author: GROSS, J.

text:
    Margarito MONTANO, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-825.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

The main issue in this appeal is whether a crucial witness’s tape-recorded statement given to the police shortly after a criminal incident was properly admitted in evidence under the recorded recollection exception to the hearsay rule, section 90.803(5), Florida Statutes (2001). We hold that the tape recording was improperly admitted in evidence because the witness who made the statement did not acknowledge its accuracy at trial.

However, we conclude that the error was harmless and affirm Margarito Monta-no’s conviction of possession of a firearm by a convicted felon, contrary to sections 775.087 and 790.23, Florida Statutes (2000).

The key witness in this case was Lourdes Cabrera. At the time of the incident, she lived in an apartment with appellant and their three-year-old daughter. Cabrera was also eight months pregnant with the couple’s second child.

On March 24, 2001, a few minutes after midnight, Deputy David Smith responded to a 911 hang-up call. As he approached the Cabrera-Montano apartment, two girls, between the ages of ten and thirteen (later identified as Cabrera’s sister, Bertha Rivera, and her sister’s friend, Alexandra Pacheco), were crying and screaming: “[H]e’s inside, he’s got a gun, he’s going to kill her” and pointed to apartment number “9.”

Deputy Smith went to the front door of apartment nine as appellant was opening the door. Deputy Smith saw him trying to conceal a magazine clip in his hand. Deputy Smith seized the clip, and discovered it had bullets in it. A pat down of appellant revealed that he had some loose bullets on his person. After appellant disclosed its location, Deputy Smith recovered the gun from Cabrera’s car. The magazine clip seized from appellant fit the gun.

Once he secured appellant in his police cruiser, Deputy Smith interviewed Cabrera inside her apartment. According to Deputy Smith, Cabrera said that she and appellant had gotten into an argument. He wanted to take the family to dinner, but she felt he was too intoxicated to drive. Appellant was yelling about getting his gun, so Cabrera hid it behind the television. Eventually, she told appellant about the gun’s location. He retrieved it. After his recollection was refreshed, Deputy Smith testified that Cabrera told him that appellant had the gun in his possession when he went outside to the car.

Deputy Shawn Barber took a sworn, taped statement from Cabrera beginning at 12:48 a.m. On the tape, she explained the details of the night and stated that she told her sister and her sister’s friend: “[I]f you see me like crying or screaming or something, just call the police.” Cabrera said that she refused to go to dinner with appellant. An argument ensued. Because appellant was “screaming really hard,” Cabrera’s sister called the police. When appellant asked her for the gun, she told him she threw it in the garbage. Cabrera had actually taken all of the bullets out of the gun and hid it behind the television. After appellant threatened to hit her if she did not give him the gun, Cabrera retrieved the gun and gave it to him. The two got into the car to go to dinner. Once inside the car, appellant checked the gun and realized it was unloaded. He threw the gun on the floorboard. They went back inside the house. Appellant retrieved the magazine and loaded it.

At trial, Cabrera remembered absolutely nothing about the gun. Reviewing a transcript of her taped statement did not refresh her recollection. She testified that on the night of the incident, she argued with appellant because he was with another woman at their home, at a time when Cabrera was eight months pregnant and at the hospital with their sick daughter. She said that appellant and the other woman left when she arrived home; Montano returned a few hours later by himself. Cabrera stated that she was very angry and “just wanted to see [appellant] die that day.”

Over objection, the state introduced .the taped statement Cabrera had given to Deputy Barber on the night of the arrest. The trial judge ruled that the statement was admissible under section 90.808(5). The court stated:

The statement was given to a police officer, it was a sworn statement regarding the incident taken shortly after the incident. The statement given by Lourdes Cabrera is consistent with other statements regarding the incident given by other witnesses, specifically Bertha Rivera, and the surrounding circumstances which shows corroboration of the matters to which Ms. Cabrera testified. The statement shows specific knowledge or knowledge of the specifics of the incident or of the events that night. She gave the statement in chronological order. The deputy testified that Ms. Cabrera was coherent at the time she gave the statement, not groggy or sleepy and that she was responding to questions appropriately, and I have read the statement and it shows that.

The jury found appellant guilty as charged of possession of a firearm by a convicted felon.

Often called past recollection recorded, the section 90.803(5) recorded recollection exception to the hearsay rule provides that the following is “not inadmissible as evidence, even though the declarant is available as a witness”:

A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

§ 90.803(5). The exception is “generally recognized in federal and state courts.” 6C Fla. Stat. Ann. 348 (1999). At the time section 90.803(5) was adopted in 1976, “[ejxisting Florida law [was] in agreement with this exception.” Id. at 349.

Testimony about a recorded recollection “derives whatever force it possesses from the fact that the memorandum is the record of a past recollection, reduced to writing while there was an existing independent recollection.” Volusia County Bank v. Bigelow, 45 Fla. 638, 33 So. 704, 706 (1903). The reliability of a recorded recollection “rests upon the veracity of a witness who is present and testifying.” 2 McCormick on Evidence § 279, at 241 (John W. Strong ed., 5th ed.1999). As the supreme court has explained:

When a witness identifies as such a writing made contemporaneously (or nearly so) with events as to which testimony is elicited, and testifies that he knew at the time it was written that it was accurate, he incorporates into his testimony by reference the record of past recollection. On this basis, the writing becomes admissible since it is supported by the witness’ oath, and he is available for cross examination.

Garrett v. Morris Kirschman & Co., 336 So.2d 566, 570 n. 6 (Fla.1976) (emphasis added).

The applicability of the recorded recollection exception in this case requires examination of three issues: (1) May a tape recording be recorded recollection? (2) Was the tape recording “made” by Lourdes Cabrera within the meaning of section 90.803(5)? (3) Did the state lay an adequate foundation for the admission of the tape recording even though Lourdes Cabrera did not assert that, at the time it was made, the tape accurately represented her knowledge of the incident?

Although the exception to the hearsay rule developed with respect to written documents, section 90.803(5) allows for tape recordings as recorded recollection. 2 MoCormiCK on Evidenoe § 281, at 242-43. The statute refers to a “memorandum or record,” language broad enough to include a tape recorded statement. Id. Most courts that have ruled on the issue permit tape recordings to be recorded recollection. See United States v. Sollars, 979 F.2d 1294, 1298 (8th Cir.1992); Commonwealth v. Nolan, 427 Mass. 541, 694 N.E.2d 350, 352-53 (1998); Mitchell v. Archibald, 971 S.W.2d 25, 28 n. 4 (Tenn.App.1998); State v. Marcy, 165 Vt. 89, 680 A.2d 76, 77-82 (1996).

Contrary to appellant’s argument, Cabrera “made” the tape recording within the meaning of section 90.803(5). The hearsay exception is concerned with the accuracy of the statement as a rendition of earlier events, not with who manipulated the machine to create the recording. Most of the cases admitting tape recordings as recorded recollection do so upon the testimony of the person who gave the statement that the recording “accurately reflected his knowledge at the time” the statement was made. Mitchell, 971 S.W.2d at 29; see also Nolan, 694 N.E.2d at 353.

It is the third question that is most difficult. Cabrera remembered giving a statement to the police, but did not remember its contents. Cabrera did not testify at trial that her taped statement accurately reflected her knowledge of the incident at the time it was made. She did not testify that she tried to be truthful at the time she spoke to Deputy Barber.

Section 90.803(5) requires the recorded recollection be “shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly.” Florida Supreme Court cases predating the enactment of section 90.803(5) required the witness who made the record to testify “that he knew at the time it was written that it was accurate.” Garrett, 336 So.2d at 570 n. 6. As the supreme court wrote in Smith v. Binkley, 98 Fla. 132, 123 So. 564, 566 (1929):

Where a witness has no independent recollection of the facts, but states that he reduced them to writing at a time when he had a perfect recollection of them, he may refer to such writing. He may use a writing when it is used to assist his memory; his recollection of the fact being imperfect.

See Montgomery Ward & Co. v. Rosenquist, 112 So.2d 885, 887 (Fla. 2d DCA 1959) (quoting 4 Jones Law of EvideNCe § 974 (5th ed.1958) for the requirement that for past recollection recorded the witness must “testify that, at or about the time when the writing was made, he knew of its contents and of its truth or accuracy”).

The requirement that a witness vouch for the accuracy of his recorded recollection is consistent with the view that the hearsay exception is justified because a witness, who is available for cross-examination, “incorporates into [his] testimony by reference the record of past recollection.” Garrett, 336 So.2d at 570 n. 6. Unlike exceptions to the rule against hearsay which derive their reliability from the circumstances that surround the making of an out-of-court statement, the reliability of a recorded recollection depends on the credibility of its maker. For this reason, the law requires the maker to adopt the recorded recollection as his own.

We do not believe that section 90.803(5) changed Florida law requiring the witness to acknowledge the accuracy of the earlier record or statement. As McCormick has written about Federal Rule of Evidence 803(5):

No particular method of proving the accuracy of the memorandum is prescribed by Federal 803(5), which merely requires that it be “shown * * * to reflect that knowledge correctly.” However, the witness must acknowledge at trial the accuracy of the statement.

2 McCoemiCK on Evidenoe § 283, at 246. This foundational requirement for recorded recollection is in accord with that of Wigmore, which states that the “witness must be able now to assert that the record accurately represented his knowledge and recollection at the time” of making. 3 Wigmore on Evidenoe §§ 746, 747, at 96, 97 (James H. Chadbourn rev., 1970); accord Lindley v. State, 728 So.2d 1153, 1155-56 (Ala.1998); Ringgold v. State, 34 Md.App. 286, 367 A.2d 35, 36-37 (1976).

