author: WHIPPLE, J.

text:
    Brenda G. BREITENBACH v. Robert A. STROUD, John Doe, Hartford Casualty, Safeway Insurance Company of Louisiana and XYZ Insurance Company.
    No. 2006 CA 0918.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 9, 2007.

      Georgia G. Turgeau, Tammy N. Nick, Slidell, Counsel for Plaintiff/Appellant, Brenda G. Breitenbach.
    Michael L. Stewart, John J. Erny, III, Metairie, Counsel for Defendants/Appel-lees, Robert A. Stroud, Shannon Dowden on behalf of the Minor Matthew Corey and The Hartford Insurance Company.
    Frederick H. Dwyer, Metairie, Counsel for Defendant/Appellee, State Farm Mutual Insurance Company.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   WHIPPLE, J.

| ¡.This matter is before us on appeal from a judgment of the trial court granting a directed verdict, dismissing plaintiffs claim of negligent entrustment against Robert A. Stroud, and dismissing her claims against the remaining defendants with prejudice in conformity with the jury’s verdict. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

On August BO, 2001, plaintiff, Brenda G. Breitenbach, was traveling on Brown Switch Road in Slidell, Louisiana, when the passenger side of her vehicle was hit by a vehicle driven by Matthew Corey, who was exiting the Winn Dixie parking lot onto Brown Switch Road. Corey, who was fifteen years old and did not possess a valid driver’s license, was driving a vehicle owned by his grandfather, Robert A. Stroud.

On August 29, 2002, plaintiff filed suit, naming as defendants: Stroud, Shannon Dowden, Matthew Corey’s mother and legal custodian, and various insurers, alleging that she sustained injuries and damages as a result of the accident. She also asserted a claim against Stroud for negligent entrustment of his vehicle to his grandson.

The matter was tried before a jury on August 1-4, 2005. At the conclusion of trial, the jury returned a verdict finding that plaintiff was not injured as a result of the August 30, 2001 accident. Accordingly, the jury did not award plaintiff any damages. Judgment was rendered in conformity with the jury’s verdict dismissing plaintiffs claims against Dowden, Stroud, Hartford and State Farm. The judgment also dismissed plaintiffs claim of negligent entrustment against Stroud, in accordance with the directed verdict granted by the trial court.

IsPlaintiff appeals, challenging evidentia-ry rulings of the trial court, the grant of a directed verdict dismissing her claim for negligent entrustment, and the jury’s finding that she was not injured as a result of the accident.

DISCUSSION

EVIDENTIARY CHALLENGES

(Assignments of Error Nos. 1, 2, 4, 5, and 6)

In these assignments, plaintiff contends that the trial court made various erroneous evidentiary rulings. If a trial court commits evidentiary error that interdicts its fact-finding process, this court must conduct a de novo review. Thus, any alleged evidentiary errors must be addressed first on appeal, inasmuch as a finding of error may affect the applicable standard of review. Wright v. Bennett, 2004-1944 (La.App. 1st Cir.9/28/05), 924 So.2d 178,182.

Plaintiff contends that the trial court committed legal error: (1) in failing to admonish the jury to disregard defense counsel’s improper and erroneous remarks during opening statements, which mischar-acterized the evidence; (2) in allowing defendants to question plaintiff about her criminal conviction and the details of her crime; (3) in denying plaintiffs motion to strike and/or limit the testimony of HUB Enterprises and the surveillance videotape offered by the defendants and fading to timely admonish the jury to disregard Stroud’s remarks; (4) in denying plaintiffs motion to strike and/or limit the expert testimony of Dr. David Aiken; and (5) in disallowing and/or limiting plaintiffs closing argument, specifically with regard to her units-of-time argument.

Defense Counsel’s Remarks During Opening Statements

Plaintiff contends that defense counsel’s remarks during opening statements, referring to her treating physician as a “plaintiff-attorney’sjsupplied4 doctor” who was “set up and paid for by the plaintiffs first attorney,” deliberately mis-characterized the evidence. We note, however, that plaintiffs counsel did not object to these remarks at trial. Accordingly, plaintiffs failure to object constitutes a waiver of the right to raise this issue on appeal. Sims v. Ward, 2005-0278 (La.App. 1st Cir.6/9/06), 938 So.2d 702, 709, writ denied, 2006-2104 (La.11/17/06), 942 So.2d 585.

Plaintiff further contends that statements by defense counsel that plaintiff was “hit in the head with a brick” in an altercation were inaccurate and that although the trial court ordered defense counsel to clarify the statements, it should have admonished the jury to disregard all statements made by defense counsel. The record reflects that after this incident was mentioned twice by defense counsel, plaintiffs counsel objected to the accuracy of defense counsel’s characterization of the incident. The trial court then instructed defense counsel to clarify the statement. Reading from the medical record, defense counsel responded, as follows:

So we will clarify. There is a question mark on the [medical] record as to whether it was a brick, but it was an altercation where she had some object pushed into her head so far that it fractured her eye socket and she fell to the ground and afterwards had neck pain, had shoulder pain. It says, question mark, brick here, whatever it was, it was strong enough to knock her to the ground and fracture her eye socket.

We note that the medical record from Slidell Memorial hospital was subsequently introduced into evidence without objection. Moreover, plaintiff testified and gave her version of the incident.

The test of whether argument of counsel is prejudicial or inflammatory is whether such comment is unreasonable or unfair in the eyes of the law. Cooper v. United Southern Assurance Company, 97-0250 (La.App. 1st Cir.9/9/98), 718 So.2d 1029, 1038. This test is balanced against the well-settled jurisprudence that counsel has great latitude in argument Lbefore a jury. This latitude is subject to regulation and control by the court who has a duty to confine argument within the proper bounds. Cooper v. United Southern Assurance Company, 718 So.2d at 1038. Moreover, the trial judge is vested with broad discretion in conducting trials in a manner that he determines will be conducive to justice. Jordan v. Intercontinental Bulktank Corporation, 621 So.2d 1141, 1150-1151 (La.App. 1st Cir.), writs denied, 623 So.2d 1335, 1336 (La.1993), reconsideration denied, 625 So.2d 1026 (La.1993), cert. denied, 510 U.S. 1094, 114 S.Ct. 926, 127 L.Ed.2d 219 (1994). Further, an allegedly objectionable statement is subject to corrective measures. Sims v. Ward, 938 So.2d at 709.

We find no merit to plaintiffs argument. We note that the trial court instructed the jury prior to opening arguments that the arguments presented by the attorneys are not evidence and that their “determination of the facts must be based upon the testimony [they] hear and the other evidence that is submitted.” Further, considering the clarification by defense counsel, the instructions of the trial court, and the testimony presented to the jury concerning the medical record, the statements made by defense counsel did not warrant any additional admonition from the trial court to disregard defense counsel’s remarks. Based on our thorough review of the record, we find that the instructions given by the trial court were more than sufficient to counter any purported inaccuracies by defense counsel in opening arguments.

Plaintiff further complains that defense counsel’s statements to the jury that the defendants had been informed that morning that plaintiff did not plan to call plaintiffs treating physician, Dr. Reyes, were highly prejudicial and should have been excluded by the trial court or protective measures taken by the court to correct these statements, once made. After plaintiff |fiobjected to defense counsel “testifying what a doctor said at the deposition,” the trial court ruled that the deposition would be allowed in evidence. Defense counsel then stated:

Mr. Stewart:
Okay, Dr. Reyes, Dr. Reyes will testify — he’s in Europe and not available— that plaintiff didn’t plan on calling him. This was a doctor that saw the plaintiff for 18 months and plaintiff wasn’t going to call the doctor. We were told this morning he’s unavailable, out of the country, and they are not going to call him. Well, we’re going to call him because we took his deposition; so we will read that. It won’t be quite as good because you won’t see Dr. Reyes, but someone will be playing his part.

Based on our review of the record, including the transcript of counsels’ sidebar discussions with the trial court, we are unable to say the statements made by defense counsel inaccurately reflected the circumstances surrounding the introduction of Dr. Reyes’ testimony. Moreover, because counsel for plaintiff failed to raise an objection at trial on the basis now raised on appeal, she has waived her right to complain on appeal. Sims v. Ward, 938 So.2d at 709.

These assignments lacks merit.

Plaintiffs Prior Criminal Conviction

Plaintiff contends the trial court committed legal error in allowing evidence of plaintiffs guilty plea and felony conviction in April of 2004 for possession of a Schedule II narcotic to be submitted to the jury, on the basis that the probative value of such evidence is outweighed by the prejudicial effect it may have on the jury.

|7In response to defense counsel’s question to plaintiff asking if she had ever possessed medications that she did not have a prescription for or that were illegal, plaintiff replied, “marijuana, yeah.” Plaintiff then admitted that she had been convicted of possession of a Schedule II narcotic.

