author: SAUNDERS, Judge.

text:
    Annie R.H. RAPP, et al. v. IBERIA PARISH SCHOOL BOARD, et al.
    Nos. CA 05-833.
    Court of Appeal of Louisiana, Third Circuit.
    March 1, 2006.
    Rehearing Denied May 3, 2006.

      David Robert Kelly, Breazeale, Sachse, & Wilson, Baton Rouge, LA, for Defendant/Appellant, Honeywell International, Inc.
    Walter Clayton Dumas, Dumas & Associates Law Corporation, Baton Rouge, LA, for Plaintiffs/Appellees, Kelly Charpentier, Fred Charpentier, Harold Alexander, Jr.
    David W. Groner, Attorney at Law, New Iberia, LA, for Plaintiffs/Appellees, Jeanine Collins, Nicole Collins, James Neil Collins, Clame Collins.
    Gary Mark Zwain, Duplass, Zwain & Buirgeios, Metairie, LA, for Defendant/Appellant, Crown Roofing Services, Inc.
    David Perry Salley Salley, Hite, Rivera & Mercer, Baton Rouge, LA, for Defendant/Appellant, Iberia Parish School Board.
    P. Charles Calahan, Attorney at Law, Iberia, LA, for Plaintiffs/Appellees, B.H. Calahan, Annie R.H. Rapp.
    Chet Girard Boudreaux, McKernan Law Firm, Baton Rouge, LA, for Plaintiffs/Ap-pellees, James Neil Collins, Claire Collins, B.H. Calahan, Nicole Collins, Jeanine Collins, Harold Alexander, Jr., Annie R.H. Rapp, Fred Charpentier, Kelly Charpentier.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

I TThis class action arises from injuries allegedly sustained when the claimants were exposed to chemical fumes at New Iberia Senior High School (hereinafter referred to as “NISH”). Plaintiffs claim that fumes from certain chemicals used during a roofing project entered the school complex and caused injuries. Three suits, all styled as class actions, were filed shortly after the incident and were subsequently consolidated. A master class petition was filed and, following a hearing, the trial court certified the class. Defendants timely appealed the judgment of certification. We affirm.

FACTS AND PROCEDURAL HISTORY

In September 2003, Crown Roofing Services (hereinafter referred to as “Crown”) performed work on the roof of certain buildings at NISH. Crown used the Honeywell, Inc. product Armor-Flex during this process. Armor-Flex contains vinyl acetate terpolymer, lignin surfactant, ethylene glycol phenyl ether, sodium meta-borate, and other chemicals. While the product was in use, fumes from these chemicals drifted into classrooms, hallways, and other areas in the affected buildings. At the request of the Iberia Parish School Board, Crown ceased roofing activities until the school closed for Christmas break.

Shortly after Crown ceased their activities, three separate suits were filed, each styled as a class action proceeding. The three suits were consolidated and a Master Class Petition for Damages was filed on June 17, 2004, seeking to certify a class of:

[a]ny and all persons who attended, visited and/or were present at the NISH complex on or about September, October and/or November of 2003 and who suffered indirect or consequential injury as a result of exposure to, the product of Armor-Flex.

|2A hearing on class certification was held on October 22, 2004. The parties then submitted post-hearing briefs and a judgment certifying the class was issued on December 17, 2004. Defendants appeal that judgment.

ASSIGNMENTS OF ERROR

1) The trial court erred in certifying this matter as a class action.
A)The trial court erred in finding that the numerosity requirement has been satisfied. This error includes but is not limited to the trial court’s failure to consider any evidence relating to exposure, levels of exposure and resulting injuries/damages.
B) The trial court erred in finding that the commonality requirement has been satisfied.
C) The trial court erred in finding that the typicality requirement has been satisfied.
D) The trial court erred in finding that the representative parties will fairly and adequately protect the interests of the class.
E) The trial court erred in finding that the class can be objectively defined.
F) The trial court erred in finding that common questions of law and fact predominate.
G) The trial court erred in finding that the class action procedure is superior to other procedural options for resolving the plaintiffs’ claim.

STANDARD OF REVIEW

When reviewing the certification of a class, the particular facts and circumstances of each case must be analyzed. Martello v. City of Ferriday, 01-1240 (La.App. 3 Cir. 3/6/02), 813 So.2d 467, writs denied, 02-1002, 02-990, 02-1514 (La.6/7/02), 818 So.2d 769, 770, 771. Trial courts, however, have broad discretion in | sdeciding whether a class should be certified. Id. Trial courts also have the discretion to amend or reverse certification determinations at any time. La.Code Civ.P. art. 592(A)(3)(c). Appellate courts may not disturb a trial court’s ruling on certification unless it is manifestly erroneous. Martello, 813 So.2d 467. Additionally, courts should err in favor of the maintenance of class actions. McCastle v. Rollins Envtl. Servs. of La., Inc., 456 So.2d 612 (La.1984). Furthermore, whether plaintiffs have stated a cause of action or the probability of their success on the merits, should not concern the court. West v. G & H Seed Co., et al., 01-1453 (La.App. 3 Cir. 8/28/02), 832 So.2d 274.

ASSIGNMENT OF ERROR NUMBER 1A

In order for a class action to be maintained, plaintiffs must show that:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.
B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
(1)The prosecution of separate actions by or against individual members of the class would create a risk of:
|4(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(b)Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
(4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.

| sLa.Code Civ.P. art.‘591. In this assignment, defendants argue that the trial court erred in finding that plaintiffs satisfied the numerosity requirement and rely heavily upon the first circuit’s decision in Hampton v. Illinois Central Railroad Co., 98-0430 to 98-435 (La.App. 1 Cir. 4/1/99), 730 So.2d 1091 in support of their contention. In Hampton, the first circuit reversed the trial court’s certification of a class, concluding that “there was insufficient evidence which causally related the alleged physical symptoms of the proposed class representative to the incident.” Id. at 1096. The court noted that there was conflicting testimony regarding symptoms and an absence of expert testimony indicating a causal link between a chemical leak and injuries; therefore, 'the record did not support that “numerosity of plausible claims” was established. Id. at 1094-95.

The Hampton decision was subsequently revisited and distinguished by the first circuit in Boyd v. Allied Signal, Inc., 03-1840 to 03-1843 (La.App. 1 Cir. 12/30/04), 898 So.2d 450, writ denied, 05-191 (La.4/1/05), 897 So.2d 606. Boyd is cited by plaintiffs in support of their contention that the1 expert testimony presented and establishment of a geographical boundary distinguish this matter from Hampton. Defendants cite Boyd as a re-emphasis of the so-called plausibility requirement by the First Circuit. In Boyd, a tractor trailer carrying toxic chemicals began to leak and the driver stopped the unit on Interstate 12. Id. Eleven homes were evacuated and the problem was eventually-remedied. Id. A class was certified and the defendants appealed the certification. Id. The court applied the same standard of review set forth here and noted that “[t]he party seeking to maintain the class action bears the initial burden of prima facie proof of’ the elements of a class action. Id. at 457. Subsequently, the court stated that requiring plausibility as a component of the prima | f;facie showing was done to emphasize the fact that mere allegations that a large number of potential claimants exist are not sufficient to establish numer-osity. Id. Specifically the court concluded that:

[i]n the case of a mass tort, this burden of plausibility requires some evidence of a causal link between the incident and the injuries or damages claimed by sufficiently numerous class members. This prima facie showing need not rise to the status of proof by a preponderance of the evidence, as would be necessary to prevail on the merits.

Id. [Emphasis' added]. The court went on to “emphasize” that the burden “is not fairly comparable to the burden of proof of causation, medical or otherwise, on the merits.” Id. at 463. After acknowledging the expert testimony offered by plaintiffs, the court noted the sheer number of submitted “proof of claim” forms, as well as the number of people residing in the affected area, and determined that numerosity was satisfied. Id.

Furthermore, Hampton has only been cited once by this court. In West, 832 So.2d 274; we discussed Hampton and did riot specifically adopt thé plausibility requirement found therein. In that case, crawfish farmers filed suit for damages to their crops allegedly due to an insecticide. Id. A class was certified and defendants appealed arguing, among other things, that numerosity, as defined in Hampton, was not satisfied. Id. Interpreting -the numer-osity requirement, this court stated that “the ‘aggrieved persons’ aspect of numer-osity” does not require plaintiffs to prove liability. Id. We found that the plaintiffs did not merely allege that a large group of claimants existed, but also introduced testimony indicating there was a large number of farmers who1 attributed crawfish mortality rates to the insecticide. Id. Defendants argued that the plaintiffs’ showing was inadequate because use of thé particular insecticide coincided with a severe drought. Id. This court held that to weigh these 17two allegations was to make a determination on the merits, which was prohibited at that stage of the proceedings. Id. We do the same here.