The requirement that a witness be able to assert at trial that a recorded recollection correctly represented his knowledge at the time it was made is consistent with our recent case of Kimbrough v. State, 846 So.2d 540, 2003 WL 1027760 (Fla. 4th DCA Mar.12, 2003), reh’g denied, 846 So.2d 630, 2003 WL 21220747 (Fla. 4th DCA May 28, 2003). In that case, a co-defendant pled guilty prior to Kimbrough’s trial. At trial, the state introduced the co-defendant’s taped statement to the police. On the witness stand, the co-defendant did not remember providing a taped confession to a detective and refused to even acknowledge that his voice appeared on the tape.

We held in Kimbrough that the state had not laid a proper predicate for admitting the tape under section 90.803(5) because the co-defendant “could not testify either that the statement was his or that it was accurate.” Kimbrough, 846 So.2d at 544. We read Middleton v. State, 426 So.2d 548 (Fla.1982), as requiring “testimony establishing either the witness’s recollection of having made the statement, or, if the witness has no specific recollection, testimony from the witness that the statement accurately reflects what was said at the time.” Kimbrough, 846 So.2d at 544.

Here, the trial court ruled that the state had established the accuracy of the prior taped statement by comparing it to an out-of-court statement of another witness, Bertha Rivera, by evaluating the level of detail and chronology of the statement itself, and by considering Deputy Barber’s description of Cabrera’s demeanor and state of mind. Urging us to affirm the trial court’s approach, the state argues that we should follow the rule of cases such as State v. Marcy, where the Vermont Supreme Court wrote that the recorded recollection exception did not require the witness who made the statement to “affirm the accuracy of the prior statement.” 680 A.2d at 79. For the reasons set forth above, we do not believe that Marcy reflects the law of Florida. We hold that the trial court erred in admitting the taped statement as recorded recollection.

Appellant challenges other evidentiary rulings on appeal. He asserts that the trial court erred by allowing the hearsay statements of Bertha Rivera, Alexandra Pacheco, and Cabrera made to Deputy Smith.

The state correctly contends that the statements to Deputy Smith were admissible as excited utterances. The excited utterance exception to hearsay is that “[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” § 90.803(2). Stoll v. State, 762 So.2d 870 (Fla.2000) set out the criteria for an excited utterance: “(1) there must have been an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must have been made while the person was under the stress of excitement caused by the startling event.” Id. at 873; see Henyard v. State, 689 So.2d 239, 251 (Fla.1996); Willis v. State, 727 So.2d 952, 953 (Fla. 4th DCA 1998).

The issue of whether the declarant is “under the stress of excitement” at the time of the excited utterance is a preliminary fact question for the trial court to decide. See Stoll, 762 So.2d at 873; Cotton v. State, 763 So.2d 437, 440-41 (Fla. 4th DCA 2000). If “the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.” Stoll, 762 So.2d at 873 (quoting State v. Jano, 524 So.2d 660, 662 (Fla.1988)); see State v. Skolar, 692 So.2d 309, 310 (Fla. 5th DCA 1997).

Applying the Stoll test, we find no error in the trial court’s conclusion that two girls’ statements were properly deemed to be excited utterances pursuant to section 90.803(2). The startling event was appellant’s yelling and actions which placed the girls in fear that he would harm Cabrera. The girls began crying and screaming about the time the 911 call was made. Deputy Smith arrived soon after the call. The girls immediately began screaming and yelling to him: “[Hje’s inside, he’s got a gun, he’s going to kill her,” pointing to apartment nine.

Similarly, Cabrera’s statements to Deputy Smith shortly after appellant was taken to the police car qualified as excited utterances. The startling event was appellant’s yelling at Cabrera and threatening to hit her if she did not locate the gun. She was aware that when he was intoxicated, he would become violent. Her comments described the volatile situation moments after it occurred. Cabrera’s demeanor, that she was crying and distraught, demonstrated that she was still under the stress of the excitement.

We find no merit in the other points raised by appellant.

Finally, we conclude that "the admission of Cabrera’s taped statement was harmless beyond a reasonable doubt. The girls’ and Cabrera’s excited utterances to Deputy Smith established appellant’s possession of the gun. In crucial respects, Cabrera’s statement to Deputy Smith paralleled the taped statement she gave to Deputy Barber a short while later. When Deputy Smith first confronted him, appellant had the magazine clip in his hand and bullets in his pocket. Appellant told Deputy Smith that the gun was located in Cabrera’s car. Appellant had the opportunity to cross-examine Cabrera about her prior' statements. The jury was able to evaluate her demeanor on the witness stand.

AFFIRMED.

KLEIN and TAYLOR, JJ., concur.

      . Apart from any hearsay issues, to introduce a tape recording in evidence, a proponent must satisfy the foundation requirements set forth in Gomien v. State, 172 So.2d 511 (Fla. 3d DCA 1965). See Parnell v. State, 218 So.2d 535, 541 (Fla. 3d DCA 1969) (summarizing the holding of Gomien as requiring the party offering a tape recording to "show to the trial court's satisfaction that (1) the recording device was operating properly, (2) that it was operated in a proper manner, (3) the recording was accurate, and (4) the voices of the persons speaking were identified”).


source: Caselaw Access Project

license: Public Domain

text:
    Dieter ZIKOFSKY, an individual, Appellant, v. ROBBY VAPOR SYSTEMS, INC., Appellee.
    No. 4D02-1395.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.
    Mark J. Dearman and Robert J. Har-kins of Dearman & Gerson, Plantation, for appellant.
    Thomas D. Lardin of Thomas D. Lardin, P.A., Fort Lauderdale, for appellee.
   GROSS, J.

We affirm the final judgment awarding damages to Robby Vapor Systems, Inc., which substituted as the plaintiff in the case pursuant to an agreed order on March 6, 2001. Contrary to appellant’s argument, Robby Vapor Systems was entitled to enforce the 1997 settlement agreement. The settlement agreement indicated “successors, assignees and affiliated entities” could enforce its terms.

We find no abuse of discretion in the trial court’s sustaining of Robby Vapor Systems’ objections to appellant’s requests for production. The requests supposedly pertained to appellant’s affirmative defense of fraud which read: “As his fourth affirmative defense, Defendant states that the Settlement Agreement was procured by fraud.”

■A trial court has broad discretion regarding discovery matters. See, e.g., SCI Funeral Servs. of Fla., Inc. v. Light, 811 So.2d 796, 798 (Fla. 4th DCA 2002). Where fraud is an issue, the scope of discovery turns on the nature of the fraud alleged. In order to raise an affirmative defense of fraud, the “pertinent facts and circumstances constituting fraud must be pled with specificity, and all the essential elements of fraudulent conduct must be stated.” Cocoves v. Campbell, 819 So.2d 910, 912 (Fla. 4th DCA 2002). “An affirmative defense of fraud that is not pleaded with particularity is deemed waived.” Id. at 913. Allegations of fraud that are too general, vague, or conclusory are insufficient to establish the defense. See Myers v. Myers, 652 So.2d 1214, 1215 (Fla. 5th DCA 1995).

Appellant’s general allegation was insufficient to establish an affirmative defense of fraud. It was not an abuse of discretion for the court to sustain objections to discovery when appellant failed to properly raise the defense.

We find no abuse of discretion in the trial court’s denial of appellant’s motion to add a counterclaim and third party complaint. The motion came less than three months before trial, over two years after Robby Vapor Systems had last amended its complaint.

Finally, we find appellant’s complaints concerning his status as an employee to be moot, since the trial court did not enforce the restrictive covenant.

AFFIRMED.

POLEN, C.J., and KLEIN, J., concur.


author: PER CURIAM.

text:
    Olga PEREZ, Appellant, v. Jorge PEREZ, Appellee.
    No. 4D02-366.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.
    Susan M. Seigle of Ruden, McClosky, Smith, Schuster & Russell, P.A., West Palm Beach, for appellant.
    Denise S. Calegan-Desmond of Denise Calegan-Desmond, P.A., Joel M. Weiss-man, P.A. and Doreen M. Yaffa, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Olga Perez, appeals from the final judgment of dissolution entered by the trial court. Appellant’s first four issues relate to the trial court’s determinations on equitable distribution and alimony. This court finds that the trial court did not abuse its discretion and we affirm these points without further discussion.

In appellant’s fifth point on appeal, she argues that the trial court abused its discretion in not reserving jurisdiction in the final judgment to determine whether she was entitled to an award of attorney’s fees from appellee, Jorge Perez. The trial court held that appellant had not presented any evidence during the final hearing that she had incurred fees. The record shows that appellant alleged entitlement to fees in her petition and in the pretrial stipulation. During the final hearing, when appellee’s counsel began to present evidence of his entitlement to attorney’s fees, the trial court stated that it would determine them post-trial. Then in its final judgment, the trial court reserved jurisdiction to resolve appellee’s request for attorney’s fees but denied appellant’s application.

In Seigel v. Seigel, 715 So.2d 326 (Fla. 2d DCA 1998), both spouses filed petitions for modification of custody. The wife requested fees in her petition but did not present any evidence on fees at the modification hearing. In its order the trial court did not reserve jurisdiction to determine the wife’s entitlement to attorney’s fees. The district court reversed and held that the trial court should have reserved juris- ' diction to consider the issue. Similarly, in the instant case, the trial court should have reserved jurisdiction to also determine appellant’s entitlement to attorney’s fees.

This court affirms the final judgment of dissolution except with respect to the failure to reserve jurisdiction to determine appellant’s entitlement to attorney’s fees. We remand for a hearing on whether appellant is entitled to attorney’s fees.