Defendants argue that this line of questioning was proper for impeachment purposes and was conducted only after plaintiff testified, “I don’t do a lot of drugs.”

Louisiana Code of Evidence article 609, entitled “Attacking credibility by evidence of conviction of crime in civil cases,” provides, in part:

A. General civil rule. For the purpose of attacking the credibility of a witness in civil cases, no evidence of the details of the crime of which he was convicted is admissible. However, evidence of the name of the crime of which he was convicted and the date of the conviction is admissible if the crime:
(1) Was punishable be death or imprisonment in excess of six months under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party; or
(2) Involved dishonesty or false statement, regardless of the punishment.

Because the felony was punishable by more than six months, evidence of the name of the crime for which plaintiff was convicted was clearly admissible pursuant to LSA-C.E. art. 609 for impeachment purposes. Also, a thorough reading of plaintiffs testimony regarding the circumstances surrounding her conviction shows that after plaintiff admitted that she had been convicted of possession of a Schedule II narcotic, she was asked by defense counsel, “Would that be an illegal drug that you had in your possession?” Plaintiff responded, “It was my prescription and I got it back.” | ^Plaintiff then began to explain the details and circumstances surrounding her conviction, without objection from plaintiffs counsel.

Accordingly, we find no error by the trial court. Plaintiffs conviction for illegally possessing narcotic medication, which occurred during the time plaintiff was seeking medical treatment for injuries allegedly sustained as a result of this accident, was clearly relevant. Moreover, we find the probative value of this testimony is not substantially outweighed by the danger of any potential unfair prejudice towards plaintiff. Also, given plaintiffs decision to further explain and provide specific details, plaintiff can not now complain on this basis.

This assignment also lacks merit.

Motion to Strike and/or Limit Testimony of HUB Enterprises and the Surveillance Videotape

In this assignment, plaintiff contends that the trial court erred in denying plaintiffs motion to strike the video-taped surveillance of plaintiff offered by defendants and in failing to limit the testimony of the representative of HUB Enterprises.

Trial of this matter was scheduled to commence August 1, 2005. On July 7, 2005, plaintiffs counsel filed a motion to continue, stating that plaintiff “must have a cervical fusion surgery” and that it “shall take place within three (3) weeks.” The trial court denied the motion to continue. On July 22, 2005, defendants filed a “Motion to List Additional Witness & Exhibit,” to include as an additional witness Jason Giselair, an investigator with HUB Enterprises, the firm retained by defendants to conduct surveillance of plaintiff, and as an additional exhibit, the video-taped surveillance of plaintiff taken July 19, 2005. On July 29, 2005, plaintiff filed a motion to strike any testimony by HUB Enterprises and all surveillance videotapes offered by defendants. At the 19commencement of trial on August 1, 2005, the trial court deferred ruling on the motion to strike until it had an opportunity to view the videotape outside the presence of the jury.

On August 3, 2005, after hearing argument by counsel, the trial court denied plaintiffs motion to strike and allowed the videotape to be shown to the jury. In doing so, the court stated:

Counsel, I’ve listened to [plaintiffs] testimony. I’m also aware that you made these tapes — there are three tapes, but only one I would consider allowing. And you made the tapes available to the plaintiff even before I believe we started trial; so it’s not as though you are coming in at the end and attempting an ambush, I do not think.
And considering the testimony as a whole, considering the questions that have arisen in the last several weeks with reference to her — the motion to continue, because of the surgery and all this sort of stuff, I think that the tapes are more probative than prejudicial and I will allow the tape to be shown to the jury.

On appeal, plaintiff complains that she received a copy of the videotape only one week prior to trial and was thereby deprived of the opportunity to conduct meaningful discovery regarding the integrity of the video-taped surveillance. She further contends that the videotape was irrelevant in that it depicts plaintiff engaging in activities and performing tasks that are not inconsistent with plaintiffs trial testimony as to what activities she is able and unable to perform. She also contends that the videotape was highly inflammatory and prejudicial to plaintiff as it shows plaintiffs trailer and unkempt lawn; focuses on a “City Motel” sign, rather than plaintiff; and shows plaintiff wearing “scantily clad” clothing.

Defendants counter that the surveillance was conducted in response to plaintiffs motion to continue filed less than one month before trial, wherein plaintiff, in seeking a continuance, contended that she “must have a cervical fusion surgery” and that it “shall take place within three (3) weeks.” Because |infour years had already passed since the accident and surgery had not been recommended by any physician thus far, defendants requested the surveillance to evaluate and confirm plaintiffs condition. Defendants note that HUB Enterprises was named in defendants’ Motion to List Additional Witness & Exhibit filed on July 22, 2005 and that the surveillance videotape was immediately provided to plaintiff once it was acquired by defense counsel. Defendants further note that at no time prior to trial did plaintiff ask to depose the investigator who conducted the video-taped surveillance. Regarding plaintiffs argument that the videotape could not be admissible impeachment because it depicts plaintiff engaging in activities and performing tasks that are not inconsistent with plaintiffs trial testimony as to what activities she is able and unable to perform, defendants counter that the surveillance tape was admissible to impeach plaintiffs testimony that “it hurts, even to do the simplest things that most people take for granted.”

The determination of whether motion pictures or videotapes are admissible is largely within the discretion of the trial court. Olivier v. LeJeune, 95-0053 (La.2/28/96), 668 So.2d 347, 351.

We find no merit to plaintiffs argument that she was deprived of sufficient opportunity to conduct meaningful discovery regarding the integrity of the video-taped surveillance. We also agree that the surveillance videotape was admissible for impeachment purposes, given plaintiffs testimony that “it hurts, even to do some of the simplest things that most people take for granted.” Further, after thoroughly reviewing the surveillance tape at issue, we are unable to say it is so inflammatory that any probative value is outweighed by the danger of unfair prejudice. Thus, we find no abuse of discretion by the trial court in admitting the videotape into evidence and in denying plaintiffs motion to strike. These arguments also lack merit.

[ -i t Plaintiff next contends that while the jury was viewing the surveillance videotape, Mr. Stroud made an inappropriate comment and that the trial court erred in failing to “timely” admonish the jury to disregard the remark. According to plaintiff, after the tape was viewed by the jury, counsel for plaintiff approached the bench and informed the trial court that during the viewing of the videotape, Mr. Stroud “whispered very loudly ‘she’s a hooker’ within earshot of the jury.” Counsel for plaintiff stated that the remark was overheard by her co-counsel. Counsel for plaintiff then asked the court to either instruct Mr. Stroud to apologize or to instruct the jury to disregard any comments that he may have made. The trial judge stated that he did not hear Mr. Stroud make the remark, but agreed that he would inform the jury to disregard any comments made except for those made by the attorneys before or during the viewing of the videotape. The transcript shows that the court then took a ten-minute recess at the request of a juror. Once the jury was brought back into the courtroom, the court gave the following admonishment:

[A]ny comments or any things that were made at the time of the video that you may have heard, maybe said in the audience or by anybody here, you are to completely disregard; i.e., the only thing that you are to take out of that would be what you saw and heard on the video.

Given these circumstances, we find no error. Plaintiffs counsel requested an admonishment, which the court then adequately provided to the jury once the jury reconvened after the ten-minute recess requested by a juror. We do not find that an admonishment made some ten minutes after it was requested so untimely as to render the admonishment ineffective.

This assignment also lacks merit. ■

Motion to Strike and/or Limit Expert Testimony

In this assignment, plaintiff contends the trial court erred in denying her motion to strike and/or limit the expert testimony of Dr. David Aiken, an ^orthopedic surgeon. Dr. Aiken, whose expertise was stipulated to by plaintiff at trial, was called by defendants to testify as an expert in the field of orthopedic and lumbar spine surgery. Although accepted as an expert, plaintiff challenges the methodology surrounding Dr. Aiken’s conclusions concerning causation and plaintiffs injuries as unreliable, under the standards set forth in Daubert. Specifically, plaintiff contends that because Dr. Aiken did not physically examine plaintiff, but rather based his opinions on plaintiffs medical records, his “findings” were not admissible under Daubert.

Plaintiff suggests that Dr. Aiken’s expert testimony would meet the standards set forth in Daubert, had he made a “differential diagnosis.” In support, plaintiff relies on Corley v. State, Department of Health and Hospitals, 32,613 (La.App. 2nd Cir.12/30/99), 749 So.2d 926, a medical malpractice case that discusses the duty of a treating physician to make a differential diagnosis when the physician is unable to make a specific diagnosis. Corley v. State, Department of Health and Hospitals, 749 So.2d at 932. We note, however, that the discussion in Corley, that plaintiff relies on focused on the obligation and duty applicable to the treating physicians therein.

