author: VICTORY, J. JOHNSON, Justice, VICTORY, J., KNOLL, J.,

text:
    Michelle DETRAZ v. Victor LEE d/b/a Virgin Nails.
    No. 2005-C-1263.
    Supreme Court of Louisiana.
    Jan. 17, 2007.
    Rehearing Denied March 30, 2007.

      Law Office of Harold G. Toscano, Philip S. Aucoin, Jr., Lafayette, for Applicant.
    Hawkins Villemarette, Scott M. Hawkins, Chris P. Villemarette, Lafayette, for Respondent.
   VICTORY, J.

1We granted a writ application in this negligence case to determine whether the court of appeal violated the manifest error standard of review by holding that the jury was clearly wrong in finding that the defendants had not caused the plaintiffs injuries. After reviewing the record and the applicable law, we reverse the judgment of the court of appeal and remand the case to the court of appeal to consider plaintiffs remaining assignments of error.

FACTS AND PROCEDURAL HISTORY

In the fall of 2002, Michelle Detraz received a pedicure at Virgin Nails in Lafayette, Louisiana. Several days after receiving the pedicure, Ms. Detraz began to notice red bumps on her lower legs and calves. She attempted to treat the infection with over-the-counter medication, but these treatments were ineffective. The bumps developed into golf ball-sized pustules covering the backs of her legs.

On October 22, 2002, Ms. Detraz visited the emergency room where she was questioned by the on-duty nurse. The medical records from that visit state as follows: “Assessment. Twenty three (23) year old white female complains of painful red | ^raised area to both legs/knees down. No itching. Unaware if from tanning beds or fungus. Began as small bumps.” The treating physician diagnosed the pustules as a fungus and prescribed topical Nysta-tin, a yeast suppressant. Ms. Detraz testified that the cream did not help and her legs showed no improvement. In fact, her condition worsened, and the infection continued to spread.

Ms. Detraz sought additional treatment on November 1, 2002 from Dr. Ronald Daigle, a dermatologist. He took cultures of the infection and prescribed an antibiotic and cream. The lab reports subsequently came back negative, indicating no bacterial infection, but the antibiotics apparently worked nonetheless, clearing the infection but leaving scarring on her legs. Ms. Detraz did not seek additional treatment until .April 10, 2003, when she was examined by Dr. Adrian Stewart, another dermatologist. Concerning the scarring on Ms. Detraz’s legs, Dr. Stewart recommended that she stop tanning, quit smoking, and use bleaching cream to lighten her scars to help them heal. She admitted that she did not quit smoking or stop tanning as directed by Dr. Stewart.

Ms. Detraz then consulted with Dr. Darrell Henderson, a plastic surgeon, on April 16, 2003. Dr. Henderson advised Ms. De-traz about the process of cosmetically repairing the scars on her legs.

Ms. Detraz filed suit against Virgin Nails and its owners, alleging that they were negligent in performing the pedicure and that their negligence caused her damages. Mr. and Mrs. Huynh, both licensed cosmetologists, own and operate Virgin Nails. Mrs. Huynh testified at trial through a translator that in cleaning the water tubs, she sprays them with the disinfectant Barbicide, then again with clean water, finally wiping the tub down with a clean towel. She testified that she leaves the Barbicide solution on for ten minutes, which differed somewhat from her |,.¡deposition testimony, in which she said she sprayed the solution but did not indicate that she let the solution stand on the tub’s surface and air dry.

Mr. Huynh testified that he did not administer pedicures, but that he did train his employees on how to properly clean the tub after each use. His instructions are to let the Barbicide solution sit between clients, meaning that the solution would sit for ten to fifteen minutes between clients. He also explained that he mixes a stronger Barbicide solution than necessary, assuming the stronger solution would be more effective. Both Mr. and Mrs. Huynh testified that they did not soak, or immerse, the pedicure tub in a Barbicide solution, as this would be impossible given the size of the chairs.

The Barbicide solution instructions were printed on the side of the bottle. The instructions said to mix a solution of two ounce's of Barbicide for every 32 ounces of water. The instructions directed to either “apply a solution prepared as above to pre-cleaned surfaces with a cloth, mop, sponge, or coarse mist pump and thoroughly wet all surfaces,” or to, “completely soak or immerse [the item] in Barbicide Solution.” Mr. Huynh stated that the solution he mixed was a half cup of-Barbicide and a half cup of water. Kathy Arceneaux was admitted as a cosmetology expert by the court. Ms. Arceneaux is also Ms. Detraz’s employer. Ms. Arceneaux read from a standard cosmetology textbook, opining that mixing chemical cleaning solutions is ill-advised and that the failure to follow the manufacturer’s recommendations regarding the appropriate proportions of solution to water and exposure times could render the product ineffective.

At trial, Ms. Detraz admitted that prior to her pedicure, she had shared a rental home with her mother that had an outdoor jacuzzi with dirt sediment at the bottom. She also moved into an apartment complex with a public swimming pool in ^September 2002. Immediately prior to her pedicure at Virgin Nails, she was employed cleaning tanning beds. At the time of her pedicure, she was employed as a receptionist at a different nail salon. Ms. Detraz testified that she witnessed the technician spray the Barbicide on the tub and that she wiped it off after only 15 seconds.

Dr. Daigle was the only doctor testifying at trial who saw plaintiff while the infection was active, and the cultures he took were returned as inconclusive. He was able to determine that the infection is a type of staph infection that is ubiquitous in Louisiana. In his opinion, there was no way to determine where Ms. Detraz contracted this staph infection, stating that even a mosquito bite could have exposed her to this type of infection. Dr. Stewart also testified that it was impossible to determine what caused the staph infection in this case, identifying numerous events as potential causes.

Dr. Henderson identified the pathogen causing plaintiffs condition as staphylococcus aureus, which is a bacteria that is commonly found on human skin and linings of the mouth and nose and that can cause actual infection and disease, particularly if there is an opportunity for the bacteria to enter the body. According to the medical records, Ms. Detraz told him that the “filter on water tank on pedicure chairs had not been cleaned.” She further told him that she had a “cut on right leg from shaving” on the day of the pedicure. He suggested that, based on this reported history, the infection could have been caused by the pedicure.

Following a four-day jury trial, the trial judge gave instructions on the law and provided the jury with a jury verdict form, both of which contain the issues which form the crux of the issues before us. Specifically, included in the jury charges was |Rthe “Housley presumption” which stated as follows:

In a personal injury suit the test for determining the causal relationship between the incident in question and the subsequent injury is whether the plaintiff proved through medical testimony that it was more probable than not that the subsequent injuries were caused by the accident, in this case, a pedicure. A plaintiff may be aided in establishing this burden by the legal presumption that a medical condition producing disability is presumed to have resulted from a accident if, before the accident, the injured person was in good health, but shortly after the accident, the disabling condition manifested itself — providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. In order to defeat this presumption, the defendant must show some other particular incident caused the injury.

Further, the jury verdict form asked the following questions: “Do you find by a preponderance of the evidence that the Huynhs or employees of Virgin Nails were negligent in the pedicure services at issue?” and “Do you find that the negligence of the Huynhs or employees of Virgin Nails was a cause of the injuries sustained by Michelle Detraz?”

The jury returned a verdict favorable to the defendants, answering “Yes” to the first question regarding whether the defendants were negligent in performing the pedicure but answering “No” to the second question regarding whether this negligence caused Ms. Detraz’s injuries.

Ms. Detraz appealed the jury verdict, and the Third Circuit reversed in a 3-2 decision. Detraz v. Lee, 2004-988 (La.App. 3 Cir. 4/13/05), 900 So.2d 1099. Initially, the court of appeal observed that the jury verdict form was | (¡awkwardly worded because it asked the jury to determine negligence and causation- separately. Id. at 1103-04. Citing this Court’s previous decision in Fowler v. Roberts, 556 So.2d 1 (La.1989), the appellate panel found that causation was one of the five elements of negligence, thus is was counterintuitive for the jury to find negligence but no causation. Id.