AFFIRMED in part; REVERSED part,

FARMER, HAZOURI and MAY, JJ., concur.


author: | TRAYLOR, Justice.

text:
    John H. BROWN, v. Mary Lyles ADAIR, Kenneth Singletary, Mary Lyles Adair, Inc. and XYZ Insurance Company.
    No. 2002-C-2028.
    Supreme Court of Louisiana.
    April 9, 2003.
    Rehearing Denied June 20, 2003.
    Henri M. Saunders, Baton Rouge, for Applicant.
    James P. Doherty, II, W. Gerald Gau-det, Lafayette, for Respondent.
   | TRAYLOR, Justice.

A worker who had been injured on the job brought an action for professional malpractice against his vocational rehabilitation counselors, who cleared him to return to work without proper assessment and, thus, caused the premature termination of his workers’ compensation benefits. The trial court granted summary judgment in favor of the counselors, finding them immune from the malpractice claim. The worker appealed. The court of appeal affirmed the trial court. 01-1120 (La.App. 1 Cir. 6/21/02), 822 So.2d 52. We granted the employee’s writ to determine the narrow issue of whether vocational rehabilitation counselors share with employers an immunity from tort claims.

FACTS AND PROCEDURAL HISTORY

On November 5, 1997, plaintiff John Brown was working as a sous chef and kitchen manager for La Riviera Restaurant in Metairie, Louisiana, when he was involved in a work-related accident. The accident occurred when Brown tripped over an object while carrying a large pot of boiling gravy across the restaurant’s kitchen. Brown suffered first and second degree burns over his body, two ruptured lumbar discs, and a tear of his right rota-tor cuff. After the accident, he received weekly ^indemnity and medical workers’ compensation benefits of $350.00 per week from November 12, 1997 until January 20, 1998 from his employer’s insurer, Louisiana Restaurant Association (LRA). Brown’s benefits were terminated by LRA due to his lack of cooperation with defendants.

On February 18, 1998, Brown filed his first claim for compensation benefits alleging injuries to his lower back, right shoulder, right leg and foot, left leg, right wrist, pelvis, eyes, and burns to his head, face, arms, right leg, and left ankle and foot. Defendant was further injured in a second accident at an apartment complex in which he fell down some stairs. During the course of the mediation of this case on April 7, 1998, Brown and his employer settled his claim, agreeing that his weekly indemnity benefits would be reinstated to the date of their termination and that weekly benefits would continue.

In June of 1998, LRA contracted with Mary Adair, Inc. to provide vocational rehabilitation services to Brown. Defendant vocational rehabilitation counselors Mary Adair and Kenneth Singletary, who are both licensed vocational rehabilitation counselors, performed Brown’s rehabilitation evaluation. Kenneth Singletary conducted a one-hour meeting with Brown’s former employer, Mr. Valentino Rovere. Thereafter, defendants prepared a job analysis of Brown’s previous position with La Riviera but did not have the employer review and sign the job analysis to indicate his agreement with the information contained therein. The defendants additionally did not contact Brown regarding the job analysis.

The defendants forwarded the job analysis to Brown’s treating physicians, Dr. Harold Stokes and Dr. Robert Mímeles. Dr. Mímeles reviewed the job analysis and signed it on June 26, 1998, stating that the job analysis fell within the physical capabilities of Brown. However, Dr. Mímeles commented that Brown “cannot lift | ?,50# sacks of flour” but noted that Brown “can certainly do this [job] on [a] trial basis.” Dr. Stokes reviewed the job analysis and signed it on July 2, 1998, stating that the job analysis fell within the physical capabilities of Brown “as far as his hands are concerned.”

On July 15, 1998, without obtaining the approval of Brown’s previous employer, defendants forwarded the job analysis to LRA. On that same day, an LRA adjuster sent a certified letter to Brown informing him that his treating physicians had released him to return to work. Brown claimed he was unable to return to work because of his medical condition, so his benefits were terminated.

On October 20, 1998, Brown filed this tort action against defendants claiming that their conduct amounted to a “sham rehabilitation” rendered solely for the purpose of providing LRA with grounds to terminate his workers’ compensation benefits. He asserted that this “sham rehabilitation” directly resulted in the termination of his benefits, rendering him unable to support his family or receive adequate medical care.

In response, defendants filed a motion for summary judgment contending that they did not breach any duty owed to Brown. They claimed that Brown’s benefits were reinstated, that he has been fully compensated though the penalties and attorney’s fees paid by the employer, and that they are immune to tort suits.

Following a hearing, the trial court granted defendants’ motion for summary judgment. In oral reasons for judgment, the court held that the defendant vocational rehabilitation counselors enjoy the same tort immunity under the Workers’ Compensation Act as employers. The worker appealed and the court of appeal affirmed the trial court. 01-1120 (LaApp. 1 Cir. 6/21/02), 822 So.2d 52.

Brown filed for writs asserting that the error of the lower courts significantly affects the public interest in that it restricts injured workers’ access to the civil justice |4system beyond the limitations of the Worker’s Compensation Act even where there is no employment relationship between the wrongdoer and the worker. We granted Brown’s writ to determine the narrow issue of whether vocational rehabilitation counselors, such as the instant defendants who were performing vocational rehabilitation services to injured workers’ compensation claimants, share in the employer’s tort immunity under La.Rev.Stat. 28:1032.

DISCUSSION

The task at hand involves an interpretation of whether the employer immunity to tort suits under La.Rev.Stat. 23:1032 of the Worker’s Compensation Act (Act) extends to the instant defendants. Defendants herein argue that the employers’ tort immunity does, indeed, encompass vocational rehabilitation specialists. Brown asks that this court strictly construe the statute so as to exclude this immunity. We turn now to a determination of this issue.

In interpreting any statute, we must begin with the language of the statute itself. Touchard v. Williams, 617 So.2d 885 (La.1993). The statute at issue, La.Rev.Stat. 23:1032(A)(l)(b), sets forth the “exclusiveness” of claims against employers under the Act and provides:

This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.

Given a strict reading, the exclusiveness provision covers only named persons: the employer, any principal or officer, director, stockholder, partner, or employee. Immune parties are the employer and those who may stand in the employer’s shoes, so to speak, due to their relationship under which they must act on behalf of the employer. Specifically, the Statute makes no mention of and grants no immunity to | ^vocational rehabilitation specialists, whose duty is owed to the injured party, not the injured’s employer.

It is well established that when a law is clear and unambiguous and its application does not lead to absurd consequences, the law is applied as written, and no further interpretation may be made in search of legislative intent. LA. CIV. CODE art. 9. Furthermore, as we have cautioned previously, when interpreting the Workers’ Compensation Act, courts must take into account the basic history and policy of the compensation movement, which militates in favor of the injured claimant. Roberts v. Sewerage & Water Bd. of New Orleans, 92-2048 (La.3/21/94), 634 So.2d 341, 345.

Also of relevance is that the tort immunity provided by the Act operates as an affirmative defense; it is not a law evaluating conditions of legality of defendant’s conduct but, rather, serves as a vehicle for asserting a substantive defense that defeats an otherwise viable claim. Walls v. American Optical Corp., Sup. 1999, 98-0455 (La.9/8/99), 740 So.2d 1262. Those which are specifically named in the Statute may assert this defense. Those who are not named as immune do not share in the immunity.

Moreover, “Third Persons” are defined in La.Rev.Stat. 23:1102 as a person “other than those persons against whom the said employee’s rights and remedies are limited in R.S. 23:1032.” The Statute further notes that compensation paid by the employer “shall not affect the claim or right of action of the said employee ... against such third person ... and such employee ... may obtain damages from or proceed at law against such third person to recover damages for the injury....”

Lastly, under the jurisprudence, vocational rehabilitation specialists have never | fibeen determined to stand in the shoes of the employer for immunity purposes. Indeed, in instances where a third party has caused injury to the employee, although the compensation remedy is exclusive to the employment relationship, it is not so with reference to the third party wrongdoer. Roberts v. Sewerage and Water Bd. of New Orleans, Sup.1994, 92-2048 (La.3/21/94), 634 So.2d 341. The quest of the law for the third party wrongdoer may proceed in the usual way: whether the third party wrongdoer was at fault in the work injury or whether, as in this case, the third party caused a separate injury to the employee by wrongfully having the employee’s benefits terminated. The third party wrongdoer should not be absolved of his normal obligation to pay damages simply because the injured party is covered under Worker’s Compensation. See 2A Larson, The Law of Workmen’s Compensation § 71.10 (1992).

Significantly, as this court enunciated in Roberts:

Section 1101 of the Act expressly provides that when an injury for which compensation is payable has occurred. |7under circumstances creating in a “third person” (defined as “some person ... other than those persons against whom the said employee’s rights and remedies are limited in R.S. 23:1032 ...”) a legal liability to pay damages in respect thereto, the employee’s claim or collection of compensation shall not affect the employee’s right of action or claim for damages against the third person. Therefore, Louisiana law, unlike that of some jurisdictions, provides that the employee is entitled to proceed both by claiming compensation against his employer, and at the same time prosecuting his claim for damages against the third party wrongdoer. Thus, it is clear that under Section 1032, the compensation remedy is exclusive only as between the employee and his employer (or those other persons so treated in that section); it does not purport to impair existing claims against third persons. [Citations omitted].

Roberts, 634 So.2d at 345.

Applying the precepts set forth in Roberts and taking into account the clear, unambiguous language of the Statute, we conclude that the defendants are “third persons” against whom Brown may seek tort damages. As in Roberts, the instant plaintiff was not employed by the defendants at the time of his accident, the defendants do not qualify as any of the named immune persons in the Statute, and, thus, the defendants are not entitled to be treated as his employer under the Workers’ Compensation Act. In light of the preference the jurisprudence has favored upon employees in interpreting the Act, we cannot interpret the clear language of the Statute to include vocational rehabilitation specialists within those who are immune from tort.

