author: hCALOGERO, Chief Justice. I1TRAYLOR, Justice,

text:
    Curtis P. MEDINE, Individually and Michael Buck as Tutor and Legal Guardian of John Michael Kramer, Minor Child of Janice Buck Medine v. Dr. Richard R. RONIGER.
    No. 2003-C-3436.
    Supreme Court of Louisiana.
    July 2, 2004.
    Rehearing Denied Sept. 3, 2004.

      Patrick H. Hufft, Hufft & Hufft, New Orleans; Aub A. Ward, Naquin & Ward, Baton Rouge; Counsel for Applicant.
    Gary L. Hanes, Talley, Anthony, Hughes, & Knight; Peter E. Sperling, John B. Cazale, V, Frilot, Partridge, Kohnke & Clements, New Orleans; Counsel for Respondent.
    Peter T. Dazzio, Chris J. LeBlanc, Baton Rouge, Counsel for Louisiana Hospital Assn., Louisiana Hospital Assn. Medical, General Liability Trust (Amicus Curiae).
    Larry Roedel, Hilary Taylor, Baton Rouge, Patient’s Compensation Fund Oversight Board, (Amicus Curiae).
    Margaret Diamond, Monica A. Frois, Joseph I. Giarrusso, Jr., New Orleans, Doctors Hospital of Jefferson, Kenner Regional Medical Center, Meadowcrest Hospital, Memorial Medical Center, Northshore Psychiatric Hospital, Northshore Regional Medical Center, St. Charles General Hospital (Amicus Curiae).
    David R. Sobel, Alexandria, Christus Health, Christus St. Frances Cabrini Hospital, Christus St. Patrick Hospital, and Christus Schumpert Health System (Ami-cus Curiae).
   hCALOGERO, Chief Justice.

This court granted supervisory writs in this medical malpractice case to determine whether certain provisions of the Louisiana Medical Malpractice Act [“LMMA”] contained in La.Rev.Stat. 40:1299.47, relative to medical review panels, prohibit medical review panelists from offering expert testimony on behalf of one of the parties in a trial held after the medical review panel has rendered its decision. Finding no error in the judgment of the lower courts allowing medical review panelists to testify on behalf of the defendant in this case nor any merit in the other assignments of error raised by the plaintiffs, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiffs in this case are the surviving spouse and minor child of suicide victim, Janice Medine, a patient of defendant, Dr. Richard R. Roniger, who died on December 10, 1990, when she ingested an overdose of medication prescribed by defendant. Pursuant to the requirements of La.Rev.Stat. 40:1299.47(A)(l)(a) and (B)(l)(a)(i),1P;plaintiffs filed a medical malpractice complaint against defendant, asserting that defendant had breached the applicable standard of care by prescribing improper quantities of medicine in light of Ms. Medine’s history of suicide attempts and by failing to monitor Ms. Medine’s medication prescriptions properly. The claimants also alleged that Ms. Medine’s suicide was caused by defendant’s medical malpractice.

A medical review panel, composed of Dr. Frederick Henderson, Dr. Clyde Watkins, and Dr. Richard Richoux, was convened in response to plaintiffs’ complaint. Following its review of the various documents submitted by the parties, the medical review panel issued a written unanimous expert opinion reflecting its findings that the evidence did not support the conclusion that defendant failed to meet the applicable standard of care as charged by plaintiffs.

After the medical review panel rendered its decision, plaintiffs filed suit for damages against defendant based on the same allegations considered by the panel. Defendant’s “Pre-Trial Order” indicated his intention to call all three of the medical review panelists and designated each panelist as “expert,” while plaintiffs’ “PreTrial | sOrder” listed the three panelists as witnesses they “might” call and designated each panelist as “Medical panel, cross.”

As part of their case in chief, plaintiffs’ presented the testimony of Dr. Gary E. Miller, who was qualified by the court as an expert in psychiatry and psychophar-macology. Dr. Miller testified to his expert opinion, based on his review of Ms. Medine’s medical records, that defendant had violated the standard of care in his treatment of Ms. Medine by altering her medications without first getting the benefit of blood levels. Dr. Miller also stated his opinion that defendant misdiagnosed Ms. Medine’s condition, stating his belief, based on medical records, that she had bipolar disorder.

Defendant presented the testimony of Dr. Richoux, one of the medical review panelists he had listed on his Pre-Trial Order as an expert witness. Dr. Richoux was qualified as an expert in the field of general psychiatry without objection from plaintiffs. Dr. Richoux then testified concerning his service as a member of the medical review panel, including questions concerning the vow of impartiality he took when he became a member of the panel. Thereafter, defense counsel asked Dr. Ri-choux questions related to the expert opinion previously offered by plaintiffs’ expert, Dr. Miller. At that point, plaintiffs’ counsel objected to Dr. Richoux’s expert testimony.

Plaintiffs’ objection was initially based on the fact that Dr. Richoux had not reviewed Dr. Miller’s testimony or his deposition as a member of the medical review panel, as Dr. Miller’s testimony had not been submitted to the panel by plaintiffs. Plaintiffs asserted that Dr. Richoux’s testimony should be limited to the documents he reviewed at the time the panel met. In support of that argument, plaintiffs cited La.[R.ev.Stat.4 40:1299.47(0(7), which describes the role of a medical review panelist in general, and La.Rev.Stat. 40:1299.47(H), which describes the procedure after the medical review panel has rendered a decision. Plaintiffs also argued that defendant never identified Dr. Ri-choux as defendant’s independent expert witness.

Following extensive arguments on the issue, the district court ruled that Dr. Ri-choux would be allowed to testify as defendant’s expert. In support of his ruling, the district court noted that plaintiffs chose not to share Dr. Miller’s testimony with the medical review panel, chose not to depose the medical review panelists prior to trial, and chose not to file a motion in limine to exclude all or part of the testimony of the medical review panelists, despite the fact that the defendant had listed the panelists as expert witnesses without qualification. Following this ruling by the district court, Dr. Richoux answered questions concerning Dr. Miller’s criticisms of defendant’s treatment of Ms. Medine, disputing each of those criticisms and explaining why the 1 .¡medical review panel did not find that any of defendant’s actions criticized by Dr. Miller breached the applicable standard of care. Another medical review panelist, Dr. Henderson gave similar expert testimony on behalf of the defendant.

Following the trial, the jury returned a verdict in favor of defendant. In jury interrogatories, the jury answered “no” to the following question: “Do you find that Dr. Richard Roniger breached the standard of care for psychiatrists in his treatment of Janice Medine?” The district court thereupon rendered judgment dismissing plaintiffs’ claims against the defendant. Plaintiffs appealed, asserting that the district court improperly allowed the medical review panelists to testify as the defendant’s own hired, expert witnesses. Plaintiffs also contested the district court’s refusal to give two requested jury charges.

The court of appeal affirmed the district court judgment dismissing plaintiffs’ claims against defendant. In support of its decision, the court of appeal cited the opinion of the Louisiana First Circuit Court of Appeal in Clelland v. Haas, 99-2971 (La.App. 1 Cir. 12/22/00), 774 So.2d 1243, noting that the Clelland court had addressed the identical issue and found that “there is nothing in [La.Rev.Stat. 40:1299.47(0(7) ] to prohibit medical review panel members from subsequently testifying as an expert for either party at a trial concerning the same medical malpractice claim.” Id. at p. 6, 774 So.2d at 1247. The court of appeal also rejected the plaintiffs’ assignments of error based on the district court’s refusal to give two requested jury charges. This court granted writs to review the court of appeal decision.

J^EXPERT TESTIMONY OF MEDICAL REVIEW PANELISTS

Generally, a district court is afforded great discretion concerning the admission of evidence at trial, and its decision to admit or exclude evidence may not be reversed on appeal in the absence of an abuse of that discretion. Miller v. Southern Baptist Hosp., 00-1352, p. 5 (La.App. 4 Cir. 11/21/01), 806 So.2d 10, 15, writ denied, 01-3379 (La.3/28/02), 811 So.2d 943. In their first assignment of error, plaintiffs essentially argue that the district court abused its discretion by admitting Dr. Ri-choux’s testimony because of the district court’s erroneous interpretation and application of the following provisions of the LMMA:

La.Rev.Stat. 40:1299.47(0(5):

Before entering upon their duties, each voting panelist shall subscribe before a notary public the following oath:
“I, (name) do solemnly swear/affirm that I will faithfully perform the duties of medical review panel member to the best of my ability and without partiality or favoritism of any kind. I acknowledge that I represent neither side and that it is my lawful duty to serve with complete impartiality and to render a decision in accordance with the law and the evidence.”

La.Rev.Stat. 40:1299.47(H):

Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this Part.

La.Rev.Stat. 40:1299.47(I)(l)(a):

Each physician member of the medical review panel shall be paid at the rate of twenty-five dollars per diem, not to exceed a total of three hundred dollars for all work performed as a member of the panel exclusive of time involved if called as a witness to testify in a court of law regarding the communications, findings, and conclusions made in the 17course and the scope of duties as a member of the medical review panel, and in addition thereto, reasonable travel expenses.