Further, without mentioning that the jury had been given the “Housley presumption” and ultimately found lack of causation, the court of appeal conducted an independent review of the record to determine if the presumption applied to prove causation. Id. at 1104. Based on Dr. Henderson’s testimony that the unsani-tized tub was the cause of the infection, the court of appeal found that the presumption had been established and that the burden then shifted to defendants to “persuade the trial court that it is more probable than not that the injury did not result from the accident.” Id. at 1107-08. The court of appeal found that defendants “did not provide satisfactory evidence of an intervening cause that would destroy the casual link between the pedicure and the infection” Id. at 1108.

Although the court of appeal correctly noted that whether the plaintiff is entitled to the “Housley presumption” is a factual issue subject to the manifest error standard of review, it reversed the jury’s verdict of no causation, finding as follows:

The jury in this case was manifestly erroneous in concluding a lack of causation. The equivocal testimony of Dr. Stewart and Dr. Daigle does not detract from the strength of Dr. Henderson’s testimony. Their unwillingness to adopt Dr. Henderson’s perspective is not sufficient to controvert his testimony.

Id. at 1109. We granted this writ application to determine whether the court of appeal erred in reversing the jury’s determination of causation. Detraz v. Lee, 2005-1263 (La.2/17/06), 924 So.2d 993.

^DISCUSSION

Standard of Review

Louisiana courts of appeal apply the manifest error standard of review in civil cases. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90. Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds .that the trier of fact’s determination is manifestly erroneous or clearly wrong. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id.

The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Id.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong, even if the reviewing court would have decided the case differently. Id.

We have also consistently held that causation is a factual finding which should not be reversed on appeal absent manifest error. Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1276 (La.1991); Smith v. State through Dept. of Health and Human Resources Admin., 523 So.2d 815 (La.1988).

The defendants argue that the court of appeal erroneously held that the jury verdict form contained legal errors which led to its independent review of the record, which ultimately led them to find that causation had been proven. The court of appeal found as follows:

|RThe Jury Verdict Form asked the jury whether Virgin Nails was negligent in performing the pedicure. The jury answered in the affirmative. Answering this question in the affirmative, however, enfolds all five of the Fowler factors, including causation. The next Verdict Form question, however, asked the jury whether this negligence caused Ms. De-traz’s injuries. The jury answered in the negative. Given their response to the first question on negligence, the jury’s response on causation is counter-intuitive. Because the Jury Verdict Form is awkwardly worded using the comprehensive word negligence, the crucial question is causation.

We disagree that the jury verdict form was erroneous. In Fowler, supra, this court found:

The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). (Emphasis added.)

Fowler, supra at 4. As seen from the above, in Fowler, this Court was not defining “negligence” but was instead defining “liability” in a negligence case. “Negligence” has been defined by this Court as follows: “conduct which falls below the standard of care established by law for the protection of others against an unreasonable risk of harm.” Dobson v. Louisiana Power and Light Company, 567 So.2d 569 (La.1990) (citing Restatement (Second) of Torts, § 282 (1965)). Thus, the court of appeal erred in ruling that a finding that the defendants were negligent in performing the pedicure “enfolds all five of the Fowler factors, including causation.” Further, not only was there no error in the actual jury verdict form, the jury was correctly instructed on the law and all of the elements of liability in this negligence case. Thus, we find no | fllegal error in the jury verdict form which would entitle the court of appeal to disregard the manifest error standard of review.

In reviewing the jury’s finding of lack of causation, the court of appeal applied the “Housley presumption” to this case and essentially undertook a de novo review of the record to find that plaintiff had proved causation using that presumption. However, causation and the application of the “Housley presumption,” if it even applies in this case to assist this plaintiff in proving causation, is a factual issue. The jury did actually consider this case after being instructed on the potential applicability of the “Housley presumption.”

Having been given the Housley instruction, the jury made the factual determination that defendants’ negligent conduct did not cause plaintiffs injuries. Thus, they either found that plaintiff had not established the three elements necessary for the application of the “Housley presumption,” most likely that “the medical evidence shows there to be a reasonable probability of a connection between the accident and the disabling condition” or that the presumption did apply, but that defendants proved some other factor caused her injuries. Either way, the application of the “Housley presumption” is a factual issue as is the determination of causation, both of which are subject to the manifest error standard of review. Accordingly, the only issue before us is whether the jury’s finding of no causation is supported by a reasonable factual basis in the record.

After reviewing the record in this case, we have determined that the appellate court erred when it improperly substituted its own judgment in place of the jury’s ^determination of the facts. The record is replete with testimony and evidence on which the jury could have made a reasonable determination of the facts. Dr. Stewart and Dr. Daigle, both dermatologists, testified that there was ho way to determine the cause of the staph infection. Dr. Daigle was the only doctor to testify at trial who saw the active infection on plaintiffs legs. Specifically, counsel asked Dr. Daigle if he could, “identify the actual source of that staph, of that infection.” Dr. Daigle responded, “[tjhere’s no way to determine where it came from.... Anything that traumatizes the skin is going to allow an organism access to you, any organism that is infectious.” He informed the jury of the ubiquitous nature of staph, that it is on pens, eyeglasses, and on human skin, and that a mosquito bite could have caused the break in the skin and the transmission of the infection. Plaintiff claimed she had shaved her legs the morning of her pedicure, and Dr. Daigle said a razor cut, bumps or rash would allow for auto-inoculation. Dr. Stewart informed the jury that the staph infection could have been “initiated by a pedicure that was done,” by a tanning bed that was not appropriately sterilized, or by shaving her legs, and that sometimes “it just happens for no rhyme or reason.” Dr. Stewart concluded, “I think it’s impossible to say.” Finally, when she initially reported to the emergency room, she did not inform the nurse that she had recently had a pedicure, with the report stating that it was unclear if a fungus or a tanning bed caused the infection. Thus, the jury was given a clear sense of the nature of staph, and the impossibility of determining where the infection was contracted in this case. Their determination ■ that the plaintiff did not carry her burden of proving causation is fully supported by the record.

Furthermore, the majority at the appellate court reversed the jury verdict based on the testimony of Dr. Darrell Henderson, a plastic surgeon who never saw, norJjjtreated plaintiff’s infection, who is not a dermatologist, and who did not even examine the plaintiff until approximately seven months post-infection. Counsel asked Dr. Henderson to make a determination within a reasonable medical probability what caused plaintiffs infection and subsequent scarring. Dr. Henderson stated that the infection was caused by bacteria contamination in the water of the pedicure tub, and that the moist environment would be more conducive to the growth and incubation of the bacteria. However, this conclusion was based solely on what had been reported to him by plaintiff, i.e., that the filters on the water tanks were dirty and that she had a cut on her leg at the time of the pedicure from shaving that morning. However, whether the tubs had been properly cleaned was disputed and further, Mr. Huyng testified that the pedicure tubs did not even have filters. In addition, Dr. Henderson was not advised on any other activities undertaken by plaintiff that may have caused the staph infection.

Further, the testimonies of Dr. Daigle and Dr. Stewart clearly conflict with the testimony of Dr. Henderson. When there are different theories presented to the fact finder for their consideration, the fact finder’s credibility determination between the two plausible theories shall not be disturbed on appeal. Cheairs v. State ex rel. Department of Transp. and Development, 03-0680 (La.12/3/03), 861 So.2d 536, 546. Credibility determinations, including evaluating expert witness testimony, are for the trier of fact. Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-0201, p. 6 (La.10/19/99), 748 So.2d 417, 421. The jury’s determination that the defendant acted negligently but did not cause the plaintiff’s injuries is entitled to great deference on appeal and is supported by a reasonable factual basis in the record.

I ^CONCLUSION

In this case, after a four-day trial, the jury found that the defendants were negligent, but that the negligence did not cause the plaintiffs injuries. This finding was clearly supported by a reasonable factual basis in the record. Thus, the court of appeal erred in reversing this ruling under the manifest error standard of review.

DECREE

For the reasons stated herein, the judgment of the court of appeal is reversed and the case is remanded to the court of appeal to consider the plaintiffs remaining assignments of error.

REVERSED AND REMANDED.

JOHNSON, J., dissents and assigns reasons.

VICTORY, J., additionally concurs with reasons.

KNOLL, J., dissents and assigns reasons.

JOHNSON, Justice,

dissents and assigns reasons.