Defendants herein argue that plaintiffs have not offered evidence of a causal link between the use of the chemicals and the injuries alleged by hundreds of claimants. We disagree. Dr. Barry Levy, an expert witness for plaintiffs, stated in his report that students, teachers, and staff members of NISH developed persistent symptoms such as headache, nausea, and dizziness related to the exposure of chemicals at the complex. He also noted documented laboratory abnormalities among those exposed to the chemicals. Dr. Vernon Rose, another expert witness for plaintiffs, stated in his report that the heating ventilation and air conditioner intake valves, responsible for bringing fresh outside air into the buildings, were located on the roof near the roofing project. Accordingly, Dr. Rose opined that most, if not all, occupants of NISH were exposed to the vapors and fumes generated by the roofing project. Furthermore, Dr. Paul Templet noted in his report that the Armor-Flex manufacturer’s information advises those applying the product to cover fresh air intakes in order to reduce the likelihood that odors enter the building. He also testified that he was affected by the vapors during his visit to NISH. Defendants further argue that, based upon air sample data, the concentration of chemicals found in the school did not exceed acceptable limits. Dr. Templet, however, noted that it is likely that the chemical concentrations were higher before the roofing work was stopped approximately two and a half weeks before samples were taken.

Based upon the record before us, we find that plaintiffs did not rest upon mere allegations that there was a large number of potential claimants. Rather, they introduced evidence of numerous aggrieved individuals. While there is contradictory | ^evidence regarding exposure, resolving that issue goes to the merits, which we are not permitted to do at this stage in the proceedings. Our role at this stage is that of gatekeeper, not final arbiter.

Next, we must determine whether the class is so numerous that joinder is impracticable. La.Code Civ.P. art. 591(A)(1). Because hundreds of claimants have already been identified and others possibly remain, we conclude that joinder would be impracticable. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBERS IB, IF, AND 1G

Because the commonality requirement in La.Code Civ.P. art. 591(A) and the requirements that common questions of law or fact predominate and that the class action be superior to other adjudicatory methods for the purpose of effectuating substantive law, judicial efficiency, and individual fairness in La.Code Civ.P. art. 591(B)(3) are so related, we will address all three together. Defendants argue that the trial court erred in finding that there are questions of law or fact common to the class and that, if common questions are found, they do not predominate over questions affecting individual members. Defendants argue that the varying location of the claimants within the complex, their varying lengths of exposure and reported symptoms, the diversity of medical providers from whom treatment was sought, and different elements and types of damages alleged show that individual issues predominate. Furthermore, plaintiffs’ varying medical histories, .as well as other possible sources of exposure and theories of liability, are also urged by defendants as reasons why the commonality requirement is not satisfied and individual issues predominate over questions common to the class. Defendants cite Richardson v. American Cyanamid Co., 99-675 to 99-682 (La.App. 5 Cir. 2/29/00), 757 So.2d 135 in support of their argument. This argument is unpersuasive.

In Richardson, the court noted internal inconsistencies in alleged injuries, among several other factors, when decertifying a class. Id. The class in Richardson, however, was decertified after a trial on the merits. Here, there has been no trial on the merits, therefore, Richardson is distinguishable from the case at bar.

Furthermore, “[t]he test of commonality is not a demanding one, and requires only that there be at least one issue, the resolution of which will affect all or a significant number of the putative class members.” Duke v. Texaco, Inc., 99-2002, p. 12 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, 1078, writ denied, 01-637 (La.4/27/01), 791 So.2d 637 (citing Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620 (5th Cir.1999), cert. denied, 528 U.S. 1159, 120 S.Ct. 1169, 145 L.Ed.2d 1078 (2000). The trial court found that the plaintiffs were exposed to the same chemicals, at the same location, and suffered the same injuries. Accordingly, they face common legal and factual questions regarding liability and fault that predominate over questions specific to individual members of the class. We find no manifest error in this conclusion. The common question here is liability. If liability is established for one member, it is present for all. This is true regardless of the fact that there may be different levels of damages proven by different groups of plaintiffs, the proof of which may hinge upon their location within the complex and the duration of their exposure. Because resolution of the liability issue will certainly affect all or a significant portion of the putative class members there are questions of law or fact common to the class.

Finally, the trial court concluded that, in the case sub judice, the class action procedure is superior “to other adjudicatory methods for the purpose of effectuating | msubstantive law, judicial efficiency, and individual fairness.” La.Code Civ.P. art. 591(B)(3). Defendants point to a lengthy list of potential subclasses containing claimants exposed at different times and locations as a reason why the class action is not superior to other adjudicatory methods. They then cite Ford v. Murphy Oil U.S.A., Inc., 96-2913, 96-2917, 96-2929 (La.9/9/97), 703 So.2d 542 in support of their argument. As previously noted, variations regarding time and location of exposure among the list of possible subclasses goes to proof of damages. When the central issue is liability, however, “varying degrees of damages ... or [the fact] that class members must individually prove their right to recover does not preclude class certification.” West, 832 So.2d at 287, (quoting Bartlett v. Browning-Ferris Indus. Chem. Serv., Inc., 99-494, p. 3 (La.11/12/99), 759 So.2d 755, 756). Furthermore, Ford is distinguishable from the instant matter. In Ford, residents of St. Bernard and Orleans parishes brought suit against four petrochemical plants along the Mississippi River. Ford, 703 So.2d 542. The court noted that, because of the nature of claims involved, each class member would have to prove different facts to establish the defendants’ liability. That is not the case here. As the trial court correctly found, all claimants face the same questions regarding liability and fault. Accordingly, Ford does not control our analysis in this matter.

We find that the trial court was not manifestly erroneous in ruling that the class action procedure is superior in terms of effectuating substantive law, judicial efficiency, and individual fairness. La.Code Civ.P. art. 591(B)(3). In the instant matter, the class action procedure promotes these stated objectives because liability is the central issue and common to all parties. Utilization of this procedure will allow this issue to be determined in one proceeding without the risk of different findings h regarding this central issue. It also allows the court to protect the interests of individuals who might not bring an individual suit, but were injured nonetheless. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 1C

In this assignment, defendants contend that the claims of the representative parties are not typical of the remainder of the class. Specifically, defendants argue that the named plaintiffs allegedly suffered nosebleeds, headaches, and shortness of breath. These injuries, according to defendants, are divergent from the claims of other class members who claim to have suffered symptoms commonly associated with smoking, seasonal colds, and allergies. We disagree.

The typicality requirement is satisfied if the representatives’ claims and those of the putative class members “arise out of the same event or course of conduct as the class members’ claims and are based on the same legal theory.” West, 832 So.2d at 293, (quoting Duhe, 779 So.2d at 1079). Furthermore, the test for typicality is not a demanding one. Id. Because the claims of the representative parties and the remainder of the proposed class all arise from their exposure to chemicals at NISH and their theory of liability is the same as to each defendant, we find that the trial judge was not manifestly erroneous in concluding that the typicality requirement was satisfied. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER ID

Here, defendants argue that the trial judge erred in determining that the representative parties adequately protect the interests of the class. Defendants first argue that the interests of the class are not protected because suit has not been brought against manufacturers of other roofing products used by Crown that could 112have caused the injuries alleged by plaintiffs. These considerations, however, go toward liability. Defendants will have an opportunity to show that no injuries were caused at all or that someone else was responsible for the alleged injuries at a trial on the merits. The fact that plaintiffs did not name other parties whom defendants believe should be in the suit does not mean that the rights of the putative class members are not protected by the representative parties.

Defendants then contend that plaintiffs’ counsel and expert fall within the class as presently defined; therefore, by virtue of their roles in this matter, they have interests that are in conflict with other class members. There is no evidence, however, that Mr. Groner and Dr. Templet have filed claims in the matter. Furthermore, if they decline to do so, the claims of the remainder of the class are not prejudiced as argued by defendants. Their failure to assert a claim would be an attempt to avoid possible conflict, not an indictment on the veracity of the underlying allegations. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER IE

In this assignment, defendants argue that the trial court erred in finding that the class can be objectively defined. Specifically, defendants claim that the class definition, providing in pertinent part that the class consists of “[a]ny and all persons who attended, visited and/or were present at the NISH complex on or about September, October and/or November of 2003,” is overly broad both temporally and geographically. They contend the evidence suggests that the class should be limited to those present in a specific area of the high school during a shorter time frame than that contained within the class definition. This argument is unpersuasive.

