author: DAVID S. GORBATY, Judge. BELSOME, J.,

text:
    Golzie DANOS and Thibodeaux Danos v. AVONDALE INDUSTRIES, INC. (Formerly Avondale Shipyards, Inc.) and its Executive Officers, et al.
    No. 2007-CA-1094.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2008.

      Gerolyn P. Roussel, Perry J. Roussel, Jr., Jonathan B. Clement, Lauren R. Clement, Roussel & Clement, LaPlace, LA, for Faye Thibodeaux Danos, Julie Da-nos Landry, Jill Danos Trosclair, Jana Da-nos Anzelmo.
    Lynn M. Luker, Lynn Luker & Associates, LLC, New Orleans, LA, for Foster Wheeler LLC.
    (Court composed of Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   DAVID S. GORBATY, Judge.

| iPlaintiffs, Faye Thibodeaux Danos, Julie Danos Landry, Jill Danos Trosclair and Jana Danos Anzelmo, appeal a summary judgment granted in favor of defendant, Foster Wheeler, L.L.C. For the following reasons, we affirm.

PROCEDURAL HISTORY:

This suit was initially filed on behalf of Golzie Danos and his wife, Faye Thibo-deaux, for damages incurred by Mr. Danos in connection with his employment by Northrup Grumman Ship Systems, Inc., f/k/a Avondale Industries, Inc., f/k/a Avon-dale Shipyards, Inc. (Avondale) from approximately 1964 to 1977. Following Mr. Danos’ death, his widow and adult children filed survival and wrongful death actions. The actions alleged that Mr. Danos was exposed to asbestos-containing products developed and manufactured by Foster Wheeler, which exposure caused him to contract mesothelioma and to ultimately die from the disease.

Foster Wheeler filed a Motion for Summary Judgment alleging that it was never a manufacturer of asbestos products; rather, it is an engineering company [¡¡that designs power generation equipment such as boilers. The trial court granted summary judgment finding that there was insufficient evidence to overcome plaintiffs’ burden of proof at trial that Mr. Danos was exposed to asbestos from any products manufactured by Foster Wheeler. Plaintiffs have appealed that ruling.

STANDARD OF REVIEW:

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230; Grant v. American Sugar Refining, Inc., 06-1180, p. 3 (La.App. 4 Cir. 1/31/07), 952 So.2d 746, 748. Summary judgments shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, scrutinized equally, show that there is no genuine issue as to material fact, and that the mover is - entitled to judgment as a matter of law. La.Code Civ. Proc. art 966(B). However, as noted by the Supreme Court in Sunbeam, supra, the trial court cannot make credibility determinations on a motion for summary judgment. Sunbeam, 99-2181, 99-2257, p. 16, 755 So.2d at 236. Further, the weighing of conflicting evidence has no place in the summary judgment procedure. Grant, 06-1180, p. 4, 952 So.2d at 748.

The burden of proof remains with the mover. Grant, supra; Bd. of Assessors of the City of New Orleans v. City of New Orleans, 02-0691, p. 8 (La.App. 4 Cir. 9/25/02), 829 So.2d 501, 506. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary | .judgment, the mover’s burden on the motion does not require the mover to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Bd. of Assessors, pp. 8-9, 829 So.2d at 506; Grant, supra. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, there is no genuine issue of material fact. Grant, supra.

A fact is material if it is essential to plaintiffs cause of action under the applicable theory of recovery and if without the establishment of the fact by a preponderance of the evidence, plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Grant, 06-1180, p. 4, 952 So.2d at 748-49.

A plaintiff in an asbestos case must show by a preponderance of the evidence that he was exposed to asbestos from the defendant’s products, and that he received an injury that was substantially caused by that exposure. When multiple causes of injury are present, a defendant’s conduct is a cause in fact if it is a substantial factor in causing plaintiffs harm. Vodanovich v. A.P. Green Indus., Inc., 03-1079, p. 3 (La.App. 4 Cir. 3/3/04), 869 So.2d 930, 932.

I ¿DISCUSSION:

To determine if the trial court erred in granting Foster Wheeler’s motion for summary judgment, we must determine whether any genuine issues of material fact exist.