We likewise find no support in Keener v. Mich-Continent Casualty, 2001-1357 (La.App. 5th Cir.4/30/02), 817 So.2d 347, unit denied, 2002-1498 (La.9/20/02), 825 So.2d 1175, another case cited by plaintiff. In Keener, the defendants argued that a “differential diagnosis” made by plaintiffs treating neurologist was erroneous. Keener v. Mid-Continent Casualty, 817 So.2d at 353-354.

1^Defendants assert that plaintiff has confused the standard of care owed by a physician to his patient with the threshold standards for determining the admissibility of the testimony of a physician rendering an opinion for trial purposes. Defendants stress that at no time during Dr. Aiken’s testimony did he attempt to render a diagnosis, but, instead offered an opinion as a stipulated expert in the field of orthopedic surgery that he did not believe that plaintiff suffered an injury as a result of that accident. Defendants further note that when Dr. Louis Provenza, plaintiffs treating neurological surgeon, was questioned as to whether it was a breach of the standard of care to make a determination of the cause of an injury without examining the patient, Dr. Provenza responded that while it may be a breach of the standard of care to make a diagnosis without conducting the necessary examination and testing, “you can have an opinion of the cause without examining the patient.”

In the instant case, Dr. Aiken was called by the defendants to offer his expert medical opinion regarding plaintiffs injuries and their relationship, if any, to the August 2001 accident based on his review of plaintiffs medical records. These records included her cervical and lumbar MRI scans dated March 7, 2005; the report by Dr. Landry, a radiologist; the records of Dr. Raul Reyes, plaintiffs treating general surgeon; the records of Dr. Provenza; and certain Slidell Memorial Hospital Emergency Room records. Based on his review of plaintiffs medical records, Dr. Aiken stated that he felt cervical surgery was not warranted in plaintiffs case and that the records he reviewed did not indicate that plaintiff suffered a significant injury from the August 2001 accident. Further, Dr. Aiken was subjected to rigorous cross-examination on this testimony by counsel for plaintiff.

As set forth in Keener, the trial court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly | ucorrect. Keener v. Mid-Continent Casualty, 817 So.2d at 354. As with all other admissible evidence, expert testimony is subject to being tested by “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Keener v. Mid-Continent Casualty, 817 So.2d at 354-355 (citing Daubert, 509 U.S. at 596, 113 S.Ct. at 2798). Moreover, we note that after weighing and evaluating all of the evidence, a jury is free to accept or reject the opinions expressed by experts. Hoyt v. State Farm Mutual Automobile Insurance Company, 623 So.2d 651, 659 (La.App. 1st Cir.), writ denied, 629 So.2d 1179 (La.1993).

The jury was aware that Dr. Aiken did not examine plaintiff, and that Dr. Aiken did not have the benefit of plaintiffs July 2002 MRI scans, or the report of Dr. Rrieger, a physician who saw plaintiff at the request of one of the defendant insurers. Further, Dr. Aiken explicitly stated that his opinion was based solely on the records and MRI scans that he reviewed, and not on any physical examination of plaintiff. We conclude that this evidence was clearly admissible and that the trial court did not err in allowing the jury to evaluate his testimony, determine the weight to be given to it, and to thereby accept or reject Dr. Aiken’s opinions. While we acknowledge that a treating physician is obligated to take necessary steps to make a “differential diagnosis” when a diagnosis of the patient cannot be made, we reject plaintiffs blanket contention that an expert medical witness must physically examine the plaintiff and make a “differential diagnosis” for his opinion testimony to be admissible under the standards set forth in Daubert. Thus, we find no error by the trial court in admitting Dr. Aiken’s testimony.

This assignment also lacks merit.

1 ^Objections During Plaintiffs Closing Argument

Plaintiff next argues that the trial court erred in limiting her closing argument, with regard to her units-of-time argument, and that objections by defense counsel were “done simply to distract the jury’s attention” and were “highly unfair.”

In her closing argument, when discussing how the jury should arrive at an award for plaintiffs pain and suffering, counsel for plaintiff stated:

If you haven’t already tried to do so, I want you to imagine what chronic pain is in units of time. Take one minute, for instance. I’m going to stop talking for one minute now. And I want you to close your eyes and think about chronic pain for one minute of time, and I’ll tell you when to open them.
You can open your eyes now. Did that feel like a long time? How about 10 minutes for that pain? 10 minutes— did I say 10 minutes? How about 10 cents for that minute, for that minute of pain? Chronic back pain, chronic neck pain disability. What does 10 cents a minute translate to? Let’s think about that a minute. What does that translate to?

Counsel for defendants then objected and an off-the-record discussion was held at the bench. The basis of the objection was that a “units-of-time” argument was not proper argument for the jury. The trial court noted the objection, but overruled it, and counsel for plaintiff continued her closing argument, urging the jury to calculate damage awards utilizing a units-of-time theory.

During a subsequent recess, counsel for defense provided the trial court with the citation to a Third Circuit case, McWard v. Independent Fire Insurance Company, 482 So.2d 984, 985 (La.App. 3rd Cir.1986), which held that such units-of-time arguments are generally not acceptable. The defendants then requested that the trial court admonish the jury that such arguments were improper and that the jury should disregard them. The trial |16court did not admonish the jury, but instead instructed counsel for plaintiff not to “go there again” in her rebuttal argument.

Pretermitting whether or not a units-of-time argument is acceptable in this circuit, for the purpose of this assignment, we note that despite defendants’ objection, counsel for plaintiff was initially allowed to continue her argument to the jury to use the units-of-time theory in calculating any awards due plaintiff. Moreover, the trial court never instructed the jury to disregard this method of calculation. Instead, after the trial court was provided with authority from defendant, it only admonished counsel for plaintiff “not to go there” in her rebuttal. Moreover, because counsel for defendants provided authority for his objection, we do not find that the objection was made in bad faith for the purpose of distracting the jurors.

Plaintiff further argues that defense counsel acted improperly when, during closing arguments, counsel for defendants again objected on the basis that there had been no testimony or projections made concerning plaintiffs life expectancy when plaintiffs counsel suggested that plaintiffs life expectancy be considered in calculating the general damage award. Considering the evidence actually introduced herein, this fine of argument by plaintiffs counsel was obviously improper. Thus, the defendants’ objections were properly sustained by the trial court. Accordingly, we are unable to find that the objection was made in bad faith.

While we decline to discuss in detail each remaining objection made by defendants that plaintiff complains of on appeal, we observe that a review of the transcript shows that counsel for plaintiff and defendants each made objections to the accuracy of various statements made by the other during closing arguments and rebuttal. After thorough review, we find defense 117counsel provided a rational basis to support each objection. Thus, we are unable to find that the trial court erred or that the objections were made in bad faith “simply to distract the jury.”

This assignment also lacks merit.

THE JURY VERDICT

(Assignment of Error Number Seven)

In a trial where causation and credibility are major issues, a jury’s findings of fact are entitled to great deference. Guillory v. Insurance Company of North America, 96-1084 (La.4/8/97), 692 So.2d 1029, 1082. Those findings may not be overturned unless they are manifestly erroneous. Stobart v. State, Department of Transportation and Development, 92-1328 (La.4/12/93), 617 So.2d 880, 882. Moreover, when more than one competing view is permissible, as in this case, a fact finder’s choice cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Before reversing a jury’s conclusions of fact, an appellate court must satisfy a two-step process based on the record as a whole: There must be no reasonable factual basis for the trial court’s conclusions and the finding must be clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882.

In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. American Motorist Insurance Company v. American Rent-All, Inc., 579 So.2d 429, 433 (La.1991). Plaintiff must prove causation by a preponderance of the evidence. Maranto v. Goodyear Tire & Rubber Company, 94-2603, 94-2615 (La.2/20/95), 650 So.2d 757, 759. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Maranto v. Goodyear Tire & Rubber Company, 650 So.2d at 759 (citing Mart v. Hill, 505 So.2d 1120 (La.1987)).

Plaintiff contends that although she declined medical assistance at the scene and advised the officer that she was “okay,” the jury erred in finding no causation, where she experienced “soreness and stiffness” after the accident. Plaintiff candidly testified, however, that she did not seek medical treatment for these complaints from the time of the accident in August 2001 until some ten months later, in June 2002. Further, although plaintiff claimed that after the accident, she was unable to get on the roof and perform roofing work tearing and cleaning and nailing shingles, she testified that she continued working at various jobs after the accident, i.e., for the roofing company performing errands and secretarial work, as a merchandiser, at a Subway restaurant, and at a Dollar Store.