| isFirst, any determination on our part that there was no exposure in certain areas of the complex at given times is a determination of the merits of. the case. As previously noted, such a determination is improper at this stage of the proceeding. Furthermore, pursuant to La.Code Civ.P. art. 592(A)(3)(c), the trial court may amend or reverse its original ruling on certification or enlarge or restrict the constituency of the class. When ruling on this issue the trial court noted that the class definition may be overly broad and reserved its right to redefine the constituency of the class. We do not believe, as do defendants, that this observation is a shortcut to the certification process. The trial court determined that there are objective and ascertainable criteria by which this class can be defined. Given that this incident consists of chemical leakage at a single location, we find no manifest error in the trial court’s conclusion. This assignment lacks merit.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed equally against defendants.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    James Neil COLLINS, et al. v. IBERIA PARISH SCHOOL BOARD, et al.
    Nos. CA 05-834.
    Court of Appeal of Louisiana, Third Circuit.
    March 1, 2006.
    Rehearing Denied May 3, 2006.
    David Robert Kelly, Breazeale, Sachse, and Wilson, Baton Rouge, LA, for Defendant/Appellant, Honeywell International, Inc.
    Walter Clayton Dumas, Dumas & Associates Law Corporation, Baton Rouge, LA, for Plaintiffs/Appellees, Kelly Charpentier, Fred Charpentier, Harold Alexander, Jr.
    David W. Groner, Attorney at Law, New Iberia, LA, for Plaintiffs/Appellees, Jeanine Collins, Nicole Collins, James Neil Collins, Claire Collins.
    Gary Mark Zwain, Duplass, Zwain & Buirgeios, Metairie, LA, for Defendant/Appellant, Crown Roofing Services, Inc.
    David Perry Salley, Salley, Hite, Rivera & Mercer, Baton Rouge, LA, for Defendant/Appellant, Iberia Parish School Board.
    P. Charles Calahan, Attorney at Law, New Iberia, LA, for Plaintiffs/Appellees, B.H. Calahan, Annie R.H. Rapp.
    Chet Girard Boudreaux, McKernan Law Firm, Baton Rouge, LA, for Plaintiffs/Ap-pellees, James Neil Collins, Claire Collins, B.H. Calahan, Nicole Collins, Jeanine Collins, Harold Alexander, Jr., Annie R.H. Rapp, Fred Charpentier, Kelly Charpentier.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

For the reasons set forth in the companion case hereto, Annie R.H. Rapp, et al. Versus Iberia Parish School Board, et al., 05-833 (La.App. 3 Cir.3/1/06), 926 So.2d 30, 2006 WL 473929, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Harold ALEXANDER v. IBERIA PARISH SCHOOL BOARD, et al.
    Nos. CA 05-835.
    Court of Appeal of Louisiana, Third Circuit.
    March 1, 2006.
    Rehearing Denied May 3, 2006.
    David Robert Kelly, Breazeale, Sachse, and Wilson, Baton Rouge, LA, for Defendant/Appellant, Honeywell International, Inc.
    Walter Clayton Dumas, Dumas & Associates Law Corporation, Baton Rouge, LA, for Plaintiffs/Appellees, Kelly Charpentier, Fred Charpentier, Harold Alexander, Jr.
    David W. Groner, Attorney at Law, New Iberia, LA, for Plaintiffs/Appellees, Jeanine Collins, Nicole Collins, James Neil Collins, Claire Collins.
    Gary Mark Zwain, Duplass, Zwain & Buirgeios, Metairie, LA, for Defendant/Appellant, Crown Roofing Services, Inc.
    David Perry Salley, Salley, Hite, Rivera & Mercer, Baton Rouge, LA, for Defendant/Appellant, Iberia Parish School Board.
    P. Charles Calahan, Attorney at Law, New Iberia, LA, for Plaintiffs/Appellees, B.H. Calahan, Annie R.H. Rapp.
    Chet Girard Boudreaux, McKernan Law Firm, Baton Rouge, LA, for Plaintiffs/Ap-pellees, James Neil Collins, Claire Collins, B.H. Calahan, Nicole Collins, Jeanine Collins, Harold Alexander, Jr., Annie R.H. Rapp, Fred Charpentier, Kelly Charpentier.
    Chet Girard Boudreaux, In Proper Person, Lafayette, LA.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

For the reasons set forth in the companion case hereto, Annie R.H. Rapp, et al. Versus Iberia Parish School Board, et al., 05-833 (La.App. 3 Cir. 3/1/06), 926 So.2d 30, 2006 WL 473929, the judgment of the trial court is affirmed.

AFFIRMED.


author: PAINTER, Judge.

text:
    STATE of Louisiana v. Dawn R. HARGRAVE.
    No. 05-1027.
    Court of Appeal of Louisiana, Third Circuit.
    March 1, 2006.

      Edward K. Bauman, Lake Charles, LA, for DefendanU-Appellant: Dawn Har-grave.
    Richard J. Putnam, III, Abbeville, LA, for Appellee: State of Louisiana.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

|, Defendant, Dawn Hargrave, appeals her conviction for second degree murder and the mandatory sentence of life imprisonment imposed in connection therewith.

FACTS

On July 26, 2002, Defendant was at a bar in Kaplan with a friend, Trenda Nichols Pratt. Defendant left the bar. Defendant admitted in a statement to the investigating officers that she went to J.D. Hebert’s residence to borrow money from him. When Defendant returned to the bar, she was bleeding, had cuts on her face, and an injury to one eye. Pratt drove her first to Abrom Kaplan Memorial Hospital and later to Lafayette General.

Meanwhile, at about 9:30 p.m., Hebert, who was seventy-three years old, telephoned one of his daughters, Ellen Buf-ford, who lived next door. She went to his house and found him bloodied, with swelling on his head, and complaining of pain. He was doubled over, holding his abdomen, and complaining of a strong urge to urinate. Since Hebert seemed to be in severe pain, his daughter called an ambulance and the Sheriffs Department. Hebert arrived at Abrom Kaplan Memorial Hospital at approximately 11:00 p.m. Buf-ford called her brother, Joseph Hebert, who also drove to his father’s residence and saw his injuries. He noticed that the residence was in disarray. The first deputy on the scene was Allen Bernhart. He observed that Hebert was bleeding from his head and had wounds on his arms. Hebert spoke but was incoherent at times. The deputy also noticed the room was in disarray and that there was a significant amount of blood spatter.

Hebert was later air-lifted from Abrom Kaplan Memorial Hospital to Our Lady of Lourdes Hospital. There, the staff performed a hernia operation. Hebert’s health |2appeared to improve at first, but then deteriorated, and he died on August 2, 2002 of what was later determined to be a head injury received on July 26.

On September 19, 2002, the State filed a bill of indictment charging Defendant with first degree murder, a violation of La.R.S. 14:30. In October 2002, she entered a plea of not guilty and not guilty by reason of insanity. On December 11, 2002, the State amended the charge to second degree murder, a violation of La.R.S. 14:30.1. The court appointed a sanity commission on December 19, 2002. Defendant was arraigned on April 23, 2003 on the amended charge and again entered a plea of not guilty and not guilty by reason of insanity. On July 16, 2003, the court determined that Defendant was competent to stand trial. Defendant waived her right to trial by jury.

On January 25-26, 2005, the court conducted a bench trial and found Defendant guilty as charged. The court sentenced Defendant to the mandatory term of life imprisonment on February 24, 2005. Defendant now appeals her conviction and sentence.

DISCUSSION

Sufficiency of the Evidence

It is important to note that there was no eyewitnesses to the crime with which Defendant was charged. As a result, the State relied upon circumstantial evidence to obtain the conviction. The standard for circumstantial evidence in a “Jackson review” is well-established:

In reviewing the sufficiency of the evidence to support a conviction, an appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Further, when the conviction is based upon circumstantial evidence, LA. REV.STAT. ANN. § 15:438 provides that such evidence must exclude every reasonable hypothesis of innocence. State v. Camp, 446 So.2d 1207, 1209 (La.1984); State v. Wright, 445 So.2d 1198, 1201 (La.1984). However, LA. REV.STAT. ANN. § 15:438 does not establish a stricter standard of review than the more general rational juror’s reasonable doubt standard; it is merely an evidentiary guide for the jury when considering circumstantial evidence. State v. Porretto, 468 So.2d 1142, 1146 (La.1985).

State v. Manning, 03-1982, p. 46 (La.10/19/04), 885 So.2d 1044, 1088, cert. denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005).

Defendant asserts that the State failed to prove beyond a reasonable doubt that she was not acting in self-defense when she struck the victim. “In a homicide case such as this, in which the defendant asserts that he acted in self-defense, the state has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Brown, 414 So.2d 726, 728 (La.1982).” State v. Taylor, 03-1834, p. 7 (La.5/25/04), 875 So.2d 58, 63.

Defendant concedes that she pushed the victim and kicked him in the testicles. She also states that the victim fell against a “tv stand.” However, she argues that she was defending herself from sexual advances by the victim. Defendant did not testify, but her statement to police was introduced at trial. In that statement, she claimed she went to the victim’s residence to borrow some money. According to Defendant, she used the restroom, and, when she came out, the victim was nude. He then tried to force himself on her, but she pushed him away. Defendant claimed the victim then poked her eye with “some object,” then tried to force her head toward his genitalia. She then kicked him in the groin, he fell, and she left the residence.

The Defendant, not the State, has the burden of proof on a defense of manslaughter. State v. Wright, 02-1268 (La.App. 3 Cir. 3/5/03), 839 So.2d 1112. Louisiana has followed the rule articulated in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), requiring a defendant to prove the mitigating factors of sudden passion or heat of blood to reduce homicide to manslaughter. State v. Smith, 571 So.2d 133 (La.1990). A defendant who establishes by a preponderance of the evidence that the homicide was committed in sudden passion or heat of blood, the jury errs in finding the defendant guilty of second degree murder. Smith, 571 So.2d at 136. This being said, the jury in this case could believe or disbelieve the version related by the Defendant to the police officer, and the failure to find manslaughter is not reversible error.