U respectfully dissent. In my opinion, the appellate court correctly reversed the judgment of the trial court and held that Plaintiff Michelle Detraz had proven damages and causation and that as a result, the trial court’s holding was manifestly erroneous.

During trial, Ms. Detraz presented the jury with evidence that Virgin Nails did not follow appropriate procedures for sanitizing its equipment before each pedicure. The trial court instructed the jury on the elements of negligence, then instructed the jury that Ms. Detraz was entitled to a presumption of causation if the jury found the three factors set forth by this Court in Houseley v. Cerise, 579 So.2d 973(La.l991). The factors that the trial court concluded in its instructions were:

The Plaintiff must prove that she was in good health prior to the accident at issue. Second, she must show that subsequent to the accident, symptoms of the alleged injury appeared and continually manifested themselves afterwards. And third, she must demonstrate through evidence a reasonable possibility of causation between the accident and the claimed injury.

After a trial on the merits, the jury concluded that Virgin Nails was negligent in sanitizing its pedicure equipment, but the negligence did not cause Ms. Detraz’s injuries. Ms. Detraz appealed the decision.

12The court of appeal found that Ms. Detraz provided evidence which met all three of the Housley elements. The court of appeal concluded that since Virgin Nails was unable to rebut the presumption of causation, it’s actions were the cause of Ms. Detraz’s injuries.

In Fowler v. Roberts, 556 So.2d l(La.!989), this Court set forth the standard for assessing liability for damages. The plaintiff is required to prove the following:

(1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element).
(2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element).
(3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element).
(4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element)
(5) proof of actual damages (the damages element). Id. at p. 4.

Cause-in-fact is generally a “but for” inquiry, which tests whether the accident would or would not have occurred but for the defendant’s substandard conduct. Id. Whether the defendant’s conduct was a substantial factor in bringing about the harm, and thus, a cause-in-fact of the injuries, is a factual question to be determined by the fact finder. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305, 1310. This Court has also held that causation is a factual determination. Lasyone v. Kansas City Southern R.R., 2000-2628 (La.4/3/01), 786 So.2d 682.

The Defendant contends that the court of appeal erred in concluding that a finding of negligence includes a finding of causation. Virgin Nails argues that the court of appeal misinterpreted Fowler, supra., in that it failed to properly differentiate between the determination of liability in a negligence case and the definition of negligence itself. Virgin Nails contends that the court of appeal confused | sand substituted negligence for the term liability.

Negligence is defined as “conduct which falls below a standard of conduct established by law for the protection of others against an unreasonable risk of harm.” Dobson v. Louisiana Power and Light Company, 567 So.2d 569(La.l990); Joseph E. Lee, III, A Return to Negligence or Something More “Proving Knowledge in Strict Liability’’ Cases in Louisiana under Civil Code Article 2317.1, 59 La. L.Rev. 1225(1999); Myers v. Dronet, 801 So.2d 1097(La.App. 8 Cir.2001).

In Dobson, supra., this court noted the following:

The generally accepted view is that negligence is defined as conduct which falls below the standard established by law for the protection of others against an unreasonable risk of harm. Restatement (Second) of Torts, § 282 (1965); Harper, James & Gray, supra § 16.1 at 381-382; Prosser & Keeton on Torts, § 31 (5th ed.l984).FN3

The test for determining whether a risk is unreasonable is supplied by the following formula:

The degree of care demanded of a person by an occasion is the resultant of three factors: the likelihood that his conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk. L. Hand, J. in Conway v. O’Brien, 111 F.2d 611, 612 (2d Cir.1940).
If the product of the likelihood of injury multiplied times the seriousness of the injury exceeds the burden of the precautions, the risk is unreasonable and the failure to take precautions or sacrifice the interest is negligence. Id. See also, Levi v. SLEMCO[, 542 So.2d 1081 (La. 1989)], supra; Allien v. Louisiana Power & Light Co., 202 So.2d 704 (La.App. 3d Cir.1967); Harper, James & Gray, supra § 16.9.

Defendant contends that in order for Ms. Detraz to recover, it is simply not enough to prove negligence. Causation must be proven separately from negligence, citing Wainwright v. Leary, 623 So.2d 233, 236 (La.App.Cir.1993). Defendant argues further, that negligence, causation, and injury are all separate and distinct elements of a finding of legal liability. All three elements must be present in order to find legal liability.

14Pr. Ronald Daigle, a Dermatologist who successfully treated Ms. Detraz, was presented as Defendant’s Expert Witness. He testified that her chief complaint was of lesions-eruptions on her lower legs. Dr. Daigle testified that his clinical impression was that Ms. Detraz had folliculitis furun-culosis with abscesses of her lower extremities. He concluded that these lesions-eruptions were compatible with a staphylococcus infection and treated Ms. Detraz’s condition as a bacterial infection and elected to treat her initially with Omnicef, which is a Cephalosporin. He testified that he provided Ms. Detraz with Bactro-ban Cream, which is a topical antibiotic used to treat staph. When Ms. Detraz showed no improvement, he prescribed Bacterim DS, a sulfa based antibiotic used for cutaneous infections.

Dr. Daigle originally offered no opinion as to what caused the staph infection to Ms. Detraz. However, on cross-examination, Dr. Daigle, when asked to draw a hypothesis on whether Ms. Detraz could have contracted the staph infection from the pedicure, testified as follows:

I think you can draw a time line between the fact that this infection arose subsequent to that incident and this is the resultant outcome of the infection. The infection that I saw in November was nodular and pustular and could have resulted in this type of outcome. (Deposition taken on May 7, 2003 of Dr. Dai-gle, page 29, lines 12-25 and page 30 lines 1-3)

In his case in chief, Defendant presented the testimony of Dr. Adrien Stewart, a Dermatologist who also treated Ms. De-traz. Dr. Stewart testified through deposition that she first saw Ms. Detraz on April 10, 2003. When asked by Defendant’s counsel whether she could give any medical opinion within a degree of certainty as to whether or not it was more likely that this infection was caused by a pedicure or some other cause, Dr. Stewart responded as follows:

I don’t believe there’s any way you could say. I mean you could pick it up off a tanning bed that was inappropriately sterilized. You could get it from, say, shaving your legs. You could get it from, you know, | sa — initiated by a pedicure that was done (sic). I think it’s impossible to say. (Deposition of Dr. Andrien Stewart taken on November 5, 2003, page 17, lines 12-18).

On cross-examination by Plaintiffs counsel, Dr. Stewart reiterated that there were many possible causes for this staph infection including using tanning beds, and shaving your legs. Although she conceded that “if there was a previous staph infection in the water and the patient had an active portal of entry, an injury to the skin, then theoretically that contaminated water might, in a susceptible person, produce a staph infection.” (Deposition of Dr. An-drien Stewart taken on November 5, 2003, page 22, lines 14-19).

The court of appeal reasoned that since the jury found the Defendant negligent in answering the first question on the jury form, then the jury concluded that all five elements as outlined in Fowler must be present. The court of appeal determined that the jury’s answers to the second interrogatory concerning causation conflicted with the jury’s answer to the preceding question.

The court of appeal concluded that Housley creates a rebuttable presumption of causation once Ms. Detraz had proven: (1) that she was in good health prior to the accident at issue;(2) that her symptoms appeared subsequent to the accident and continued to manifest afterwards;© through medical, circumstantial, and common knowledge, plaintiff showed the reasonable possibility of causation between the accident and the claimed injury.

VICTORY, J.,

additionally concurring.

hi write separately to express my view that the lower courts erred in applying the presumption expounded in Behan v. John B. Honor Co., 143 La. 348, 78 So. 589 (La. 1917) and Lucas v. Ins. Co. of N. Am., 342 So.2d 591, to this case. These early cases applied a presumption to aid the plaintiff in proving causation in workers’ compensation cases where a work place accident caused a dormant injury to become symptomatic. This presumption may be appropriate in worker’s compensation cases because relaxed procedural rules apply. For instance, 'worker’s compensation judges are not bound by the technical rules of evidence and procedure in considering and deciding a worker’s claim. La. R.S. 23:1317.

