each were awarded to Nancy and Ronny Lockett, as well as $100,000.00 for medical expenses and $10,000.00 in funeral expenses. Both parties’ motions for judgment notwithstanding the verdict to set aside and modify |3the jury’s apportionment of fault were denied. DOTD’s motion for remittitur was granted, reducing the funeral expenses award to $7,991.24 and the medical expenses to $27,106.37.

DOTD appeals, asserting the following assignments of error:

(1) The jury’s finding of sixty-five percent negligence on the part of DOTD;
(2) The trial court’s refusal to instruct the jury on the damage limitations provided by La. R.S. 13:5106;
(3) The jury’s award of $1,000,000.00 in general damages;
(4) The trial court’s failure to remove a juror; and
(5) The trial court’s disregard of 23 U.S.C. § 409.

The Locketts answer the appeal, asserting that one hundred percent fault should have been assigned to DOTD.

We commence our review by addressing two procedural issues.

ADMISSIBILITY OF EVIDENCE

DOTD argues that the trial court committed an evidentiary error by allowing the admission of safety-related material for which DOTD possesses a privilege of statutory immunity. The evidence was obtained by the Locketts from the City of Baker.

The provisions of 23 U.S.C. § 409 state that any “reports, surveys, schedules, lists, or data compiled or collected” for specified federal evaluation programs, or which are gathered for the purpose of a highway safety construction improvement project that “may be implemented utilizing Federal-aid highway funds[,]” are privileged, not discoverable, and not admissible in state or federal court. This privilege has not been liberally applied to all data irrespective of the possessor. In Irion v. State, Department of Transportation and Development, 1998-2616, pp. 5-6 (La.App. 1 Cir. 5/12/00), 760 So.2d 1220, 1226, writ denied, 2000-2365 (La.11/13/00), 773 So.2d 727, when DOTD attempted to exclude evidence sought from the files of agencies other than DOTD, this court held that reports compiled by the Department of Public Safety and by the Ascension Parish Police Jury Resolution, as opposed to files in DOTD’s possession, could not be construed to be collected or compiled for the purpose of obtaining federal funds or to enforce safety. In the instant case, the Locketts did not rely on DOTD for their discovery. See and compare Palacios v. Louisiana and Delta Railroad Inc., 98-2932, p. 13 (La.7/2/99), 740 So.2d 95, 102.

Most recently, the United States Supreme Court in Pierce County, Washington v. Guillen, — U.S. —, 123 S.Ct. 720, 730, 154 L.Ed.2d 610 (2003), stated that an accident report that was collected by an agency for purposes unrelated to eligibility for federal funds would not be protected under 23 U.S.C. § 409, even though the same report would be protected in the hands of another department that first obtained the report for federal funding purposes. Thus, the fact that the records of the Mayor of Baker or Baker’s Chief of Police included information that could be construed to be safety records of DOTD does not confer immunity on those records. DOTD cannot preclude the admission of evidence obtained from the City of Baker.

FAILURE TO REMOVE A JUROR

During voir dire, plaintiffs’ counsel posed the following question: “I need to know, on a serious note, whether there are any particular problems that would prevent you from devoting your full attention to this case for the next several days. Any particular problems, anyone?” A juror, Ruby Allen, indicated that she had experienced two nervous breakdowns in the past. On further questioning, Ms. Allen stated that she was working every day and liked to “move around.” She indicated that she was raising six children, regularly attended church, and was a | ¡¡voting citizen. Ms. Allen thereafter recounted that her father and boyfriend had died three years beforehand.

Counsel for the defense posed no questions to Ms. Allen; however, he later challenged her for cause on the basis that she had undergone two nervous breakdowns. The trial judge overruled the challenge.

Challenges for cause are regulated by La. C.C.P. art. 1765. That statute provides:

A juror may be challenged for cause based upon any of the following:
(1) When the juror lacks a qualification required by law;
(2) When the juror has formed an opinion in the case or is not otherwise impartial, the cause of his bias being immaterial;
(3) When the relations whether by blood, marriage, employment, friendship, or enmity between the juror and any party or his attorney are such that it must be reasonably believed that they would influence the juror in coming to a verdict;
(4) When the juror served on a previous jury, which tried the same case or one arising out of the same facts;
(5) When the juror refuses to answer a question on the voir dire examination on the ground that his answer might tend to incriminate him.

The only conceivable ground for challenge in the instant case would be premised on an allegation that Ms. Allen lacked a qualification by law. In addition to the age and citizenship requirements established pursuant to La. Const. Art. 5 § 33, the qualifications of a juror are delineated in La. R.S. 13:3041, which tracks La. C.Cr.P. art. 401. The pertinent portion of La.C.Cr.P. art. 401 provides:

A. In order to qualify to serve as a juror, a person must:
(4) Not be under interdiction or incapable of serving as a juror because of a mental or physical infirmity, provided that no person shall be deemed incompetent solely because of the loss of hearing in any degree.
|fiB. Notwithstanding any provision in Subsection A, a person may be challenged for cause on one or more of the following:
(2) When reasonable doubt exists as to the competency of the prospective juror to serve as provided for in Code of Criminal Procedure Article 787.

Article 787 permits the court to “disqualify a prospective petit juror from service in a particular case when for any reason doubt exists as to the competency of the prospective juror to serve in the case.”

It is a well-settled principle of law that the trial judge is vested with broad discretion when ruling on challenges for cause. Seals v. Pittman, 499 So.2d 114, 118 (La.App. 1st Cir.1986), writs denied, 503 So.2d 15 (La.1987) and 503 So.2d 1021 (La.1987), cert. denied, 484 U.S. 840, 108 S.Ct. 126, 98 L.Ed.2d 84 (1987). Only when the record reveals a clear abuse of discretion should the appellate court disturb the trial court ruling. In re Medical Review Panel ex rel. Laurent, 94-1661, p. 7 (La.App. 1 Cir. 6/23/95), 657 So.2d 713, 718. The reasoning behind this principle is that the trial judge is in the best position to ascertain the juror’s demeanor, sincerity, fairness and credibility. Id.