The court in State v. Richardson, 92-836, p. 4 (La.App. 5 Cir. 12/14/94), 648 So.2d 945, 947, writ denied, 95-343 (La.6/23/95), 656 So.2d 1011 explained the standard to be used in determining whether the use of force is justified in both homicide and non-homicide cases:

LSA-R.S. 14:19 establishes the standard to be applied in determining whether the use of force or violence on the person of another is justified when such force or violence does not result in death:
Thus, the defense of self-defense in a non-homicide situation requires a dual inquiry: an objective inquiry into whether the force used was reasonable under the circumstances, and a subjective inquiry into whether the force was apparently necessary. State v. Freeman, 427 So.2d 1161 (La.1983).
In contrast, when such force or violence results in a homicide, the standard as set forth in LSA-R.S. 14:20 is applicable:
Under this standard the use of force is justified in self-defense only if the person reasonably believed (objective) that he was in imminent danger of losing his life or receiving great bodily harm and that deadly force was necessary to save himself. State v. Guinn, 319 So.2d 407 (La.1975).

[^Because the victim ultimately died from injuries received in this incident, the homicide standard applies here. However, the force used by Defendant was not reasonable under either standard. The events described by Defendant in her statement do not indicate a need for deadly force or the infliction of great bodily harm. Even had the victim survived, the force used on him could not be described as reasonable or necessary.

The victim’s daughter and son and the deputy called to the scene, all described the victim as bloody. The victim had an obvious injury to the head and defensive wounds on his arms. The medical evidence demonstrated that he had been “beaten head to toe.” The victim was a small man, five feet, six inches tall and one hundred forty five pounds. As Defendant’s trial counsel acknowledged, the victim was “a frail old man.” Pratt stated that the victim frequently “made passes” at her but acknowledged that he was easily repelled because “[t]here was nothing to him.” Defendant’s height and weight are not in the record, but she was apparently in her mid-thirties, much younger than the victim. The testimony also indicated that she was a capable fighter and had battered the victim in a barroom prior to the offense at issue.

Baines Richard, an acquaintance of both the victim and Defendant, testified that he saw her “cold-cock” the elderly man at a Kaplan bar called “Rumors,” knocking him from a stool. According to Richard, the incident occurred approximately six months before the offense at issue. Pratt testified that a few months before the offense at issue, while at “Rumors,” she saw Defendant grab the | fielderly victim by the neck and throw him under a pool table. It is not clear whether the two witnesses were describing two separate incidents or two versions of the same incident. In either case, this evidence shows that Defendant had the ability to.physically dominate the victim, and was aware that she could do so prior to the offense at issue. Richard and Pratt both testified the dispute, or disputes, centered around money the victim had lent Defendant or Pratt.

The record demonstrates Defendant had little to fear from the frail, elderly victim. Even if it became necessary for her to physically repel him, the force she used was clearly excessive. Dr. Emil Laga, the forensic pathologist who fexamined the victim’s body, noted multiple external injuries including a three- to four-inch bruise on the left temple area of the head extending behind the ear towards the back of the head, three lacerations on the left upper eyelid, below the left eye, and on the left ear. Injuries to his legs included two bruises on the lower left leg and two on the right leg, a deep cut over his right knee, injuries to the groin, and a four-inch bruise on the left buttock. Dr. Laga agreed that the victim was beaten from head to toe, with the major injuries on the left side of his body. He opined that the injuries may have been inflicted by hitting him with the wooden TV tray, which was found at his residence.

Given her history of physically dominating the victim, even Defendant’s version of events does not depict a scenario in which she could reasonably have believed that she was in danger of death or great bodily harm or one that called for her to inflict great bodily harm or death in order to defend herself.

Defendant further suggests the evidence does not “satisfy the requirements of due process” because fingerprints were not lifted from a wooden TV tray that may have been used in the offense, blood spatter was not analyzed for DNA, and the scene |7was left unsecured and unprocessed until August 2, 2002. As this court has previously stated:

It is well-established that the State has discretion regarding how to make out its case. Presence or absence of evidence, and weight of the evidence produced, are matters to be assessed by the fact-finder. For' example, there is no legal requirement for. the State to. test for fingerprints, .produce fingerprint evidence, test certain evidence, or call certain witnesses to satisfy, the elements of the offense at issue. See State v. Green, 94-986 (La.App. 3 Cir. 3/1/95), 651 So.2d 435.

State v. Cash, 03-853, p. 6 (La.App. 3 Cir. 12/10/03), 861 So.2d 851, 855-56, writ denied, 04-27 (La.4/30/04), 872 So.2d 472, writ denied, 04-232 (La.5/7/04), 872 So.2d 1080. We find no merit in this aspect of Defendant’s argument.

Defendant also notes that a defense expert, neurologist Dr. Donald Harper, testified that he did not believe that Defendant died of &■ closed-head injury. However, Defendant does- not argue the significance of Dr. Harper’s opinion to her conviction, thereby presenting this court with nothing to' review. Dr. Laga testified that the victim died from a closed-head injury near the base of his skull and that the injury was consistent with a blow from the tv stand that was found in the victim’s residence. The weighing of evidence, including credibility of expert witnesses, is a matter for the trier of fact. State v. Silman, 95-154 (La.11/27/95), 663 So.2d 27.

Also; Defendant urges as significant the fact that the victim had been in a one-vehicle accident shortly before the offense at issue. However, witness Josh Touchet testified that on July 26, 2002, while driving home, he saw a car in a ditch by the road. Touchet stopped and helped Hebert out of the car. The witness saw no damage to the car and no injuries to the elderly man. Further, he testified Hebert did not complain of any injuries. Hebert’s daughter, Ellen Bufford, testified that she picked him up at the accident scene. She did not call an ambulance or take him to a doctor |sbecause he showed no signs of injury and did not complain of any. The accident apparently did not damage the car. .In its ruling, the trial court found that there was no evidence that the accident caused the victim’s injuries. In view of the testimony just cited, the trial court did not err in making such an assessment. Therefore, this portion of Defendant’s argument lacks merit.

Defendant makes the alternative argument that ■ the verdict against her should have been manslaughter, pursuant to La.R.S. 14:31, rather than second degree murder. She argues that she acted in the “heat of blood” as termed in the statute, stating she was angry because the victim refused to lend her any money. However, for factual support, she cites a statement that was not introduced at trial. Thus, it is not appropriate for appellate review. Further, the victim’s apparent refusal to lend money to Defendant was not “provocation sufficient to deprive an average person of his self-control” as required by La.R.S. 14:31. See, e.g., State v. Chelette, 453 So.2d 1282, 1287 (La.App. 3 Cir.), writ denied, 458 So.2d 127 (La.1984).

Therefore, we find that the evidence, “viewed in the light most favorable to the prosecution was sufficient to convince a rational trier of fact that all the elements of the crime was proved [sic] beyond a reasonable doubt,” and excludes “every reasonable hypothesis of innocense.” Manning, 885 So.2d at 1088.

Waiver of Right to Trial by Jury.

Appeal counsel for Defendant argues that she was not informed of, nor did she knowingly and intelligently waive, her right to trial by jury, as required by La. Code Crim.P. art. 780. In brief, he observes that the minutes of the original record do not show that Defendant waived the right at all.

| flHowever, as the State points out in its brief, the original record was incomplete, as it contained neither the minutes nor the transcript of a hearing conducted on January 18, 2005. This court has obtained the omitted minutes and transcript, which both demonstrate that Defendant waived her right to a jury trial.

The minutes refer to the proceeding as an “informal” decision to waive a jury trial, but the transcript shows that the reference is to an “informed” decision to make a waiver. The transcript demonstrates that the Defendant was represented by counsel at the waiver hearing. The trial court called her to the stand and examined her before accepting her waiver of the right to a jury trial. The court established‘that the waiver was her idea and decision, not simply acquiescence with her counsel’s advice.

This court has stated that:

While one who is entitled to a jury trial may waive that right, such waiver shall not be presumed but must be established by a contemporaneous record setting forth the articulated apprisal of that right followed by a knowing and intelligent waiver by the accused. State v. Smith, 447 So.2d 4 (La.App. 3 Cir.1984). The denial of this fundamental right constitutes an error patent. State v. Salata, 479 So.2d 660 (La.App. 3 Cir.1985).

State v. Morris, 607 So.2d 1000, 1001 (La.App. 3 Cir.1992), writ granted and judgment set aside, in part, on other grounds and remanded, 615 So.2d 327 (La.1993), on remand, 619 So.2d 184 (La.App. 3 Cir.1993).

The record in this case establishes such a knowing and intelligent waiver.

Excessive sentence.