In my view, this Court erred in Housley v. Cerise, 579 So.2d 973 (La.1991), by applying this presumption to aid plaintiff in an ordinary negligence case. The Housley court did so without discussing the fact that the presumption had never been applied by this Court in a non-worker’s compensation case. Housley erred in this regard because in negligence cases, plaintiff has the burdén of proving causation, as well as all the other elements of his case. Fowler v. Roberts, 556 So.2d 1 (La.1989). The use of this presumption in an ordinary negligence case impermissibly shifts the burden of proof to the defendant to show that some other particular incident caused the injury. This Court has erred twice since Housley by applying the | ^presumption in ordinary negligence cases. See Dabog v. Deris, 625 So.2d 492, 494 (La.1993) and Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95), 650 So.2d 757, 761 (Victory, J., not on panel).

Accordingly, I write to additionally concur in the majority opinion to express my view that the “Housley presumption” is not applicable outside the workers’ compensation field. It has no place in an ordinary negligence case.

KNOLL, J.,

dissenting.

liFor the following reasons, I respectfully dissent.

A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. Housley v. Cerise, 579 So.2d 973, 980 (La.1991).

Although the majority opinion concludes the appellate court erred in its application of the manifest error standard of review, at 564, the majority postures its treatment of the issue of causation, suggesting the appellate court “essentially undertook a de novo review of the record to find that plaintiff had proved causation using [the Housely] presumption.” At 562. See also at 561 (“the court of appeal conducted an independent review of the record to determine if the presumption applied to prove causation”); at 562-63 (“Thus, we find no error in the jury verdict form which would entitle the court of appeal to disregard the manifest error standard of review.”). My review of the appellate court’s opinion shows it did not conduct a de novo review. Rather, in accordance with well established directives from this Court, the appellate court reviewed the record, giving | agreat deference to the fact finder, yet examined the record to ascertain whether those factual findings were supported by the evidence adduced. Detraz v. Lee, 04-988 (La.App. 3 Cir. 4/13/05), 900 So.2d 1099,1108-09.

The appellate court decision shows it focused on the crucial element in this case, causation, and whether the jury properly applied the Housley presumption, an aid this Court recognized in proving causation and reaffirmed on at least two occasions. See Dabog v. Deris, 625 So.2d 492, 494 (La.1993); Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95), 650 So.2d 757, 761. Even though the majority opinion recognizes the trial judge instructed the jury on the Housley presumption, I find it fails to apply the facts of this case within the context of Housley. Most importantly, I find the majority opinion fails to assess the jury determination on causation in light of the presumption.

In the present case, the majority opinion misconstrues Housley when it states most likely the jury found no causation because of a failure of the medical evidence to show “there to be a reasonable probability of a connection between the accident and the disabling condition.” At 563; (emphasis added). Housley does not premise the finding of causation on the showing of a probable connection. To the contrary, Housley only requires that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. Housley, 579 So.2d at 980.

My review of the medical evidence shows the plaintiff carried her burden of proving causation, as aided by the Housley presumption, because the evidence, when viewed in globo, leads to only one conclusion — the negligence of the defendant caused the plaintiffs staph infection. It cannot be denied that the staph bacteria is ubiquitous in the environment. Although only Dr. Darrell Henderson testified that li¡a causative link existed between defendants’ negligence and plaintiffs infection, neither Dr. Ronald Daigle nor Dr. Adrian Stewart rejected Dr. Henderson’s assessment. As observed in the appellate court decision, Dr. Daigle admitted it was possible to draw a temporal relationship between plaintiffs exposure to the bacteria at the time of her pedicure and her later symptoms. Dr. Stewart concluded it was impossible to say what caused the infection, but further told the jury the staph infection could have been “initiated by a pedicure that was done.” There is neither a requirement that there be unanimity among the testimonies of the medical professionals nor that the plaintiff establish causation within a medical degree of certainty. Medicine is not an exact science and it is not unusual for medical experts to be unwilling to state unequivocally the cause of a certain malady. Wisner v. Illinois Cent. Gulf R.R., 537 So.2d 740, 745 (La.App. 1 Cir.1988), writ denied, 540 So.2d 342 (La.1989). Although there may not have been unanimity in the medical testimony, plaintiff nonetheless established a reasonable possibility of causal connection between the accident and the disabling condition.

Moreover, causation is not necessarily and exclusively a medical conclusion. Haughton v. Fireman’s Fund Am. Ins. Companies, 355 So.2d 927, 928 (La.1978). The medical evidence must show that “the nature of the accident, when combined with other facts of the case, raises a natural inference through human experience that such a causal connection exists.” Lubom v. L.J. Earnest, Inc., 579 So.2d 1174, 1179 (La.App. 2 Cir. 5/8/91); (emphasis added). In the present case, the facts cry out in support of the appellate court’s determination that the jury manifestly erred on the question of causation and exemplify the classic application of manifest error review. First, the majority indicates no disagreement with the jury determination that the defendant negligently performed the pedicure; there was ample evidence that the ^defendant improperly mixed the chemicals used to clean the pedicure tub. Second, I find it most telling that plaintiff manifested symptoms within days after she immersed her legs in defendants’ unsanitary tub. In this regard, it is significant that the infection began on the area of the leg where the plaintiff shaved on the day of her pedicure and only affected the immersed part of the plaintiffs legs. Thus, when I combine the medical evidence and the facts peculiar to the onset of the plaintiffs infection, I find the appellate court properly concluded the jury manifestly erred in failing to apply the Housley presumption with regard to causation.

Having found proof of causation, I find the defendant failed to adduce evidence that showed an intervening cause for plaintiffs injury. Speculation does not create a realistic alternative cause. Dabog, 625 So.2d at 495. Even though the staph bacteria may be found in common, everyday places, a fact the defendants skillfully used to cloud the issue, at least nine of the jurors were led into falsely believing that fact alone negated the presumption of causation. The appellate court recognized the error of the fact finder, refused to blindly follow that factual determination, and properly concluded the jury was manifestly erroneous in the present case.

For these foregoing reasons, I would affirm the judgment of the court of appeal.

      . Although plaintiff’s petition stated the pedicure happened on August 15, 2002, at trial she testified that based on a cancelled check written to Virgin Nails and dated September 23, 2002, she believed the correct date of the pedicure was September 23, 2002.

      . The “Housley presumption” as set forth in Housley v. Cerise, 579 So.2d 973 (La. 1991) has its root in worker's compensation suits dating to 1917. Behan v. John B. Honor Co., 143 La. 348, 78 So. 589 (La. 1917) and Lucas v. Ins. Co. of N. Am., 342 So.2d 591 (La.1977). These early cases contemplated a situation in which an accident caused a dormant injury to become symptomatic. Behan, supra at 590. Housley was the first time that this Court applied the presumption of Lucas to a non-worker's compensation case. Housley, supra at 980-81. Subsequently, this Court has only considered the “Housley presumption” on two other occasions, Dabog v. Deris, 625 So.2d 492, 494 (La. 1993), and Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95), 650 So.2d 757, 761.

      . For instance, the trial judge states in his charges that, "[t]he elements which the plaintiff must prove in this case are: (1), that the injury the plaintiff suffered was caused by the conduct of the defendant, and we refer to that as causation; second, substandard conduct, which is negligence ...” Certainly a lay jury would have understood these charges to mean that the causation and negligence are separate issues.

        .See the attached concurrence of the author of this opinion which expresses the view that the "Housley presumption” only applies in workers' compensation cases under certain circumstances.

      . At trial, the trial judge told the lawyers, sua sponte, that he was considering giving a Housley instruction, which he ultimately did.

      . Dr. Stewart’s testimony was presented to the jury via video deposition.

      . According to the court of appeal opinion, these assignments of error are: whether the trial court erred in refusing to honor the jury’s request to review certain testimony after deliberation began; and whether the presence of an alternate juror in the deliberation room after the jury retired corrupted the deliberation process. Plaintiff also filed a motion to make an audiotape of certain testimony part of the record. The court of appeal stated that “[b]ecause we conclude the jury erred with respect to causation and reverse their verdict, we do not address these issues.” 900 So.2d at 1101.