In the case before us, the trial judge noted that Ms. Allen was a functioning citizen in the parish and should, therefore, be able to decide the case based upon the evidence. The judge added that she was gainfully employed, a practicing Christian, and a current voter. There is no evidence apparent in the record to substantiate that the judge abused her discretion in finding that Ms. Allen met the qualifications required by law.

NEGLIGENCE

DOTD

The jury found that DOTD was negligent and that its negligence constituted sixty-five percent of the cause of Katy Lockett’s death. Thirty-five percent 17negligence was attributed to Miranda Britt Rupnarian, the driver of the vehicle in which Katy Lockett had been riding as a passenger.

Under a theory of negligence, liability hinges on whether the defendant has breached his duty to the plaintiff. Duplantis v. Danos, 95-0545, p. 4 (La.App. 1 Cir. 12/15/95), 664 So.2d 1383, 1386. DOTD’s duty to its travelers is to keep the state’s highways in a reasonably safe condition for persons exercising ordinary care. Irion, 1998-2616, p. 8, 760 So.2d at 1228. An unreasonably dangerous condition of a roadway results in a breach of duty by DOTD. Such a determination is dependent on the facts and circumstance of each case. Hunter v. State, Department of Transportation and Development, 620 So.2d 1149, 1151 (La.1993). Moreover, as an appellate court, our review of a trial court or jury’s factual findings is limited, to whether a reasonable factual basis exists in the record. It is only in the absence of a reasonable factual basis that the court of appeal may find manifest error or clear wrongness. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Stobart, 617 So.2d at 882.

It is not disputed that a blind spot was created at the intersection in the outside lanes when, as in this instance, two opposing vehicles were each stopped at the intersection and waiting to make left turns onto Groom Road from the north and south inside lanes. The evidence presented at trial also reveals that DOTD had been aware of the flawed condition of the intersection and the history of a high accident rate. Testimony by six witnesses who had been involved in prior accidents at the subject intersection pointed to the wide blind spot that obscured their vision of an oncoming vehicle at the intersection. Additionally, Mayor lsBobby Ray Simpson of Baton Rouge testified that as far back as 1993, when he was Mayor of Baker, a request had been made on behalf of the City of Baker to DOTD to lower the speed limit on Highway 19 from forty-five to thirty-five miles per hour due to the multitude of accidents. In August 1994, Mayor Simpson had written General Jude Patín, Secretary of the DOTD, to request assistance in adding a fifth lane on Highway 19 through Baker. The same request was made to Senators Ron Landry and Mike Cross and Representatives Raymond Jet-son, Mike McCleary, and Kip Holden, as well as to Don Neisler, Director of the Capital Region Planning Commission. In 1997, a letter from DOTD indicated that a turning lane for Highway 19 in Baker would “likely be effective in reducing the rear-end and left-turn accident rate.” In 1999, Huey Dugas, of the Capital Region Planning Commission, wrote Dr. Kam Mo-vassaghi, Secretary of DOTD, on the subject of Highway 19 as follows: “This section of roadway has experienced a very high rate of accidents and is listed by DOTD as having abnormal crash locations. This problem has been studied since 1987, with repeated conclusions of needed improvements.”

Dr. Olin K. Dart, a traffic engineer with a specialty in highway design, safety, and accident reconstruction, testified that the addition of a fifth lane would have resolved the unreasonably dangerous condition ere-ated by the blind spot that had been allowed to remain at the intersection. Dr. Dart stated that the obstruction to the driver’s view was substantial, rather than instantaneous. Additionally, Dr. Dart testified that, in the absence of adding a fifth lane which would admittedly involve substantial capital outlay, the State could have feasibly provided a “turn on arrow only” signal to prevent accidents such as the one at issue. Dr. Joseph Blaschke, a civil engineer appearing on behalf of DOTD, responded that a “turn on arrow only” signal would require dedicating one of the lanes for left turns.

9 Deference is granted by reviewing courts to findings that are based on credibility determinations. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Having been presented with conflicting testimony concerning remedial feasibility, and in the absence of totally conflicting or implausible evidence or internal inconsistency that would contradict the witness’s story, we must accept the jury’s findings in the lower court. Rosell, 549 So.2d at 844-845. Viewing the evidence as a whole, the jury was not unreasonable it its determination that DOTD violated its duty to insure that the highway was reasonably safe for persons exercising ordinary care and reasonable prudence. Stobart, 617 So.2d at 884; Iron, 1998-2616, p. 8, 760 So.2d at 1228. An unreasonably dangerous condition was allowed to remain for many years, notwithstanding the existence of alternative remedial possibilities that could have ameliorated the traffic condition. Therefore, we find no manifest error in the jury’s finding that DOTD was negligent, and the jury’s attribution of sixty-five percent fault to DOTD is not clearly wrong.

Miranda Britt Rupnarian

A left turning motorist should refrain from making a left turn until it has been determined that the turn can be made in safety. Duplantis, 95-0545 p. 10, 664 So.2d at 1889. A left turning motorist involved in an accident is burdened with a presumption of liability, and the motorist must show that he is free of negligence. Bennett v. United States Fidelity and Guaranty Company, 373 So.2d 1362, 1365 (La.App. 1st Cir.), writ denied, 376 So.2d 1269 (La.1979). In the case at hand, liability that would have ordinarily been attributed to Miranda Britt Rupnarian, as the left turning motorist, was mitigated by the existence of the blind spot at the intersection that impacted the driver’s vision. The jury thus attributed thirty-five percent of the liability to her.