According to plaintiffs, the above articles, when read together, limit the testimony of a medical review panelist corroborating or disputing the panel’s-expert opinion.According to plaintiffs, the admission of the medical review panel opinion and the testimony of panelists at trial is intended to be viewed as a single “package” from an impartial source. Plaintiffs claim that allowing the panelists to testify as defendant’s paid experts broke up the package and caused confusion on the part of the jurors.

We find no merit in the plaintiffs’ arguments based on the above-quoted provisions. In fact, we find that the statutory-provisions cited by plaintiffs not only allow medical review panelists to testify on behalf of a party as paid experts, but that they actually contemplate that panelists will testify more often than not in that manner. La.Rev.Stat. 40:1299.47(H) specifically provides that “either party shall have the right to call, at his cost, any member of the medical review panel as a witness.” Further, La.Rev.Stat. 40:1299.47(I)(l)(a) prescribes payment of medical review panelists for their work performed as members of the panel, and not for payment of panelists for their testimony in a court of law, the latter in keeping with the, requirement of La.Rev.Stat. 40:1299.47(H) that the party calling the panelist must pay for his or her testimony.

Moreover, even if we agreed with plaintiffs’ argument that the testimony of medical review panelists should be limited to corroboration or disputation of the panel majority’s expert opinion in a given case, the testimony given by the panelists in this case did not exceed that limitation because, in our view, corroboration of the panel’s opinion includes defending that opinion from contrary opinions. In this case, one of the plaintiffs’ primary complaints is that the panelists should not have been allowed to ^comment on the criticisms of defendant’s treatment of Ms. Medine raised by plaintiffs expert. Indeed, we find that the panelists’ comments concerning the criticisms of defendants’ treatment of Ms. Medine by plaintiffs’ expert were part and parcel of their testimony corroborating the panel’s opinion that defendant did not violate the standard of care. Thus, the written report of the medical review panel and the trial testimony of the panel members were presented as part of a single “package,” as plaintiffs claim they should be. Moreover, allowing medical review panelists to testify at subsequent medical malpractice trials as expert witnesses assures the plaintiff of an expert in those cases where the panel has found that the defendant did violate the appropriate standard of care.

In further support of their arguments, plaintiffs also quote language from this court’s decision in Galloway v. Baton Rouge General Hosp., 602 So.2d 1003 (La.1992) to the effect that the medical review panel opinion is admissible, crucial evidence “both in the form of their report and their trial testimony.” However, the plaintiffs’ reliance on Galloway is misplaced for at least three reasons. First, the language quoted is excerpted from this court’s favorable quotation of a dissenting opinion by a court of appeal judge, and is not strictly this court’s holding in the case. Id. at 1006. Second, the excerpt selected by the plaintiffs omits language also quoted by this court to the effect that panelists may change their individual opinions after the panel’s written expert opinion has been rendered and testify to their changed opinion at trial, so long as the panel’s initial opinion is also presented for consideration. Id. at 1006-07. Third, the issue considered in Galloway was whether the district court had properly excluded prior testimony of the medical review panelists who had later changed their position — a very different issue from the issue presented by this case. Ultimately, we Rsee nothing in the Galloway language quoted by plaintiffs that compels this court to find that the district court abused its discretion by allowing the medical review panelists to testify as the defendant’s paid experts.

Plaintiffs also cite the following language from the indicated provisions of the LMMA that they claim support their argument that medical review panelists’ trial testimony should be limited: La.Rev.Stat. 40:1299.47(G) [“The panel shall have the sole duty to express its expert opinion, ... which shall be in uniting and signed by the panelists, together loith written rear sons for their conclusions. ” ]; La.Rev.Stat. 40:1299.47(0(5) [requiring panel members to take the prescribed oath of impartiality before undertaking their role as panelists]; La.Rev.Stat. 40:1299.47(H) [“A panelist shall have absolute immunity from civil liability for all communications, findings, opinion and conclusions made in the course and scope of duties prescribed by this Part.”]; La.Rev.Stat. 40:1299.47(1) [allowing a panelist to be “called as a witness to testify in a court of law regarding the communications, findings, and conclusions made in the course and scope of duties as a member of the medical review panel.”]; and La.Rev.Stat. 40:1299.47(H) [granting a party the right to establish the conclusiveness or inconclusiveness of the panel opinion].

We have considered all of the plaintiffs’ arguments based on the provisions of the LMMA, and agree with the court of appeal that “there is nothing in these sections or any of the other part of the malpractice act which provide that a party in a medical malpractice proceeding in district court is prevented from retaining a panel member as an expert at the trial of the matter.” 03-819 at p. 4, 862 So.2d at 162. A review of the various provisions of La.Rev.Stat. 40:1299.47 as a whole reveals the legislature’s clear intent to establish certain rules that would apply to members of a medical review |1flpanel during the period of time that the panel is engaged in its duties, and other rules governing the in-court testimony of panelists in a medical malpractice claim filed after the panel has discharged its duties and rendered its expert opinion. So long as the medical malpractice panel is engaged in its duties, La.Rev.Stat. 40:1299.47(0(5) requires that panel members be bound by their oath of impartiality; La.Rev.Stat. 40:1299.47(0(7) prohibits the panel member from discussing the claim with other panel members (until all evidence has been submitted), or with parties or their attorneys; La.Rev.Stat. 40:1299.47(G) provides that the sole duty of the panel is to express its expert opinion “as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care”; La.Rev. Stat. 40:1299.47(H) provides absolute civil immunity for the panelists’ actions as a part of the panel; and La.Rev.Stat. 40:1299.47(1) requires that the panelist be paid for his services.

However, none of the provisions cited by plaintiffs restricts the testimony of the panelists once their duties as members of the panel have been discharged and the panel’s written opinion has been rendered. At that point, the role of the panelist changes given the fact that, as stated above, La. Rev.Stat. 40:1299.47(H) and (I)(l)(a) expressly allow parties to call medical review panelists to testify at the party’s cost. In all but the rarest of cases, that party will obviously be the party for which the panel ruled. In this case, that party was the defendant and the defendant sought to present the testimony of the panelists. However, this decision cuts both ways — in those cases in which the panel rules for the plaintiff, the plaintiff would doubtless be the party wishing to engage the panelists as expert witnesses. None of the statutory | nprovisions or cases cited by plaintiffs can logically be interpreted to prohibit the testimony presented by the defendants in this case.

In a final argument, which they identify as their “most telling,” plaintiffs quote the provisions of La. EvicLCode art. 706, which provides as follows:

A. Civil cases. In a civil case, the court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party.
B. Disclosure of appointment. In a civil case, in the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.
C. Parties’ experts of own selection. Nothing in this Article limits the parties in calling expert witnesses of their own selection.

(Emphases supplied by plaintiffs.)

Plaintiffs emphasize the fact that the legislature expressly cross referenced La.Rev.Stat. 40:1299.47 with La. Evid. Code 706, and did not cross reference that statute with any other statute or codal article. The plaintiffs argue therefore that medical review panelists are intended to be similar to court-appointed experts that cannot be employed by either party. However, plaintiffs’ argument ignores the more specific provisions of La.Rev.Stat. 40:1299.47(H) and (I)(l)(a), specifically allowing either party to call medical review panelists at his own cost to testify on his behalf at trial. It is well established that where two statutory provisions are in conflict, the statute that is more specific must prevail as an exception to the general statute. Smith v. Cajun Insulation, Inc., 392 So.2d 398, 402 (La.1980). Thus, we find no merit in the plaintiffs’ argument based on La. Evid.Code art. 706.

In their second assignment of error, plaintiffs argue that the court of appeal judgment should be reversed because it is based on an incorrect interpretation and application of Clelland. Plaintiffs seek to distinguish this case from Clelland by emphasizing the statement in that case that the plaintiffs had called the medical review panelist to the stand, and had only objected when the defendant started questioning the panelist. Plaintiffs point out that they did not call any panelists to testify in this case. However, our reading of Clelland indicates that the factual distinctions between the two cases do not support a different rule in the instant case. The court’s ultimate holding in Clelland is a general one, as the court found that “there is nothing in the statute to prohibit medical review panel members from subsequently testifying as an expert for either party at a trial concerning the same medical malpractice claim.” 99-2971 at 6, 774 So.2d at 1247. Both the Clelland decision and the decision of the court of appeal in this case are correct in that regard.

In their third assignment of error, plaintiffs assert that, even if the judgments of the lower courts are correct, the “proper” rule of law that should be adopted by this court would prohibit a medical review panelist from testifying at trial in a “dual-role capacity” as both a panelist and a party’s own expert witness. In support of this argument, plaintiffs adopt the specific arguments already set forth in our discussion of plaintiffs’ first assignment of error. For the reasons set out in that discussion, we find no merit in plaintiffs’ third assignment of error.