CONCLUSION

After a thorough review of the record and considering the arguments of the parties, we find that the trial court and court of appeals erred in dismissing Brown’s claims against these defendants and in finding them immune to tort suits. For the reasons assigned, the judgments of the trial court and court of appeal in favor of defendants are reversed. The judgment is amended to allow the Brown’s tort suit to | «proceed and the case is remanded to the trial court for further proceedings consistent with this opinion.

DECREE

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

      . This duty is set forth under the Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners Standards and Ethics.

      . See Byrne v. Sealy & Co., Inc., App. 99-288 (La.App. 5 Cir. 8/31/99), 742 So.2d 668, writ denied, 99-2846 (La. 12/10/99), 751 So.2d 258 (Employee's injury was not limited to workers' compensation, but involved third-party liability); Degruise v. Houma Courier Newspaper Corp., 95-2675 (La. 12/15/95), 667 So.2d 521 ("Third person” amenable to suit under worker’s compensation statute is anyone legally liable to pay employee damages because of his injury and who is not included within list of classifications for which statute provides exclusive remedy); Roberts v. Sewerage and Water Bd. of New Orleans, Sup.1994, 92-2048 (La.3/21/94), 634 So.2d 341 (Sewerage and Water Board was "third person” under the Act and was not immune from liability to tort victim).

        But see Suarez v. Metropolitan Erection Co., App.4 Cir.1990, 559 So.2d 29, writ denied 561 So.2d 117 (Adjusting company managing workers’ compensation claim and rehabilitation service were both immune from any liability in tort; injured employee's exclusive remedy was by way of a penalty set forth in R.S. 23:1201.2); Massey v. Rowan Drilling Co., 368 F.2d 92 (C.A.5 La.1966) (Sole remedy for injured welder employed by independent contractor which had contracted with drilling company to perform repairs on rig was under the Act and no tort action was allowed against drilling company).

      .14 Malone & Johnson § 366, quoting W. Malone, Louisiana Workmen’s Compensation Law and Practice (1st Ed.), Supp.


author:
11 KIMBALL, Justice.
      I JOHNSON, J.,

text:
    Joy Michelle BOURGEOIS, Individually and on Behalf of Her Minor Son, Mickey G. Bourgeois, Jr., and Mickey G. Bourgeois, Sr. v. Mark KOST and Allstate Insurance Company.
    No. 2002-C-2785.
    Supreme Court of Louisiana.
    May 20, 2003.
    Scott Allan Kryder, River Ridge, for Applicant.
    Raymond S. Steib, Jr., Gretna, for Respondent.
   11 KIMBALL, Justice.

We granted certiorari in this case to determine whether the trial court had authority to vacate a judgment it issued allegedly in error and to issue a new judgment to reflect the trial court’s true intent. Additionally, we granted certiorari to consider whether the court of appeal was correct in the application of this court’s analysis in the case of State v. Williams 01-554 (La.5/14/02), 817 So.2d 40, to determine that the trial court had authority to replace its original judgment with a second judgment. For the following reasons, we conclude that the analysis employed in State v. Williams does not apply in this case and thus, the trial court lacked authority to vacate its final judgment. In addition, we find that because the original judgment was a valid final judgment, the trial court’s subsequent amendment of the judgment alleged to contain the court’s intended disposition is an absolute nullity. Accordingly, we reverse the trial court’s order vacating its original judgment, set aside the amended judgment, and reinstate the original judgment signed by the trial judge as the trial court’s final judgment.

Facts and PeoCedueal Histoey

This matter involves a personal injury suit arising out of an automobile accident. A trial on the merits took place in October 2001. At the conclusion of the | atrial, the judge advised counsel for both parties to submit a proposed judgment with their post-trial memoranda. Plaintiffs filed a post-trial memorandum on October 31, 2001 and defendants filed a post-trial memorandum on November 2, 2001. On November 6, 2001, the trial court signed a document entitled “Defendants’ Proposed Final Judgment,” that dismissed the plaintiffs’ claims. The clerk of court issued notice of judgment to both parties on November 29, 2001.

On January 15, 2002, the court signed a second judgment, in which it ruled in favor of plaintiffs and awarded them damages in the amount of $34,073.19. That judgment was accompanied by written Reasons for Judgment. Then, on January 18, 2002, the court issued an order stating it had inadvertently signed defendants’ proposed judgment. Accordingly, the order vacated the judgment of November 6, 2001 [‘original judgment’] and replaced it with the judgment signed on January 15,' 2002 [‘amended judgment’]. The trial court further stated:

This matter came to trial on October 24, 2001 and was taken under advisement. Counsel for plaintiffs and defendants were directed to submit post-trial memorandums, along with a proposed judgment in support of their respective positions.
On November 6, 2001, this Court inadvertently and erroneously signed a proposed judgment dismissing all claims against the defendants. That proposed judgment signed on November 6, 2001 is hereby vacated, and the Court’s final judgment and reasons are hereby attached and made a part of the record.

Defendants filed a motion for appeal from the judgment of January 15, 2002. On appeal, defendants contended the trial court erred when it issued the judgments of January 15, 2002 (amended judgment) and January 18, 2002 (order vacating the original judgment and replacing it with the amended judgment), because they substantively changed the judgment of November 6, 2001. Defendants further contended that the trial court had no authority to issue, on its own motion, an order vacating a judgment that had been signed over two months earlier and replace it with | ¡¡another judgment. Defendants asserted that an initial judgment that has not been contested either by motion for new trial or for appeal must be the valid final judgment of the court.

The plaintiffs, however, argued that a proposed judgment signed in error is not a valid final judgment of the court. Plaintiffs alleged that the defendants’ proposed judgment confused the court because it was stamped by the court clerk with the “costs paid” stamp, indicating that all costs incurred in the matter had been paid. Furthermore, the proposed judgment with the “costs paid” stamp was forwarded to the judge separately, detached from the memorandum to which the proposed judgment should have been attached. Plaintiffs contended that the defendants’ proposed final judgment signed by the trial court was a relative nullity because defendants’ submission of their proposed final judgment to the trial judge bearing a “costs paid” stamp was an improper practice or procedure that mislead the court and operated to deprive plaintiffs of their right to have their case decided by the court and not by the inadvertent signing of a proposed judgment submitted by defendant. Plaintiffs asserted a district court may set aside and vacate any order when the circumstances under which it was rendered show deprivation of legal rights of any of the litigants. Plaintiffs also assert that the court has the right to correct its own ministerial error so that the record will reflect that which had been intended.

Plaintiffs admitted receiving a copy of the November 6, 2001 judgment. At oral argument before the court of appeal, plaintiffs’ counsel explained that he did not file a motion for new trial because he thought the November 6, 2001 judgment was the court’s ruling and a motion for new trial would have been fruitless. Plaintiffs’ counsel noted that the plaintiffs had until February 8, 2002 to appeal and stated that an appeal was being contemplated. The plaintiffs maintained that after the court issued the January 15, 2002 judgment and reasons for judgment, it was called to the court’s |4attention that a proposed judgment had been signed. In the January 18, 2002 ruling, on its own motion, the trial court set aside the November 6, 2001 judgment and replaced it with the January 15, 2002 judgment.

The court of appeal affirmed the January 15 and 18, 2002 judgments of the trial court. Finding that the November 6, 2001 judgment did not express the intention of the court and was signed inadvertently and in error, the court of appeal concluded that the reasoning of State v. Williams, 01-554 (La.5/14/02), 817 So.2d 40, applied. In Williams, the trial court inadvertently signed a motion for new trial that was later discovered when the appellate court found the signed order in the record on appeal. The trial court subsequently issued an order stating the motion for new trial was filed in error and denying the motion. This Court held that “a trial judge can correct an obvious ministerial error in order to have the record accurately reflect the proceedings in the district court.” 01-554 at p. 12, 817 So.2d at 47-8.

The defendants sought review in this Court asserting that the court of appeal erred in applying the Williams case to the facts of this case and by ignoring a long line of jurisprudence that clearly holds that substantive changes to a judgment would not be proper in this case. We granted certiorari to review the correctness of these rulings. Bourgeois v. Kost, 2002-2785 (La.1/31/03), 836 So.2d 74.

Discussion

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final. La. C.C.P. art. 1841. A judgment that determines the merits in whole or in part is a final judgment. Id. Every final judgment shall be signed by the judge. La. C.C.P. art.1911. A final judgment shall be identified as such by appropriate language. La. C.C.P. art.1918.

Here, the original November 6, 2001 judgment was signed by the trial judge Land appeared in all respects to be a valid judgment of the court. Furthermore, although the judgment was entitled “Defendants’ Proposed Final Judgment,” the defendants suggested at oral argument that it was not an unusual practice in that jurisdiction for a trial court to convert a proposed judgment submitted by one of the parties to its own. Thus, the November 6, 2001 judgment was determinative of the rights of the parties and was properly designated as a final judgment for purposes of La. C.C.P. art.1918.

Article 1951 of the Louisiana Code of Civil Procedure provides:

A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.

Article 1951 contemplates the correction of a “clerical error” in a final judgment, but does not authorize substantive amendments. Thus, the judgment may be amended by the court where the amendment takes nothing from or adds nothing to the original judgment. Villaume v. Villaume, 363 So.2d 448 (La.1978). The proper recourse for an error of substance within a judgment is a timely application for new trial or a timely appeal. LaBove v. Theriot, 597 So.2d 1007, 1010 (La.1992); Hebert v. Hebert, 351 So.2d 1199 (La.1977).