ImFinding no manifest error, we reject DOTD’s contention that Mrs. Rupnarian should have been hable for a higher percentage of liability. In the same vein, this court recognizes the high degree of care that is required of a left-turning motorist, and we do not find that the jury erred in its allocation. The Locketts’ assertion in their answer to the appeal that one hundred percent liability should have been borne by DOTD is also denied.

DAMAGES AWARD AND LA. R.S. 5106 B(2)

The jury awarded Nancy Lockett and Ronny Lockett the sum of $500,000.00 each in general damages for the wrongful death of Katy Lockett. DOTD maintains that the total sum awarded against DOTD is statutorily capped at the sum of $500,000.00; therefore, the total combined award of $1,000,000.00 to Mr. and Mrs. Lockett exceeded the statutory limitations. DOTD also asserts that the trial judge erred in her refusal to instruct the jury on the damages limitations provided by La. R.S. 13:5106 B(2).

Louisiana Revised Statute 13:5106 B(2) states:

In all suits for -wrongful death of anyone person, the total amount recoverable, exclusive of property damages, medical care and related benefits and loss of earnings or loss of support, and loss of future support, as provided in this Section, shall not exceed five hundred thousand dollars.

In Ly v. State, Department of Public Safety and Corrections, 633 So.2d 197 (La.App. 1st Cir.1993), writ denied, 93-3134 (La.2/25/94), 634 So.2d 835, this court addressed the question of the statutory cap when there are multiple plaintiffs, and it expressly applied the $500,000.00 cap to each plaintiff. The basis for interpreting the provisions of La. R.S. 13:5106 to relate to each plaintiff, as opposed to one sum per lawsuit, was premised on the reality that each person “could have brought suit separately for their wrongful death actions, thereby entitling each to a separate legal cap.” Ly, 633 So.2d at 207. Accordingly, we find Inthat the jury award for general damages of $500,000.00 each to Mr. and Mrs. Lockett in the instant case does not exceed the statutory parameters. Our affirmation of the general damage awards concomitantly renders moot the issue of the court’s failure to apprise the jury of the limitations of La. R.S. 13:5106.

In sum, the judgment of the trial court is affirmed. Costs of this appeal, in the sum of $3,331.64, are assessed to The State of Louisiana, Department of Transportation and Development.

AFFIRMED.


author: 1CHARLES R. JONES, Judge.

text:
    Fred C. TROUTMAN v. Raymond HART & LWCC.
    No. 2002-CA-2492.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 2003.

      Alexandra E. Mora, Law Office of Alexandra Mora, New Orleans, LA, for Plaintiff/Appellee.
    Sammie M. Henry, Johnson Stiltner & Rahman, Baton Rouge, LA, for Defendant/Appellant.
    Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS Sr., Judge MICHAEL E. KIRBY.
   1CHARLES R. JONES, Judge.

The Appellants, Raymond Hart and Louisiana Workers’ Compensation Corporation, appeal the judgment of the Worker’s Compensation Court finding Mr. Hart was arbitrary and capricious in erroneously calculating the weekly wages of Fred C. Troutman, thus assessing Mr. Hart with penalties and attorney fees. We affirm.

Mr. Hart employed Mr. Troutman as a truck driver and paid Mr. Troutman thirty percent of what each truck made for each load hauled. On February 10, 1997, Mr. Troutman was injured in a work related accident. At the time of the accident, Mr. Hart was insured by the Louisiana Workers’ Compensation Corporation (hereinafter the “LWCC”). Mr. Troutman testified at trial that his wages varied from week to week, but that he averaged $600 weekly which was paid to him in cash. The testimony of Mr. Troutman further revealed that he had been employed by Mr. Hart for two to three months when the accident occurred.

Mr. Troutman was paid worker’s compensation benefits from February 12, 1997 through May 4, 2000. The weekly amount initially paid was $200, but was 1 ¡re-calculated and increased to $218.99. Coverage was also provided for medical expenses related to his back injury.

On March 7, 2001, Mr. Troutman filed a claim with the Office of Workers’ Compensation seeking additional benefits. He argued that his weekly compensation benefits were incorrect because his salary had not been calculated according to his earnings of $600 per week. In addition to seeking an increase in the compensation rate, Mr. Troutman requested penalties and attorney fees for the unexplained calculation error of Mr. Hart. Finally, he sought additional medical benefits for his deteriorated medical condition and his need for surgery.

Following trial, the workers’ compensation court concluded that Mr. Troutman’s testimony was credible and unrefuted and that the correct average weekly wage was $600. Because Mr. Hart had calculated Mr. Troutman’s compensation rate based upon an incorrect weekly wage, Mr. Hart was found to be arbitrary and capricious, and was assessed penalties and attorney fees. The workers’ compensation court further found that Mr. Troutman was not entitled to additional medical expenses, finding that the aggravation of his back injury was due to a subsequent unrelated accident which occurred on July 24, 2000.

The workers’ compensation court rendered judgment on June 17, 2002. This appeal was timely filed by Mr. Hart and the LWCC.

Mr. Hart argues that Mr. Troutman presented no evidence to support his claim that he earned $600 per week, and insufficient evidence to find that the $218.99 paid to Mr. Troutman was incorrect. Mr. Hart contends that the workers’ compensation court erred in determining the amount to be incorrect.

laThe parties agree that Mr. Troutman was a commissioned employee and that the statute applicable to calculating his wages is La. R.S. 23:1021(d). The version of the statute, in effect on the date of this accident, reads as follows:

(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during the said twenty-six week period and multiplied by four; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by four. (Emphasis added)

Mr. Hart further argues, however, that because Mr. Troutman worked for less than twenty-six weeks and offered no documentary evidence as to the actual gross earnings or the actual number of days worked during his period of employment, there was insufficient information to calculate the average weekly wage pursuant to the statute. Therefore, he contends that Mr. Troutman failed to carry his burden of presenting competent evidence to support his claim.