Moreover, in the interim between the accident and her commencement of treatment, plaintiff was involved in an altercation with a friend on April 10, 2002, in which she was “punched” in the eye, causing her to fall to the ground. Plaintiff testified that upon her fall to the ground, her head hit “little rocks” in the driveway and she was rendered unconscious, necessitating emergency medical treatment. Plaintiffs emergency room medical records from the incident indicate that plaintiff suffered a “blunt trauma to head” and “[tjrauma with pain in the neck and chest,” and that as a result, plaintiff sustained a fracture on the left orbital wall of her face. X-rays revealed “Prevertebral soft tissues are normal. There is normal alignment of the | ^cervical spine. The odontoid process, vertebral bodies, vertebral arch complexes, disc spaces and neural formina are within normal limits.” On April 15, 2002, five days later, plaintiff appeared for a follow-up visit with Dr. Beth Clark, an ENT physician, to remove stitches from her eyes. Importantly, Dr. Clark’s records from that visit indicate that plaintiff complained of “pain in her neck & shoulders.”

The record reveals that the jury was presented with two competing views regarding the nature, extent, and cause of plaintiffs injuries. Plaintiffs expert, Dr. Provenza, testified that in his opinion, plaintiffs cervical disc herniation was caused by the August 2001 accident, not the incident in April of 2002. Defendant’s expert, Dr. Aiken, testified contrariwise. Although Dr. Provenza ruled out plaintiffs intervening fall as a cause of her injuries, Dr. Aiken testified that it was not uncommon for someone to suffer injury to their neck after receiving a significant blow to the head, explaining as follows:

[W]hen there’s a blow to the head and the head is — the head jerks in some direction opposite from where it was hit, that jerks the neck and accelerates the neck; and that will tear muscles and ligaments in the neck and that will cause neck pain and that will not be visible on an x-ray in any respect. So I don’t think it’s reasonable to say that you can look at x-rays and tell there was no neck injury.
I think if the patient complains of neck pain, that is a .better sign that there’s been a neck injury than if the x-rays are normal.

When asked if he thought it was “reasonable for Dr. Provenza to look at the patient in April and at the incident in August and then look at an MRI film after both of those incidents and say that he can relate a certain injury to the neck to one accident or the other,” Dr. Aiken answered, “No, that’s not medically reasonable.”

J^The jury heard this testimony and was required to make findings based on credibility determinations. Apparently, the jury credited Dr. Aiken’s testimony, and decided to give it more weight, and rejected plaintiffs version of these events and the explanations and opinions of her physician. Given her delay in seeking treatment, the intervening incident, and the defendants’ challenges to plaintiffs testimony, we are unable to find the jury erred in its decision to reject plaintiffs claim or in finding that causation was not established. Because there is a reasonable factual basis for the jury’s conclusions, we cannot say the jury’s finding that plaintiffs injuries were not causally related to the August 2001 accident is clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d at 882.

Although plaintiff argues that the testimony of Dr. Provenza, her treating physician, was entitled to more weight than that of Dr. Aiken, defendants’ expert, the proper inquiry is whether, based on the totality of the record, the jury was manifestly erroneous in accepting the expert testimony presented by defendants over that presented by plaintiff. See Miller v. Clout, 2003-0091 (La.10/21/03), 857 So.2d 458.

121 After a thorough review of the record herein, we cannot conclude that the jury’s findings are unreasonable. Because we find no merit to this argument and affirm the jury’s finding that plaintiffs injuries are not causally related to the August 2001 accident, we pretermit discussion of plaintiffs remaining assignment of error challenging the trial court’s grant of a directed verdict and dismissal of plaintiffs claims of negligent entrustment.

CONCLUSION

For the above and foregoing reasons, the August 24, 2005 judgment of the trial court is affirmed. Costs of this appeal are assessed against appellant, Brenda G. Breitenbach.

AFFIRMED.

      . Louisiana Code of Evidence article 403 provides, as follows:
      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or waste of time.

      . See LSA-R.S. 40:967(C) (where a conviction of possession of a Schedule II narcotic is punishable by a term of imprisonment up to five years and a fine of up to $5,000.00).

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . Moreover, we are unable to see how plaintiff was prejudiced in her presentation when the trial court granted, over defendants’ objection, plaintiff’s counsel additional time to complete her argument.

      . In Miller, the Louisiana Supreme Court found error in the appellate court's conclusion that the jury was manifestly erroneous in giving the defendants' medical expert’s testimony greater weight than the plaintiff's treating physician. Accordingly, the Supreme Court reversed the decision, stating:
      In its opinion, the court of appeal relied on a jurisprudential doctrine developed in the appellate courts which indicates the testimony of a treating physician should be accorded greater weight than the testimony of a physician who has only seen the party for purposes of rendering an expert opinion concerning the party’s condition. However, courts applying that doctrine have held the treating physician’s testimony is not ir-rebuttable, as the trier of fact is required to weigh the testimony of all the medical witnesses. Thus, reduced to its essentials, the inquiry is whether, based on the totality of the record, the jury was manifestly erroneous in accepting the expert testimony presented by defendants over that presented by plaintiff. (Citations omitted.)

        Miller v. Clout, 857 So.2d at 462, n. 3.


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    James Lance ROGERS and Wendy Adkins Rogers v. Carl E. DICKENS, Louisiana Farm Bureau Insurance Company and Mississippi Farm Bureau Insurance Company.
    No. 2006 CA 0898.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 9, 2007.

      Chadwick W. Codings, Tom W. Thorn-hill, Slidell, Counsel for Appellant M. Reggie Simmons and Plaintiffs/Appellants James Rogers and Wendy Rogers.
    Stacey Moak, Christopher A. Mason, Andrew W. Ralston, Baton Rouge, Counsel for Defendants/Appellees Carl E. Dickens and Mississippi Farm Bureau Casualty Insurance Company.
    Adrianne L. Baumgartner, Patricia P. Barattini, Covington, Counsel for Defendant/Appellee Louisiana Farm Bureau Casualty Insurance Company.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

1 ¡.The plaintiffs’ attorney in this personal injury litigation appeals a judgment holding him in constructive contempt of court. For the following reasons, we reverse the judgment.

FACTS AND PRIOR PROCEEDINGS

The plaintiffs, Wendy Rogers and Lance Rogers, filed a petition for damages on June 9, 2003, alleging that Ms. Rogers was injured on July 24, 2002, when her riding lawnmower was struck by a utility trailer being towed by Carl Dickens. The plaintiffs named as defendants Mr. Dickens and his liability insurer, Mississippi Farm Bureau Casualty Insurance Company (Mississippi Farm Bureau), as well as Louisiana Farm Bureau Casualty Insurance Company (Louisiana Farm Bureau), the plaintiffs’ underinsured motorists insurer. The petition alleged that Ms. Rogers sustained “serious and permanent injuries to [her] spine, hips, shoulder, legs, nervous system, and soft tissue,” “multiple seizures with loss of consciousness,” “mental anguish,” and “emotional distress.”

In response to discovery interrogatories propounded by Mississippi Farm Bureau and Mr. Dickens (hereafter referred to for convenience as “Mississippi Farm Bureau”), the plaintiffs stated that Ms. Rogers “suffered injuries to her head and neck, with pain radiating down her left side apparently as a result of brain, neurological and spinal injuries.” She identified a psychiatrist, Rene C. Duffourc, III, M.D., as one of the health care providers treating her claimed injuries and a potential expert. In her deposition given on April 8, 2004, Ms. Rogers attributed a suicide attempt in April of 2003 to unrelieved pain and associated emotional distress from her alleged injuries.

^Mississippi Farm Bureau retained a clinical psychologist, Kevin J. Bianchini, Ph.D., for the purpose of conducting a neuropsychological evaluation of Ms. Rogers, given her claims of possible brain injury and psychological illness caused by the accident. By letter dated June 16, 2004, Mississippi Farm Bureau’s counsel advised the plaintiffs’ counsel, M. Reggie Simmons, of its request that Ms. Rogers undergo an examination by Dr. Bianchini and an independent medical examination by an orthopedic surgeon. Further correspondence ensued between the opposing parties’ counsel, before the dates of September 22 and 23, 2004 were selected for the neurop-sychological examination. After the foregoing dates were selected, Mr. Simmons wrote to Mississippi Farm Bureau’s counsel on August 17, 2004, advising that he and Ms. Rogers objected to any examination by Dr. Bianchini unless certain specified conditions were met, including disclosure of Dr. Bianchini’s history of prior expert witness testimony. Further correspondence ensued relating to the adequacy of Mississippi Farm Bureau’s attempts to comply with the conditions.

After a telephone conference with the trial court failed to resolve the ongoing dispute, the scheduled examination was cancelled, and Mississippi Farm Bureau filed a motion to compel the neuropsycho-logical examination on September 14, 2004. The plaintiffs opposed that motion and responded with exceptions and a motion for a protective order.