In State v. Williams, 2001-0554 (La.5/14/02), 817 So.2d 40, this court was presented with a situation where the trial court inadvertently signed an order granting a motion for new trial. In that case, all the evidence indicated that the trial judge never intended to grant a new trial and the signing of the order was clearly a “ministerial error.” In Williams, we held that while the trial court is not authorized to reconsider the merits of a previously granted motion for new trial after a considered decision has been made, the trial court does have authority to correct a | ¿ministerial error in order to have the record accurately reflect the proceedings in the district court. Williams, 817 So.2d at 48.

The Williams case, however, is distinguishable from the matter currently before this court. The Williams decision was based on Article 916(2) of the Code of Criminal Procedure, which provides in pertinent part:

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
©Correct an error or deficiency in the record.

Thus, the Code of Criminal Procedure specifically provides that a trial court retains jurisdiction once the order of appeal has been entered to correct an error or deficiency in the record. The Code of Civil Procedure does have a similar provision conferring authority on a trial court to correct any misstatement, irregularity, informality, or omission of a material part of the trial record, after the jurisdiction of the appellate court attaches. La. C.C.P. arts. 2088 & 2132. In the |7present case, an order of appeal was never granted for the original November 6, 2001 judgment. Furthermore, the trial court did not render an oral judgment at the trial, but instead took the matter under advisement. Nothing occurred in the trial proceedings that could have been misstated or omitted in the record. Hence, the trial judge’s amended judgment could not have been the correction of a ministerial error in order to have the record accurately reflect the trial proceedings. La. C.C.P. arts. 2088 & 2132 do not apply to the facts of this case. Because these civil procedure articles are inapplicable and because the facts of the Williams case and the current case are dissimilar, the reasoning of the Williams decision cannot be utilized in the present matter.

It is well settled under our jurisprudence that a judgment which has been signed cannot be altered, amended, or revised by the judge who rendered the same, except in the manner provided by law. The trial judge cannot, on his own motion or on the motion of any party, change a judgment which has been so signed, notwithstanding it was signed in error. State ex rel. Vignes v. Judge Civil District Court, 10 So. 294, 43 La.Ann. 1169 (La.1891); Villaume, 363 So.2d at 450-51. Without a specific statutory grant of authority, the trial court is limited to the general authorization for amending final judgments provided in Code of Civil Procedure Article 1951. As stated above, Article 1951 limits the amendment of judgments to the correction of errors in calculation and alteration of phraseology, but does not authorize a trial court to make substantive amendments to final judgments. Courts have uniformly held substantive amendments to judgments made without recourse to the proper procedures, i.e. by way of a timely motion for |sa new trial or by appeal, to be absolute nullities. LaBove, 597 So.2d at 1010.

In the instant case before us, the November 6, 2001 judgment was signed by the trial court and the clerk of court sent notice to both of the parties. Thus, the judgment of November 6, 2001 constituted a final judgment of the trial court. It is very unfortunate that the trial judge erroneously signed a judgment that did not reflect his intended disposition in the matter. However, the Code of Civil Procedure provides only a limited means of correcting errors of substance in a final judgment.

A trial court lacks authority to make any modifications of substance to a final judgment. The trial court had no authority to vacate the November 6, 2001 judgment, nor to amend the original judgment of court by issuing the January 15, 2002 judgment. Consequently, the January 15, 2002 amended judgment is an absolute nullity. Accordingly, the original November 6, 2001 judgment constitutes the trial court’s final judgment in this matter.

Accordingly, we vacate the January 18, 2002 order of the trial court setting aside the November 6, 2001 judgment and replacing it with the January 15, 2002 amended judgment. We find the trial court was without authority to amend the original judgment and thus, the amended judgment is an absolute nullity.

For the reasons assigned, it is ordered that the original November 6, 2001 judgment be reinstated as the final judgment of the trial court in this matter.

REVERSED AND REINSTATED.

JOHNSON, J., dissents and assigns reasons.

I JOHNSON, J.,

dissenting.

The majority allows that it is very unfortunate that the trial judge erroneously signed “Defendant’s Proposed Final Judgment,” but that nevertheless, the judgment may not be recalled or rescinded as one signed inadvertently and in error. Having served as a trial judge for 10 years on a high volume court (Civil District Court, Orleans), I know how easy it is to sign a document in error, particularly when it is presented as this one was.

All parties agree that the trial judge took the case under advisement at the conclusion of the trial and requested post-trial memoranda and proposed judgments from each side. These documents should have been submitted to the judge’s chambers. Instead, a detached proposed judgment, with the cost paid stamp affixed by the Clerk’s Office, was presented for signing. The cost paid stamp suggested that a matter has been concluded and all costs of the litigation have been paid. A judge presented such a document is lulled into believing that affixing his/her signature is merely a ministerial duty, which could be performed by any of his/her colleagues on his/her behalf (a Duty Judge, if you will).

This was not presented as a considered decision of the court. Justice would require that the judge be allowed to recall such a document where the court was clearly mislead, and the judgment was signed inadvertently and in error.

      . LA. C.C.P. art. 2088 in pertinent part:
      The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:

      (4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
      La. C.C.P. art. 2132:
      A record on appeal which is incorrect or contains misstatements, irregularities or in-formalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.


author: |, KNOLL, Justice. hWEIMER, Justice,

text:
    STATE of Louisiana v. Amos John CHAUVIN.
    No. 2002-K-1188.
    Supreme Court of Louisiana.
    May 20, 2003.

      Richard P. Ieyoub, Attorney General, Joseph L. Waitz, Jr., District Attorney, Herbert W. Barnes, Jr., Ellen M. Daigle, Counsel for Applicant.
    Bertha M. Hillman, HILLMAN, SOIG-NET & RATHLE; Counsel for Respondent.
   |, KNOLL, Justice.

This criminal case concerns the admissibility of expert testimony with regard to Post Traumatic Stress Disorder (PTSD) of a sexually abused victim. After a jury trial, defendant was convicted of two counts of indecent behavior with juveniles. On appeal, his convictions were reversed and the case remanded to the trial court for a new trial. The majority of the court of appeal held that the trial court erroneously admitted the testimony of the State’s expert witness by failing to apply the factors enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., and State v. Foret, to test the reliability of the theory of post-traumatic stress disorder in the diagnosis of sexual abuse. We granted the State’s application for a writ of certiorari to consider the admissibility of this type of expert testimony as substantive evidence bearing on the credibility of the victim’s testimony and the question of the accused’s guilt or innocence. State v. Chauvin, 02-K-1188 (La.11/27/02), 831 So.2d 268.

| ¡¿FACTS AND PROCEDURAL HISTORY

On June 20,1999, A. C., who was fifteen years old, attended a Father’s Day gathering at her friend A. L.’s family home. A.L. was fourteen years old. A.C. testi-fled that A.L. was seated using the computer in the living room, and A.C. was standing behind her. A.L.’s parents and A.L.’s aunt were outside. The defendant, who was the fiancé of A.L.’s aunt, was also present at A.L.’s family home. A.C. testified that while she was standing behind A.L., watching A.L. use the computer, the defendant came into the room, knelt next to A.C. on her right side and behind A.L., and touched her behind, put his hand inside her panties and put one of his fingers in her vagina. The defendant then left the room, but returned and repeated these actions. A.C. also testified that the defendant French-kissed her on that same day in the living room, when no one was present. She further testified that at a prior time at A.L.’s house, when passing the defendant in the hallway, the defendant had touched her breasts through her clothing.

Later on Father’s Day, A.C. accompanied A.L. and A.L.’s parents to have supper at A.L.’s grandmother house. A.L.’s aunt and the defendant were also present. A.L. testified that at her grandmother’s house, the defendant asked for a good-by hug and kiss. A.L. was surprised when the defendant kissed her by sticking his tongue in her mouth. The defendant was 34 years old at the time of these incidents.

On this same day, after these incidents, A.C. told A.L. what defendant had done to her. A.L. also told A.C. what defendant had done to her. The next day, A.L. told A.C.’s older sister, Mandy, about these incidents. Detective Ashli Richardson of the IsHouma Police Department testified that these incidents were reported to the police department approximately four days after they occurred. Detective Dawn Gau-treaux testified that a report was made to the Terrebonne Sheriff’s Office by the victims on July 26,1999.

At trial, over the objection of the defendant, the State was allowed to introduce the expert testimony of Renee Thompson Ring, a licensed clinical social worker. The State wanted to use Ms. Ring’s expert opinion to establish that A.C.’s clinical symptoms were consistent with a sexual abuse victim; in other words, to use her testimony as substantive evidence of sexual abuse. The trial court allowed Ms. Ring to testify as an expert without conducting a Daubert hearing to test the reliability of PTSD in the diagnosis of sexual abuse.

Ms. Ring testified before the jury that she saw A.C. as a patient at “The Haven,” “a safe place for persons of sexual assault and domestic violence to come in for individual counseling or group counseling....” She treated A.C. clinically for emotional problems. Based upon objective and subjective symptomatology, she diagnosed A.C. with PTSD. Ms. Ring’s testimony described PTSD in layman’s terms and the symptomatology that she saw that led her to diagnose A.C. as suffering from PTSD. Ms. Ring offered her expert opinion in response to the following questions |4from the State:

Q. Okay. Let me ask you this. The clinical findings, both subjective and objective, that you observed in regard to [A.C.] when you treated her for these problems, were those consistent with a child who had been sexually abused?
A. Yes, the symptoms were that of post-traumatic stress.
Q. Ma'am, I got a question just in general for you. Is there any way that you can predict, based on your experience and education, how a child might react to sexual abuse?
A. I mean just by the criteria of post-traumatic stress you don’t know exactly what symptoms they might have, but there’s a general knowledge that they could have this, they •could have this, they could have this.

On cross-examination, Ms. Ring was questioned as to whether these same symptoms might be seen in a child that was having problems other than sexual abuse. Ms. Ring responded that one would rule out any other reasons for the disorder and that is how one would make a diagnosis. Also on cross-examination, Ms. Ring acknowledged that the diagnosis was her opinion, and also acknowledged that experts make mistakes.