The medical review panel procedure can best be described as a process by which the legislature has interjected an additional phase into the resolution of a medical 113malpractice claim. That being the case, it bears mentioning that medical review panelists are not judges, and their decision is not sacrosanct, as the plaintiffs seem to argue. Once their duties as panelists have been completed and the panel’s written opinion has been rendered, the panelists are free to participate in a subsequent trial on the same claims considered by the panel in the same manner as any other medical expert, with one important difference. That difference is found in the fact that the panelists are required by La.Rev.Stat. 40:1299.47(H) to appear at trial if called by a party at that party’s cost. Theoretically and practically, this rule is helpful not only to defendants, but also to plaintiffs, who are required to present the testimony of a medical expert in order to establish their burden of proof and avoid dismissal of a medical malpractice claim on summary judgment or by directed verdict. Accordingly, we find no abuse of the district court’s discretion in his ruling admitting the expert testimony of the medical review panelists on behalf of the defendant.

Before moving on to discuss plaintiffs arguments concerning the district court’s refusal to give jury instructions they requested, we find it appropriate to note our agreement with the arguments of both defendant and the various amicus curiae briefs in this court that this decision is consistent with both the accepted custom in medical malpractice cases in this state and with this court’s earlier statements in Everett v. Goldman, 359 So.2d 1256, 1267 (La.1978). In Everett, this court reversed a district court decision holding various provisions of the LMMA unconstitutional. As part and |14parcel of the court’s rejection of the Everett plaintiffs equal protection claims, the court stated as follows:

Likewise, the requirement that malpractice claims be filtered through a medical review panel is not unreasonable and seems to be a rational effort to accomplish a plausible goal. A panel determination adverse to a malpractice claimant’s interest does not preclude his filing a lawsuit. Such a determination would seem to exert subtle pressure on the claimant in a case of little worth to abandon or to settle his claim reasonably, thereby saving the defendant and his insurer the time, expense and worry of apparently needless litigation. And a favorable panel decision will probably aid the claimant in exerting pressure on a defendant to settle the case reasonably, thus treating the malpractice victim to savings in time and expense and to avoidance of possibly risky litigation. In those cases which do go to trial, a plaintiff successful before the panel will benefit from the evidentiary support of the panel’s finding and the testimony of the panel members.

Id. at 1267. As defendant points out, the above language contemplates medical review panelists testifying on behalf of one or the other party. We also believe that the rule expressly adopted herein allowing such expert testimony serves the purposes of the LMMA recognized in the above quotation. Allowing medical review panelists to testify as experts certainly furthers the goal of promoting settlement of medical malpractice claims because it provides additional support for the position of the party in whose favor the panel rules, thereby encouraging the other party to seek settlement.

Arguably, the rule we adopt herein, allowing expert testimony of medical review panelists, provides a particular benefit to plaintiffs when the panel has found that the defendant breached the applicable standard of care, even if the defendant refuses to settle in the face of an adverse medical review panel expert opinion. Because La.Rev.Stat. 40:1299.47(H) requires that panelists testify if called by a party at that party’s cost, it assures that the plaintiff can locate a medical expert to testify in support of his claim.

| ^FAILURE TO GIVE REQUESTED JURY CHARGES

In their fourth assignment of error, plaintiffs challenge the court of appeal’s finding that the district court did not commit error by refusing to give a jury instruction concerning the dual-role capacity of defendant’s expert witnesses. The court of appeal found that the pertinent LMMA provisions “do not distinguish between an expert witnesses’ testimony as a panel member or as a witness retained by one of the parties,” and that “the charge suggested by the plaintiffs does not reflect an accurate statement of the law.” The court of appeal also found that the plaintiffs had failed to show prejudice arising from the district court’s rejection of their requested instruction.

In their fifth assignment of error, plaintiffs challenge the court of appeal’s finding that the district court did not commit error by failing to offer their special jury instruction drawn from Chauvin v. West Jefferson Mental Health Center, 597 So.2d 134 (La.App. 5th Cir.1992), relative to the principle that a psychiatrist treating a person with a history of depression or suicidal tendencies should restrict the medication dispensed to the smallest feasible amount. The court of appeal found that its own previous decision in Chauvin did not create an elevated duty on the party of psychiatrists treating suicidal patients to the extent that it requires a specific charge. The court of appeal further found that the jury charges in this case as a whole amply set forth the necessary burden of proof imposed on the plaintiffs.

In Nicholas v. Allstate Ins. Co., 99-2522 (La.8/31/00), 765 So.2d 1017, this court noted the duty of reviewing courts to .evaluate allegations of improper jury instructions “in light of the entire jury charge to determine if they adequately provide the correct principles of law as applied to the issues framed in the pleadings and evidence and whether they adequately guided the jury in its deliberation.” Id. at p. 8, 765 So.2d at 1023. According to Nicholas, the “determinative question” in such cases is “whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice.” Brown v. White, 405 So.2d 555, 560 (La.App. 4 Cir.1981), aff'd, 430 So.2d 16 (La.1982).

Our review of the record in this case convinces us that the district court’s refusal to give the plaintiffs requested jury instructions did not mislead the jury to the extent that it was prevented from doing justice. In fact, our review of the jury charges in their entirety reveals that they “adequately provide[d] the correct principles of law as applied to the issues framed in the pleadings and evidence” and that “they adequately guided the jury in its deliberation.” Id. Accordingly, we find no abuse of the district court’s discretion in refusing to give the two jury charges requested by the plaintiffs.

DECREE

Finding no abuse of the district court’s discretion in either his admission of the expert testimony of the medical reviqw panelists or refusal to give the plaintiffs’ requested jury charges, we affirm the judgments of the district court and the court of appeal in favor of the defendant, dismissing plaintiffs’ claims.

AFFIRMED.

TRAYLOR, J., dissents and assigns reasons.

JOHNSON and KIMBALL, JJ., dissent for reasons assigned by TRAYLOR, J.

I1TRAYLOR, Justice,

dissenting.

There is no question that either party to a medical malpractice action may call as a witness a member of the medical review panel. What is at issue is the scope of that expert witness’ testimony. The majority’s conclusion that a medical review panelist may also perform the additional role of independent expert witness is based upon an erroneous interpretation of the legislative scheme.

Each party has the right to call, at its own cost, any member of the medical review panel as a witness. La. R.S. 40:1299.47(H). The legislature provides to the panelists “absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties” as a panelist. La. R.S. 40:1299.47(I)(l)(a) further specifies the scope of the testimony of the panelists when called as a witness by a party:

Each physician member of the medical review panel shall be paid at the rate of twenty-five dollars per diem, not to exceed a total of three hundred dollars for all work performed as a member of the panel exclusive of time involved if called as a witness to testify in a court of law regarding the communications, ñndings, and conclusions made in the course and scope of duties as a member of the medical review panel, and in addition thereto, reasonable travel expenses. (Emphasis added)

It is clear that the scope of the testimony to be supplied by the medical review | ^panelist called as a witness is to corroborate, explain or invalidate the panel report. In recognition that trial testimony will involve a greater commitment of time than the panel’s ordinary review of written documents, Subsection (I) provides that the party calling a panelist as a witness must pay for the time involved, as well as reasonable travel expenses.

The prejudice to a party which results from the majority’s conclusion is aptly exhibited in the present case. The failure to issue a jury instruction informing the jurors of the dual role of the panelist expert witness prevented the jurors from considering the expert’s testimony within its factual context. La. R.S. 40:1299.47(0(5) requires impartiality on the part of,medical review panel members in the form of a written, sworn oath or affirmation. This sworn oath or affirmation is attached to the written panel report which is admissible in evidence. La. R.S. 40:1299.47 C(5) and (H). In this case, as is the common practice, counsel highlighted this fact by questioning the panelist expert witness about his impartiality as a panel member. Thereafter, - and without further explanation to the jury, counsel elicited the panelist’s expert opinion which included discrediting the other party’s expert witness, information which had not been presented to the panel.

Although the majority chides opposing counsel for failing to depose the panel members or file a motion in limine when the panelists were listed as witnesses, if the scope of the panelists’ testimony is properly circumscribed as in the legislative scheme, there is no need for such depositions or motions in limine. The medical review panel’s report is based upon written evidence only. La. R.S. 40:1299.47(D)(1). Therefore, a party litigant already knows what the panelist expert witness’s testimony will be from reviewing the medical review panel report, as well |3as what the witness’s testimony is based upon.

Even the majority recognizes that the role of the panelist changes when a panelist is thereafter hired as an expert witness for one of the litigants. Although I disagree with the majority’s conclusion that this is a proper interpretation of the legislative scheme, to fail to inform the jury of the dual nature of the expert witness is to prevent jurors from considering the expert’s testimony in its proper context, to invite jury confusion and to clothe the paid expert witness’s testimony with the imprimatur of the independent medical review panel.

For these reasons, I respectfully dissent.

      . La.Rev.Stat. 40:1299.47(A)(1)(a) provides as follows:
      All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided for in this Section.

      . La Rev. Stat. 40:1299.47(B)(l)(a)(i) provides as follows:
      No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section.