Defendant argues that her life sentence was excessive, despite the fact that it is statutorily mandated for second degree murder, pursuant to La.R.S. 14:30.1. Defendant did not file any motions to reconsider the sentence. Therefore, her excessiveness claim is barred by La.Code Crim.P. art. 881.1. However, in the |! ninterest of justice, this court will review the assignment as a bare claim of exces-siveness. State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, writ denied, 02-29 (La.10/14/02), 827 So.2d 420.

As this court has explained:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

Viewed as a whole, Defendant’s argument seems to imply that the sentence did not “fit both the offender and the offense.” However, Defendant beat an elderly man so badly that he died a few days later. Therefore, the sentence does not “shock the conscience,” and fits both the offender and the offense.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The measurements listed are from the pathologist's testimony. The victim’s daughter described him as being five feet nine inches tall and weighing one hundred twenty pounds.


author: ROLAND L. BELSOME, Judge.

text:
    Gerald POST v. STATE of Louisiana, Through DEPARTMENT OF HEALTH AND HOSPITALS, And Louisiana Health Care Authority Through Charity Hospital, Medical Center of Louisiana at New Orleans.
    No. 2005-CA-0256.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 8, 2006.
    Rehearing Denied April 12, 2006.

      Harry T. Widmann, Scott T. Winstead, Harry T. Widmann & Associates, Metairie, LA, for Plaintiff/Appellant.
    Charles C. Foti, Attorney General, Richard B. Ehret, Special Assistant Attorney General, Bordenave Boykin & Ehret, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

1 Appellant Gerald Post appeals the district court’s judgment finding that the state did not negligently perform Mr. Post’s laparoscopic inguinal hernia repair.

STATEMENT OF THE CASE

Gerald Post (“Mr.Post”) was a 52-year old male who underwent laparoscopic left inguinal hernia repair with placement of Marlex mesh at the Medical Center of Louisiana at New Orleans on February 13, 1997. During the course of the operative procedure a piece of Marlex mesh, approximately 4 by 2 cm. in length was placed and the laparoscopic reticulating stapler was used to secure the mesh in place medially at the pubis and Cooper’s ligament working laterally. The mesh was draped over an area sometimes referred to as “the triangle of doom,” which is traversed by the iliac artery, iliac vein and vas deferens.

Subsequent to the surgery Mr. Post developed thrombus, or DVT (deep venous thrombosis), in his left lower extremity. After treatment with blood thinners, the resident physician who performed the la-paroscopic procedure, Dr. Tim Erhlich, suggested that the Marlex mesh may be impinging the iliac veiii and that the mesh should be removed. Consequently, two weeks after the laparoscopic procedure, Dr. James Redmann performed an open hernia repair and removed the |?mesh. Mr. Post was continued on blood thinning medication which improved the blood flow in his left leg, though he still suffered from a thrombotic condition at the time of his discharge. Mr. Post convened a medical review panel against the State of Louisiana through the Department of Health and Hospital, Medical Center of Louisiana at New Orleans. In his complaint, Mr. Post argued that the laparoscopic hernia repair must have breached the standard of care since he developed DVT after the surgery. The panel found no breach of the standard of care and Mr. Post subsequently sued.

The trial court dismissed plaintiffs case with prejudice. In its reasons for judgment, the trial court noted that the plaintiff did not meet his burden of proof. Specifically, the court rejected the testimony of plaintiffs expert, Dr. Balliro, because,

it was obvious that Dr. Balliro had never even performed one of these procedures. The (trial) court accepts the testimony of the three surgeons who performed laparoscopic hernia repair. They testified that if the mesh caused compression of the iliac vein, the thrombus would have occurred at the compression site.

Essentially, witnesses from each side argued different explanations for the injury (Appellant’s witness testified that the ill-placed mesh caused the injury; Appellee’s witnesses testified that the mesh was not ill-placed, and that the injury was a normal by-product of the surgery), and the trial court found the defendant’s argument more credible. Plaintiff now appeals this ruling.

Mr. Post asserts three assignments of error. First, the trial court committed manifest error when it concluded that the mesh had not caused the thrombus. Second, the court below erred as a matter of law by not applying an adverse inference based upon the unexplained failure of the defense to call Dr. Ehrlich, the surgeon who implanted the mesh. Finally, the trial court erred in basing its opinion |son the mistaken assumption that Mr. Post’s expert had not performed laparoscopic inguinal hernia repairs.

STANDARD OF REVIEW

A party seeking reversal of a fact finder’s determinations in a medical malpractice action faces a heavy burden. At trial, the plaintiff must prove the standard of care, the violation or breach of the standard of care, and the causal connection between the alleged negligence and injuries. Carey v. Rao, 2001-1235, p. 10 (La.App. 4 Cir. 9/11/02); 828 So.2d 53, 60. It is understood that in a medical malpractice action, great deference is accorded to the finder of fact when medical experts express differing views, judgments and opinions as to whether the standard of care was met. See Carey v. Rao, at pp. 10-11; at 60-61. “Reversal of the fact finder’s determinations requires the appellate court to conclude that no reasonable factual basis exists for the fact finder’s findings and to determine that the record establishes that such findings are clearly wrong or manifestly erroneous.” Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993). Thus, a factfinder’s findings of facts should not be disturbed absent manifest error or unless they are clearly wrong. See Martinez v. Schumpert Medical Center, 27,000 (La.App. 2 Cir. 5/10/95); 655 So.2d 649. With this burden in mind, we turn to the appellant’s assignments of error.

First Assignment of Error

Plaintiff-appellant alleges that the trial court committed manifest error when it concluded that the mesh had not caused the thrombus. We disagree. Both sides | ¿produced evidence addressing the standard of care, breach, and causation, and the trial court found that the plaintiff did not meet his burden.

As we stated in Williamson v. Haynes Best Western of Alexandria,

[w]hen findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said ... [Where] a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Williamson, 95-1725 (La.App. 4 Cir. 1/29/97); 688 So.2d 1201, 1205 (emphasis added and internal citations omitted); See Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

This court addressed the deference given by an appellate court to a trial court’s determinations in Schiro v. State ex rel. Dept. of Transp. and Development, 1999-2754 (La.App. 4 Cir. 3/21/01); 808 So.2d 500, 508.

The weight to be given to the testimony of experts is largely dependent upon their qualifications and the facts upon which their opinions are based. Quinones v. United States Fidelity and Guaranty Company, 93-1648 (La.1/14/94), 630 So.2d 1303, 1308. The sincerity and honesty of the opinions expressed are matters which the trial court is in a particularly advantageous position to determine. Id. Where the testimony of expert witnesses differ, the trier of fact has the responsibility to determine which evidence is the most credible. Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106, 1111 (La.1990). Credibility determinations are subject to the strictest deference, and the manifest error standard demands great deference to the trier of fact’s findings. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305, 1313. Schiro at 508.

To meet his burden of proof, the plaintiff presented Dr. James Balliro. Dr. Balliro was tendered as an expert in the field of general surgery with laparoscopic and vascular surgery specialties. The tender was accepted, but the record reflected that the plaintiffs expert had never performed one of these surgeries, and, as the |sdefense points out, the issue in this case is whether there was a breach of the standard of care in the performance of the laparoscopic inguinal hernia repair.

The defense presented three doctors as witnesses: Glen Steeb, Ed Staudinger, and James Redmann. Collectively, the three surgeons perform many laparoscopic inguinal hernia repairs annually. Despite limited personal experience with this procedure, Dr. Balliro testified:

The prosthetic mesh that was placed to occlude his hernia defect compressed the external iliac vein, which is a large vein that drains the blood out of your leg. As a result of the compression, the vein clotted off and Mr. Post suffered irreversible injury to the venus drainage from his leg.

This testimony was based on three “facts.” First, the thrombus occurred in the same venal system that the mesh allegedly constricted. Second, the CT scan demonstrated “inflammatory” changes around the vein. Finally, Dr. Redmann, who performed the second surgery, made the diagnosis before surgery and then had to remove the mesh to relieve the compression of the vein. These three factors led Dr. Balliro to conclude that the ill-placed mesh caused the DVT, but all these were also addressed and refuted by defendant’s witnesses.

Significance of the Mesh and Thrombus being in the Same Venal System

The defense witnesses testified that surgically speaking, the distance between the alleged compression of the iliac vein and the location of the thrombus in the femoral vein was very large, and the fact that these two events (the mesh compressing the iliac vein and the development of the DVT in the femoral vein) occurred in the same venal system was inconclusive.

Dr. Staudinger offered the following testimony about the location of the thrombus:

lidiad there been a compression, obstruction of the iliac vein, I would think that is where the thrombus would have started. Usually thrombus will develop at the point of obstruction and not downstream ... So, if there had been an obstruction, a compression, blockage external blockage of the external iliac or the iliac vein, the thrombus should have been seen at that point and propagated the other way, whereas in this case, the thrombus was seen in the common femoral and the superficial femoral veins, which is a significant difference — distance from the iliac vein.