Mississippi Farm Bureau’s motion to compel was originally set for hearing on October 18, 2004. Due to a conflict on its counsel’s calendar, it moved to reschedule the hearing for November 4, 2004. The plaintiffs then moved to continue the rescheduled hearing on the grounds that their counsel, Mr. Simmons, was scheduled to undergo shoulder surgery on November 1, 2004. In response to the plaintiffs’ latter motion, Mississippi Farm Bureau |4filed an opposition memorandum which incorporated a motion seeking an order that Ms. Rogers refrain from undergoing any surgery purportedly related to her claimed injuries until after either the hearing on the motion to compel or Dr. Bian-chini’s examination. The hearing on the latter motion was originally set for November 29, 2004.

On October 28, 2004, Ms. Rogers was evaluated by Paul van Deventer, M.D., the orthopedic surgeon retained by Mississippi Farm Bureau.

The motion to compel the neuropsycho-logical examination and the related matters were ultimately heard on an expedited basis in open court on November 10, 2004. Mississippi Farm Bureau presented Dr. Bianchini’s testimony relating to the purposes and relevance of his proposed examination. During the course of that hearing, Mr. Simmons advised the court and opposing counsel that no surgery was then scheduled. The trial court issued written reasons for judgment on November 18, 2004, ruling that it would deny the plaintiffs’ exceptions and grant Mississippi Farm Bureau’s motion to compel, ordering that Ms. Rogers submit to the requested examination. In its reasons, the trial court further noted that Mississippi Farm Bureau’s motion to postpone the surgery had been resolved, the court being informed that no surgery was then scheduled.

After the trial court’s written reasons for judgment were issued, in the course of attempting to select examination dates, the parties disagreed as to the length and scope of the examination. The disputed points were subsequently addressed in a telephone status conference with the trial court on November 22, 2004. Based upon the conference, the trial court ruled that the examination would be limited in scope to a psychological examination (as opposed to a full neuropsychological examination) and in duration to one Rday. During the course of that conference, Mississippi Farm Bureau’s counsel again inquired of Mr. Simmons whether surgery had been scheduled, and Mr. Simmons informed him it had not, to his knowledge. It is disputed by the parties whether Mr. Simmons then, in response to opposing counsel’s demand, agreed to notify the defendants if any surgery was subsequently scheduled to be performed before the psychological examination was accomplished. In later testimony, Mr. Simmons denied making such a commitment, although he acknowledged the subject may have been raised.

The day after the foregoing conference, Mr. Simmons replied by facsimile telecopier to a letter from Mississippi Farm Bureau’s counsel, stating that Ms. Rogers was unavailable for examination in December, and preferred an examination date of January 5, 2005.

On November 29, 2004, Ms. Rogers attended a previously-scheduled appointment with her treating neurological surgeon, Donald D. Dietze, Jr., M.D., who recommended and proceeded to schedule cervical spine surgery after Ms. Rogers accepted his recommendation.

On December 3, 2004, Mississippi Farm Bureau’s counsel office contacted Mr. Simmons’s office, requesting that the examination date be changed to January 24, 2005, as the prior date was no longer available. On December 9, 2004, Mr. Simmons contacted Ms. Rogers regarding the available date for rescheduling Dr. Bianchini’s evaluation, and on that occasion she advised Mr. Simmons of the surgery scheduled on December 15, 2004. She also instructed him not to inform the defendants’ attorneys of that fact unless a court order required such disclosure.

| fiThe cervical spine surgery was performed as scheduled on December 15, 2004. On December 20, 2004, Mr. Simmons informed the defendants’ counsel by letter of the surgery.

On January 21, 2005, Mr. Simmons advised Mississippi Farm Bureau’s counsel that Ms. Rogers was unable to attend the scheduled examination for health reasons. On January 31, 2005, Mr. Simmons advised Mississippi Farm Bureau’s counsel that Ms. Rogers was then physically able to attend the psychological examination, and that same day Mississippi Farm Bureau’s counsel requested that Ms. Rogers agree to a consent order by the trial court as to the date of the examination, based upon the previous difficulty in scheduling the examination.

Receiving no response to the above-described request, on February 17, 2005, Mississippi Farm Bureau filed a motion for a status conference, seeking an order fixing a firm date for the examination. The trial court denied the motion by order dated March 3, 2005, with the notation, “Applicant needs to file contempt motion if warranted.”

On March 16, 2005, all defendants filed a joint motion for contempt against Ms. Rogers and her attorney, Mr. Simmons. In their motion, the defendants also sought awards of attorney fees, court costs, and other associated expenses related to Mississippi Farm Bureau’s attempts to schedule the examination by Dr. Bianchini. The plaintiffs thereupon filed a motion for sanctions against all defendants and their counsel, combined with a memorandum in opposition to the joint motion for contempt.

The foregoing opposing motions were heard on May 3, 2005. Ms. Rogers and Mr. Simmons testified at the hearing. At the conclusion of the hearing, the trial court ruled in favor of the defendants, finding Mr. Simmons in contempt, but absolving Ms. Rogers, on the grounds she had acted in |7reliance on her attorney’s advice. The trial court also denied the plaintiffs’ motion for sanctions. The trial court’s judgment was signed on May 24, 2005. The trial court’s order granting a “restricted” suspensive appeal to the plaintiffs and Mr. Simmons was signed November 2, 2005.

ASSIGNMENTS OF ERROR

The plaintiffs and Mr. Simmons contend that the trial court erred in finding Mr. Simmons in constructive contempt of court, as it was not based upon violation of an order relating to the timing or disclosure of Ms. Rogers’s surgery, and on the grounds that any such order would have been unlawful. They further contend that the penalty imposed is contrary to the mandatory provisions of La. C.C.P. art. 227 and La. R.S. 13:4611.

STANDARD OF REVIEW

A trial court is vested with great discretion in determining whether a party should be held in contempt, and its decision will only be reversed when the appellate court discerns an abuse of that discretion. de Nunez v. Bartels, 97-1384, p. 13 (La.App. 1st Cir.9/9/98), 727 So.2d 463, 469-70. But while it is true that the trial court’s ultimate decision to hold a party or attorney in contempt of court is subject to review under the abuse of discretion standard, the trial court’s predicate factual determinations are reviewed under the manifest error standard in the case of a civil contempt, and under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the case of a criminal contempt. See In re Milkovich, 493 So.2d 1186, 1189 (La.1986). Therefore, in the case of a criminal contempt, if the facts which constitute the contemptuous conduct | sare proven beyond a reasonable doubt, then the trial court has great discretion in determining whether to impose a judgment of contempt based upon its factual determinations. With regard to the sufficiency of the trial court’s factual findings, the standard of review for a criminal contempt is whether, after reviewing the evidence in the light most favorable to the mover, any rational trier of fact could have found the essential elements of the criminal contempt beyond a reasonable doubt. Id.

ANALYSIS

Authority to punish for contempt of court falls within the inherent power of the court to aid in the exercise of its jurisdiction and to enforce its lawful orders. de Nunez, 97-1384 at p. 13, 727 So.2d at 470. A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. La. C.C. P. art. 221. Proceedings for contempt must be strictly construed, and the policy of our law does not favor extending their scope. Estate of Graham v. Levy, 93-0636R, 93-0134, p. 4 (La.App. 1st Cir.4/8/94), 636 So.2d 287, 290, writ denied, 94-1202 (La.7/1/94), 639 So.2d 1167.

The provisions of La. C.C.P. art. 224 relevant for our present purposes are the following:

A constructive contempt of court is any contempt other than a direct one.
Any of the following acts constitutes a constructive contempt of court:
| a(2) Willful disobedience of any lawful judgment, order, mandate, writ, or process of the court;
(4) Deceit or abuse of the process or procedure of the court by a party to an action or proceeding, or by his attorney;
(10) Any other act or omission punishable by law as a contempt of court, or intended to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority, and which is not a direct contempt. (Emphasis supplied.)