The jury found the defendant guilty on both counts of indecent behavior with a juvenile. The defendant filed motions for a new trial and for a post-verdict judgment of acquittal, which were both denied. The court of appeal, in a two to one decision, reversed the convictions and remanded for a new trial, finding the trial court abdicated its responsibility to “act as a gatekeeper,” by failing to apply the Daubert and Foret factors to test the reliability of the theory of PTSD in the diagnosis of sexual abuse, which erroneously admitted expert testimony affected substantial rights of the accused. State v. Chauvin, 01-2000 (La.App. 1 Cir. 3/28/02), 818 So.2d 323 (unpublished). We granted the State’s writ to further study this problematic issue and after a careful review, we agree with the court of appeal majority and affirm.

JsPISCUSSION

La.Code Evid. art. 702 sets forth the general rule governing the admissibility of expert testimony in Louisiana:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In Foret, we adopted the test set forth in Daubert, which “set forth a means for determining reliability of expert scientific testimony and answered many questions as to proper standards for admissibility of expert testimony.” Foret, 628 So.2d at 1121.

The Daubert court replaced the test that had been used for admissibility of expert scientific testimony. The former test was based on a “short, citation-free 1928(sic) decision” of the District of Columbia Court of Appeals, Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923). The court replaced Frye with a new standard that requires the trial court to act in a “gatek-eeping” function to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. at 2795.

To assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, the Supreme Court suggested the following general observations are appropriate: 1) whether the theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error; and 4) whether the methodology is generally accepted by the relevant scientific community. Daubert, 509 U.S. at 592-594, 113 S.Ct. at 2796-2797. In Foret, we adopted these “observations” as a helpful guide for our lower courts in considering this difficult issue. Foret, 628 So.2d at 1123.

|fiThe similarity between La.Code Evid. art. 702 and its federal counterpart, along with our case State v. Catanese, 368 So.2d 975 (La.1979), which had already provided similar guidelines for the admission of scientific evidence, persuaded this Court to adopt Daubert’s requirement that, in order for technical or scientific expert testimony to be admissible under La.Code Evid. art. 702, the scientific evidence must rise to a threshold level of reliability. State v. Quatrevingt, 93-1644, p. 11-12 (La.2/28/96), 670 So.2d 197, 204.

In the matter before us, the majority of the court of appeal relied upon this Court’s decision in Foret in finding that the trial court failed to perform its “gatekeeping” function by failing to apply the factors enunciated in Daubert and Foret to test the reliability of the theory of PTSD in the diagnosis of sexual abuse. The appellate majority determined that the State used Ms. Ring’s testimony to establish that symptoms of PTSD were consistent with the symptoms of a child who had been sexually abused; that PTSD provided guidelines on what symptoms a child reacting to sexual abuse might have; and that A.C. was suffering from PTSD. Because Ms. Ring did not limit her information to explaining “superficially bizarre” reactions of A.C. and went beyond merely providing a scientific perspective from which the jury could evaluate A.C.’s testimony, the majority held admissibility of her testimony was erroneous. The appellate majority further found that this Foret violation was harmful error with regard to both counts. A.C.’s testimony was the most damaging evidence offered against defendant on count one. The inadmissible expert testimony served to unduly bolster A.C.’s testimony and, in all probability, made it more believable to the jury. Although A.L. was the victim named in count two, the court of appeal found that A.C.’s unduly bolstered testimony corrupted the entire trial. Therefore, finding the erroneously admitted testimony affected substantial rights of the accused and that the defendant timely objected to this testimony, the appellate majority reversed the 17convictions on both counts, remanding the matter to the trial court for a new trial.

The State argues that the testimony was not so unusual or complex as to require a Daubert hearing to test its reliability. Relying upon Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999), the State asserts that the determination of how to test an expert’s reliability is in the trial judge’s discretion. The record before us shows the trial court held a brief hearing before Ms. Ring testified. The State submits that the trial judge can use his or her own experience and knowledge after hearing briefly what the testimony will be to determine that the testimony is commonly accepted among professionals and thus is reliable and relevant. The State contends that this matter is distinguishable from Foret, because Ms. Ring did not testify that A.C. was a victim of sexual abuse nor did she testify as to A.C.’s credibility.

The defendant counters the State’s argument by stressing that the trial court is required to prevent undue emphasis from being placed upon expert testimony when no scientific basis for that testimony can be established. Defendant contends the trial court failed to apply the “observations” of Daubert and Foret. There was no testimony that Ms. Ring’s technique had been subjected to peer review; there was no testimony as to the potential rate of error; and there was no testimony as to whether her methodology was generally accepted in the scientific community. Defendant argues the trial court failed to test the reliability, if any, of the theory of PTSD in the ^diagnosis of sexual abuse.

We must determine under the guidance established in Daubert, Kumho Tire and Foret, whether Ms. Ring’s testimony was admissible, and if so, whether the trial court should have first conducted a Dau-bert hearing to test the reliability of PTSD and the diagnosis of sexual abuse. Ms. Ring’s clinical diagnosis that A.C. had PTSD was introduced in the State’s casein-chief, for the specific purpose of showing A.C.’s symptoms and/or that her diagnosis were consistent with those of a child who has been sexually abused. The troubling issue raised by Ms. Ring’s expert testimony is res nova before this Court. In resolving this issue, we have studied scholarly publications and jurisprudence of other states, as well as our own jurisprudence.

Balance of Competing Interests

We begin by noting that child sexual abuse cases are not easy to prosecute. Dara Loren Steele, Note, Expert Testimony: Seeking an Appropriate Admissibility Standard for Behavioral Science in Child Sexual Abuse Prosecutions, 48 Duke L.J. 933, 938 (1999). Child sexual abuse is difficult to prove because it most often occurs in private, often the perpetrator is a member of the victim’s family, and physical evidence of the abuse is rare. Id. The problems with prosecuting child sexual abuse cases are increased by the fact that most children fail to report the abuse, and, if they do report, there is often a significant lapse in time between the actual occurrence and the ultimate reporting of the abusive incident by the child. Id., pp. 938-939. Even then, the child may not include details in her revelation and often children recant or alter their allegations of abuse. Id., p. 939.

Expert testimony can assist a trier of fact in understanding the significance of a child-witness’s demeanor, inconsistent reports, delayed disclosure, reluctance to testify, and recantation. Veronica Serrato, Note, Expert Testimony in Child Sexual Abuse Prosecutions: A Spectrum of Uses, 68 B.U. L.Rev. 155, 156 (1988). An 1 ¡¡expert witness can explain to jurors that a child-witness’s seemingly abnormal behavior — delayed reporting, inconsistent statements, and recantation — is in fact normal for children who have been sexually abused and can also dispel inaccurate perceptions held by jurors, allowing them to better assess a child-witness’s testimony. Id. p. 163. Expert testimony becomes problematic when it infringes upon other interests: for example, when it is unduly prejudicial, when it invades the province of the jury, when it bolsters a child-witness’s testimony, or when it leads to a “battle of the experts.” Id. p. 156.

The admissibility vel non of this type of expert testimony requires a delicate balance of these competing interests. Our task in this case is to provide guidance to the lower courts that will assist them, on a case by case basis, to balance these competing interests when faced with this difficult issue.

Reliability of PTSD

With regard to testimony from mental health professionals, it is important to note the distinction between substantive evidence and evidence designed to rehabilitate witness credibility. 1 John E.B. Myers, Evidence in Child Abuse and Neglect Cases, § 5.1, p. 412 (3d ed.1997). Expert testimony in child sexual abuse litigation falls into two categories: (1) expert testimony offered as substantive proof that a child was sexually abused, and (2) expert testimony offered for the more limited purpose of rehabilitating a child’s impeached credibility. Id., § 5.12, p. 459. Expert testimony offered as substantive evidence takes several forms, including testimony that in the expert’s opinion, the child’s symptoms are consistent with sexual abuse. Id., § 5.34, p. 527. When such testimony is offered by the prosecution, the purpose is to prove that abuse occurred.

The fourth edition of the Diagnostic and Statistical Manual of Mental Disorders Im(DSM-IV) of the American Psychiatric Association lists PTSD as an anxiety disorder. Myers, § 5.3 p. 423, citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 424 (4th ed.1994). The diagnosis was formally introduced into the psychiatric nomenclature in the third edition of the DSM published in 1980. Myers, § 5.3 p. 423, note 75 (citation omitted). According to the DSM:

The essential feature of Posttraumatic [sic] Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity.... The person’s response to the event must involve intense fear, helplessness, or horror (or in children, the response must involve disorganized or agitated behavior) ....
Traumatic events that are experienced directly include ... violent personal assault (sexual assault, robbery, mugging).... For children, sexually traumatic events may include developmentally inappropriate sexual experiences without threatened or actual violence or injury. Id.

InPTSD is sufficiently recognized in the medical, and particularly the psychiatric, community to be considered as the proper subject of expert testimony.

In many child sexual abuse prosecutions, prosecutors offer expert PTSD-based testimony that the child complainant’s behavior is consistent with being sexually abused. Lisa Askowitz & Michael Graham, The Reliability of Expert Psychological Testimony in Child Sexual Abuse Prosecutions, 15 Cardozo L.Rev.2027, 2046 (1994). Because evidence of PTSD is admissible in other contexts, prosecutors of child sexual abuse cases might attempt to capitalize on PTSD’s legacy of admissibility by offering testimony which refers explicitly to PTSD. Steele, p. 946. The expert explains the diagnostic category, and then matches the behavioral characteristics of the child with the PTSD criteria. Askowitz, p.2046. In its true form, testimony based on PTSD suggests only that sexual abuse may be the cause of the child’s behavior, but it does not rule out other traumatic causes of the behavior. Id. PTSD assumes the presence of a stres-sor and then attaches a diagnosis to the child’s reactions to it. Id. PTSD merely is a therapeutic tool; it is not designed to determine sexual abuse. Id. See also Steele, p. 946.