Golzie Danos was employed by Avondale from approximately 1964 to 1977 as an electrician’s helper, electrician, terminator and foreman. He performed new construction and repair work on vessels such as destroyer escorts, Coast Guard cutters and high endurance ships, Exxon tankers, LASH vessels, and various cargo vessels. Although Mr. Danos admitted that he did not work on boilers, he testified by deposition that he worked around other mén who were laying pipes on and to the boilers. Mr. Danos claimed that sometimes the insulating work being done on the boilers would interfere with his electrical work because the area was “very dusty,” and insulating adhesives that fell on the electrical cables would have to be scraped off. The companies whose products Mr. Danos saw being applied to or from the boilers were Eagle, Taylor, Kylo, Micarta, Flintkote and Benjamin Foster.

Contrary to the above testimony, Mr. Danos also testified that he did not do much work around boilers at all; in fact, the only vessels on which he worked around boilers were the destroyer escorts. Evidence was produced by Foster Wheeler to prove that its boilers were not used on these particular vessels. Mr. Danos further testified that when he was in a boiler room when insulation was being done on pipes, he “would usually be out of there as fast as [he] could.”

| .^Foster Wheeler offered evidence that the boilers on the destroyer escorts were manufactured by Combustion Engineering. A designer for Combustion Engineering testified that the scope of supply of a boiler company was what went on inside the boiler, and did not go beyond this to the external connections.

Lester Plaisance, an Avondale boilermaker, testified that Foster Wheeler boilers were used on destroyer escorts. However, he stated that the Foster Wheeler name appeared only on the metal, tubes and headers, not on any cement or brick product installed on the boiler. Lester Adams, a warehouseman, confirmed that Foster Wheeler’s name was only on boxes of hardware, not boxes of block, pipe covering or insulation products.

Rudy Walker testified that he worked around boilermakers who cut insulation to be installed on the boilers. As an electrician, he connected electrical components to the boilers while the insulating work was being done. Mr. Walker, however, did not testify that he ever worked with or around Mr. Danos, and further testified that he never worked on the destroyer escorts, the only vessels on which Mr. Danos stated he worked around boilers.

Plaintiffs offered a plethora of deposition testimony from various Avondale employees who testified that they worked on or around boilers. However, none of them testified that they worked with Mr. Danos. Similarly, numerous Avondale employees testified that Foster Wheeler boilers were installed on ships during the relevant time period. Foster Wheeler has freely admitted that it supplied boilers to Avondale. This fact, however, is relevant only if they were installed on vessels on | ¿which Mr. Danos worked, and pipefitting or other installation procedures exposed him to asbestos.

Accordingly, we find that plaintiffs’ have failed to produce factual support for their claim that Foster Wheeler caused or contributed to Mr. Danos’ disease or death sufficient to satisfy their evidentiary burden of proof at trial. We therefore affirm the judgment of the trial court.

AFFIRMED.

BELSOME, J., dissents with reasons.

BELSOME, J.,

dissenting.

hi had hoped to join in the majority opinion but am unable to do so and must dissent.

Industrial asbestos related diseases have a latency period of 10 to 40 years. See Products Liability: Inhalation of Asbestos, 39 A.L.R.4th 399. The most lethal of these diseases, mesothelioma, is rarely detected earlier than 20 years post exposure. Id. Consequently, litigants are often forced to use depositions and transcripts from other proceedings to bolster their position. This case presents such a situation.

This circuit has published asbestos injury related opinions for approximately 30 years. Thus, there is an established body of law on interpreting and differentiating the fact burden standard applicable to summary judgment, as opposed to post judgment review. The majority relies heavily on the plaintiffs’ burden of proof at trial, stating that “[a] plaintiff in an asbestos case must show by preponderance of the evidence that he was exposed to asbestos from defendant’s products, and that he received injury that was substantially caused by that exposure. When multiple causes of injury are present, a defendant’s conduct is a cause in fact if it is a substantial factor in causing plaintiffs harm.”