      . The panel listed the following reasons for its expert opinion that defendant did not violate the standard of care:
      1. The medication prescribed by Dr. Roni-ger was necessary and proper for the treatment of this patient.
      2. The dosage prescribed was proper.
      3. Dr. Roniger properly diagnosed the patient and properly ordered medication for her treatment.
      4. The patient had established a pattern of warning the doctor of her suicidal tendencies thereby enabling him to place her in the hospital until the tendencies subsided.

      . La.Rev.Stat. 30:1299.47(C)(7) provides as follows:
      A panelist or a representative or attorney for any interested party shall not discuss with other members of a medical review panel on which he serves a claim which is to be reviewed by the panel until all evidence to be considered by the panel has been submitted. A panelist or a representative or attorney for any interested party shall not discuss the pending claim with the claimant or his attorney asserting the claim or with a health care provider or his attorney against whom a claim has been asserted under this Section. A panelist or the attorney chairman shall disclose in writing to the parties prior to the hearing any employment relationship or financial relationship with the claimant, the health care provider against whom a claim is asserted, or the attorneys representing the claimant or health care provider, or any other relationship that might give rise to a conflict of interest for the panelists.

      . La.Rev.Stat. 40:1299.47(H) provides as follows:
      Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this Part.

      . Medine v. Roniger, 03-3436 (La.3/12/04), 869 So.2d 802.

      . See, for example, the following cases cited by the briefs filed in this court as examples of cases in which medical review panelists testified at some length concerning the evidence and the panel’s expert opinion: Hepler v. Lin, 03-1217 (La.App. 3 Cir. 3/31/04), 869 So.2d 969; Strange v. Shroff, 37,353 (La.App.2d Cir.7/16/03), 850 So.2d 1077; James v. Gordon, 95-1472 (La.App. 3d Cir.12/4/96), 690 So.2d 787; Evans v. Haynie, 26,135 (La.App. 2 Cir. 9/21/94), 643 So.2d 273; Turner v. Massaiah, 094-29 (La.App. 5th Cir.7/1/94), 641 So.2d 610, rev. In part on other grounds, aff'd in part, 656 So.2d 356.

      . The evidence to be considered by the medical review panel is submitted by the respective parties in written form only. La. R.S. 40:1299.47(D)(1).


source: Caselaw Access Project

author: hPER CURIAM. h CALOGERO, Chief Justice,

license: Public Domain

text:
    In re Stephen R. EDWARDS.
    No. 2004-B-0290.
    Supreme Court of Louisiana.
    July 2, 2004.
    Rehearing Denied Sept. 3, 2004.

      Charles B. Plattsmier, Chief Disciplinary Counsel, Counsel for Applicant.
    Stephen R. Edwards, Karl J. Koch, Baton Rouge, Counsel for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Stephen R. Edwards, an attorney licensed to practice law in Louisiana but currently on interim suspension.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On November 6, 1998, a federal grand jury returned an indictment charging respondent and .others with racketeering, extortion, mail and wire fraud, money laundering, false statements, illegal wiretapping, and conspiracy in connection with the awarding of Louisiana riverboat gaming licenses. United States v. Edwin Edwards, Stephen Edwards, Cecil Brown, Andrew Martin, Bobby Johnson, and Gregory Tarver, No. 98-165 on the Criminal Docket of the United States District Court for the Middle District of Louisiana. On May 9, 2000, a jury found respondent guilty of eighteen felony counts involving racketeering, extortion, mail and wire fraud, and money laundering; however, six mail and wire fraud convictions were subsequently | ¡.dismissed by the district court. Respondent was sentenced to serve seven years in federal prison.

On August 23, 2002, the United States Court of Appeals for the Fifth Circuit affirmed respondent’s conviction and sentence. United States v. Edwards, 303 F.3d 606 (5th Cir.2002). The conviction became final on February 24, 2003, upon the denial of respondent’s petition for writ of certiorari by the United States Supreme Court. Edwards v. United States, 537 U.S. 1192, 123 S.Ct. 1272, 154 L.Ed.2d 1025 (2003).

DISCIPLINARY PROCEEDINGS

On July 17, 2000, the ODC filed one count of formal charges against respondent arising out of his conviction. On August 2, 2000, respondent answered the formal charges and admitted his conviction, but requested that the disciplinary-proceeding be held in abeyance pending the finality of the conviction. Following the United States Supreme Court’s denial of certiorari in the criminal case, the disciplinary matter proceeded to a formal hearing on the merits, which was conducted before the hearing committee on May 30, 2003.

The ODC submitted documentary evidence in support of the formal charges. Respondent was incarcerated at the time of the hearing and thus did not appear in person, but his counsel called three attorneys to testify on his behalf. These witnesses provided testimony primarily in the nature of character evidence. Furthermore, each of the witnesses expressed his view that permanent disbarment should not be applied 13to respondent or is otherwise not an appropriate sanction for the crimes of which respondent was convicted.

Summary of the Documentary Evidence

The documentary evidence introduced by the ODC at the hearing included respondent’s indictment, a minute entry in the criminal case reflecting the jury’s verdict as to each count of the indictment, and the opinion of the United States Court of Appeals for the Fifth Circuit affirming respondent’s conviction and sentence.

The facts underlying respondent’s conviction are summarized in the Court of Appeals’ opinion. Essentially, respondent, along with his father, Edwin Edwards, the former governor of Louisiana, and three of their associates were convicted for their roles in five separate schemes to profit from Louisiana’s riverboat gaming license process by exploiting the former governor’s apparent ability to influence that process. The government alleged that each of the defendants was a member of a conspiracy to violate RICO and that the conspirators extorted money from various individuals who sought approval of riverboat casino projects. They promised to help these individuals obtain licenses in exchange for money and threatened to make obtaining the licenses impossible if they did not pay. The government also alleged that the conspirators attempted to launder the money obtained through the schemes. United States v. Edwards, 303 F.3d 606, 610-11 (5th Cir.2002).

The Court of Appeals determined the evidence was sufficient to support a finding that respondent played a major role in three of the five schemes in question. In the “Players Scheme,” respondent extorted Players Casino by demanding that Players retain him as a lawyer and hire his merchandising firm as a consultant in exchange for a license and other benefits. Between May 1993 and approximately ^February 1995, Players paid respondent and one of his associates more than one million dollars. Respondent was also involved in the extortion of Robert Guidry in connection with the licensing of the Treasure Chest Casino. Over a three-year period beginning in April 1994, respondent, his father, and one of their associates received more than one million dollars in the “Treasure Chest Scheme.” Finally, in the “15th Riverboat License Scheme,” so named because it was the.final license to be awarded by the Louisiana Gaming Control Board, respondent and his father extorted $400,000 from Eddie DeBartolo, Jr., then the owner of the San Francisco 49ers professional football team. Id.

At sentencing, the district court concluded that the loss attributable to respondent was $4,117,000, resulting in an upward adjustment of 13 levels under the sentencing guidelines. Of the total amount, $2,217,000 was attributed to the Players Scheme (including $180,000 in legal fees paid to respondent), $1.5 million was attributed to the Treasure Chest Scheme, and $400,000 was attributed to the 15th Riverboat License Scheme. Furthermore, the district court entered an order of forfeiture in the amount of $1.8 million (the amount found by the jury to be the proceeds of racketeering activity), for which respondent is jointly and severally liable as a member of the racketeering conspiracy. See id. at 643-44. The Court of Appeals concluded these findings are also supported by the record. Id.

Hearing Committee Recommendation

The hearing committee determined the ODC proved by clear and convincing evidence that respondent was convicted of a serious crime in violation of Rule 8.4 of the Rules of Professional Conduct. The committee found respondent intentionally violated a duty to the public and as a professional, and that his conduct resulted in ^substantial injury to the legal profession. The baseline sanction for respondent’s misconduct is disbarment. The committee recognized a number of aggravating factors, including respondent’s dishonest or selfish motive, pattern of misconduct, multiple offenses, vulnerability of the victim, and substantial experience in the practice of law (admitted 1981). Furthermore, the committee acknowledged that the mitigating factors present in this case include the absence of a prior disciplinary record, respondent’s character and reputation, and remorse. Nevertheless, the committee concluded that under the facts presented, the mitigating circumstances are not of sufficient weight to detract from the “elaborate, widespread, deeply-rooted extortion and political corruption scheme” in which respondent so willingly participated. In particular, the committee explained:

Respondent’s duplicity, acting as an attorney in most of these endeavors, involved numerous victims and many millions of dollars. Not only did he take advantage of the influence of his father, who was the Governor of the State of Louisiana, he also apparently used his knowledge and experience as a licensed attorney in order to devise the schemes which succeeded in the extortion of significant amounts of money for his, and his co-conspirator’s, personal benefit. Considering the specificity of the acts, the extent of the planning involved in these conspiracies, as well as the magnitude of the funds that were extorted, it is unconscionable to consider the possibility that Respondent should not be permanently disbarred.