In light of this competing testimony, we cannot say it was manifestly erroneous to find that the DVT in the femoral vein and the possible compression of the iliac vein by the mesh were causally unrelated.

The Conclusiveness of the CT scan

Dr. Balliro also testified that the CT scan is probative of iliac compression which caused plaintiffs DVT. In his brief, appellant argues that “a CT scan with contrast demonstrated a clot in the common femoral vein which is the same blood vessel as the iliac vein.” But later, he writes “(b)ecause of a flaw in the performance of the CT, it did not fully visualize the iliac vein, but it did show opacification of the iliac vein, which is consistent with a blood clot.”

Thus, plaintiff admits that the CT did not fully visualize the iliac vein. Dr. Stau-dinger further testified that “there was no evidence of thrombus in the iliac vessel by the CT scan.” Dr. Steeb also testified that the CT scan did not support a finding that the mesh caused the DVT. The trial court believed that the CT was inconclusive as to whether the clot was formed at the point where the mesh allegedly compressed the iliac vein.

In sum, there was conflicting testimony on the CT scan and what it showed, and the trial court chose to believe the defendant’s testimony. This was not manifestly erroneous.

| tRemoval of Mesh

It is a fact that Dr. Ehrlich, who performed the first surgery, speculated after-wards that the thrombus was being caused by the mesh constricting the ilial vein. It is also undisputed that during the second surgery, Dr. Redmann removed the mesh. Appellant contends that these facts prove that the ill-placed mesh caused the thrombus.

Appellees argue that Dr. Ehrlich’s speculation was just that — speculation. Dr. Redmann, who removed the mesh, was in the best position to determine if that speculation was correct, and he testified that the iliac vein was not being constricted when he examined it during the second surgery.

Appellees also argue that Dr. Redmann would have only removed the mesh if it were causing the thrombus. Dr. Redmann testified that he removed the mesh because he feared that re-attaching the mesh would increase the risk of infection. Again, there was conflicting, credible testimony from both sides on this issue. That the trial judge found Dr. Redmann’s testimony more convincing is not manifestly erroneous.

A Common Side Effect of Surgery

Additionally, defendant also put on evidence that DVT is a common side effect of any surgery. At trial, both plaintiffs and defendant’s witnesses testified that thrombus is a common side-effect of surgery, and that the iliac and femoral vessels are the most common site for DVT after surgery, irrespective of where the surgery was. This testimony supported the trial court’s determination the plaintiff did not meet his burden of proof.

Since the trial court determined that the plaintiff did not prove that the mesh caused the thrombus and that determination was not manifestly erroneous, we do |snot feel the need to address the issue of whether allowing the mesh to compress the iliac vein and cause a DVT breached the standard of care. •

Second Assignment of Error

Mr. Post contends that the court below erred in not applying the adverse inference rule to the defense’s presentation because they did not call one of the resident surgeons who performed the surgery. A party’s failure to call a witness it controls and which witness has material knowledge of material facts pertinent .to the case may allow the trial court to infer that testimony would have been adverse to the party. Taylor v. Entergy Corp., 2001-0805 (La.App. 4 Cir. 4/17/02); 816 So.2d 933. Appellant’s claim that the adverse inference rule applies to Dr. Ehrlich’s failure to appear at trial is not supported by the law or facts. Mr. .Post never- raised this issue at.trial, thus the trial court never had the opportunity to make a determination of its application in this case. Moreover, Mr. Post took no depositions in this case, thus his speculation as to Dr. Ehrlich’s testimony, is not based on concrete evidence.

Appellees also argue that Dr. Redmann, who testified, was present at both surgeries and performed the second, which was the critical surgery for determining whether the first surgery had breached the standard of care for performing an inguinal hernia operation. Plaintiffs expert stated that Dr. Redmann was in the best position to determine where the mesh was located.

Finally, Dr. Ehrlich completed his residency in 1997 and moved to Connecticut to establish a private practice such that the defendant had little control over that witness.

This court addressed the adverse inference rule in Taylor.

|3The “uncalled witness” rule has been defined as an adverse presumption that arises when a party has the power to produce witnesses whose testimony would elucidate the transaction or occurrence and fails to call such witnesses. A party’s: failure to call 1 such witnesses gives rise to the presumption that the witnesses’ testimony would be unfavorable to him. Although the advent of modern, liberal discovery rules has been -recognized to limit this rule, it remains viable. Indeed, this court has recognized this rule applies when, as in this case, witnesses with peculiar knowledge 'of material facts pertinent to- the case are not called. Taylor, p. 15, at 94Í. (internal quotations and citations omitted).

‘However, the Taylor court limited the impact of the adverse inference rule by noting that “the court may consider this presumption as it would any other relevant evidence in the case.” Taylor, p. 15, at 941.' Becaúse the court may consider this presumption as it would any other rélevant evidence in this casé, we dó not find it was manifestly erroneous to rule for the defendants despite Dr. Ehrlich’s absence. Although Dr. Ehrlich performed the first surgery, Dr. Steeb was also present at the first surgery and testified at trial. If the trial court, believed that ultimately the most critical testimony to this issue came from Dr. Redmann, who performed the second surgery and removed the mesh, we cannot say this was manifest error.

Third Assignment of Error

In its reasons for judgment, the trial court found the testimony of Drs. Red-mann, Steeb, and Staudinger credible because they routinely perform laparoscopic inguinal hernia repairs, and she rejected the opinion of Dr. Balliro, because it “was obvious Dr. Balliro had never even performed one of these procedures.” Appellant contends that this statement by the trial court is “both patently inaccurate and irrelevant.”

However, appellant supports this charge by saying “Dr. Balliro has performed many hernia repairs.” This is not the same as performing many |inlaparoscopic inguinal hernia repairs. Thus, we disagree that the trial court’s statement was inaccurate or irrelevant.

Appellant continues, “... (Dr. Balliro) is fully trained and highly experienced in advanced laparoscopic procedures.” Again, this does not mean that Dr. Balliro was fully trained and highly experienced in la-paroscopic inguinal hernia repair, the procedure at issue in this case. The appellant goes on to say, “[m]ost important, in 1997 he took a course specifically in laparoscopic inguinal hernia repair. Surgeons receive their training in the operating room.” The blanket statement “surgeons receive their training in the operating room,” is not supported by any evidence in the record, and also says nothing about the exact training Dr. Balliro received in this particular procedure. Appellant wants us to make a connection between these' two statements and conclude that Dr. Balliro must have performed laparoscopic inguinal hernia repairs in his training. We are not prepared to make that extenuated logical leap..

Later in his brief, Appellant concedes that Dr. Balliro does not even perform this procedure in his own practice.

The trial court found that Dr. Balliro’s iriéxperience and unfamiliarity with laparo-scopic inguinal hernia repair discredited his testimony. At trial, Dr. Balliro testified that he was unfamiliar with the expression “triangle of doom,” which is common parlance in most medical textbooks and literature about laparoscopic inguinal hernia repairs. Additionally, he testified that the Marlex -mesh was a “stiffj plastic material,” while Dr. Redmann, who actually performs these procedures, testified that the mesh is very soft and pliable and is wrapped around a thin, pencil like-instrument, passed through the trochar and then unfolded over the hernia.

In Perhaps this court would have ruled differently on the issue; however, we cannot say that the trial court’s decision to not lend credibility to plaintiffs expert who had never performed one of the procedures at issue in the case was manifestly erroneous.

CONCLUSION

The standard of review is very important in this case. An appellate court cannot disturb a trial court’s determinations unless they are manifestly erroneous or there was clear error. Where the testimony of expert witnesses differ, the trier of fact has the responsibility to determine which evidence is the most credible. Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106, 1111 (La.1990).

In the case at hand, the trial court determined that the testimony of the plaintiffs expert witness was less believable than the testimony of the defense’s witnesses. Dispositive for the trial court was the fact that plaintiffs expert had never actually performed the surgery in question. We cannot say that its determination was manifestly erroneous or clear error, thus we affirm the judgment.

For the reasons listed above, we affirm.

AFFIRMED.


author: AMY, Judge. THIBODEAUX, Chief Judge,

text:
    Barbara MIGUEZ v. PLATINUM UNDERWRITERS REINSURANCE, INC., et al.
    No. 05-887.
    Court of Appeal of Louisiana, Third Circuit.
    March 22, 2006.
    Rehearing Denied May 3, 2006.