We recognize that expert testimony regarding PTSD has been admitted in various contexts in Louisiana courts. Held v. State Farm Ins. Co., 610 So.2d 1017, 1020 (La. Ct.App. 1 Cir.1992) (In plaintiffs tort suit against her father for sexual abuse, the combination of plaintiffs PTSD and the financial domination of her parents triggered the application of contra non valentem); State ex rel. B.J., 00-1434 (La.App.1 Cir. 7/27/00), 767 So.2d 869, 874 (In termination of parental rights matter, psychiatrist testified that he diagnosed two of the children as having PTSD); G.N.S. v. S.B.S., 35,348 (La.App. 2 Cir. 9/28/01), 796 So.2d 739, 746-747 (In matter concerning child custody, social worker and psychiatrist testified child suffered from PTSD). In a prosecution for aggravated rape, committed when the victim was under |1Rthe age of twelve, a clinical psychologist testified that the victim showed the clinical symptoms of PTSD, which was consistent with the trauma of being raped. State v. Bosley, 29,253 (La.App. 2 Cir. 4/2/97), 691 So.2d 347, 349. The defendant did not challenge the admissibility of this testimony, but challenged the sufficiency of the evidence to convict. In reviewing the evidence for sufficiency to convict, the appellate court found the jury was presented with a classic credibility contest. It found the evidence was legally sufficient to convince a rational fact finder beyond a reasonable doubt that defendant committed the aggravated rape before the victim’s twelfth birthday. Id., 691 So.2d at 350-351. See also State v. Adkins, 31,300 (La.App. 2 Cir. 11/9/98), 721 So.2d 1090, 1095 (Testimony by minor alleged rape victims that defendant had raped and threatened to kill them, testimony by defendant’s two nieces that defendant had attempted to touch them inappropriately and expert testimony revealing physical and emotional symptoms consistent with alleged molestation was sufficient to support convictions for forcible rape; that evidence included testimony from a psychiatrist that the victim suffers from PTSD as a result of the ordeal; the defendant did not challenge the admissibility of the expert testimony.)

Even though PTSD is a catalogued condition of the DSM, and has been admitted into evidence by our courts in various matters, there is no evidence in the record before us that the trial court performed its “gatekeeping” function of determining that the testimony of Ms. Ring was both relevant and reliable as substantive proof that sexual abuse occurred.

Several other state courts have considered the admissibility of expert testimony regarding PTSD in a criminal prosecution for child sexual abuse. Almost every court that has addressed this issue has concluded that PTSD evidence is admissible to explain a victim’s behavior that is apparently inconsistent with having been sexually 11?,abused if the defense has made it an issue. As to the more difficult issue of whether evidence of PTSD is admissible to prove sexual abuse, the courts are divided. Some jurisdictions allow PTSD testimony to show that the victim was sexually abused. Other jurisdictions forbid PTSD testimony for the purpose of proving that sexual abuse in fact occurred. In addition, some courts recognize that PTSD is founded upon good science, but conclude it will not assist the trier of fact to determine whether sexual abuse occurred because it is a therapeutic method that was not intended to be used as a forensic tool. See State v. Cressey, 628 A.2d at 699; State v. Hall, 412 S.E.2d at 889.

The State of Maryland’s highest court has considered the issue of whether expert testimony that the alleged victim was suffering from PTSD as a result of being sexually abused was admissible to prove that the sexual abuse occurred. See Hutton v. State, 339 Md. 480, 663 A.2d 1289 (1995). We find their analysis helpful and quote with approval their scholarly comments on this aspect of PTSD:

PTSD may be experienced by persons who have been in combat, natural disasters, automobile or airplane accidents, or raped, among other traumatic events. Smith, Post Traumatic Stress Disorder, 20 Trial 92 (Feb.1984). Thus, there is no particular stressor that triggers PTSD; • it can be caused by any number of stressful experiences. The symptoms characteristic of PTSD may become apparent shortly after the traumatic event or they may not appear until several months, or even years later. [DSM-III at 237]. Moreover, determining from the symptoms that PTSD is the proper _]_ydiagnosis ordinarily does not answer the question of what traumatic event caused it; the symptoms, in other words, are not reliable identifiers of the specific cause of the disorder.
... [I]n addition to triggering PTSD, the traumatic event may be the causative factor for a related, but different disorder. Child sexual abuse, a recognized stressor causing PTSD, may also be the triggering event for child sexual abuse accommodation syndrome (CSAAS). See Roland C. Summit, The Child Sexual Abuse Accomodation Syndrome, 7 Child Abuse & Neglect 177 (1983). For diagnostic purposes, characteristics commonly observed in sexually abused children, different from and in addition to those normally associated with PTSD, come into play. They are: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed, conflicted, and unconvincing disclosure, and (5) retraction. Notwithstanding that CSAAS is not simply a refinement of PTSD on the basis of its cause, because when the traumatic event is child sexual abuse, they share a common cause, the approach to discovering that cause is analytically the same. And, because a diagnosis of PTSD is certainly more general than a diagnosis of CSAAS, the reliability of expert PTSD testimony on causation can be no greater than that concerning CSAAS.
The literature on the subject discusses PTSD and related disorders and syndromes in the context of treating victims of a traumatic experience. See, e.g., Woodling & Kossoris, Sexual Misuse: Rape, Molestation, and Incest, -28 Pediatric Clinics N.Am. 489, 489-490 (1981); Burgess & Holstrom, Rape: Victims of Crisis, 47-50 (1974); Comment, The Psychologist as Expert Witness: Science in the Courtroom?, 38 Md.L.Rev. 539, 580 n. 207 (1979). The literature concludes that a PTSD diagnosis is essentially a therapeutic aid, rather than a tool for the detection of sexual abuse, see State v. J.Q., 130 N.J. 554, 617 A.2d 1196, 1203-05 (1993); People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr., 450, 459, 681 P.2d 291, 300 (1984); John E.B. Myers, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb.L.Rev. 1, 67-68 (1989); Comment, The Psychologist as Expert Witness: Science in the Courtroom?, supra at 580 n. 207 (Stating that the purpose of codifying the diagnostic criteria for PTSD is to “standardize the classification system with reference to empirically demonstrable phenomenon, thus enhancing the communication and research between mental health professionals.”), since such a diagnosis assumes the presence of abuse and explains the victim’s reactions to it. (Citations omitted).
Because causes other than sexual abuse may trigger PTSD — the traumatic event being unable to be verified objectively, its occurrence must necessarily be assumed — a diagnosis of PTSD does not reliably prove the nature of the stressor. Hutton, 663 A.2d at 1294-1295.

We are concerned about the use of PTSD evidence as substantive evidence that sexual abuse has occurred, when such evidence is not limited to explaining “superficially bizarre” reactions common to victims of child sexual abuse but which 11sare uncommon to the experience of jurors. First, the psychiatric procedures used in developing the diagnosis of PTSD are designed for therapeutic purposes and are not rehable as fact-finding tools to determine whether sexual abuse has in fact occurred. See Hall, 412 S.E.2d at 889. And secondly, the potential for prejudice looms large because the jury may accord too much weight to expert opinions stating medical conclusions which were drawn from diagnostic methods having limited merit as fact-finding devices. Id.

Although PTSD. is widely accepted among professionals as an anxiety disorder attributable to some type of trauma, it has not been proven to be a reliable indicator that sexual abuse is the trauma underlying the disorder or that sexual abuse has even occurred. The principal diagnostic criteria for PTSD “included] persistent reexperi-encing of the traumatic event ... persistent avoidance of stimuli associated with the trauma and numbing of general re-sponsiveness_” DSM-IV at 463. The diagnostic criteria for PTSD are thus not intended to provide clinical or forensic tools for determining whether child sexual abuse has occurred but for dealing with the aftermath of severe traumatic events that have occurred in a variety of contexts.

The DSM-IV adds the following general observation: “[njonclinical decision makers should also be cautioned that a diagnosis does not carry any necessary implications regarding the causes of the individual’s mental disorder or its associated impairments .... ” DSM-IV at xxxiii. The psychiatric diagnosis of PTSD was not designed to determine sexual abuse, and the threshold criteria for the diagnosis of PTSD are not specific to child sexual abuse. Askowitz, at 2098. Furthermore, there |1fiare a variety of stressors in a child’s life that can produce PTSD-type symptoms, and there is no baseline data about the presence of PTSD-type symptoms in nonabused and otherwise non-stressed children. Id. In short, there is not a sufficient consensus within the mental health community that there are certain behavioral symptoms that can lead a mental health professional to a conclusion of “consistent with child sexual abuse.” Id.

Limited Admissibility of PTSD

In Foret, we concluded that evidence of Child Sexual Abuse Accommodation Syndrome (CSAAS) is of highly questionable scientific validity and fails to unequivocally pass the Daubert threshold test of reliability. Foret, 628 So.2d at 1127. Similarly, because we find that a diagnosis of PTSD is certainly more general than a diagnosis of CSAAS, the reliability of expert PTSD testimony on causation can be no greater than that concerning CSAAS. Hutton, 663 A.2d at 1294. If the reliability of expert PTSD testimony on causatioñ can be no greater than testimony of CSAAS as substantive proof that abuse occurred, we find expert testimony of PTSD is inadmissible for the purpose of substantively proving that sexual abuse occurred.