      . Another technique for determining cause-in-fact is the "substantial factor" inquiry which is useful when the combined active conduct of two separate parties operates to cause harm. Malone, Rumination on Cause-In-Fact, 9 Stan. L.Rev. 60, 88-90 (1956).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Robert J. SHORTESS, Jr.
    No. 2006-B-1580.
    Supreme Court of Louisiana.
    Jan. 17, 2007.
    Rehearing Denied March 30, 2007.

      Charles B. Plattsmier, Baton Rouge, for Applicant.
    Harley M. Brown, Baton Rouge, Robert J. Shortess, Jr., for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This disciplinary matter, arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against the respondent, Robert J. Shortess, Jr., an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to a joint motion of the parties filed in July 2001. In re: Shortess, 01-1956 (La.7/6/01), 791 So.2d 631. For the reasons that follow, we now permanently disbar respondent.

FORMAL CHARGES

Count I

In September 1998, respondent accepted employment with the Baton Rouge law firm of Sweeney & Miller, L.L.C. (“Sweeney & Miller”). This arrangement did not end amicably. When respondent left the firm on October 3, 2000, he took with him the files of certain personal injury clients who had signed contingent fee | ¡.agreements with Sweeney & Miller. Respondent forged the endorsements of these clients and/or the endorsement of Sweeney & Miller on settlement checks and converted the funds to his own use. The ODC alleged that all told, respondent converted approximately $150,000 in funds belonging to clients, the law firm, and third parties.

The ODC alleged that respondent’s conduct in this matter violated Rules 1.15(a) (a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property), 1.15(b) (upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person; shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive; and upon request by the client or third person, shall promptly render a full accounting regarding such property), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

In his answer to the formal charges, respondent denied any misconduct relating to Count I. He suggested that his relationship with Sweeney & Miller ended badly, as a result of which “allegations were made, and some clients were misinformed regarding some of these matters.” In a supplemental filing, respondent asserted that the client files he took with him when he left Sweeney & Miller were those he considered to be “his” files, including the cases he handled as the “primary attorney.”

| sCount II

In August 1998, Ronald Boudreaux retained respondent to represent him in a personal injury matter. The ODC alleged that when the case proceeded to trial in the Baton Rouge City Court, respondent was poorly prepared and failed to introduce certain evidence, resulting in a low recovery for Mr. Boudreaux. Respondent then promised to file an appeal, but never did so and failed to advise his client of his inaction. Respondent also collected costs and expenses from his client in advance but never paid most of the costs; as a result, Mr. Boudreaux was required to pay the costs a second time.

The ODC alleged that respondent’s conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), and 8.4(c) of the Rules of Professional Conduct.

In his answer to the formal charges, respondent denied any misconduct relating to Count II. He claimed that he was well prepared for the trial of Mr. Boudreaux’s case and had been complimented on his performance by the trial judge. Respondent further stated that Mr. Boudreaux was dissatisfied with the amount of the damage award and inquired about an appeal, which respondent did not think would be successful but which he informed Mr. Boudreaux would require an advance deposit for costs. Respondent asserted that by the time Mr. Boudreaux made a decision to go forward with the appeal, the legal delays for doing so had elapsed, whereupon Mr. Boudreaux was informed that it was too late to appeal.

\ ¿Count III

In December 1999, Cher Minor retained respondent to represent her in a personal injury matter. In July 2000, respondent settled Ms. Minor’s claim for $3,500 without her knowledge or consent and converted the settlement proceeds.

The ODC alleged that respondent’s conduct violated Rules 1.8(k) (a lawyer shall not solicit or obtain a client’s prospective consent to enter into a binding settlement agreement or to execute settlement or release documents on behalf of the client), 1.15(a), and 8.4(c) of the Rules of Professional Conduct.

In his answer to the formal charges, respondent acknowledged that he “acted inappropriately regarding Ms. Minor’s case,” but he denied that he converted any funds due Ms. Minor. Rather, respondent contended that Ms. Minor owed him an outstanding legal fee in connection with a prior representation involving a life insurance claim.

Count TV

In 2001, Michael Rome and Ada Irene Rome paid respondent $400 to file a bankruptcy proceeding, the primary purpose of which was to save their home from foreclosure. However, respondent failed to timely file the bankruptcy pleadings, and when he finally did so, the pleadings contained the false representation that the Romes had not paid him a legal fee. These pleadings were prepared by a non-lawyer assistant who was not adequately supervised by respondent. As a result of respondent’s mishandling of the bankruptcy matter, Mr. and Mrs. Rome lost their home.

RThe ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal), and 5.3(c)(1) (responsibilities regarding non-lawyer assistants) of the Rules of Professional Conduct.

In his answer to the formal charges, respondent acknowledged his “role and responsibility regarding this matter.” Respondent also noted that he had been sanctioned by the bankruptcy judge, and furthermore, that he had confessed judgment in favor of Mr. and Mrs. Rome in the amount of $4,000.

Count VI

In September 2000, Eric Cox paid respondent $750 to defend him in a pending civil suit and to file a reeonventional demand. Respondent answered the petition on Mr. Cox’s behalf but did not file the reeonventional demand. Thereafter, Mr. Cox could not reach respondent to obtain his file, nor did Mr. Cox obtain a refund or accounting of the fee he paid to respondent.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 1.16(d) (obligations upon termination of the representation) of the Rules of Professional Conduct.

In his answer to the formal charges, respondent denied any misconduct relating to Count VI. Respondent asserted that he did not file a reeonventional demand on Mr. Cox’s behalf because he did not believe such a claim was well founded. He further asserted that he informed Mr. Cox of his opinion in this regard. Respondent stated that he worked on the case for approximately ten hours until he was placed on pinterim suspension; at that time he referred the matter to another attorney, who told respondent that she would represent Mr. Cox. However, Mr. Cox never paid the attorney the retainer fee she requested. Respondent was unaware of this fact until he received a telephone call from Mr. Cox a year later, demanding the refund of the $750 fee he paid to respondent in 2000.

Hearing Committee Recommendation

Based on the evidence presented at the three-day hearing in this matter, the hearing committee made the following findings:

Count I: The committee found that respondent took certain client files with him in connection with his departure from Sweeney <& Miller on October 3, 2000, including the files of the fourteen clients specified in the formal charges. Mr. Sweeney and Mr. Miller told respondent that the files and clients were not his and belonged to the firm. Respondent disagreed, contending that the files and clients were his, as he had performed most, if not all, of the work associated with the representation of each client. Respondent also felt justified in taking the files and clients because he had brought a number of files and clients with him when he was hired by Sweeney & Miller. Nevertheless, most, if not all, of the clients in question retained the services of Sweeney & Miller in response to either referrals and/or advertising and hired the law firm, as opposed to respondent individually. Furthermore, there was no type of exit agreement regarding respondent’s taking of any files or clients, nor was there any type of agreement regarding the sharing of any fees that would be generated by the files or clients that respondent kept. Respondent | ysimply took the files and only informed Mr. Sweeney and Mr. Miller when they confronted him.

Additionally, Sweeney & Miller had incurred and paid court costs, medical bills, and other expenses in connection with the representation of the particular clients. There were no discussions or agreements in place as to how Sweeney & Miller would be compensated for these costs and expenses. Sweeney & Miller had also guaranteed payments of future expenses to the healthcare providers treating the clients whose files had been taken by respondent. Both Mr. Sweeney and Mr. Miller made it clear that after taking these files and clients, respondent settled the various cases and did not reimburse Sweeney <& Miller for the costs that had been advanced, nor did respondent pay the outstanding bills to healthcare providers who treated the various clients. Sweeney & Miller was called upon by various healthcare providers to pay these bills, despite the fact that respondent had settled the claims.

The committee found it significant that several of the settlement checks for the clients in question were dated well before respondent’s departure from Sweeney & Miller. Some of these settlement checks appeared to have been deposited into respondent’s own trust account prior to his departure from Sweeney & Miller. The committee observed that these actions by respondent were “concerted and premeditated.” The pre-termination settlements were in cases that respondent handled as an attorney with Sweeney & Miller, and yet he deposited 100% of the settlement proceeds into his own trust account, depriving Sweeney & Miller of any fees to which it may have been entitled. He further failed to reimburse Sweeney & | sMiller for any costs incurred or advanced in connection with the firm’s representation of those clients.