The committee recognized that respondent’s actions do not fall precisely within this court’s permanent disbarment guidelines. However, the committee concluded that respondent’s conduct is so egregious that he should no longer have the privilege of practicing law in this state. Accordingly, the committee recommended he be permanently disbarred.

| (¡Respondent filed an objection to the sanction recommended by the hearing committee. The ODC concurred in the hearing committee’s recommendation.

Disciplinary Board Recommendation

The disciplinary board found the record supports the committee’s finding that respondent has been convicted of a serious crime warranting discipline. It determined respondent damaged his clients by using his status as an attorney as a tool in his extortion scheme, noting respondent convinced potential gaming licensees to hire him as a lawyer in order to buy his corrupt influence. The board further found that respondent “intentionally engaged in a scheme of political corruption for monetary gain,” and “lined his own pockets and the pockets of his cronies” to the detriment of the citizens of this state. It concluded the profession was damaged by respondent’s actions, which were highly publicized during the criminal proceedings. Thus, the board found the baseline sanction for respondent’s misconduct is clearly disbarment.

The board adopted the aggravating and mitigating factors found by the hearing committee. Considering the weight of the aggravating factors and the nature of the misconduct at issue, the board then turned to a discussion of the sanction of permanent disbarment.

The board rejected respondent’s argument that permanent disbarment is not appropriate in this case because his conduct does not fit any of the guidelines set forth in Appendix E to Supreme Court Rule XIX. The board pointed out that the permanent disbarment guidelines are merely illustrative and were not intended to bind the court in its decision making. The board also dismissed respondent’s argument that permanent disbarment cannot be applied to him because that sanction did not exist at the time of his conviction. Concluding respondent’s criminal conduct is so serious |7that he should be forever prohibited from seeking readmission to the practice of law, the board recommended the imposition of permanent disbarment.

Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed depends on the seriousness of the offense and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

Respondent does not dispute that he has been convicted of serious crimes involving racketeering, extortion, and money laundering, and he concedes that disbarment is a proper sanction for such conduct. Accordingly, the sole issue presented for our consideration is whether respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar.

Respondent argues to this court that he cannot be permanently disbarred because his conviction does not fall within the parameters of the permanent disbarment guidelines set forth in Appendix E to the Rules for Lawyer Disciplinary Enforcement. However, respondent ignores the preamble to Appendix E, in which we explicitly ^provided that the guidelines are illustrative in nature and are not intended to bind this court in its decision-making process.

In In re: Kirchberg, 03-0957 (La.9/26/03), 856 So.2d 1162, we rejected a lawyer’s argument that his conviction for mail fraud arising out of a runner-based solicitation scheme did not fall within Guideline 6, which applies to insurance fraud, “including but not limited to staged accidents or widespread runner-based solicitation.” In doing so, we explained that “in assessing discipline in the case of an attorney who has been convicted of a crime, we have often looked beyond the title of the offense to the facts of the conviction to determine the appropriate sanction.”

In the same way, it is clear respondent’s actions are the very type of conduct we sought to address when we codified permanent disbarment as an available sanction for attorney misconduct. Respondent’s conviction of crimes involving extortion and racketeering in connection with an extensive scheme designed to derive an illegal profit from Louisiana’s riverboat gaming license process convincingly demonstrates that he lacks the fundamental honesty and fitness to practice law in this state. Rather than upholding the law, a duty that is incumbent upon all members of the bar, respondent knowingly and intentionally extorted and defrauded riverboat applicants by soliciting money and other payments, often disguised as attorney’s fees, in exchange for which he offered to wield his corrupt influence to improperly manipulate the application process. The actions of respondent, which were covered extensively in the media, caused incalculable harm to the good reputation of the legal profession in Louisiana. | ^Moreover, his misconduct struck at the integrity of state government and caused actual harm to every citizen of this state. Quite simply, the sheer magnitude of his misconduct is without parallel.

Under these circumstances, we would plainly fail in our constitutional duty to regulate the practice of law and protect the public if we were to impose any sanction less than permanent disbarment. Accordingly, respondent must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the name of Stephen Randolph Edwards, Louisiana Bar Roll number 5295, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the | mpractice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

CALOGERO, C.J., concurs and assigns reasons.

JOHNSON, J., would disbar.

h CALOGERO, Chief Justice,

concurs.

I simply concur in the majority’s determination that Respondent’s conduct warrants disbarment.

      . In re: Edwards, 00-1940 (La.6/29/00), 765 So.2d 327.

      . A 34-count superseding indictment was returned by the grand jury on August 4, 1999; however, it does not appear that a copy of the superseding indictment is contained in the record before us.

      . The jury convicted respondent of Counts 1 and 2 (RICO), 12-15 (Players Casino extortion), 16 (interstate travel in aid of racketeering), 17-19 (Treasure Chest Casino extortion), 20-22 and 25-27 (mail and wire fraud in connection with the awarding of the fifteenth riverboat license), 31 (extortion in connection with the awarding of the fifteenth riverboat license), and 34 (money laundering). The district court later granted a new trial and dismissed the fraud convictions subject of Counts 20-22 and 25-27 in light of Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000) (holding that mail and wire fraud convictions cannot be based upon a theory that the government was defrauded of its intangible right to issue licenses).

      . One member of the committee dissented as to the sanction, concluding that respondent’s conduct warrants disbarment, but not permanent disbarment.

      . Alluding to the publicity this case has received, respondent suggests that the board's recommendation of permanent disbarment is premised at least in part on his status as the son of a prominent four-term governor of the state, and argues he should not be treated more harshly than other members of the bar simply because "his name is Stephen Edwards instead of Stephen Smith.” We find this argument is completely without eviden-tiary support and is an insult to the integrity of the disciplinary system as well as this court. To some extent, respondent’s status as the son of former Governor Edwards put him in a unique position to accomplish the extortion of which he was ultimately convicted. However, the disciplinary charges are not based on respondent's last name; rather, they are based on his conduct. Such conduct clearly warrants substantial discipline regardless of the surname of the perpetrator.

      . Respondent analogizes his case to In re: Bankston, 01-2780 (La.3/8/02), 810 So.2d 1113, in which this court imposed "ordinaiy” disbarment, as opposed to permanent disbarment, on a lawyer who accepted a bribe while serving as a state senator. However, Bankston is clearly distinguishable from the instant case. In contrast to the extensive extortion scheme in the instant case, which involved improper payments totaling millions of dollars, Bankston involved a single act of bribery in the form of a $1,555.01 payment for a sham rental of the lawyer's condominium. Although we in no way minimize the seriousness of the misconduct in Bankston, it obviously pales in comparison to the unprecedented extortion scheme engaged in by respondent and his co-defendants in the instant case.

      .It is of no moment that respondent’s misconduct and resulting conviction occurred prior to the adoption of the amendments to Supreme Court Rule XIX, § 10(A) and § 24(A) which provide for permanent disbarment. These amendments do not represent a substantive change to the bar disciplinary rules, nor do they result in the adoption of a new sanction which did not previously exist. Rather, these amendments simply represent a procedural change to Supreme Court Rule XIX in order to recognize a power this court has always possessed. In re: Laudumiey & Mann, 03-0234 (La.6/27/03), 849 So.2d 515, cert. denied, - U.S. -, 124 S.Ct. 814, 157 L.Ed.2d 697 (2003); In re: Pinkston, 02-3251, 02-3252 (La.5/20/03), 852 So.2d 966, cert.

        denied, - U.S. -, 124 S.Ct. 1413, 158 L.Ed.2d 81 (2004).


author: | .MCDONALD, J. | WHIPPLE, J., LKUHN, J., bMcCLENDON, J., I,CARTER, C.J.,

text:
    Calvin J. LEONARD, Jr. v. JAMES INDUSTRIAL CONSTRUCTORS.
    No. 2003 CA 0040.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Charles R. Davoli, Baton Rouge, Counsel for Claimant/Appellee Calvin J. Leonard, Jr.
    David T. Butler, Jr., Baton Rouge, Counsel for Defendant/Appellant James Industrial Constructors.
    Before: CARTER, C.J., FOIL, WHIPPLE, PARRO, FITZSIMMONS, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, MCDONALD, and MCCLENDON, JJ.
   | .MCDONALD, J.

An employer appeals a judgment finding that a work-related accident occurred and awarding penalties and attorney fees based on the finding that the employer had no reasonable basis to controvert the claim. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Claimant, Calvin J. Leonard, Jr. was employed by James Industrial Constructors (JIC) on July 14, 1999, when he fell approximately 10 to 20 feet, from a pipe rack onto a stack of lumber. Leonard immediately complained of back pain and was sent to the tool room by JIC, then told to take some time off to see if he would get better. A week later, Leonard returned to work requesting medical treatment. He was taken to Ascension Medical Clinic where he was evaluated and a drug screening was administered. The drug screen came back positive for Benzozyloconin(ph), a cocaine metabolite. Based on the positive drug screen, the claim for benefits was denied.