      Glenn John Armentor, J. Christian Lewis, Lafayette, LA, for PlaintiffAppellant, Barbara Miguez.
    William N. Gee, III, Lafayette, LA, for Intervenor/Appellee, William N. Gee, III.
    F. Scott Kaiser, Annette N. Peltier, Rebecca B. Crawford, E. Kate Anderson, Phelps Dunbar, LLP, Baton Rouge, LA, for Defendants/Appellees, United States Fidelity & Guaranty Ambar Drilling Fluids, LP, LLP.
    Michael E. Parker, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, Lincoln General Insurance Company.
    Guy D. Perrier, Jennifer L. Sinder, Leake & Anderson, LLP, New Orleans, LA, for Defendant/Appellee, Lauren Carter.
    Darrell R. Sims, Law Offices of Keith S. Giardina, Baton Rouge, LA, for Secondary Intervenor/Appellant, Liberty Mutual Fire Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   AMY, Judge.

hThe plaintiff filed suit seeking damages after she was injured in a car accident when the vehicle in which she was traveling was struck by a truck belonging to Ambar Drilling. The Ambar Drilling vehicle was driven by the daughter of one of the company’s employees. The employer and its insurer filed a motion for summary judgment asserting that the daughter’s use of the company truck was not covered by the employer’s insurance policy. The trial court granted the summary judgment in favor of the employer and the insurer. The plaintiff and her workers’ compensation carrier, an intervenor, appeal. For the following reasons, we affirm.

Factual and Procedural Background

The accident at issue in this suit occurred while Lauren Carter was delivering newspapers pursuant to a contract with The Advocate. Ms. Carter allegedly attempted to make a left turn into the path of an oncoming vehicle in which the plaintiff, Barbara Miguez, was a passenger. Ms. Miguez alleges injuries as a result of the accident.

The present dispute involves the insurance coverage on the truck driven by Ms. Carter. In her deposition, Ms. Carter explained that she lived with her mother and that her mother’s personal vehicle would not start at the time she started her deliveries. Therefore, she asked her mother if she could use the truck provided by her mother’s employer, Ambar Drilling Fluids, LP, LLP (hereinafter “Ambar Drilling”). Ms. Carter stated that her mother consented. Her mother, Carla Stewart, testified in her deposition that she did not recall whether she had given specific permission to Ms. Carter to use the Ambar Drilling truck on the morning of the accident.

Ms. Miguez instituted this suit to recover damages for her injuries. Among others, Ms. Carter, Ambar Drilling, its automobile liability insurer, United States | ¡.Fidelity and Guaranty Company (hereinafter “USF & G”), and its parent company, Patterson-UTI Energy, Inc. (hereinafter “Patterson”), were named as defendants. Liberty Mutual Fire Insurance Company (hereinafter “Liberty Mutual”), Ms. Mi-geuz’s workers’ compensation provider, intervened.

Ambar Drilling and USF & G (hereinafter “the defendants”) filed a motion for summary judgment, arguing that the terms of the Ambar Drilling/Patterson liability policy precluded coverage for a third party driving one of its vehicles without its permission. In addition to language contained within the policy, the defendants point to a written policy against such use. Further, Ambar Drilling additionally sought summary judgment on the basis that the plaintiff would be unable to prove its independent liability for the accident. Following a hearing, the trial court granted the motion for summary judgment in all respects, dismissing USF & G, Ambar Drilling, and Patterson. The matter was designated as a final judgment. Ms. Mi-guez and the intervenor, Liberty Mutual, appeal.

Discussion

Ms. Miguez questions the trial court’s determination that the USF & G policy does not afford coverage for this accident. She argues that this case is inappropriate for summary judgment due to a case rendered by a panel of this court, Mahaffey v. State Farm Mutual Automobile Insurance Co., 95-641 (La.App. 3 Cir. 2/28/96), 679 So.2d 129, writ denied, 96-1689 (La.10/11/96), 680 So.2d 650. Ms. Miguez asserts that Mahaffey, a case involving a business vehicle driven by a third-party non-employee, requires this court to conclude that a genuine issue remains as to whether it was foreseeable that Ms. Stewart would permit a third party to drive the company | svehicle. Furthermore, Ms. Mi-guez argues, that the policy language itself “fails to specify clearly that coverage would not be afforded if a person who has specific permission to use the covered vehicle (Carla Stewart) grants permission to another (Lauren Carter).”

Louisiana Code of Civil Procedure Article 996(B) provides, in part, that a summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” On appeal, summary judgments are reviewed de novo and under the same criteria considered by the trial court. Campbell v. Verrett, 02-0695 (La.App. 3 Cir. 10/30/02), 829 So.2d 1141, writ denied, 02-2911 (La.2/14/03), 836 So.2d 116.

The USF & G policy in question in this case lists parent company Patterson as the named insured and provides, in pertinent part, as follows:

1. Who is An Insured
The following are “insureds”:
a. You for any covered “auto”.
b. Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
(1) The owner or anyone else from whom you hire or borrow a covered “auto”. This exception does not apply if the covered “auto” is a “trailer” connected to a covered “auto” you own.
(2) Your “employee” if the covered “auto” is owned by that “employee” or a member of his or her household.
14(3) Someone using a covered “auto” while he or she is working in a business of selling, servicing, repairing, parking or storing “autos” unless that business is yours.
(4) Anyone other than your “employees”, partners (if you are a partnership), members (if you are a limited liability company), or a lessee or borrower or any of their “employees”, while moving property to or from a covered “auto”.
(5) A partner (if you are a partnership), or a member (if you are a limited liability company) for a covered “auto” owned by him or her or a member of his or her household.
c. Anyone liable for the conduct of an “insured” described above but only to the extent of that liability.

Louisiana Civil Code Article 2045 provides that: “Interpretation of a contract is the determination of the common intent of the parties.” Furthermore, pursuant to La.Civ.Code art.2046, “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” These general contract principles of the Louisiana Civil Code are applicable in construing an insurance policy, as it is a contract between the parties. Cadwallader v. Allstate Ins. Co., 02-1637 (La.6/27/03), 848 So.2d 577. Furthermore, “[a]bsent conflict with statutory provisions or public policy, ‘insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume.’” Etienne v. National Auto. Ins. Co., 99-2610, p. 4 (La.4/25/00), 759 So.2d 51, 54, quoting Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191.

The contractual language in the insurance policy in this case is clear and unambiguous. Named as insured are “you ” and “anyone else using with your | ¡jpermission a covered ‘auto’ you own, hire or borrow[.]” (Emphasis added.) According to the Business Auto Coverage Form section of the policy the term “ ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations.” Again the policy lists Patterson as the named insured. Thus, save for the listed exceptions which are inapplicable in this case, the policy provides liability for Patterson and its per-mittees using a covered auto.

Applying the terms of the contract as written, the only remaining consideration is whether Patterson/Ambar permitted Ms. Carter, a non-employee, to drive the vehicle. The submission shows that it did not. On this point, we focus on the record’s inclusion of an Ambar Drilling document entitled “Company Owned Vehicle Use Agreement.” The document, signed by Ms. Stewart, provides, in part that:

I, the undersigned, understand that during the course of my employment with Patterson Energy, Inc; Patterson Drilling Company (Company), I may be called upon to drive or otherwise operate a vehicle owned, operated, or leased by the company (company vehicle) and do hereby acknowledge and agree to abide by the following terms and conditions with respect to driving or operating a company vehicle
3. Only qualified employees who have executed this drive use agreement shall be allowed to drive or operate a company vehicle. Specific authorization to drive or operate a company vehicle must be obtained from the employee’s supervisor.
4. Company vehicles are to be used for business purposes only and personal use is not allowed.

(All caps format omitted.)

This document sets forth the parameters of the permission granted to Ms. Stewart by the employers. It expressly states that only qualified employees who execute the agreement may operate the vehicle and then only for business purposes. Even qualified drivers could not use the vehicle for personal use. There is no [¿indication that Ms. Carter, a non-employee, was a qualified user. Furthermore, the vehicle was not being used for the employer’s business purposes. Rather it was being used for a non-employee’s personal business use. In the face of this express prohibition as to non-employer related purposes, neither Ms. Stewart’s testimony regarding her lack of careful reading of the document at the time she signed it nor her testimony generally referencing other employees’ use of their company vehicles creates a genuine issue of material fact as to whether the employer conveyed permission to this non-employee driver, Ms. Carter.

It is worth noting that, in Perkins v. McDow, 615 So.2d 312, 316 (La.1993), citing Malmay v. Sizemore, 493 So.2d 620 (La.1986), the supreme court explained that:

This court has never extended coverage to a second permittee when the named insured has expressly prohibited the first permittee from allowing anyone else to drive the vehicle, even though the second permittee was unaware of the prohibition. The focus of the omnibus clause is on the volition and intent of the named insured.

Such an express prohibition exists in the present case.

Neither do we find persuasive Ms. Mi-guez’s assertion that this matter is controlled by Mahaffey, 679 So.2d 129. As stated above, this case is one primarily turning on contractual interpretation. Significantly, the policy language in this case differs from that excerpted in Mahaffey. In that case, an insured was defined, in part, as “[a]ny other person while using such a car if its use is within the scope of consent of you or your spouse[.]” Id. at 131. The court in Mahaffey found that the case involved whether there was implied permission. In the present case, not only does the policy language differ, but the parameters of the employer’s “permission” in this case is evident in its written policy. In short, Mahaffey is not controlling in this case.

|7The trial court correctly entered summary judgment in favor of USF & G, Ambar Drilling, and Patterson. Ms. Mi-guez’s arguments lack merit.