Mr. Hart and the LWCC further argue that because there was no way to determine the average weekly wage, the workers’ compensation court erred in concluding that the compensation paid to Mr. Troutman was incorrect. Moreover, without sufficient evidence to calculate weekly wages, Mr. Hart contends that the ^workers’ compensation court erred in finding that he was arbitrary and capricious in his calculation of Mr. Troutman’s compensation rate.

Mr. Hart cites Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.03/04/98), 708 So.2d 375, for the position that all findings of the workers’ compensation judge must be based on compétent evidence. The appellate court’s role, as asserted by appellants, is to apply the manifest error standard by determining whether the lower court’s factual findings were reasonable and supported by competent evidence in the record. With regard to appellee, appellants contend that the judgment of the workers’ compensation judge was not based on competent evidence and was therefore manifestly erroneous.

Mr. Troutman argues, on the other hand, that his testimony, together with the post-trial affidavit, was unchallenged and specifically determined to be credible by the workers’ compensation judge. He further asserts that because the decision of the workers’ compensation judge was based on a credibility assessment and findings of fact, it should not be overturned.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly-wrong standard of appellate review. In applying the manifest error, clearly-wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Seal v. Gaylord Container Corp., 97-0688 (La.12/02/97), 704 So.2d 1161; Banks v. Industrial Roofing & Sheet Metal Works, 96-2840 (La.7/1/97), 696 So.2d 551, 556. “Thus, if the [factfin-der’s] findings hre reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence | ¡^differently.” Seal; Banks, quoting Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

La.’ R.S. 23:1317 mandates that the hearing officer’s factual findings be based on “competent evidence” and reads, in pertinent part, as follows:

Each party shall have the right to be present at any hearing or to appear through an attorney. The hearing officer shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself. The hearing officer shall decide the merits of the controversy as equitably, summarily, and simply as may be. (Emphasis added).

Workers’ compensation judges have the discretion to admit evidence that would otherwise be inadmissible under the Code of Evidence. Rhone v. Boh Bros., 2001-0270 (La.App. 4 Cir.12/12/01), 804 So.2d 764; Chaisson. As the Louisiana Supreme Court explained in Chaisson:

[T]he hearing officer has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of Evidence. This more relaxed standard for the admissibility of evidence is the general rule in proceedings before administrative agencies. McCormick on Evidence § 352 (4th ed.1992). The legislative requirement that a hearing officer’s factual findings be based upon competent evidence is the safeguard that ensures that the factual findings are made on evidence that has some degree of reliability and trustworthiness, notwithstanding that the evidence might fall outside of the technical rules for admissibility. Therefore, when a reviewing court evaluates the factual findings of a hearing officer under the manifest error standard, it must determine whether the factual findings are reasonable and supported by | ficompetent evidence in the record. Although the Legislature has not defined “competent evidence,” in order to give the relaxed evidentiary standard in LSA-RS 23:1317 effect, it must not be defined so narrowly as to mean only evidence that would fall within the parameters of the Louisiana Code of Evidence. If the hearing officer’s factual findings are reasonably supported by competent evidence, then the reviewing court must affirm them, (emphasis in original).
Id at p. 10.

In the instant case, the workers’ compensation judge relied on the testimony of Mr. Troutman, as there was no documentary evidence presented to the judge. Based on what was determined to be credible evidence, the workers’ compensation judge found that Mr. Troutman’s rate of compensation should have been calculated from a weekly wage of $600. We do not find manifest error with the factual findings of the workers’ compensation judge.

La. R.S. 23:1201(E) allows for an award of penalties and attorney fees to a workers’ compensation claimant that has been arbitrarily and capriciously denied benefits. The imposition of such penalties is a factual determination and will not be disturbed on appeal absent a finding of manifest error. McCray v. Commercial Union Ins. Co., 618 So.2d 483 (La.App. 4 Cir.1993). In the present case, the workers’ compensation judge stated in the “Findings of Fact” that the appellants were “arbitrary and capricious in their refusal to correctly calculate claimant’s indemnity payments.” Penalties and attorney fees, each in the amount of $2,000 were awarded. After a review of the entire record, this Court finds the decision to assess penalties and attorney fees against the appellants to be correct and reasonable.

|7FinaIly, Mr. Troutman has requested an additional award of penalties and attorney fees for defending this appeal. An increase in attorney fees in workers’ compensation cases is generally allowed when the defendant appeals and obtains no relief on appeal, when the appeal necessitates additional work on the part of appellee’s attorney and when the appellee properly requests such relief. Pitcher v. Hydro-Kem Services, Inc., 551 So.2d 736 (La.App. 1 Cir.1989); Miller v. City of New Orleans, 95-1005 (La.App. 4 Cir. 12/14/95), 665 So.2d 1293; Tillmon v. Thrasher Waterproofing, 2000-0395 (La.App. 4 Cir. 3/28/01), 786 So.2d 131; Weiss v. Nikon, Inc., 99-0111 (La.App. 4 Cir. 9/22/99), 745 So.2d 84. The foregoing conditions are present in this appeal. Mr. Troutman’s attorney expended time and effort in preparing a reply brief to this appeal and accordingly, an award of additional attorney fees is warranted.

Decree

For the reasons stated herein, the judgment of the workers’ compensation court is affirmed. Further, Mr. Troutman is awarded additional attorney fees in the amount of $1,500 for the work performed in connection with this appeal. All costs are assessed to the Appellants.

AFFIRMED.