The defendants summarized the factual grounds of their motion for contempt as Mr. Simmons’s failure “to cooperate or agree to amicably resolve litigation issues with opposing counsel” and his violation of a prior assurance made in the course of a telephone status conference to inform the defendants of the scheduled surgery after he learned of it. The defendants characterized the foregoing as “contumacious and insolent behavior” constituting direct contempt of court under La. C.C.P. art. 222. They also charged “a pattern of willful misrepresentation and deceit that interferes with the orderly administration of justice, impairs the dignity of the [cjourt, and is indicative of a lack of respect for opposing counsel and for the authority of the [cjourt,” constituting constructive contempt under La. C.C.P. art. 224. In its oral reasons for judgment, the trial court expressly based its ruling upon the provisions of La. C.C.P. art. 224(10), stating as follows:

All right. Well, I know we talked about this at the hearing I had back in November. And the reason that I didn’t ever rule on the issue of postponing the surgery was because it was the Court’s understanding that there was no imminent surgery that was going to be performed. It is amazing to me that Mr. Simmons can come in here today and tell the Court that he [did] not know that the defendants wanted to have the [examination] before any further surgery was done. It’s just amazing.
|inAnd even though there was no court order, I believe that an attorney who has that knowledge has the duty to communicate to the other side when he found out that the facts that the Court assumed when I issued my judgment were no longer applicable.
I’m not going to find Mrs. Rogers in contempt of court because I think she probably relied on Mr. Simmons’ advise [sic] or comments to her. However, I do find that I believe Mr. Simmons is in constructive contempt of the court, under Article 224, Subsection (10.)
I’m ordering him to pay $5000 in attorney fees plus costs. I’m further ordering that the [examination] be scheduled today before you-all leave the courthouse. (Emphasis supplied.)

The trial court expressly precluded' La. C.C.P. art. 224(2) and implicitly precluded La. C.C.P. art. 224(4) as grounds for its judgment. Strictly construing its ruling, as we are required to do, we must conclude that the finding of criminal contempt was not based upon either a violation of a court order or deceit or abuse of process.

A contempt proceeding incidental to a civil" action is considered to be a civil matter if its purpose is to force compliance with a court order, but is treated as a criminal matter if its' purpose is to punish disobedience of a court order. State in the Interest of R.J.S., 493 So.2d 1199, 1202 (La.1986). In other words, an unconditional penalty, one that the party held in contempt cannot affect or end, is criminal in nature. A conditional penalty, which compels the party to comply with the court’s order to end the penalty, is a civil one. Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 633, 108 S.Ct. 1423, 1430, 99 L.Ed.2d 721 (1988). If the penalty imposed is criminal in nature, the burden of proof of the elements of contempt must be beyond a reasonable doubt. Hicks, 485 U.S. at 632, 108 S.Ct. at 1429-30.

If the primary purpose of the contempt judgment is punitive rather than coercive, the same criminal burden of proof should logically apply even if there was no technical violation of a specific court order." The defendants In contend that the judgment of contempt at issue was civil in, nature, because it did not impose a “criminal sentence,” i.e., incarceration, but rather a “remedial” fine in the form of an attorney fees award, and because it arose in the context of civil litigation. We disagree. -

Here, the defendants’ obvious purpose in seeking to hold Ms. Rogers and her counsel in contempt was to punish them for their conduct in failing to disclose the scheduling of surgery prior to the psychological examination, thereby depriving the defendants of the supposed benefit of that examination prior to surgery. The defendants were therefore required to prove every fact necessary to support the charge of constructive contempt of court beyond a reasonable doubt. The trial court record and the defendants’ appellate briefs are replete with references to the importance of their securing the psychological examination prior to any surgery. The defendants contend that the timing of the surgery impaired the value of any subsequent psychological examination and essentially amounts to spoliation of evidence. But noticeably absent from the record is any proof supporting these contentions, as opposed to mere supposition.

The purpose of charging and convicting a party for criminal contempt is vindication of the public interest by punishment of contemptuous conduct. Billiot v. Billiot, 01-1298, p. 5 (La.1/25/02), 805 So.2d 1170, 1174. In a case involving willful disobedience of a court order, the act or omission constituting criminal contempt must be done with an intent to defy the authority of the court. Id. To uphold the conviction, we must determine that the evidence, viewed in the light most favorable to the defendants, is sufficient for a rational trier of fact to conclude beyond a reasonable doubt that every element of the contempt charge was proven. Id.

|iaAs the plaintiffs correctly observe, La. C.C.P. art. 1464 by its terms authorizes a court to order a party’s examination by “a licensed clinical psychologist who is not a physician” only upon a showing of “good cause” and “provided the •party has given notice of intention to use such an expert.” (Emphasis supplied.) The record does not reflect that Ms. Rogers ever gave any notice or suggestion that she intended to use a licensed clinical psychologist as an expert at trial; however, the defendants equate the profession of Ms. Rogers’s treating psychiatrist with that of a licensed clinical psychologist and emphasize that she has clearly placed her mental condition in controversy. We cannot agree that the defendants were entitled to the order compelling the examination by Dr. Bianchini, as opposed to a psychiatrist. But as the validity of that order was evidently not challenged by means of a supervisory writ application, the issue of whether the trial court erred in issuing the order compelling the examination is not directly before us. Thus, the order must be considered valid for our present purposes, but the issue of its legal basis has indirect relevance to the issue before us.

It is uncontested that both Ms. Rogers and Mr. Simmons were acutely aware of the defendants’ interest in any anticipated surgery and in securing the requested psychological evaluation prior to any surgery. But if a party cannot be held in contempt for failure to obey an order to submit to a mental examination, it stands to reason that the party’s attorney should not be held 1 isin contempt for simply failing to disclose information relevant to the timing of such an examination, where neither that order nor any other order requires that disclosure. See La. C.C.P. art. 1471(4). If the actions reflected in the hearing testimony rise to the level of contempt, it would seem that Ms. Rogers was more blameworthy than her counsel, since it is undisputed that she expressly directed Mr. Simmons to withhold disclosure of the imminent surgery. There being no direct order requiring such disclosure, any legally enforceable duty to disclose the scheduling of the surgery must derive from some other source. Defendants point to no other positive basis for imposition of such a duty here, other than the purported promise by Mr. Simmons during the telephone status conference of November 22, 2004 to notify Mississippi Farm Bureau’s counsel if surgery was scheduled before Dr. Bianchini’s scheduled evaluation.

Acting upon the trial court’s suggestion in its order denying their motion for a status conference, defendants opted to file a motion for contempt, rather than a motion to compel discovery under La. C.C.P. art. 1469 or for discovery sanctions under La. C.C.P. art. 1471. However, the relief sought by the defendants and granted by the trial court, payment of the defendants’ attorney fees and costs associated with the attempts to schedule the examination, is not authorized under La. C.C.P. art. 227 and La. R.S. 13:4611(l)(d), although available under the above discovery articles. The |14fact that the trial court also ordered that the psychological evaluation be scheduled by the parties that day underscores the character of the relief sought as enforcement of discovery. For a judgment of contempt to be rendered as a sanction under La. C.C.P. art. 1471, the offending party must fail to “obey an order to provide or permit discovery.” (Emphasis supplied.)

With regard to the timing of the psychological examination relative to surgery, there is no suggestion in the record that Mississippi Farm Bureau sought any relief short of an actual injunction or order delaying any surgery, as, for example, an order requiring notice of scheduling of surgery and submission to psychological evaluation prior to the date of surgery, in default of which evidence relating to such surgery would be excluded at trial. See La. C.C.P. art. 1471(2). The fact that the trial court denied the motion to postpone the surgery as moot, based upon Mr. Simmons’s representations at the hearing, cannot by itself serve as the basis for imposition of an affirmative duty to inform the defendants of the subsequent change in circumstances. A finding of such a duty would presuppose the authority of the trial court to enjoin or delay the surgery, authority which we conclude it did not legally possess, at least under these circumstances.

115In light of all the circumstances, and based upon our review of the applicable law, we view Mr. Simmons’s conduct as a lapse in professionalism rather than an act of constructive contempt. While it seems obvious that Mr. Simmons’s actions, rightly or wrongly, were intended to obstruct or interfere with Mississippi Farm Bureau’s attempt to secure the psychological evaluation, we cannot conclude that such actions were intended to “obstruct or interfere with the orderly administration of justice” by the trial court. See La. C.C.P. art. 224(10).

In so holding, however, we expressly state that we do not countenance the apparent pattern of obstructive tactics and lack of cooperation he and his client employed in the discovery phase of this litigation. Certainly, if the defendants had obtained an order compelling a timely answer or an expedited supplemented answer to an interrogatory specifically directed to the issue of scheduling of surgery, the result we reach herein might be quite different. And we do not hold that the violation of a court order is a necessary element in every case of constructive contempt; the plain language of La. C.C.P. art. 224 does not require that. We simply hold that the defendants did not prove beyond a reasonable doubt: (1) the existence of a legal duty on Mr. Simmons’s part to inform them, over his client’s express objection, or the trial court of the impending surgery, and (2) that his failure |1fito do so under the circumstances was intended to defy the authority of the trial court, or to impair its dignity or respect for its authority.

The judgment granting the defendants’ joint motion for contempt and ordering the appellant, M. Reggie Simmons, to pay $5,000.00 attorney fees plus court costs associated with the filing and prosecution of the motion is accordingly reversed. All costs of this appeal are assessed to the defendants, Mississippi Farm Bureau Casualty Insurance Company and Louisiana Farm Bureau Casualty Insurance Company.