We come to this conclusion because the jury is asked to make the connection between a diagnosis of PTSD and the stres-sor, child sexual abuse, that is alleged to have caused it. Identification of the stressor is an important component of the PTSD diagnosis. But it is widely accepted that PTSD has not been proven to be a rehable indicator that sexual abuse is the trauma underlying the disorder or that sexual abuse has even occurred. The psychiatric diagnosis of PTSD was not designed to determine sexual abuse, Askow-itz, at 2098, and the psychological evaluation of a child suspected of being sexually abused is, at best, an inexact science. Cressey, 628 A.2d at 699. For these reasons, we find that admission of expert testimony of a diagnosis of PTSD for the purpose of substantively proving sexual abuse fails to pass the Daubert threshold 117test of scientific reliability.

Just as we determined in Foret, expert testimony of general characteristics that would explain delays in reporting, recantations, and omissions of details is admissible. In the matter before us, there was no evidence in the record that A.C. or A.L. recanted their allegations. Nor were they young children who were cognitively unable to testify coherently or incapable of providing details. We find Ms. Ring’s expert testimony went beyond the limited purpose of explaining the superficially bizarre behavior of a victim of child sexual abuse. We further find Ms. Ring’s testimony deprived defendant of a fair trial by imbuing the girls’ testimony with an undeserved scientific aura of truth. This testimony impermissibly bolstered the testimony of both girls. There was absolutely no indication that this testimony was necessary to explain to the jury the significance of a child-witness’s demeanor, inconsistent reports, reluctance to testify or recantation. Although the defense showed there had been a slight delay between the date of the incidents and the reporting to the police, expert testimony that Ms. Ring diagnosed A.C. with PTSD did not reliably explain why many sexually abused children delay reporting their abuse.

CONCLUSION

Under these circumstances, we find that the State introduced the expert testimony regarding A.C.’s diagnosis of PTSD for the purpose of substantively proving that sexual abuse occurred. There is no indication that the State attempted to limit this evidence to explain delayed reporting, which could be construed as | isapparently inconsistent with having been sexually abused. There is no showing that PTSD evidence is rehable and accurate as substantive proof of sexual abuse and therefore, it is inadmissible for this purpose. We hold that this evidence, like CSAAS-based evidence, should be admissible only for the limited purpose of explaining, in general terms, certain reactions of a child to abuse that would be used to attack the victim/witness’s credibility. Foret, 628 So.2d at 1181. The trial court in its discretion can determine, on a case by case basis, if a particularized hearing is necessary (Daubert hearing) to test the reliability of expert testimony on PTSD when it is being offered for the limited purposes discussed above.

DECREE

For the foregoing reasons, the ruling of the appellate court is affirmed. This case is remanded to the district court for a new trial consistent with the views expressed herein.

AFFIRMED.

WEIMER, J., dissents and assigns reasons.

hWEIMER, Justice,

dissenting.

I respectfully dissent from the majority’s opinion in this matter.

The expert, Ms. Ring, testified that she had diagnosed the alleged victim as having suffered from Post Traumatic Stress Disorder (“PTSD”). However, heeding the cautionary note sounded in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders about the forensic use of the various- mental disorders catalogued and classified by the American Psychiatric Association therein, at no time did the witness testify that the PTSD was a result of sexual abuse. Because PTSD is a scientifically recognized and credible condition catalogued in the aforementioned reference guide, often used by courts, there is no doubt that the trial judge was capable of determining the admissibility of the expert’s testimony as to PTSD without a separate particularized showing, and without abandoning his ga-tekeeping function.

Ms. Ring was not assessing the truthfulness or credibility of the victim. Rather, her assessment was that, based on the physical anxiety and flat effect the victim displayed, her symptoms were that of PTSD. Even though sexual abuse victims often suffer from PTSD, it is error to attribute that as a conclusion of Ms. Ring, because her findings were strictly objective and expressed in a manner that avoided commenting directly on the credibility of the victim and the cause of the symptoms displayed by the victim. As a result, the trial court did not err in admitting the testimony of this witness.

      . 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . 628 So.2d 1116 (La.1993).

      . This opinion will refer to the minors by their initials, to protect their identities. La. Sup.Ct. Rule XXXII, § 3.

      . A.C.'s date of birth is March 27, 1984.

        . A.L.'s date of birth is September 24, 1984.

      . Ms. Ring has a Bachelor's degree in psychology, a Master’s degree in social work, and has worked in the field of social work, including internships, for seven years.

      . Q. Just from A.C.’s standpoint, what symp-tomatology did you see that led you to conclude that diagnosis [PTSD] for her?
      A. Primarily, what I saw — well, there was a lot of symptoms that she was manifesting throughout her therapy, both with myself and another counselor. Generally, she was very flat in her affect.

      Q. What other things did you see that clinically were significant to you in regard to symptoms?
      A. A lot of frustration. That's very common too....

      A. A lot of fear; a lot of anxiety, you know. A lot of times persons also with post-traumatic stress find it very difficult to trust.

        A .... they’re very shut down, not very open to how they are feeling or what's going on inside of their head. That was another thing that definitely she exhibited that.

      . In Kumho Tire, the United States Supreme Court held that Daubert’s general holding— setting forth the trial judge’s general 'gatek-eeping' obligation — applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and 'other specialized' knowledge. 526 U.S. at 147-148, 119 S.Ct. at 1174. The Court reiterated that a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony; those factors were meant to be helpful, not definitive. 526 U.S. at 151— 152, 119 S.Ct. at 1175-1176.

      . The State additionally argues that should we determine that the court of appeal was correct in finding Ms. Ring's testimony was erroneously admitted, this testimony only affected count one regarding A.C. The State urges the conviction on count two, involving A.L., should be reinstated. For reasons given in the body of the opinion, we affirm the court of appeal in full.

      . The American Psychiatric Association characterizes PTSD as having the following diagnostic criteria:
      A. The person has been exposed to a traumatic event in which both the following were present:
      (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
      (2) the person's response involved intense fear, helplessness, or horror....
      B. The traumatic event is persistently reex-perienced in one (or more) of the following ways:
      (1) recurrent and intrusive distressing recollections of the event....
      (2) recurrent distressing dreams of the event....
      (3) acting or feeling as if the traumatic event were recurring....
      (4)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.
      C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
      (1) efforts to avoid thoughts, feelings, or conversations associated with the trauma
      (2) efforts to avoid activities, places, or people that arouse recollections of the trauma
      (3) inability to recall an important aspect of the trauma
      (4) markedly diminished interest or participation in significant events
      (5) feeling of detachment or estrangement from others
      (6) restricted range of affect ...
      (7) sense of foreshortened future ...
      D. Persistent symptoms of increased arousal (not present before the trauma) as indicated by two (or more) of the following:
      (1) difficulty falling or staying asleep

        (2) irritability or outbursts of anger
      (3) difficulty concentrating
      (4) hypervigilance
      ©exaggerated startle response
      E. Duration of disturbance (symptoms in Criteria B, C, and D) is more than 1 month.
      F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. DSM IV 427-429.

      . See State v. Moran, 151 Ariz. 378, 382, 728 P.2d 248, 252 (1986); People v. Fasy, 829 P.2d 1314, 1317 (Colo.1992); State v. Batangan, 71 Haw. 552, 799 P.2d 48, 52 (1990); Commonwealth v. Hudson, 417 Mass. 536, 631 N.E.2d 50, 54 (1994); People v. Beckley, 434 Mich. 691, 456 N.W.2d 391, 399 (1990); Smith v. State, 100 Nev. 570, 688 P.2d 326, 327 (1984); State v. Hall, 330 N.C. 808, 412 S.E.2d 883, 890 (1992); State v. Bachman, 446 N.W.2d 271, 277 (S.D.1989); State v. Catsam, 148 Vt. 366, 534 A.2d 184, 187 (1987).

      . See State v. Alberico, 116 N.M. 156, 861 P.2d 192, 210 (1993); Townsend v. State, 103 Nev. 113, 734 P.2d 705, 708 (1987); State v. Florczak, 76 Wash.App. 55, 882 P.2d 199, 210 (1994), review denied, 126 Wash.2d 1010, 892 P.2d 1089 (1995).

        .See State v. Moran, 728 P.2d at 255; State v. Batangan, 799 P.2d at 52; People v. Beckley, 456 N.W.2d at 405; State v. Cressey, 137 N.H. 402, 628 A.2d 696 (1993) (expert’s testimony regarding effects of sexual abuse on children not sufficiently reliable to be admitted as evidence that victims were sexually abused); State v. Hall, 412 S.E.2d at 890 (noting that evidence of PTSD "does not alone prove that sexual abuse has in fact occurred").

      . In Hall, the court found that where PTSD evidence is admitted to prove sexual abuse has occurred, “the potential for prejudice against the defendant looms large because of that aura of special reliability and trustworthiness often surrounding scientific or medical evidence.” Hall, 412 S.E.2d at 890. Therefore, the court concluded that evidence that a prosecuting witness is suffering from PTSD should not be admitted for the substantive purpose of proving sexual abuse occurred. Id. Such evidence would be allowed for certain corroborative purposes where the relevance to certain disputed issues had been shown by the prosecution. Id.

      . Detective Dawn Gautreaux of the Sheriff's Office testified on cross-examination that they received a report on July 26, 1999, approximately 36 days after the incident. Detective Ashli Richardson of the Houma Police Department testified on cross-examination that four days passed between the date of the incident and the date it was reported.

      . In a conference with the judge outside the presence of the jury, regarding the defense’s objection to Ms. Ring testifying, the prosecutor stated the purpose of Ms. Ring's testimony was to show clinical symptoms consistent with sexual abuse. In his direct examination of Ms. Ring, the prosecutor asked if A.C.’s symptoms "were those consistent with a child who had been sexually abused.”