      . Within the time allowed by the workers’ compensation court, Mr. Troutman filed a Post-Trial Brief and Motion to Supplement his trial testimony. This motion contained an affidavit wherein Mr. Troutman attested to the fact that he worked for the appellant for three months, averaging five days per week. The trial testimony lacked this specific information and was therefore added by affidavit. The Motion to Supplement was accepted by the workers’ compensation court.


author: 1MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Eugene B. LINDSEY.
    No. 2002-K-2363.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 2003.
    Becky Anne Brignac, Student Practitioner, R. Judson Mitchell, Jr., Loyola Law Clinic, New Orleans, LA, for Relator.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS Jr.).
   1MICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE

On October 20, 1988, a twelve-member jury found relator guilty as charged of second-degree murder. He was sentenced on May 11, 1989 to serve life imprisonment at hard labor without benefit of parole. This Court affirmed. State v. Lindsey, 90-1602 (La.App. 4 Cir. 1/13/94), 631 So.2d 486, writ denied 94-0612 (La.6/28/96), 675 So.2d 1106.

This Court subsequently granted a writ of mandamus pertaining to an application for post conviction relief and ordered the trial court to conduct an evidentiary hearing on relator’s claim that the State withheld Brady material. State v. Lindsey, 98-1064 (La.App. 4 Cir. 6/3/98), 715 So.2d 544. Following some delays an evidentia-ry hearing was held on August 20, 2002; the relator was represented by Loyola Law Clinic which had been appointed to represent him. After hearing testimony and argument, the court reset the matter. On September 6, 2002 additional argument was heard. On September 19, 2002 the trial court issued a written judgment denying relief.

| STATEMENT OF THE FACTS

The facts of this case as set forth in the appeal opinion are as follows:

On December 1,1986, Lindsey lived at the home of his girlfriend, Zena Julien, and her family. On that date Zena took her one-year-old daughter Jovan to a clinic. Lindsey, a merchant marine, had come home after being away at sea. State witnesses testified that Lindsey was not intoxicated, and the family was not drinking that evening. After dinner, everyone was sitting around the table laughing and telling jokes when Zena told everyone about how Jovan had started a fight with another child at the clinic. Lindsey then grabbed Jovan and spanked her forcefully. Zena objected and told Lindsey so. After Lindsey grabbed her arm and twisted it, Zena then told him to leave. Lindsey went into the bedroom and began packing his things.
Zena’s mother, Joan Julien, told her not to put Lindsey out and to go and talk to him. Zena went to the bedroom where he was packing, but returned to the living room because Lindsey was using vulgar language and would not talk to her. She sat down on the living room sofa and, hugging her mother, said “Mom, I think that boy is going to get the gun.” Lindsey then came into the living room and pointed a gun at the two of them. They begged him not to shoot but he shot anyway, fatally wounding Joan Julien. Lindsey then put the gun into his pants and said “Now.”
Zena ran to get help. Officers Edward Perkins and Sherman Joseph responded to the call, observed the victim and sent for an ambulance. Zena pointed out Lindsey, who was standing near the rear side of his car, as the person who shot her mother. Officer Joseph placed Lindsey under arrest and advised him of his rights. Lindsey told the officers, “I did shoot her and the gun is in the trunk.” He then advised Officer Joseph which key opened the trunk, and the officer retrieved a .38 caliber gun from under a suitcase.
Rhonda Madine, a friend who lived in the house with the Juliens, and Zena Julien both testified relative to the events which led to the shooting, although Ms. Madine fled the living room when Lindsey came in with the gun and did not see the actual shooting. Cory Carter, the victim’s 12-year-old son and Zena’s younger brother, witnessed the shooting and his testimony was essentially |3the same as Zena’s except that he could not testify as to what transpired while Zena and Lindsey were in the bedroom.
Dr. Paul McGarry performed the autopsy and testified that, although the victim lingered to the extent that the entrance and exit wounds healed, the effects of the gunshot were continuing and were the cause of death. He testified that the path of the bullet was consistent with the victim being seated and the shooter being at least two to three feet away. Officer Alvin Flint, a crime lab technician, identified photos and evidence, particularly two bullets and one spent casing found on the ground near the scene. Officer John Treadway, a firearms examiner for the crime lab, testified that the spent casing was the same type as the bullets found in the gun, but that the markings after firing one of the bullets were insufficient to determine whether the weapon retrieved from Lindsey’s trunk was the one which fired the spent cartridge found on the ground.
The defense put forth a combined theory of intoxication and accidental shooting. Gregory Evans, a seaman and Lindsey’s friend, testified that he and Lindsey got off a ship that morning and had each drunk a twelve-pack of beer at the union hall between noon and 4:30 or 5:00 p.m. On cross-examination, Evans testified that they split a twelve-pack. Lindsey testified that he and Evans talked and drank a twelve pack at the union hall the morning of the shooting. Lindsey further testified that he left the union hall around noon, went to his sister’s house where he drank some hard liquor and beer, and went home around 3:30 p.m. Lindsey further testified that he had made two or three trips to the car with his things and that the gun went off accidentally on his way to the car when the victim’s son Cory grabbed him.

Lindsey, pp. 2-3, 631 So.2d at 488-89.