On July 27, 1999, Leonard filed a disputed claim for compensation. The matter was heard before the Office of Workers’ Compensation (OWC) on May 29, 2002. Oral reasons for judgment were issued, and a judgment was signed July 15, 2002, finding that Leonard had sustained an accident in the course and scope of his employment on July 14, 1999, entitling him to temporary total disability benefits from July 14, 1999 to August 8, 1999; that Calvin Leonard had violated La. R.S. 23:1208 as of August 8, 1999, and therefore had forfeited his rights to all workers’ compensation benefits from that date forward; that Leonard’s claim was not reasonably controverted and therefore JIC was subject to a two thousand dollar ($2,000.00) penalty and three thousand dollar ($3,000.00) attorney fee, as well as a two thousand |sdollar ($2,000.00) penalty and three thousand dollar ($3,000.00) attorney fee for failure to pay medical benefits; and that JIC was responsible for all medical bills of Dr. Jack Loupe, the July 28, 1999 emergency room visit, and an MRI bill. JIC timely filed a suspensive appeal.

Appellant asserts four errors for review: 1. the OWC judge committed error in finding Leonard suffered an accident in the course and scope of his employment with JIC; 2. the OWC judge committed error in finding Leonard did not violate La. R.S. 23:1208.1; 3. the OWC judge committed error in finding Leonard did not violate La. R.S. 23:1208 prior to August 8, 1999; and 4. the OWC judge committed error in awarding workers’ compensation benefits, medical expenses, penalties and attorney’s fees where a violation of La. R.S. 23:1208 was found.

LAW AND ANALYSIS

The claimant in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991).. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt about the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged accident. Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992).

JIC argues that voluminous evidence calls into question Leonard’s credibility, and whether he experienced an accident in the course and scope of his employment is, to a large extent, dependent upon his credibility since there were no witnesses who actually saw Leonard fall. There is no doubt that Leonard’s credibility is suspect, considering the documented evidence of his lying and the OWC judge’s comment that he could not be believed. LHowever, at this point the focus of our inquiry is on the alleged accident. Leonard’s veracity is only at issue to the extent that circumstances do not corroborate his testimony or other evidence discredits or casts serious doubt upon his allegations.

The OWC judge’s determination as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or manifestly erroneous. Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988). The OWC judge not only had the testimony of Leonard that he fell, but also the corroborating testimony of his coworker, Erven Albarado. Albarado testified that he was working in close proximity to Leonard and had seen him working prior to the fall. Although not actually witnessing the fall, Albarado heard the fall and saw Leonard on the lumber. We find that the evidence supports the OWC judge’s finding that a work-related accident did occur.

The workers’ compensation statutes provide two separate anti-fraud forfeiture provisions, which employers may use to affirmatively defend against paying a claim. Louisiana Revised Statutes 23:1208.1 is applied when a falsity was made on an employer’s medical questionnaire, before the accident or injury. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214, 1218. JIC argues that Leonard’s pre-employment questionnaire denies any prior back or neck difficulties; however, medical records introduced into evidence demonstrate preexisting back and neck difficulties. The Louisiana Supreme Court has clearly enunciated when the forfeiture provision of La. R.S. 23:1208.1 is applicable. In Wise, the court noted that the significance of the falsity on the questionnaire is that an |5untruthful statement regarding a preexisting condition is prejudicial to the employer’s ability to recover from the second injury fund. The court then restated its holding in Resweber v. Haroil Construction Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7 that the forfeiture penalty of La. R.S. 23:1208.1 is only imposed when an employer is prejudiced. An employer is prejudiced only when the false statement directly relates to the medical condition for which a claim is made or affects the employer’s ability to receive reimbursement from the second injury fund. Wise, 707 So.2d at 1218. Forfeiture is a harsh remedy and statutory forfeiture must be strictly construed. An employer has the burden of proving each element within the statute, and the lack of any one of the elements is fatal to an employer’s avoidance of liability. Wise, 707 So.2d at 1218.

In the instant case, JIC relied upon medical records showing that Leonard reported to the emergency room of several hospitals on numerous occasions prior to. the accident at issue, complaining of low back pain. However, Leonard also testified that , he had lied about his back pain on those occasions for the purpose of obtaining pain medication because of a drug addiction. He denied actually having any prior back problems. As the trier of fact, the OWC judge may accept, in whole or in part, the testimony of any witness. See Alcorn v. City of Baton Rouge, 2002-0952 (La.App. 1st Cir.6/27/03), 851 So.2d 1194. Clearly, the OWC judge accepted Leonard’s testimony that he had not had any prior back problems and therefore, had not given an untruthful answer on his pre-employment questionnaire.

The OWC judge reviewed all of the medical evidence regarding Leonard and noted that he did have a preexisting degenerative back condition that was aggra: vated by the work accident. However, this finding was based upon diagnostic studies conducted after the accident. The OWC | ¿judge also found that the accident, involving a fall of 10 to 20 feet, with Leonard landing on his back on a stack of 4 x 4 lumber, could not be sustained without injury. While Leonard complained of back pain prior to the accident, the record is devoid of medical evidence, such as diagnostic studies or physician’s reports, that document a degenerative back condition prior to his employment with JIC. Review of the medical records indicates that Leonard would report to the emergency room with a complaint of back pain, seeking pain medication. According to the emergency room records, very rarely were diagnostic tests of any kind conducted to verify his complaints, and none of the records indicate a specific diagnosis of a degenerative back condition. They simply show the diagnosis as “low back pain” or some similar generic diagnosis.

JIC failed to demonstrate that any allegedly false statements made by Leonard on the pre-employment questionnaire affected its ability to receive second injury fund relief. The issue of whether an allegedly false statement by a claimant requires forfeiture of his workers’ compensation benefits is one of fact, which is not to be reversed on appeal absent manifest error. Short v. Gaylord Chemical Corp., 98-0606 (La.App. 1st Cir.4/1/99), 731 So.2d 493, 499. We find no error in the OWC judge’s failure to find Leonard in violation of La. R.S. 23:1208.1.

Similarly, the issue of whether an allegedly false statement or misrepresentation by an employee requires forfeiture of workers’ compensation benefits pursuant to La. R.S. 23:1208 is one of fact, which is not to be reversed on appeal absent manifest error. The party who requests that benefits be forfeited must show that the claimant’s statements were not only false, but must also show that the statements were willful and deliberately made with the intent to obtain benefits. Williams v. Sheridan Construction Co., Inc., 2000-1697 (La.App. 1st Cir.9/28/01), 811 So.2d 8, writ denied, 01-2865 (La.01/11/02), 807 So.2d 239. After meticulously reviewing the medical evidence in this matter, the OWC judge found that Leonard had a history of seeking pain medication because he had “a big drug problem.” In general, his complaints when he sought medication were of back pain, and he had told physicians that he had ruptured and shattered discs. Upon being questioned in his deposition as to whether he had ever had any back problems, Leonard said, “No, I was lying to get drugs.” In addition to the pre-accident drug-seeking incidents, the OWC Judge found that Leonard had lied to get drugs on August 8, 1999. Because drugs is a workers’ compensation benefit that claimant lied to secure, the OWC judge found him in violation of La. R.S. 23:1208 and ordered his workers’ compensation benefits forfeited from that date forward. We find no error in this decision by the OWC judge.

Finding no manifest error in the OWC judge’s determination that the first false statement for the purpose of obtaining benefits occurred on August 8, 1999, the issue we must now address is whether the OWC judge committed legal error in ordering the forfeiture of benefits effective from the date of the misrepresentation. In LeBlanc v. Grand Isle Shipyard, Inc., 95-2452 (La.App. 1st Cir.6/28/96), 676 So.2d 1157, 1164, this court held that the statutory language in La. R.S. 23:1208 does not limit the forfeiture of benefits to the time period after the claimant makes the false statements or misrepresentations.

In LeBlanc, the OWC judge had limited the employee’s forfeiture of benefits to only those benefits that would have accrued after the date of the misrepresentation. This court, however, concluded that the OWC judge erred in awarding the employee any benefits, noting that the language of La. |sR.S. 23:1208 was clear and required forfeiture of any benefits. This was interpreted to include benefits both prior to and subsequent to the misrepresentation.

Further, JIC argues that a finding of a violation of La. R.S. 23:1208 requires forfeiture of any benefits from the time of the injury, relying on St. Bernard, Parish Police Jury v. Duplessis, 2002-0632 (La.12/4/02), 831 So.2d 955. In Duplessis, the employee, who had been receiving workers’ compensation benefits for nine years, falsified mileage reports for the purpose of obtaining more mileage reimbursement than the amount actually owed. The OWC judge found that the employee had willfully submitted false mileage reports, violating La. R.S. 23:1208, but that only the mileage benefit would be forfeited and not other benefits. The court of appeal affirmed the judgment. The Supreme Court reversed, finding that although the willfully false statement related only to the claim for mileage reimbursement, the statute provides that any employee found to be in violation of La. R.S. 23:1208 would “forfeit any right to compensation benefits.” Therefore, the court held that forfeiture of all workers’ compensation benefits, not just those benefits that the false statement concerned, was mandated.