REVERSED.

      . The trial court's judgment reflecting its rulings from the November 10, 2004 hearing and telephone status conference of November 22, 2004 was signed on January 26, 2005.

      . In its appellate brief, Mississippi Farm Bureau seeks an increase in the award of attorney fees to $10,000.00. Because it did not file its own appeal or an answer to the appeal of the plaintiffs and Mr. Simmons, we have no authority to consider that request. See La. C.C.P. art. 2133(A).

      . In practical application, the standard of review of criminal contempt is essentially the same as the manifest error standard. See Billiot v. Billiot, 01-1298, pp. 5-6 (La. 1/25/02), 805 So.2d 1170, 1174 (“There were two permissible views of the evidence in this case, and the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. [Citation omitted.] Nevertheless, we find that the trial court erred by holding OCS in contempt in this case, even based on the facts as the trial court found them.”).

      . See n. 8, infra.

      . During the course of the hearing and in its written reasons for judgment on the motion to compel the examination, the trial court interpreted the quoted language to refer to the party requesting the examination as the party required to afford notice of such intent. This is an erroneous interpretation of the plain language of the article. This court recently granted a supervisory writ in another case on this identical issue. There, we reversed a trial court judgment compelling the plaintiff to submit to an "independent psychological evaluation” because the plaintiff had not “given notice of his intent to use a clinical psychologist as an expert.” Arnold v. Louisiana Farm Bureau Mut Ins. Co., 2006 CW 2044 (La.App. 1st Cir. 12/21/06) (unpublished writ disposition).

      . Ms. Rogers testified that she asked Mr. Simmons if there was an order requiring disclosure of the scheduled surgery to the defendants, and upon being advised there was no such order, she instructed him that they “would not say anything because [she] did not want anything to come between [her] getting well.” See Louisiana State Bar Association Articles of Incorporation, Art. 16, Rules of Professional Conduct, Rule 1.6(a). But cf. Art. 16, Rules 3.3(a)(1), (c) and 3.4(a).

      . Louisiana Code of Civil Procedure article 227 limits the punishment for contempt to that set forth in La. R.S. 13:4611. Punishment for the constructive contempt at issue is limited to "a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.” La. R.S. 13:461 l(l)(d). Fines for contempt of court are collectable by the sheriff and payable to the court or designated officials, rather than opposing litigants. See La. C.C.P. art. 330.

      . See Viator v. Sonnier, 355 So.2d 1091, 1093 (La.App. 3rd Cir.1978) ("The discovery articles do not authorize the court to interfere with the medical decision of when surgery should be performed. Under these circumstances, we do not feel that it was within the discretion of the trial judge to issue an order that could affect the time at which surgery should be performed.”). Additionally, it seems only reasonable that the trial court, before imposing a judgment of contempt of court upon Mr. Simmons, should have made a determination that the timing of the psychological evaluation prior to orthopedic or neurological surgery was in fact crucial or at least important for purposes of its relevancy and the accuracy of any findings, opinions, or conclusions. No testimony or other evidence on this particular point was offered by the defendants at either the hearing on the motion to compel the examination or the hearing on the motion for contempt. Although Dr. Bianchini did testify at the former hearing regarding the role of psychological testing in facilitating the determination of whether patients are suitable surgical candidates, he was not asked to address the converse issue: the effect of surgery upon a subsequent psychological assessment.

      . Louisiana Code of Civil Procedure article 1458 generally requires the party to whom interrogatories are propounded to serve an answer or objection within fifteen days after service, but also expressly provides that "[t]he court may allow a shorter or longer time.” (Emphasis supplied.) Although a motion seeking additional time to answer interrogatories is common, a motion to limit an opposing party’s time to answer interrogatories is also available to a litigant. Louisiana Code of Civil Procedure article 1428(3) also provides that "[a] duty to supplement [discovery] responses may be imposed by order of the court ... or at any time prior to trial through new requests for supplementation of prior responses.” (Emphasis supplied.) Reading these provisions together, it is obvious that a trial court has the authority to order a party to expeditiously answer an interrogatory after service or to expeditiously supplement a prior answer after acquiring knowledge imposing a duty to “seasonably” supplement his answer. See La. C.C.P. art. 1428(1), (2). See also Viator, 355 So.2d at 1094 n. 2. Unjustified violation of such an order might then constitute grounds for a finding of contempt under La. C.C.P. art. 1471(4) and assessment of "reasonable expenses, including attorney’s fees, caused by the failure” under the last paragraph of art. 1471.


author: McClendon, j.

text:
    STATE of Louisiana v. Mark RILES.
    No. 2006 KA 1039.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2007.

      J. Phil Haney, District Attorney, Jeffrey J. Trosclair, Assistant District Attorney, Franklin, Counsel for Appellee State of Louisiana.
    Mary E. Roper, Baton Rouge, Counsel for Defendant/Appellant Mark Riles.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

I ¡The defendant, Mark Riles, was charged by bill of information with one count of possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1 (count 1); four counts of simple burglary, violations of LSA-R.S. 14:62 (counts 2-5); and one count of battery of a police officer, a violation of LSA-R.S. 14:34.2 (count 6). Represented by counsel, the defendant entered pleas of not guilty.

Subsequently, the defendant withdrew his pleas of not guilty and entered pleas of guilty to the above-mentioned six charges. The defendant was sentenced to six (6) months for the battery of a police officer conviction; five (5) years for each of the simple burglary convictions, with each simple burglary sentence to run consecutive to each other; and ten (10) years at hard labor for the possession of a firearm by a convicted felon conviction. The sentences for battery of a police officer and possession of a firearm by a convicted felon were ordered to run concurrently with the simple burglary sentences. The defendant filed a motion to reconsider sentence, which was denied. The defendant now appeals, designating four assignments of error. We affirm the convictions and sentences.

FACTS

Because the defendant pled guilty, the facts were not fully developed at ajjtrial. The factual basis for the guilty plea, provided by the prosecutor during the defendant’s Boykin hearing, is as follows:

[On] September 11th of 2004, the Rent-Way Store in Franklin on Main Street was burglarized. Various items were taken. The police investigated, they were able to obtain fingerprints from this defendant at the scene. They also were able to get some shoe prints which matched the shoes at this defendant’s house and then on September 23rd, the police went, there was a burglary at Blockbuster. The police went there and they already had him — this defendant as a suspect. They left there and went to the defendant’s house and they found various items taken from Blockbuster.
Also, the police was looking for him and suspected that he was in the attic. They made it into the attic and there was a box containing items that were taken from Keep Moving Records. The[y] found this defendant in the attic. They asked him to stop, he refused to stop. One of the Franklin PD Officers, McLean, tried to grab him. He started kicking him, injuring his arm. The defendant was able to kick out the side wood to the attic and also in the process Chief Hill and Chief McLean saw the defendant take some object out of his waste (sic) band and stick it in the insulation.
Eventually the defendant was able to make it out of the attic and he was apprehended outside. They went back to look to see what the object was. Because of the age of the house, it was very old, the electrical work was old and Chief Hill got zapped somewhat by the electricity. So the next day they went— they obtained a search warrant and went into the attic and in the area where the defendant was they found a loaded .22 and also after finding objects taken from Keep Moving Records, they went there and found that the place had been burglarized. Also they found that entry had been made to the Radio Shack store and the co-defendant of this defendant gave the police a statement that he was with them during the burglary of the Rent-Way store.

ASSIGNMENTS OF ERROR NUMBERS 1, 2, AND 3

The defendant’s first, second, and third assignments of error address the issue of excessive sentence. The defendant argues the trial court erred in failing to properly consider mitigating factors; the trial court erred in imposing an excessive sentence; and the trial court abused its discretion in denying the motion to reconsider sentence.

pArticle I, section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. In Louisiana, LSA-C.Cr.P. art. 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of LSA-C.Cr. P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one’s sense of justice. State v. Andrews, 94-0842, pp. 8-9 (La.App. 1 Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La.App. 1 Cir.1988).

The articulation of the factual basis for a sentence is the goal of LSA-C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La.1982). The trial judge should review the defendant’s personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. State v. Jones, 398 So.2d 1049, 1051-1052 (La.1981).

The defendant contends in the instant matter that, in reviewing the presen-tence investigation report, the trial court did not consider any mitigating | ¡^actors which may have been present in his social history, such as education, age, marital status, dependents, family stability, employment, and mental, emotional and physical health. We do not agree. While the trial court did not mention LSA-C.Cr.P. art. 894.1 by name, it is clear from its reasons for judgment at sentencing that it carefully considered the article. It is also clear from the record that the trial court reviewed and considered the presentence investigation when it sentenced the defendant.