DISCUSSION

The claim asserted in the relator’s application for post conviction relief was discussed at length by this Court when it ordered an evidentiary hearing:

In his application, relator asserts that he is entitled to a new trial based on newly discovered evidence. Specifically, relator asserts that the state withheld favorable and | ¿material Brady evidence from relator thereby violating relator’s constitutional right to a fair trial. Relator states that he obtained a copy of the district attorney’s file on August 6, 1997, whereupon he discovered that the statements of Rhonda Madine and Zena Ju-lien which were given to the police on March 20, 1987, contained exculpatory evidence essential to his defense of intoxication. He asserts the statements contradict the witnesses’ trial testimony relative to his intoxication at the time of the shooting. He argues that if he had been provided with the statements he could have impeached the witnesses’ trial testimony.
The due process clause of the Fourteenth Amendment to the United States Constitution requires the disclosure upon request of evidence which is favorable to the accused when the evidence is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This rule has been expanded to include evidence which impeaches the testimony of a witness where the reliability or credibility of the witness may be determinative of guilt or innocence. Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The Brady rule is based on due process of law. “[T]he prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial, that is, evidence favorable to the defendant which is material to guilt or punishment.” State v. Rosiere, 488 So.2d 965, 970 (La.1986). The test for determining materiality was first established in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). However, in Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the Supreme Court recently outlined the considerations for determining whether allegedly-suppressed evidence is material. These considerations were summarized in a recent decision by the Louisiana Supreme Court, State v. Marshall, 94-0461 (La.9/5/95), 660 So.2d 819:
The issue is whether the exculpatory evidence is material under the Brady-Bagley-Kyles line of cases. Evidence is material only if it is reasonably probable that the result of the proceeding would have been different had the evidence been disclosed to the defense. A reasonable probability is one which is sufficient to undermine confidence in the outcome. [United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)]. [The reviewing court] must provide a cumulative evaluation of the suppressed evidence, keeping in mind that [the defendant] does not have to show that, with the addition of the suppressed evidence, his trial would have resulted in acquittal or that there would be an insufficiency of the evidence to support a conviction. [The defendant] need only show that “disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable.” Kyles, 115 S.Ct. at 1569.

State v. Marshall, 94-0461, pp. 19-20, 660 So.2d 819.

In support of his claim, relator has attached copies of the statements of the two witnesses, a copy of defense counsel’s motion for production, inspection and copying which was filed on September 15, 1987, and a copy of the state’s answers which were filed in October, 1987. In his motion, defense counsel specifically asked for any written statements containing favorable and material evidence from any person with knowledge of the crime. The state answered “Not entitled”. A review of the witnesses’ statements shows that both witnesses told the police that relator was intoxicated at the time of the shooting.
In her statement, Ms. Rhonda Madine stated that relator came home drunk, and that he started cursing and carrying on. She described him as acting very unusual. She also stated that Ms. Zena Julien told him not to curse in front of her mother and that if he was going to continue to curse he could just leave. Relator began packing his belongings and putting them in the trunk of the car. The victim told Zena to tell relator not to put his clothes in the car because he was drunk and would get into an accident. Relator entered the house with a gun. Ms. Madine stated that she grabbed her baby and ran and stood by the doorway between the living room and the kitchen. She did not see relator shoot the gun but heard the victim ask relator not to shoot. Then she heard the gunshot.
In her statement, Ms. Julien stated that she arrived home around 5:00 p.m., and relator arrived a short time after. She stated that when she told him that her baby had gotten into a fight with another child at the clinic, relator | fibecame angry and “wacked her on her butt”. She stated that she pushed relator and grabbed the baby. Relator became more angry and cursed and twisted her arm. She told relator to leave the house. Relator began to pack his clothes and started bringing his belongings out to the car. The victim, Ms. Julien’s mother, told her not to allow relator to leave because he was drunk and would get into an accident. Relator entered the home with a gun and shot the victim in the chest. When questioned further, Ms. Julien stated that when relator came home he was drunk and she could smell liquor on his breath. She described relator as so drunk that he was “stumbling” around and when she “tapped” him he “fell over”.
Where the circumstances indicate that an intoxicated condition has precluded the presence of a specific criminal intent, this fact constitutes a defense to the prosecution for the crime. La. R.S. 14:15. Criminal intent may be inferred from the circumstances of the crime and the defendant’s activities. State v. Graham, 420 So.2d 1126 (La., 1982), State v. Vanvorst, 505 So.2d 123, 128 (La.App. 4th Cir.1987), writ denied, 533 So.2d 12 (La.1987[1988]).
Second degree murder is the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1).
La. R.S. 14:31(A)(1) provides:
A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.
Because the factors, “sudden passion” and “heat of blood”, are not elements of the crime, the state does not bear the burden of proof. Also, there is no requirement that the factors be affirmatively established by the defendant. Instead, the jury is free to infer the mitigating circumstances from the evidence. State v. Lombard, 486 So.2d 106, 110-111 (La.1986), State v. Landry, 499 So.2d 1320, (La.App. 4th Cir.1986).
|7In the instant case, relator asserted the defense of intoxication. However, the jury only heard relator’s testimony and that of his friend that relator was intoxicated on the day of the shooting. The jury did not have the benefit of knowing that two of the state’s witnesses, Zena Julien and Rhonda Madine, both gave statements to the police that relator was intoxicated when he shot the victim. In addition, this Court in the appeal opinion indicated that none of the state’s witnesses testified at trial that relator was intoxicated when he shot the victim. Thus, the only evidence of the mitigating circumstances of intoxication for the jury to consider came from the defense. If the statements made to the police had been made available prior to trial, relator may have been able to impeach these witnesses. If the jury had been apprised of the prior statements of Zena Julien and Rhonda Madine, the jury may well have returned a lesser verdict.

Lindsey, 98-1064, pp. 1-5 (La.App. 4 Cir. 6/3/98), 715 So.2d at 545-47.

At the evidentiary hearing, the relator presented only one witness, Ms. Laurie White, who testified that she was an assistant district attorney assigned to Section “G” during the time that the relator was being prosecuted for this crime. According to Ms. White, Section “G” was her first trial section, and the district attorney’s file indicated that she participated in several matters, including acting as lead counsel at relator’s trial. However, she was not in Section “G” continuously, and she did not participate in some of the motions. Ms. White testified that there were problems in getting the trial judge at the time to bring this case to trial. By the time the case was ready for trial, Ms. White was called back to the section to handle the ease because the assistant assigned to Section “G” was new.