Significantly, however, the court did not address when the forfeiture was to be effective, and we do not find that Duples-sis requires the result for which JIC argues. Regarding the point at which forfeiture applies, we note that in Resweber, the Louisiana Supreme Court stated that La. R.S. 23:1208 “applies to any false statement or misrepresentation, including one concerning a prior injury, made specifically for the purpose of obtaining workers’ compensation benefits and therefore generally becomes applicable at the time of an employee’s accident or claim.” Resweber, 660 So.2d at 9 |9(emphasis added). This language suggests that there is no inflexible rule on when the forfeiture is effective. Specifically, where, as here, the misrepresentation is not made at the time of the accident, but occurs at some later time, we believe that the forfeiture should be effective at the time of the misrepresentation, rather than the time of the accident.

Interpreting La. R.S. 23:1208 to require forfeiture of benefits from the time of the misrepresentation prospectively, and not retroactively, comports with the law and jurisprudential rules on statutory interpretation. The word “any” in the statute is quantitative, not temporal. As noted previously, statutory forfeiture of workers’ compensation benefits is a harsh remedy and, as such, must be strictly construed. It is also noteworthy that the statute is quasi-penal, and such statutes are to be strictly construed. See Faught v. Ryder/P*I*E Nationwide, Inc., 543 So.2d 918, 921 (La.App. 1st Cir.1989), writ denied, 545 So.2d 1040 (La.1989). Further, retroactive application would not result in a “forfeiture” of benefits, but, in effect, a “denial” of benefits, if it included benefits to which the employee was undis-putedly entitled. Therefore, we overrule the decision of this court in LeBlanc to the extent that it requires forfeiture of benefits pursuant to La. R.S. 23:1208 prior to the date of the misrepresentation.

Penalties and Attorney Fees in La. R.S. 23:1208 Forfeiture

JIC argues that the OWC judge committed legal error in awarding indemnity benefits, medical expenses, penalties, and attorney fees after finding that Leonard had violated La. R.S. 23:1208. Citing St. Bernard Parish Police Jury v. Duplessis, 2002-0632 (La.12/4/02), 831 So.2d 955, JIC asserts that the Louisiana Supreme Court has taken an “all or nothing” approach to the forfeiture of benefits and all benefits should have been linforfeited by Leonard, including penalties and attorney-fees. We do not agree.

Penalties and attorney fees are not benefits awarded to an employee; they are sanctions imposed on an employer, subject to the same standard of appellate review as any other factual determination made by the OWC judge. This is clear from the relevant statutory provisions, as well as the supreme court’s discussion of the multiple penalty issues in Fontenot v. Reddell Vidrine Water District, 02-0439, 02-0442, 02-0478 (La.1/14/03), 836 So.2d 14. The penalties imposed by the OWC judge are authorized by law and well supported in the reasons for judgment. The attorney fees are similarly authorized and are reasonable. We find no error in the OWC judge’s judgment imposing penalties and attorney fees.

Attorney fees for Answering Appeal

Leonard filed a timely answer to this appeal seeking additional attorney fees for defending JIC’s appeal. Workers’ compensation claimants are entitled to increased attorney fees to reflect additional time and effort spent in defending an employer’s unsuccessful appeal. Gallien v. Winn-Dixie, 96-832 (La.App. 3rd Cir.12/11/96), 685 So.2d 531, 537. We find Leonard’s request for attorney fees to be supported in law and reasonable. Therefore, we find that Leonard is entitled to collect attorney fees for the prosecution of this proceeding in the amount of $2,500.00.

CONCLUSION

For the reasons assigned herein the judgment of the OWC judge is affirmed. Judgment is further rendered in favor of Calvin J. Leonard, Jr. for attorney fees in the amount of $2,500.00. Costs are assessed to James Industrial Constructors.

AFFIRMED.

FITZSIMMONS, J., concurs for the reasons assigned by Judge KUHN.

PARRO, J., concurs.

CARTER, J., dissents with written reasons.

FOIL, J., dissents.

WHIPPLE, J., concurs and assigns reasons.

KUHN, J., concurs and assigns reasons.

GUIDRY, J., concurs.

McCLENDON, J., concurs and assigns reasons.

| WHIPPLE, J.,

concurring.

I agree with the majority’s conclusion herein that forfeiture of “any right to compensation benefits” under LSA-R.S. 23:1208 applies to benefits accruing after the misrepresentation only. I write separately to express my opinion that a reading of LSA-R.S. 23:1208 as a whole supports such an interpretation. Specifically, LSA-R.S. 23:1208(D) provides that an employee who violates this statute may be ordered to pay restitution, but only with regard to “benefits claimed or payments obtained through fraud.” Thus, an employee found to have violated LSA-R.S. 23:1208 may be ordered to reimburse the employer, but only for those benefits fraudulently obtained, not all benefits ever paid. If in fact section (E) of LSA-R.S. 23:1208 were read to provide that, regardless of when the misrepresentation occurs, forfeiture of all benefits is retroactive to the date of the accident, then presumably, the employee should owe reimbursement of all benefits to which he had ever been entitled. However, LSA-R.S. 23:1208(D) clearly does not provide for such reimbursement.

In Our Lady of the Lake Regional Medical Center v. Helms, 98-1931, p. 9 (La.App. 1st Cir.9/24/99), 754 So.2d 1049, 1055, writ denied, 99-3057 (La.1/7/00), 752 So.2d 863, the employee had been receiving workers’ compensation benefits for over three years when the OWC judge determined that she had committed fraud in order to obtain further benefits (apparently with regard to representations she made about her continued disability). Accordingly, the OWC judge concluded that the employee had | ¿forfeited her right to further benefits and that the employer was entitled to restitution pursuant to LSA-R.S. 23:1208(D). However, the OWC judge opined that the OWC court did not have jurisdiction to render an award of reimbursement to the employer. Helms, 98-1931 at p. 3, 754 So.2d at 1051.

This court reversed the finding that the OWC judge did not have jurisdiction to order restitution and remanded the matter for the OWC judge to “determine when the fraud began and to determine the amount of restitution to be made.” Helms, 98-1931 at p. 7, 754 So.2d at 1053. Importantly, in a concurring opinion, Judge Weimer wrote separately to clarify that while all compensation would be forfeited when a fraudulent statement is made at an initial stage of the claim, where an employee was clearly hurt on the job, but makes a misrepresentation at a later stage of a claim, the employee should only owe reimbursement of benefits received after the false statement was made. Helms, 98-1931 at p. 1, 754 So.2d at 1056 (Weimer, J., concurring).

Thus, reading LSA-R.S. 23.T208 as a whole supports the conclusion that LSA-R.S. 23:1208(E) applies prospectively only, from the date of the misrepresentation. I respectfully concur.

LKUHN, J.,

concurring.

The majority has correctly concluded that forfeiture of “any right to compensation benefits” under La. R.S. 23:1208(A) and (E) is limited to that time subsequent to the willful false statement or misrepresentation. I write separately to note that this result is underscored by the statutory language of subsection D, which permits restitution in favor of an employer or insurer “only ... for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.” To hold otherwise turns a blind eye to the underlying principle that workers’ compensation causes of action are in derogation of the general rights of tort victims and is simply an infliction of “a draconian penalty that deprives workers’ compensation claimants of their rights to compensation not reasonably related to ... the misrepresentation.” See St. Bernard Parish Police Jury v. Duplessis, 2002-0632, p. 3 (La.12/4/02), 831 So.2d 955, 962 (Calogero, J., dissenting). While Subsection E clearly and unambiguously mandates forfeiture of “any right to compensation benefits” upon the finding of a willful false statement or misrepresentation made for the purpose of obtaining or defeating any workers’ compensation benefit or payment, Subsection D temporally limits the forfeiture to those instances subsequent to the willful statement or misrepresentation. Accordingly, I concur.

bMcCLENDON, J.,

concurring.

Clearly, LSA-R.S. 23:1208 requires the forfeiture of “any right to compensation benefits” that accrue after a misrepresentation by the claimant. However, the language of LSA-R.S. 23:1208 is not definitive with respect to the issue raised in this case of whether the forfeiture commences from the time of the misrepresentation or applies retroactively to those benefits due the claimant prior to the misrepresentation. Relevant to this determination, I note that LSA-R.S. 23:1208(D) provides that “[restitution may also be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.” (Emphasis added.)

Legislation is the solemn expression of legislative will and, therefore, the interpretation of a law involves, primarily, the search for the legislature’s intent. LSA-C.C. art. 1. Furthermore, statutory provisions should be construed as a whole with the remainder of the statute, and all statutes on the same subject matter should be read together and interpreted as a whole to effect the legislative intent and should be construed in such a way as to reconcile, if possible, apparent inconsistencies or ambiguities so that each part is given effect. Comm-Care Corp. v. Bishop, 96-1711 (La.7/1/97), 696 So.2d 969, 973 It is presumed that the intention of the legislative branch is to achieve a consistent body of law. In re Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1130.