Shortly after respondent departed Sweeney & Miller, and when it became evident that respondent would not return the files to the firm, the firm instituted litigation against respondent in state district court. In addition to other relief, Sweeney & Miller sought injunctive relief against respondent, seeking the return of their files and an accounting of all proceeds received in connection with respondent’s handling of the cases. Shortly thereafter, respondent and his wife filed for bankruptcy relief and the Sweeney & Miller claim was removed as a core proceeding in respondent’s bankruptcy proceeding. As of the date of the disciplinary hearing, no accounting had been provided to Sweeney & Miller on any of the cases.

Respondent gave a two-day deposition as part of the bankruptcy proceeding. After the first day, a settlement agreement was reached between respondent and Sweeney & Miller. Respondent’s level of cooperation changed 'dramatically on the second day of the deposition. In his testimony before the committee, respondent explained that the change in attitude was due to his settlement agreement with Sweeney & Miller. A review of the deposition transcripts, which were introduced into evidence, established that, on the first day of the deposition, respondent for the most part denied any wrongdoing. However, on the second day of the deposition, respondent admitted to forging the endorsements of several clients on a number of settlement checks, among other misconduct. Respondent now claims that the testimony he gave on the second day of the deposition was perjured and that he lied under oath in an attempt to pacify Sweeney & Miller. Considering respondent’s admission of perjury, the committee found it “quite astounding” that he would so | flviciously attack the credibility of Sweeney & Miller, particularly Mr. Sweeney, as he has done throughout these proceedings.

As part of the bankruptcy proceeding, Sweeney & Miller filed an exception to respondent’s discharge, claiming that respondent illegally took Sweeney & Miller’s clients, files, and other property and that respondent settled a number of claims of these former clients and unlawfully converted the settlement proceeds to his own use, all to the detriment of Sweeney & Miller. Twelve days after the conclusion of respondent’s deposition, the bankruptcy court executed a consent judgment in favor of Sweeney & Miller and against respondent in the amount of $150,000. The consent judgment provided that this debt was non-dischargeable pursuant to applicable provisions of the Bankruptcy Code. Respondent agreed to the terms of the consent judgment.

Based on these factual findings, and considering that respondent’s credibility is “seriously lacking,” .the committee found clear and convincing evidence that respondent (1) took, without permission, the Sweeney & Miller client files at issue in Count I of the formal charges; (2) unlawfully and without permission endorsed the names of clients and Sweeney & Miller on the backs of the settlement checks; and (3) failed to protect the interests of third parties by failing to satisfy the clients’ outstanding medical bills and costs out of the settlement proceeds. In entering into the non-dischargeable consent judgment, respondent admitted that he wrongfully converted these settlement funds to his own use. All of this conduct involved respondent’s dishonesty, fraud, deceit, and misrepresentation. Accordingly, the committee found that respondent violated the Rules of Professional Conduct as alleged in Count I.

| mCount II: The committee found that Ronald Boudreaux retained respondent to represent him in civil litigation resulting from a battery in which Mr. Boudreaux was the victim. Respondent filed a petition for damages on Mr. Boudreaux’s behalf in the Baton Rouge City Court on August 28, 1998. Following discovery, the matter was bifurcated for trial purposes. On July 8, 1999, after hearing the evidence regarding liability, Judge Etta Kay Hearn ruled that the defendant was liable to Mr. Boudreaux for his injuries. The damages phase of the trial was conducted on July 27, 1999, after which Judge Hearn ruled that Mr. Boudreaux was entitled to general damages in the amount of $4,000 and special damages totaling $693.29. In her testimony at the formal hearing, Judge Hearn stated that she did not recall whether she had declined to admit evidence of certain medical expenses offered by respondent. She testified that she rendered her ruling based on the evidence presented by both parties.

Shortly after the judgment was rendered, Mr. Boudreaux instructed respondent to appeal Judge Hearn’s decision. Mr. Boudreaux made several telephone calls to respondent over the next ten months regarding the status of his case, but he was never able to speak with respondent, nor would respondent return the telephone calls. When Mr. Boudreaux finally spoke to respondent, respondent informed him, for the first time, that he did not perfect the appeal, as Mr. Boudreaux had requested, and that he could no longer find Mr. Boudreaux’s file.

Thereafter, Mr. Boudreaux spoke to Mr. Sweeney, who investigated the matter and confirmed that no appeal had been perfected. At the hearing in this matter, Mr. Sweeney identified his office’s ledger sheet for the Boudreaux file, which indicated that the firm incurred $1,129.83 in expenses. Also at the hearing, respondent introduced copies of three checks received from Mr. Boudreaux, along with receipts, indicating that Mr. Boudreaux paid a total of $1,100 in advanced expenses, which is | n consistent with Mr. Boudreaux’s testimony. The first check is dated August 10, 1998, approximately three weeks before respondent commenced his affiliation with Sweeney & Miller. Most of the discovery and the trial occurred while respondent was affiliated with Sweeney & Miller. The efforts by Mr. Boudreaux to contact respondent regarding his appeal were after respondent’s affiliation with Sweeney & Miller had ended.

No evidence was presented regarding an accounting of the advanced costs paid by Mr. Boudreaux, other than Sweeney & Miller’s ledger sheet, which does not include the first check given to respondent prior to his affiliation with Sweeney <& Miller. Respondent did suggest that certain funds on deposit in his trust account were transferred into the trust account of Sweeney & Miller, but no accounting has been presented to establish what happened to Mr. Boudreaux’s funds, other than Sweeney & Miller’s ledger sheet, which was limited to funds received and expenses incurred after respondent joined Sweeney & Miller.

Based on these factual findings, the committee determined that respondent did not neglect Mr. Boudreaux’s legal matter at the trial level, as alleged in the formal charges. The record of the trial court proceeding establishes that respondent propounded discovery upon his opponent, filed a motion to compel, and appeared to be representing his client’s best interest. Furthermore, Judge Hearn testified that she thought both attorneys did a very good job at trial and that respondent appeared adequately prepared. Nevertheless, the inquiry does not end there, as respondent is also charged with failing to perfect an appeal as instructed by Mr. Boudreaux, failing to keep him informed, and engaging in dishonest conduct. The committee found those charges were proven by clear and convincing evidence.

l12Mr. Boudreaux made it clear that he instructed respondent to appeal the trial court’s judgment. Respondent denied being instructed to appeal but did admit to discussing an appeal with Mr. Boudreaux and recommending against appealing the judgment. Mr. Boudreaux ultimately contacted Mr. Sweeney for assistance and learned that the appeal had not been perfected.

Mr. Boudreaux also made it clear that he attempted to contact respondent for a period of ten months after he and respondent discussed his rights to appeal, to no avail. When he was finally able to contact respondent, respondent informed him, for the first time, that he did not perfect the appeal and could no longer find the file. Respondent presented no correspondence or other evidence indicating any communication between himself and Mr. Boudreaux during this period of time and Mr. Bou-dreaux testified that he had to obtain a copy of the judgment in his trial from Mr. Sweeney. With this in mind, the committee found clear and convincing evidence has been presented to establish that respondent failed to keep Mr. Boudreaux informed of the status of his case and that he failed to appeal the trial court’s judgment, despite Mr. Boudreaux’s clear instruction in that regard, all in violation of Rule 1.4.

The committee also noted that $400 of Mr. Boudreaux’s advanced costs appears to be missing. Mr. Boudreaux paid respondent $400 prior to his affiliation with Sweeney & Miller, and subsequently made payments of $400 and $300 during respondent’s affiliation with Sweeney & Miller. The last two payments are reflected on Sweeney & Miller’s ledger account, but respondent has failed to account for the initial $400 payment. Not only did respondent not account for the payment to Sweeney & Miller, he failed to provide Mr. Boudreaux with any accounting for the funds he paid. It was only after Mr. Bou-dreaux angrily, confronted Mr. Sweeney, 113after unsuccessfully attempting to obtain answers from respondent, that Mr. Bou-dreaux received an accounting of the funds paid to Sweeney & Miller. Respondent had no explanation for this and provided no accounting for these funds at the hearing. Having failed to account for his client’s funds, the committee found that respondent also violated Rule 8.4(c).