DECREE

For the foregoing reasons, the motion for summary judgment granted by the trial court is affirmed. All costs of this proceeding are assessed against the appellants, Barbara Miguez and Liberty Mutual Insurance Company.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

LA first or second permittee pursuant to an omnibus clause of an insurance policy must generally prove that a vehicle was being used with the express or implied permission of the named insured in order to secure coverage under the policy for one’s delictual acts. Rogillio v. Cazedessus, 241 La. 186, 127 So.2d 734 (La.1961). Whether the operation of the vehicle is reasonably foreseeable is the test for express or implied permission of the named insured. Perkins v. McDow, 615 So.2d 312 (La.1993). Thus, under the circumstances of this case, was it reasonably foreseeable that Lauren Carter had the permission of her mother, Carla Stewart, to drive this vehicle? I think so. It is clear that Ms. Stewart had the regular, if not daily, use of her employer’s truck and that the truck was regularly housed at Ms. Stewart’s residence. Ms. Carter, the driver of the truck, lived with her mother. Under these circumstances, I believe Ms. Carter’s use of the Ambar Drilling Fluids’ truck can be reasonably considered as being with the permission of Ambar and within the scope of consent of the named insured, Ambar.

The omnibus clause in the policy at issue covered “[a]nyone else while using with your permission a covered ‘auto’ you own, hire or borrow....” As the Líate Justice Tate opined, “[i]f the initial permission is so given by the named insured, the actual operation of the automobile is with his permission, whether by the first permittee or instead by a second permittee to whom the first permittee entrusted the use of the vehicle.” Hughes v. Southeastern Fidelity Ins. Co., 340 So.2d 293, 295 (La.1976) (Tate, Justice, concurring).

It is axiomatic that insurance policies should be interpreted so as to permit, not deny, coverage. This sentiment is in accord with the strong statutorily-emphasized public policy of this State that:

... all liability policies within their terms and limits are executed for the benefit of all injured persons, and their survivors or heirs to whom the insured is liable; and, that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort-feasor within the terms and limits of said policy.

La.R.S. 22:655(D). Thus, in my view, any restriction on the permissive use clause in an insurance contract is contrary to public policy. See, e.g., Perkins v. McDow, 615 So.2d at 317 (Watson, J., concurring).

For the foregoing reasons, I respectfully dissent.

      . Because Liberty Mutual’s argument on appeal mirrors that of Ms. Miguez, and for ease of discussion, we name only Ms. Miguez when referring to the appellants.


author: GASKINS, J. MOORE, J.,

text:
    Paige Deanne Oglethorpe POOLE, Respondent, v. Brandon Shane POOLE, Applicant.
    No. 41,220-CW.
    Court of Appeal of Louisiana, Second Circuit.
    March 22, 2006.

      Charles William Strickland, for Applicant.
    Katherine Clark Dorroh, for Respondent.
    Before GASKINS, CARAWAY, PEATROSS, DREW and MOORE, JJ.
   GASKINS, J.

_JjThis matter comes before the court on the application of Brandon Shane Poole, seeking review of a judgment that ruled the previous custody order in this case was a considered decree and, therefore, the Bergeron burden of proof applies to the pending custody modification hearing.

The parties are divorced and presently share custody of their minor child, Madison Poole. In February 2003, a custody trial began before another judge and evidence of parental fitness of one party was introduced. On the second day of trial, the parties reached an agreement in which custody would be shared, with the mother designated as the domiciliary parent. The judge signed the agreed custody judgment in March 2003.

In April 2005, the parties both filed rules to modify the March 2003 decree, and a question arose as to whether that decree was a considered decree under Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). Another judge, who was assigned this case after the former judge recused himself, concluded that the prior custody decree was a considered decree so that Bergeron, supra, applied. This judge based his decision on his research showing that “a considered decree is one for which evidence as to parental fitness to exercise custody is received by the court.” He stated that the Bergeron rule was put into place for the purpose of ending litigation between parents and for the purpose of saving children from the harmful effects of parents returning to court after they “had their day in court.”

The burden of proof on a party who wishes to modify a prior permanent custody award depends on the nature of that prior award. If the first award is a stipulated judgment, which typically is one resulting from [2the parties’ consent to a particular custodial arrangement, a party seeking modification of the prior permanent custody award must prove that there has been a material change in circumstances since the original decree and that the proposed modification is in the best interest of the child. Evans v. Lungrin, 97-0541 (La.2/06/98), 708 So.2d 731. On the other hand, if the prior permanent custody award is a considered decree, then the heavy burden of proof under Bergeron applies. The Bergeron rule states that when a trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child. The concerns for ending litigation, preserving the child’s established mode of living, conserving judicial resources and preventing inconsistent decisions underlay the formulation of the heavy burden of proof rule as recognized in the ruling of our supreme court in Bergeron. McCready v. McCready, 41,026 (La.App.2d Cir.3/08/2006) 924 So.2d 471.

Some recent cases have examined the definition of “considered decree.” In Long v. Long, 28,763 (La.App.2d Cir.12/11/96), 684 So.2d 1099, a child custody hearing began, but recessed for intense and protracted negotiations, after which the parties signed joint stipulations regarding the custody schedule. This joint agreement subsequently signed by the trial judge contained the statement that “[tjhese stipulations and resulting [(¡judgment have occurred after evidence has been produced, and ... that any future modification of the judgment ... shall be held to the standard of proof articulated in the Louisiana Supreme Court case of [Bergeron ]....” The trial court, affirmed by this appellate court, found the agreement to be a considered decree.

After several days of testimony, the parties in Cherry v. Cherry, 2004-0002 (La.App. 4th Cir.2/02/05), 894 So.2d 1208, reduced a custody agreement to writing, which was signed by the trial judge. That agreement awarded sole custody to the father and specified “... the court finding that sole custody in favor of [the father] clearly and convincingly to be in the best interest of the children, considering all pertinent facts and circumstances.” This agreement was found to be a considered decree.

Prior to the hearing, the parties in Adams v. Adams, 39,424 (La.App.2d Cir.4/06/05), 899 So.2d 726, confected a child custody agreement stipulating that any future actions to modify custody would be governed by the Bergeron standard. This appellate court found that the Berger-on standard would apply to further child custody litigation.

In McCready v. McCready, supra, a default judgment awarding custody was confirmed after a prima facie case was established. When the custody issue was raised again, the trial court ruled that the default judgment was not a considered decree. This court affirmed that ruling.

This court is faced with determining whether the previous custody decree was a stipulated judgment or a considered decree. In the present case, a custody hearing had begun, yet it is unclear how much of the [¿anticipated testimony was presented. Further, no language in the custody agreement indicated that the trial judge considered the evidence, nor that the parties agreed to impose a Bergeron standard for future litigation.

Certainly there is a need to limit protracted relitigation in custody matters. Some believe that the best way to do this is to impose the higher Bergeron standard after some evidence has been presented, and the parties then terminate the hearing and agree on custody. However, we find that imposing this higher standard will dissuade the parties from confecting settlement once the hearing has begun. Such settlement agreement contrasts to a judicially imposed, considered decree with which neither parent may completely agree and must be encouraged even after the litigation has begun for the best interests of the children instead of being deterred by the more difficult burden of Ber-geron. Applying the Bergeron standard to a custody consent judgment in which some of the evidence has been presented, but not evaluated by the judge, would erode the definition of considered decree and the policy reasons for the rule as examined by the Bergeron court.

We reverse the trial court and find that the higher standard of Bergeron should not apply to the pending custody modification litigation.

WRIT GRANTED; REVERSED AND REMANDED.

MOORE, J., dissents with written reasons.

MOORE, J.,

dissenting.

|J respectfully dissent from the majority’s exercise of supervisory jurisdiction. To be sure, I share the majority’s policy of encouraging parties to settle custody disputes; I also admit that the case poses a somewhat irresistible res nova legal issue.

I do not agree, however, that Mr. Poole has shown irreparable injury under La. C.C.P. art. 2083. The district court found the prior judgment was a considered decree, subject to modification only by meeting the heavy burden of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), not the lower burden of Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731. Mr. Poole will advance the best evidence to overcome Bergeron. If he succeeds, then a fortiori he has satisfied the lower burden of Evans v. Lungrin. If he does not, and this court later determines that only the lower burden applied, we could easily review the evidence under the lesser standard. In short, there is an adequate remedy on appeal and a real possibility that, as they have done in the past, these parties will settle their dispute.

There is also an inadequate showing of harm under Herlitz Const. Co. v. Hotel Investors of New Iberia Inc., 396 So.2d 878 (La.1981). The facts concerning the prior decree are indeed undisputed and the district court’s judgment may be arguably wrong, although the majority correctly notes there is no jurisprudence compelling a conclusion to that effect. Most importantly, reversal of the judgment will not terminate the litigation as to any party. Merely having to go to trial is not irreparable harm. Collins v. Prudential Ins. Co., 99-1423 (La.1/19/00), pp. 7-8, 752 So.2d 825, at 830.

li>On this showing, I would recall this writ and remand the case for further proceedings.