When asked about this specific case and materials in the district attorney’s file, Ms. White testified that she had no specific recollection of what had been in the file, but she believed it would have contained police reports and any witnesses’ statements taken by the police. Ms. White could not recall viewing the witnesses’ statements at issue here, but she did recall going to the home of the victim’s family Rand interviewing witnesses. She further testified that the statements indicated that the defendant was intoxicated, that this information was contrary to what the witnesses had stated at the trial, and the contradictions indicated to Ms. White that she “was not aware of what was in their statements because [she] would have either not allowed them to testify contrary to their statements] or made sure that the defense had the information.” (Ms. White could not recall if she provided the defense attorney, Ray Harris, with the statements prior to trial, but she knew she did not at trial.)

Ms. White reviewed the portion of the trial transcript wherein she specifically asked Ms. Madine if the defendant appeared intoxicated when he returned home and she replied that he did not. She also reviewed the portion of the trial transcript where she asked Ms. Julien if the defendant appeared drunk when he arrived home and she had replied no. Ms. White stated that these answers were contrary to the statements given to the police by Ms. Madine and Ms. Julien. Ms. White further stated that if the statements had been in the district attorney’s file and she “knew what they contained, they would have absolutely — [she] would have turned them over, and [she] would have been required by law and ethics to turn them over.” During cross-examination by the State, Ms. White testified that she believed the defense attorney Ray Harris did not have the witnesses’ statements because “if he had the statements, surely he would have used them” given the intoxication defense he presented.

Aside from introducing the various documents supporting the relator’s claim, the relator presented no other evidence at the August evidentiary hearing. 19On September 6, 2002, counsel for the relator reminded the court that numerous attempts had been made to procure the attendance of the defense counsel Ray Harris but all attempts had failed. During this proceeding, relator’s counsel argued that it should be presumed that Mr. Harris did not have the witnesses’ statements because he did not use them to impeach the witnesses, and furthermore, in response to the discovery request filed by Mr. Harris, the State had specifically responded that the defense was not entitled to Brady material. The specific request included a request for witnesses’ statements which tended to exculpate the defendant, were impeachment material, or tended to prove a defense. Additionally, counsel for relator emphasized that Mr. Harris had filed a notice of intoxication defense, had asked for a jury instruction on intoxication, and presented a witness who testified that he had been drinking with the defendant much of the day of the offense.

The State argued at the September proceeding that the relator had failed to carry his burden of proving that the witnesses’ statements had not been turned over because Ms. White merely could not recall if she had done so and the defense presented no other witnesses. The State also referenced the relator’s post verdict judgment of acquittal wherein he had mentioned police officers testifying at trial that the defendant appeared intoxicated. However, counsel for the relator asserted that only one police officer testified about possible intoxication, and his testimony was simply that he smelled alcohol on the defendant’s breath.

As noted, the trial court ultimately issued a written judgment denying the relator’s application for post conviction relief. The court found that there was 1 minsufficient evidence “to make a definitive finding that the defendant was denied the above information” or that it would have made a material difference. The court’s judgment referenced that the trial defense attorney Ray Harris “was unavailable to assist the court in its investigation.” In summation, the court found that defendant failed to meet his burden.

The relator argues to this Court that he successfully proved by the testimony of Ms. White that the witnesses’ statements were not provided to the defense. While to some extent this is a factual finding, and a trial court’s credibility determination should not be overturned, the trial court did not specifically state that it doubted Ms. White’s credibility. Ms. White certainly testified that, if she had seen the statements in the district attorney’s file, she would have fulfilled her duty of disclosing them. However, she also testified that she did not believe defense counsel had them, as he did not use them for impeachment purposes, and that she was gone from Section “G” for some time, implying that another assistant prosecutor may have handled discovery motions. The impression which Ms. White attempted to give was that the statements were not there when she had the file, but that they may have been at a later point and were not disclosed. Considering that the State’s answers to discovery were that the defense was not entitled to the witnesses’ statements, it appears highly likely that they were not disclosed prior to trial, and Ms. White testified that she did not disclose them during trial. Furthermore, Ms. White’s testimony indicated that she came back to Section “G” solely to try the case; the statements may have been available in the file but she was unaware of them and so did not realize that the trial testimony was Incontradictory. Notably, as the trial court recognized, and the State conceded, even if the statements had not been in the prosecutor’s file, it would not make a difference to a Brady violation because they would be deemed to be in the possession of the State of Louisiana because they were in the police department’s possession.

Aside from the factual issue of whether the statements were withheld, the second question is whether they were material. In this regard, the relator relies on a recent Louisiana Supreme Court case, State v. Kemp, 2000-2228 (La.10/15/02), 828 So.2d 540, which was decided after the trial court issued its judgment in this case. The decision in Kemp strongly supports the relator’s position in this matter.

In Kemp, the defendant was convicted of second degree murder; he was acquitted on a count of attempted murder arising from the same incident. The defense as to both charges was self-defense. According to the Supreme Court opinion, the murder arose from separate but related episodes of violence in a courtyard of an apartment building. The State’s case was that the victim was shot while attempting to mediate a fistfíght which was to occur between the victim’s half-brother and a friend of the defendant. Before the fight could take place, the defendant fired a single shot which severed the victim’s spinal cord. The half-brother then retrieved a weapon, but was ultimately shot by responding police officers when he failed to drop his weapon when they ordered him to do so. The defendant’s conviction was based on the jury accepting testimony which indicated that the victim was unarmed and was merely attempting to see that his brother and the defendant’s Mend would have only a fistfight with no weapons or other persons involved. The State’s witnesses generally testified that a crowd gathered to watch the fight. Among them were several women involved with the two |12factions who began to verbally assault one another. As the crowd became more unruly and their tempers flared, the defendant allegedly interceded between the victim and the mother of his children, then pulled two guns and opened fire. One of the State’s witnesses testified that the defendant had killed the victim for disrespecting his girl.