Count III: The committee found that Cher Minor retained respondent to represent her in a personal injury matter stemming from an automobile accident. Respondent settled Ms. Minor’s personal injury claim without her knowledge or permission, and he endorsed Ms. Minor’s signature on the settlement check, also without her permission. Ms. Minor testified that she did not receive any of the settlement proceeds and did not know who paid her medical bills.

Respondent stipulated at the hearing that he committed the rule violations alleged in Count III of the formal charges.

Count IV: The committee found that Michael Rome and his wife retained respondent to handle their bankruptcy. The Romes were behind on their mortgage note but wanted to save their house, which respondent told them they would be able to do in a Chapter 13 proceeding. Respondent admitted that he mishandled the bankruptcy filings, and as a result, the Romes ultimately lost their house. The stress of this ordeal has affected Mrs. Rome’s health, and she has been diagnosed with depression. Furthermore, the Romes had to hire another attorney to complete the bankruptcy.

Bankruptcy Judge Louis Phillips presided over the Romes’ bankruptcy proceeding. He testified that the creditor holding the mortgage on the Romes’ residence filed a motion to lift the automatic bankruptcy stay and that respondent did not file any opposition whatsoever. The Romes eventually appeared in Judge | , ¿Phillips’ court one day, without counsel, and asked him for help. Judge Phillips investigated the matter and uncovered false disclosures in the bankruptcy filings prepared by respondent. Judge Phillips made it clear that, if respondent had filed the proper type of bankruptcy proceeding in a timely fashion, the foreclosure process could have been stopped and the Romes could have kept their home.

Respondent stipulated at the hearing that he committed the rule violations alleged in Count IV of the formal charges.

Count VI: The committee found that Eric Cox retained respondent on September 27, 2000 (shortly before respondent’s departure from Sweeney & Miller) to represent him in a civil suit. On the same date, Mr. Cox paid respondent a retainer fee of $750. Respondent was to be paid hourly for his work, although he and Mr. Cox disagreed as to the amount of the hourly rate.

The defendant in the civil litigation, Michelle Mansur, rented residential property from Mr. Cox but decided to move out of the residence before the expiration of her lease agreement. Mr. Cox confronted Ms. Mansur as she was in the process of moving and shot at her vehicle several times with a pistol. As a result of this incident, Ms. Mansur sued Mr. Cox for personal injury damages. Mr. Cox retained respondent to defend the lawsuit and specifically requested that respondent file a reconven-tional demand for unpaid rent for the remaining term of Ms. Mansur’s lease and for alleged property damage caused by Ms. Mansur. Respondent filed an answer in the form of a general denial of the allegations set forth in Ms. Mansur’s petition, but he did not file a reconventional demand, as requested by Mr. Cox. Respondent testified that under the circumstances he felt a reconventional demand would have been frivolous.

|1BOver the next several months, Mr. Cox communicated with respondent on several occasions and was under the impression that the case was “moving along;” however, in July 2001, respondent was placed on interim suspension. Respondent did not notify Mr. Cox of his suspension and Mr. Cox learned of the suspension from someone else.

After respondent’s interim suspension, attorney Tammy Weaver moved her law practice into respondent’s office space and commenced using respondent’s telephone number as her own. The court scheduled a status conference in the Mansur civil matter and called respondent’s telephone number, as he was counsel of record for Mr. Cox. Since respondent was no longer practicing law and since Ms. Weaver was using respondent’s telephone number, Ms. Weaver was asked by the court to provide notice to Mr. Cox of the status conference. Ms. Weaver forwarded a letter to Mr. Cox advising him of the status conference and offering her assistance, but Mr. Cox never followed up. Additionally, Ms. Weaver spoke to Mr. Cox’s wife by telephone and briefly discussed the case with her. Ms. Weaver did not assume the representation of Mr. Cox.

At some point, attorney Brandon Brown enrolled as counsel for Mr. Cox and filed a reconventional demand on Mr. Cox’s behalf. The matter proceeded to trial, and after hearing the evidence, the trial court ruled in favor of Ms. Mansur and against Mr. Cox. The court awarded Ms. Mansur damages and dismissed Mr. Cox’s recon-ventional demand. There was no request by Ms. Mansur’s counsel or anyone else for any type of sanctions regarding the alleged frivolous nature of the reconven-tional demand, nor was any evidence presented to the committee that the trial judge or anyone else felt that the recon-ventional demand was frivolous. Subsequently, Mr. Brown perfected an appeal on Mr. Cox’s behalf, following which |1fithe trial court’s judgment was affirmed. See Mansur v. Cox, 04-0140 (La.App. 1st Cir.12/30/04), 898 So.2d 446.

Based on these factual findings, the committee determined that respondent neglected Mr. Cox’s legal matter in failing to file the reconventional demand and in failing to inform Mr. Cox of this fact. The committee did not agree with respondent’s position that the reconventional demand was frivolous and, moreover, did not believe respondent’s uncorroborated testimony that he told Mr. Cox he would not file the reconventional demand.

The committee also found that respondent did not keep Mr. Cox adequately informed of the status of his case. Mr. Cox admitted that he had approximately four conversations with respondent about his case over the initial few months of the representation. However, respondent, by his own admission, never informed Mr. Cox of his interim suspension in July 2001 and never informed him that he had not filed the reconventional demand. After his suspension, respondent left Mr. Cox’s file in his office, along with several other client files, and assumed that Ms. Weaver would take over Mr. Cox’s representation. Respondent never discussed this with Ms. Weaver or with Mr. Cox, and he clearly failed to protect Mr. Cox’s interests at the conclusion of his representation. Furthermore, there is no dispute that respondent failed to provide Mr. Cox with an accounting of his $750 retainer fee.

The committee found that, in his actions as set forth above, respondent violated duties owed to his clients, the public, the legal system, and the profession. He acted intentionally in unlawfully endorsing the names of his clients and Sweeney & Miller on a number of settlement checks and in converting the funds to his own use (Count I). He was also “extremely negligent and careless” in his representation of Mr. Boudreaux (Count II), Michael and Ada Rome (Count IV), and Eric Cox (Count VI). [17He ignored Mr. Bou-dreaux’s instructions to appeal an adverse judgment and likewise ignored Mr. Cox’s instructions to file a reconventional demand. These actions and inactions caused significant harm to respondent’s clients and to Sweeney & Miller. Some of respondent’s clients were never compensated for their injuries, some of his clients never received an accounting for fees they paid, and his clients did not receive meaningful legal representation. Respondent entered into a consent judgment in favor of Sweeney & Miller in the amount of $150,000 and stipulated that the judgment was not dischargeable under the bankruptcy rules, presumably because the judgment was a result of respondent’s continued misrepresentations, fraud, and misappropriation of funds due Sweeney <& Miller. Under the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction for respondent’s misconduct is disbarment.

As aggravating factors, the committee recognized the following: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, indifference to making restitution, illegal conduct, and “extreme damage to the legal profession.” With regard to mitigating factors, the committee stated:

Factors in mitigation include personal or emotional problems, as well as potential mental disability for which he sought treatment. Additionally, although it is questionable whether they are factors in mitigation, the Committee has considered the additional mitigation factors asserted by Respondent that he is a commended Veteran of the Armed Forces and is an active coach of YMCA youth programs.

The committee concluded:

The Committee notes Respondent’s vicious attacks on Mr. Sweeney throughout the extent of these proceedings, both at the hearing and in various pre-hear-ing motions and conferences. Additionally, although Respondent cooperated with ODC by providing a sworn statement, he has levied allegations against ODC that, in the Committee’s opinion, are completely unwarranted. These 11sfactors, along with Respondent’s continued denial of any wrongdoing in Counts I, II and VI, lead the Committee to believe that Respondent wishes to place blame for his actions anywhere but on his own shoulders.

Noting prior cases in which this court has imposed permanent disbarment for misconduct less egregious than respondent’s, and considering respondent’s lack of remorse and failure to make restitution to his innocent victims, the committee recommended that respondent be permanently disbarred. The committee further recommended that respondent be ordered to make full restitution to Sweeney & Miller in the amount of the consent judgment, as well as to the specific clients whose settlement proceeds were illegally converted by respondent to his own use.