Applying the rules of statutory construction and reading these statutory provisions as a whole, it is apparent that the forfeiture of benefits begins at the time of the misrepresentation. To interpret the statute any other way would render the waiver of those benefits that accrued prior to the misrepresentation meaningless, as the employee would be allowed to retain said benefits. Such a holding would do nothing to further the legislative intent in promulgating section 1208, which is to prevent fraud in the area of workers’ compensation. Therefore, I respectfully concur with the majority opinion.

I,CARTER, C.J.,

dissenting.

I respectfully submit that the majority opinion is legally incorrect. This court sitting en banc can reverse a prior opinion of this court, but it cannot and should not ignore the clear import of a supreme court opinion and the unambiguous language of an act of the legislature.

The OWC judge’s finding that forfeiture of benefits pursuant to LSA-R.S. 23:1208 is effective only from the time that the fraudulent conduct occurs, rather than the time of the accident or claim, should be reversed. I am convinced that the clear and unambiguous language of LSA-R.S. 23:1208, the supreme court’s decisions in St Bernard, Parish Police Jury v. Duples sis, 02-0632 (La.12/4/02), 831 So.2d 955, and Resweber v. Haroil Construction Co., 94-2708 (La.9/5/95), 660 So.2d 7, and this | ¡.court’s decision in LeBlanc v. Grand Isle Shipyard, Inc., 95-2452 (La.App. 1 Cir. 6/28/96), 676 So.2d 1157 (which followed the rationale outlined by the supreme court in Resweber and is in full accord with St. Bernard), lead to the inescapable conclusion that any fraudulent conduct or misrepresentation by a workers’ compensation claimant, regardless of when it occurred, results in the forfeiture of any and all benefits the eláimant would otherwise-be entitled to receive.

The majority attempts to distinguish the St. Bernard decision by concluding that St Bernard does not address the point in time at which the forfeiture of benefits is to be effective, and then concludes that this circuit’s LeBlanc case must be overruled. The majority is misinterpreting the supreme court’s ruling in St. Bernard, which held that a claimant who willfully made a false statement regarding mileage reimbursements forfeited his right to any compensation benefits. St. Bernard, 831 So.2d at 960. St. Bernard did not limit the claimant’s forfeiture to only the mileage reimbursements or to the time period after the misrepresentation. It is inconceivable that the majority concludes otherwise, because if a claimant’s willfully false statement regarding mileage reimbursement results in forfeiture of all of his compensation benefits, then it follows that a claimant’s willfully false statements regarding previous injuries in , order to receive prescription drugs should also result in forfeiture of all of his compensation benefits.

There is no limiting language for the effective time period applicable to forfeiture of benefits in St. Bernard, Resweber, or in the statute itself. If the legislature had seen fit to limit the forfeiture of benefits to the time period after the fraudulent conduct had occurred, it certainly could have | adone so. In Subpart D of LSA-R.S. 23:1208, the legislature specifically limited the time period for restitution by providing that “[rjestitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.” However, there is no similar reference to a limitation on the time frame for forfeiture of benefits found in Subparts A and E of LSA-R.S. 23:1208, which provide that a willfully made false statement or representation made for the purpose of obtaining “any benefit or payment” shall result in the forfeiture of “any right to compensation benefits.” Reading LSA-R.S. 23:1208 as a whole, the only conclusion that can be drawn is that 'the legislature intended to punish fraudulent conduct by mandating forfeiture of all benefits.

The ■ legislature and the supreme court have made it clear that false statements willfully made for the purpose of obtaining workers’ compensation benefits constitute an attempt to defraud the workers’ compensation system. Once it is determined that a claimant has willfully made a false statement for the purposes of receiving any benefit or payment, the right to any and all compensation benefits is forfeited. While I recognize that the penálty provision of LSA-R.S. 23:1208 is harsh, the plain and unambiguous language corresponds with the legislative intent and policy to prevent fraud. See Resweber, 660 So.2d at 11-12 and St. Bernard, 831 So.2d at 960. As stated by Justice Weimer in his concurring opinion in the St. Bernard case:

Louisiana Revised Statute 23:1208(A) refers to “any benefit or payment” (singular), while LSA-R.S. 23:1208(E) refers to “any right to compensation benefits” (plural). Thus, if there is fraud related to “any benefit or payment”, the penalty is to forfeit all compensation ‘benefits”.
_L-..
While any fraud is intolerable, as the workers’ compensation judge observed, it is a harsh penalty to lose medical benefits and compensation benefits as a result of fraud related to mileage payments. While it might be argued a better policy would be to confine the penalty to the specific benefit related to the fraud or to provide the workers’ compensation judge discretion in imposing the appropriate penalty, the penalty to be imposed is a matter well within the discretion of the legislature. Our role must be to follow this legislative prerogative. In this matter, the statute is clear, if one engages in fraud to obtain “any benefit or payment,” the penalty is to forfeit “any right to compensation benefits.”

St. Bernard, 831 So.2d at 962, (Weimer, J., concurring).

I also agree with Chief Justice Caloge-ro’s statement, “that the Legislature should reconsider whether workers’ compensation statutory reform should extend this far.” St. Bernard, 831 So.2d at 962 (Calogero, C.J., dissenting). This court should not assume the role of the legislature by attempting to rewrite the penalty provision of LSA-R.S. 23:1208. Furthermore, this court should not ignore the supreme court’s interpretation of LSA-R.S. 23:1208 as stated in St. Bernard.

Additionally, because I would reverse the OWC judge’s finding on the forfeiture of benefits, I would likewise reverse the award of penalties and attorney fees against the employer. Once LSA-R.S. 23:1208 is found applicable and benefits are forfeited, the issue of whether the employer was arbitrary and capricious in denying benefits becomes moot. See KLLM v. Reed, 00-0295 (La.App. 3 Cir. 10/11/00), 771 So.2d 728, 733-34.

For these reasons, I respectfully dissent.

      . See Lasyone v. Phares, 2001-1785 (La.App. 1st Cir.5/22/02), 818 So.2d 1068, 1071.

      . Louisiana Revised Statute 23:1208 provides, in pertinent part:
      A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation
      B. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet an employer or claimant, or directly or indirectly, counsel an employer or claimant to willfully make a false statement or representation.
      C. (1) Whoever violates any provisions of this Section ... shall be imprisoned ... or fined ... or both.

      D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed . civil penalties by .the workers’ compensation judge ... and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
      E. Any employee violating this Section shall, upon determination by workers' compensation judge, forfeit any right to compensation benefits under this Chapter.
      (Emphasis added.)


author: DOWNING, J.

text:
    Shannon DARDAR v. BRIDGESTONE/FIRESTONE, INC., Nissan North America, Inc. USA, Northpark Nissan, Inc., NLT, Inc. D/B/A Northlake Texaco, Calion, L.L.C. D/B/A Spur Convenience Store, ABC Insurance Company, DEF Insurance Company, GHI Insurance Company, JKL Insurance Company and MNO Insurance Company.
    No. 2003 CA 1462.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Prescott L. Barfield, Covington, Counsel for Plaintiff/Appellant Shannon Dardar.
    Carl J. Griffin, Jr., Metairie, Counsel for Defendant/Appellee Nissan North America & Northpark Nissan, Inc.
    Michael S. Haddad, Mandeville, Counsel for Intervenor Haddad Lawrence, L.L.C.
    William C. Ellison, New Orleans, Counsel for Defendant Bridgestone/Firestone, Inc.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   DOWNING, J.

The sole issue presented on appeal is whether the trial court abused its discretion by granting a motion for summary judgment prior to the expiration of discovery cut-off dates.

“There is no absolute right to delay action on a motion for summary judgment until discovery is completed.” Vanderbrook v. Coachmen Industries, Inc., 01-0809, p. 8 (La.App. 1 Cir. 5/10/02), 818 So.2d 906, 911.

Plaintiff both declined to name her expert in answer to interrogatories and failed to file a countervailing affidavit from her expert in opposition to defendants’ motion for summary judgment because the delays for discovery and the exchange of expert witness reports had been extended by agreement of the parties. Plaintiff represented to the trial court that it in fact had an expert and represents to this court in brief that “plaintiff had an expert and could easily identify these witnesses should mediation fail.”

Louisiana Code of Civil Procedure art. 967 C provides that a party may oppose a motion for summary judgment by filing an affidavit asserting that “for reasons stated he cannot present by affidavit facts essential to justify his opposition.” Plaintiff here failed to file such an affidavit. Moreover, if plaintiff had filed an affidavit or motion for continuance stating that he had an expert, but declined to present the affidavit of the expert because discovery delays had not expired or because there was pending mediation, there would be no legal basis for the trial court to refuse to grant the motion for summary judgment or grant a continuance. Accordingly, we are compelled to affirm the trial court.

We issue this memorandum opinion in accordance with Uniform Rules-Courts of Appeal, Rule 2-16.1 B.

AFFIRMED.