The relevant colloquy at the sentencing hearing is as follows:

By the Court: We’re going to take a short break.... Here’s the criminal history that I received and I intend to file that in the record.
⅜ ⅜; ⅜ ⅝ ⅜
By the Court: You have that pre-sen-tence? Okay. Mr. Sigur, correct me and Mr. LeGros, correct me. He’s pled guilty to possession of a firearm by a convicted felon.
By Mr. Sigur: Yes, sir.
* * * ⅜: *
By the Court: Let me review his criminal records check....
⅜ ⅜ ⅜ ⅜ ⅜
By the Court: It appears that in July 24th, ’02, he was charged with aggravated battery, second degree battery, illegal carrying of a weapon and resisting an officer for which he received certain sentences, probation, two years supervised probation and then his probation was revoked; is that correct?
He was charged on 5/6/03 on second degree murder, inciting a felony and theft charge.
By Mr. Sigur: It was an attempt.
‡ ⅜ ⅜ ⅜ ‡
By Mr. LeGros: And it was pled out.
By the Court: Yes, it was reduced to that, and five years hard labor, suspend all but two and a half years, five years. And 11-12-04 probation, it was revoked.
So we have two probation revocations, right? ...
⅜ ⅜ ⅜ ⅝ ⅝
By the Court: Why don’t you take a look and then you — here's the file and maybe you can tell me if it’s the second or third felony. It will make a difference.
By Mr. LeGros: Judge, this is only his second felony.
By the Court: Okay. Then I stand corrected. He has shown a pattern of conduct. If we look at the sentencing guidelines, a pattern of | (¡conduct of criminal activity.
He has committed violent crimes against a person which indicates a pattern of conduct which will affect public safety in the future.
In looking at the sentencing guidelines, one must determine what the affect is on the public and public safety.
I find that his anti-social behavior makes him a menace to public safety.
I find that there is a consistent pattern of violent conduct and one of the most troubling things concerning Mr. Riles is that he committed not only a battery on a police officer but injured that police officer during the course of a lawful arrest.
It appears that Mr. Riles will benefit from custodial treatment and I do not think that he will — (nor) has he shown any active contrition, nor has he indicated through his attorney that he feels sorry about these crimes he’s committed and the crimes of burglary and acts against the police officer, so I assume that he is unrepentant.
I find that the — burglary is a serious charge but the State has not proved that these are a major economic offense and the State has put on no evidence to indicate that the burglaries were such that, other than the police officers, there was a threat to life and public property.
So I do not find there was a major economic offense.
I do find that the offender knowingly created a risk of bodily harm to the police officers.

As the record indicates, the trial court adequately considered article 894.1, as well as the presentence investigation report, which indicates various prior criminal offenses, including a felony. The trial court specifically noted mitigating factors in the State’s failure to prove that the offenses committed by the defendant had a major economic impact, as well as the State’s failure to prove that the burglaries were a threat, other than to the police officers, to life and public property. However, the trial court further noted that the defendant was a menace to public safety, that he had a consistent pattern of violent conduct, that he injured a police officer during a lawful arrest, and that he had shown no contrition for his crimes. Moreover, even when the trial court has not complied with article 894.1, this court need not remand the case for resentencing, unless the sentence imposed is apparently severe in relation to- the particular offender or the offense committed. State v. Pender, 521 So.2d 556, 557 (La.App. 1 Cir. 1988). As indicated by the trial court’s reasons for sentencing, the sentences imposed are clearly not severe in | relation to this particular defendant or the multiple offenses committed.

The defendant also argues that the consecutive five-year sentences for each of the four counts of simple burglary were excessive. He contends that since the crimes were committed within close proximity to each other and only minor property was taken, the four five-year sentences should have been ordered to run concurrently with each other. The defendant’s claim is not properly before us.

The defendant’s written motion to reconsider sentence states, in pertinent part, the following:

Pursuant to the provisions of the Louisiana Code of Criminal Procedure Article 881.1 your defendant moves this Honorable Court to reconsider his sentence for the following reasons, to-wit:
(a) This Honorable Court erred in imposing a constitutionally excessive sentence.
(b) This Honorable Court erred in not properly tailoring a particular sentence to the facts and circumstances of this ease and this defendant.
(c) This Honorable Court erred in not properly considering all the mitigating factors!.]

Article 881.1(B) of LSA-C.Cr.P. requires a party who files a motion to reconsider sentence to state in the motion the specific ground on which the motion is based. A party is precluded from urging on appeal any ground which was not raised in the motion to reconsider. LSA-C.Cr.P. art. 881.1(E). Thus, in the instant matter, the defendant’s motion to reconsider the sentence, on the ground that the sentence is “constitutionally excessive,” was insufficient to preserve the claim he now raises on appeal—that the trial court erred by imposing consecutive sentences. See State v. Arbuthnot, 625 So.2d 1377, 1385 (La.App. 1 Cir.1993).

Moreover, if we were to consider this claim, we would find it baseless. Concurrent rather than consecutive sentences are the general rule for multiple convictions arising out of a single course of criminal conduct, at least for a defendant without a prior criminal record. See LSA-C.Cr.P. art. 883. However, Reven if convictions arise out of a single course of conduct, consecutive sentences are not necessarily excessive; other factors must be taken into consideration in making this determination. For instance, consecutive sentences are justified when the offender poses an unusual risk to the safety of the public. See State v. Crocker, 551 So.2d 707, 715 (La.App. 1 Cir.1989).

In the instant matter, the trial court specifically found that with his antisocial behavior and consistent pattern of violent conduct, the defendant was a menace to public safety. Under these circumstances, the imposition of consecutive sentences for these simple burglaries does not render these sentences excessive. Furthermore, the sentences imposed for these offenses were well within the statutory limits and do not constitute an abuse of discretion by the trial court. See Crocker, 551 So.2d at 715. See also State v. Palmer, 97-0174, pp. 5-6 (La.App. 1 Cir. 12/29/97), 706 So.2d 156,160.

The maximum sentence for simple burglary pursuant to LSA-R.S. 14:62(B) is twelve years. The maximum sentence for possession of a firearm by a convicted felon pursuant to LSA-R.S. 14:95.1(B) is fifteen years. The maximum sentence for battery of a police officer pursuant to LSA-R.S. 14:34.2(B)(1) is six months. The maximum sentencing exposure for these sentences, if run consecutively to each other, is sixty-three and one-half (63½) years. The defendant’s sentences amount to a maximum twenty-year sentence. Considering the trial court’s careful review of the circumstances, the defendant’s criminal history, a pattern of conduct by the defendant that affects public safety, and the fact that the defendant’s total sentence is less than one-third of the possible maximum sentence, the sentences imposed by the trial court are not grossly disproportionate to the severity of the offenses and, therefore, are not unconstitutionally excessive. The trial court did not abuse its discretion in denying the defendant’s motion to reconsider sentence.

|3These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 4

In his fourth assignment of error, the defendant contends the trial court failed to properly advise him of the delays for applying for postconviction relief.

While the trial court advised the defendant that he had two years to file for postconviction relief, it did not inform him that the two-year time period begins to run from the time his convictions and sentences become final. As the issue has been raised herein, it is apparent that the defendant has notice of the limitation period and/or has an attorney who is in the position to provide him with such notice. Although we have done so in the past, we decline to remand for the trial court to provide such notice. Instead, out of an abundance of caution and in the interest of judicial economy, we note that LSA-C.Cr.P. art. 930.8(A) generally provides that no application for postconviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. art. 914 or 922. See State v. Godbolt 2006-0609, pp. 7-8 (La.App. 1 Cir. 11/3/06), 950 So.2d 727, 732.

CONVICTIONS AND -SENTENCES AFFIRMED.

      . The defendant was also charged with resisting an officer (LSA-R.S. 14:108). This charge was subsequently dismissed.

      . For the possession of a firearm by a convicted felon conviction, both the minute entry and the DOC Uniform Commitment Document, which are part of the record, indicate the sentence is at hard labor.

      . For the possession of a firearm by a convicted felon conviction, the trial court failed to impose the mandatory fine of not less than one thousand dollars nor more than five thousand dollars pursuant to La. R.S. 14:95.1(B). However, the defendant is not prejudiced by the trial court’s failure to impose the fine. Accordingly, we decline to exercise our discretion to correct the illegally lenient sentence. See State v. Price, 2005-2514, p. 12 (La.App. 1 Cir. 12/28/06), 952 So.2d 112, 119 (en banc).

      . The defendant argues that his total twenty-year sentence (five-year sentences for each of the four counts of simple burglary to run consecutively) is excessive. The defendant does not contest the other sentences.