The shooting occurred in front of Connie Reado’s apartment. She testified that she had gone to her door because of the commotion and observed the women from the two groups close in on each other, causing the defendant and the victim to be drawn into a confrontation. Ms. Reado testified at trial that the defendant had been unengaged in the growing fracas until the final moments when the victim, who was a very large man, said something in a loud and aggressive manner and raised his hand. At that point, the defendant stepped back and opened fire. Ms. Reado stated at trial that she could not hear what the victim had said.

The defense at trial attempted to show that the shooting was the culmination of incidents and altercations which had been going on for three days and involved the defendant and his friends and relatives on one side, and the victim, his half-brother, and various other friends and relatives on the other. In one of the confrontations, the victim allegedly had been armed with a gun. The defense witnesses at trial contended that during the final confrontation, the victim was carrying a gun in his back pocket, was shouting and abusive, and repeatedly threatened to slap the defendant’s girlfriend, who was holding a baby. The defendant stepped in front of her; the victim leaned forward and reached behind his back, at which point the defendant shot him. The autopsy report supported the defense contention that the victim was leaning forward at the time he was shot.

hsDuring the course of the trial, the defense called the lead police investigator. During questioning about his police report and investigation, counsel began to elicit testimony that the witnesses’ statements were inconsistent with their trial testimony. The State during its cross-examination of the detective decided to play tape recordings of the witnesses’ statements, notably that of Ms. Reado. In her taped statement, given only hours after the shooting, she stated that, shortly before crowd had gathered, she had seen the victim approach the defendant and his friend Wells and tell them that “the fight with his brother Jamie would take place and ... [ask], as the men were coming downstairs, ‘Do you want to fight it out or do you want to shoot it out?’ ” Kemp, p. 6, 828 So.2d at 545. When this tape was played to the jury, the defense immediately objected and requested a mistrial on the grounds that this exculpatory evidence had been withheld. The trial court, which had conducted a pretrial in camera inspection of the State’s file, ruled that the evidence was not exculpatory and denied the motion. The appellate court subsequently affirmed the defendant’s conviction. The Louisiana Supreme Court reversed, finding that the evidence was exculpatory impeachment evidence. Furthermore, that evidence, when combined with the autopsy findings which did not exclude the possibility that the victim was reaching for a weapon, “possess such potential to give the evidence at trial an entirely different cast that [it] undermines confidence in this jury’s rejection” of the self-defense claim and required reversal even though the statement was actually disclosed prior to the end of the trial. Kemp, p. 9, 825 So.2d at 546. The court noted that the disclosure occurred near the end of the defense case, and thus the prosecution’s failure to timely disclose this impeachment evidence “impacted the fundamental fairness of the proceedings leading” to the defendant’s conviction. Id.

| uKemp is difficult to distinguish from the instant case. Here, the defendant gave notice of an intoxication defense, asked for a specific jury instruction, presented a defense witness, and testified himself to his intoxication. Intoxication apparently was his sole defense. The State specifically questioned and elicited testimony from Ms. Madine and Ms. Julien to refute that defense. Once these two witnesses to the shooting specifically denied that the defendant was intoxicated, their pretrial taped statements were clearly exculpatory impeachment material, even if it were assumed that they were not obviously exculpatory before trial.

Furthermore, although the trial court was apparently unwilling to find that the statements were withheld from defense counsel, the State’s answers to discovery and Ms. White’s testimony certainly indicate that the statements were not provided, because if they had been, defense counsel’s failure to impeach the witnesses would have rendered him grossly incompetent. Moreover, witnesses’ statements are generally not discoverable pretrial pursuant to La.C.Cr.P. art. 723, which provides in pertinent part: “This chapter does not authorize the discovery or inspection ... of statements made by the witnesses or prospective witnesses, ... to the district attorney, or to agents of the state.” See State v. Walters 408 So.2d 1337, 1339 (La.1982); State v. Collins, 01-1459, p. 26 (La.App. 4 Cir. 8/21/02), 826 So.2d 598, 615; State v. Nightengale, 35,805, p. 7 (La.App. 2 Cir. 5/8/02), 818 So.2d 819, 824. Thus, there is no basis to believe that the State would have provided them pursuant to a pretrial request as a matter of routine.

Here the trial court ruled that the evidence was “insufficient to make a definitive finding that the defendant was denied the above information or even that said information would have made a material difference in the outcome of the case.” As to the second finding, the witnesses’ statements were clearly material in h slight of Kemp. As to the first, the record indicates that in written responses to discovery the State refused to turn over the witnesses’ statements. Ms. White testified that she did not believe that they had been prior to trial, although agreeing wholeheartedly that they should have been, and testified unequivocally that she did not turn them over during the trial where she was le^d counsel. We conclude that the trial court erred when it denied relief.

CONCLUSION

For the above and foregoing reasons we grant the writ application and reverse the ruling of the trial court. The matter is remanded for further proceedings consistent with the views expressed herein.

WRIT GRANTED; REVERSED AND REMANDED.

      . The transcript misspells the witness’s last name as Nadine.

      . The court noted that it had not seen Harris for several years; relator’s attorney pointed out that Harris had been disbarred and "is not amenable to a subpoena” despite their best efforts.

      . The State’s answers to discovery, which included the response that the defense was not entitled to witnesses’ statements which may tend to exculpate the defendant or be material to a defense, are not signed by any prosecutor.