Respondent filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

The disciplinary board accepted the hearing committee’s factual findings and agreed that the committee properly applied the Rules of Professional Conduct. Respondent intentionally violated duties owed to his clients, the public, and the profession. He caused actual harm by purposely engaging in a pattern of activities wherein he converted at least fourteen clients’ settlement funds and an unknown number of fees owed to third-party providers. Without authorization, respondent endorsed client names and the Sweeney & Miller name to checks and never accounted for the funds. Respondent’s conduct involved forgery, deceit, and misrepresentation, which are against duties owed to the public to abide by the law. The trust that a client places in the legal profession for help and representation has been undermined by respondent’s conversion of money and neglect of cases. Respondent’s decision to break the law and the Rules of Professional Conduct |19undermines the public’s trust in lawyers as those who work with the law and not outside of it.

In mitigation, the board acknowledged that respondent has no prior disciplinary record. As aggravating factors, the board recognized respondent’s dishonest or selfish motive, a pattern of misconduct, multi-pie offenses, refusal to acknowledge the wrongful nature of the conduct, indifference to making restitution, and illegal conduct.

The board determined that the baseline sanction for respondent’s misconduct is disbarment. However, the ODC has suggested, and the committee recommended, that respondent be permanently disbarred for his violation of Guideline 1 of the permanent disbarment guidelines (repeated or multiple instances of intentional conversion of client funds with substantial harm). The board agreed with this finding, noting that respondent intentionally converted the funds of fourteen clients. Respondent also converted funds belonging to an unknown number of third-party providers. By sheer volume alone, respondent has harmed more clients and third parties than the respondent in In re: Condolí, 01-3106 (La.1/24/03), 840 So.2d 502, who was permanently disbarred for depriving clients of their settlement funds and failing to refund unearned fees.

Under these circumstances, the board concluded that permanent disbarment is justified. Accordingly, the board recommended that respondent be permanently disbarred. The board further recommended that respondent be. ordered to provide anj^accounting to the clients named in the formal charges, pay restitution to the clients and third parties affected by his conduct, and be assessed with all costs and expenses of these proceedings.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board,, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Based on our review, we conclude the hearing committee’s factual findings are supported by the record. The evidence produced by the ODC establishes in a clear and convincing manner that respondent committed several acts of professional misconduct, the most serious of which is conversion of funds belonging to at least fourteen clients as well as an unknown number of third parties. Respondent’s actions violated numerous provisions of the Rules of Professional Conduct, including Rules 1.15 and 8.4.

Is,Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

In Louisiana State Bar Ass’n v. Hin-richs, 486 So.2d 116 (La.1986), we conducted an extensive review of the jurisprudence in conversion eases in order to determine the appropriate sanctions for different types of conversion. We reserved disbarment, then the most serious sanction available, for conversion cases in which one or more of the following elements are present:

the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.

The record supports a finding of nearly all of these elements in the instant case. Respondent’s actions were clearly undertaken in bad faith and were contrary to his clients’ interests. He committed fraudulent acts in connection with the conversion. His actions caused significant harm to his clients and third parties. Without question, the baseline sanction for respondent’s misconduct is disbarment.

However, this finding does not end our inquiry. In the years following Hinrichs, we have recognized that certain types of misconduct are so repugnant to the | ¡.¿standards of the legal profession that lawyers who engage in such actions should be permanently prohibited from practicing law. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct that might warrant such permanent disbarment. Pertinent to this case is Guideline 1, which suggests that permanent disbarment is appropriate for “repeated or multiple instances of intentional conversion of client funds with substantial harm.”

We do not lightly impose the sanction of permanent disbarment. In re: Gros, 03-3076 (La.4/23/04), 871 So.2d 1091; In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934. Nonetheless, we are firmly convinced that we would be remiss in our constitutional duty to regulate the practice of law if we did not impose that sanction here. As recognized by both the hearing committee and the disciplinary board, there are at least fourteen instances of conversion in this case, and possibly many more. Respondent’s actions, which included forgery, deceit and misrepresentation, caused actual and substantial harm to his clients and third parties. Respondent’s actions convincingly demonstrate that he does not possess the requisite moral fitness to practice law in this state. He must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is I ^ordered that the name of Robert Joseph Shortess, Jr., Louisiana Bar Roll No. 22618, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. Respondent is ordered to make restitution to his victims and to repay to the Louisiana State Bar Association’s Client Assistance Fund any amounts paid to claimants on his behalf. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . In the formal charges filed by the ODC on July 28, 2003, respondent was originally charged with a total of six counts of misconduct. However, during the hearing in this matter, Count V was dismissed in its entirety by the ODC. Accordingly, no reference is made in this opinion to Count V. Furthermore, in Counts II and IV, respondent was originally charged with failing to cooperate with the ODC in its investigation. The failure to cooperate charges were also dismissed by the ODC during the hearing, and no reference will be made to them herein.

      . There is no written agreement describing the nature of respondent’s position with the firm, and respondent, Neil Sweeney, and Ken Miller disagree whether he was hired as an associate, independent contractor, or “junior” partner. The hearing committee acknowledged this issue but determined that it is largely irrelevant for purposes of resolving the formal charges.

      .Fourteen clients are specifically identified in the formal charges: Cher Minor, Jackie Arnold, Melissa Cron, Toni Chauvin, Carissa Raby, Ricky Patín, Carlton Davis, Joan Lee, Michael Morris, Lloyd Dyer, Carl Nailing, Barbara Rineheart, Nancy Rineheart, and Aubrey Carroll.

      . At the formal hearing, respondent’s counsel stipulated that respondent endorsed Ms. Minor's signature on the back of the settlement check and that he did not have her permission to do so. Furthermore, in his own testimony, respondent admitted that he settled Ms. Minor’s personal injury claim without her knowledge or consent.

      . Respondent was ordered to repay Mr. and Mrs. Rome a $200 bankruptcy filing fee, plus a sanction of $237.60, representing the wages lost by Mr. Rome in attending two hearings in the bankruptcy court, for a total of $437.60.

      . Both Mr. Sweeney and Mr. Miller testified that they received no compensation from any of the settlements, despite the fact that the clients clearly signed Sweeney & Miller retainer agreements.

      . Respondent testified that he forwarded various checks regarding these files to Mr. Miller. However, no corroborating evidence was presented to substantiate this allegation. Based on the testimony of Mr. Sweeney and Mr. Miller, the committee concluded that no such payments were ever made. Sweeney & Miller ultimately paid a number of these expenses without ever receiving a fee for their services or any reimbursement of these costs from respondent or anyone else.

      . The board refused to credit respondent with other penalties or sanctions, as the consent judgment to repay $150,000 to the Sweeney & Miller firm was an attempt to make the law firm whole for what respondent converted; it was not punitive in nature. Moreover, the board refused to recognize in mitigation any personal or emotional problems suffered by respondent. Respondent was hospitalized in June 2001 during his bankruptcy proceeding, at which point he expressed the thought that his family would be better off if he were dead. However, there was no testimony to support a causal connection between respondent’s hospitalization and the conduct that forms the basis of the formal charges.

      . In addition to these obligations, the board noted that respondent "remains bound to honor the bankruptcy court consent judgment."

      . In brief and argument to this court, respondent asserted that he cannot be disbarred on a permanent basis because to do so would constitute an ex post facto law. He submits the sanction of permanent disbarment was not available at the time his interim suspension became effective on July 6, 2001. As such, respondent contends that he "entered into the penalty phase” before the amendments to Rule XIX were adopted, and any sanction imposed upon him must allow him to reapply for admission, as that right existed on the day of his interim suspension.
      We see no merit whatsoever to this argument. It is well-settled law that the amendments to Supreme Court Rule XIX, § 10 and § 24 providing for permanent disbarment do not have an ex post facto effect on cases arising prior to the adoption. In re: Laudu-miey & Mann, 03-0234 (La.6/27/03), 849 So.2d 515, cert, denied, 540 U.S. 1048, 124 S.Ct. 814, 157 L.Ed.2d 697 (2003). Likewise, we see nothing in our rules or jurisprudence which would support respondent’s contention that his “right to be sanctioned” is fixed on the date he is placed on interim suspension.