Although we must be mindful of the plaintiffs’ burden at trial, we must also remember that when reviewing the evidence submitted for purposes of overcoming | ¡>a summary judgment “[fjaetual inferences reasonably drawn from the evidence must be construed in favor to the party opposing the motion and all doubt must be resolved in the opponent’s favor.” Berthelot v. Avondale Industries, Inc. 02-1779, p. 2 (La.App. 4 Cir. 2/26/03), 841 So.2d 91, 93 citing Willis v. Medders, 00-2507 (La.12/08/00), 775 So.2d 1049 and Independent Fire Insurance Co. v. Sunbeam Corp, 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

This court acknowledged in Hennegan v. Cooper/T. Smith Stevedoring Co., Inc., 02-0282 p. 7 (La.App. 4 Cir. 12/30/02), 837 So.2d 96, 102, that circumstantial evidence can be used to prove causation if it is “sufficient to tilt the balance from possibility to probability.” Furthermore, in Zimko v. American Cyanamid, 03-0658 (La.App. 4 Cir. 6/08/05), 905 So.2d 465, this Court, citing Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973), discussed the substantial factor standard in asbestos cases. At that time this Court adopted language from the Bo-rel court as follows:

[I]t is impossible, as a practical matter, to determine with absolute certainty which particular exposure to asbestos dust resulted in injury to Borel. It is undisputed, however, that Borel contracted asbestosis from inhaling asbestos dust and that he was exposed to the products of all the defendants on many occasions. It was also established that the effect of exposure to asbestos dust is cumulative, that is, each exposure may result in an additional and separate injury. We think, therefore, that on the basis of strong circumstantial evidence the jury could find that each defendant was the cause in fact of some injury to Borel.
The Borel court further noted that ‘[wjhether the defendant’s conduct was a substantial factor is a question for the jury, unless the court determines that reasonable men could not differ.’

Zimko, supra p. 26, 905 So.2d at 484 citing Borel, 493 F.2d at 1094.

Exposure in asbestos cases refers to inhalation of asbestos fibers into the lungs. Hoemer v. ANCO Insulations, Inc., 00-2333, p. 7 (La.App. 4 Cir.1/23/02), 812 So.2d 45, 55. Dr. Arnold R. Brody, an expert in the field of cell biology and pathology as it relates to asbestos, testified in the Hennegan case, stating “that |smesothelioma is a disease that begins with a single fiber acting on a single cell, and it is impossible to state which of the individual’s multiple exposures was causative of mesothelioma.”

In the case sub judice it is undisputed that Mr. Danos worked at Avondale Shipyard for approximately 13 years and subsequently died of mesothelioma. The record further establishes that during the period of time Mr. Danos was employed at Avondale he worked in various capacities including electrician’s helper, electrician, terminator and foreman. Mr. Danos was involved in new construction work as well as repair work. His testimony confirms that he worked on numerous types of vessels. Through his deposition testimony he verified that he worked around pipe fitters running pipes and doing work on boilers while enclosed in very dusty areas.

Further, it is common knowledge and confirmed through the deposition testimony of James Mancuso, a former electrician at Avondale, that the electricians and boiler makers worked in close proximity to one another, contributing to the exposure of asbestos from the boiler’s asbestos containing parts. Mr. Danos verified in his deposition that he worked around boilers on destroyer escorts. Even though Foster Wheeler claims that its boilers were not located on the destroyer escorts, the testimony of Lester Plaisance, who built and installed boilers, refutes that claim. Mr. Plaisance accurately named Foster Wheeler as a manufacturer of boilers for at least some of the destroyer escorts.

Here we are faced with conflicting testimony regarding the presence of Foster Wheeler boilers on the destroyer escorts, just as we were in Berthelot, supra. The plaintiffs have successfully established a genuine issue of material fact regarding Mr. Danos’ exposure to asbestos from Foster Wheeler’s boilers. Thus, we must find that the trial court erred in granting Foster Wheeler’s summary judgment. Therefore, I would reverse and remand.

ORDER

| tIT IS ORDERED that the rehearing filed by plaintiffs/appellants in this matter be GRANTED. The case is set for rehearing before a Five-Judge Panel on the 19th day of March, 2008 at 11:00 AM.

      . This case has been resolved as to all other defendants.

      . Mr. Danos died prior to the hearing on the instant motion.


source: Caselaw Access Project

author: SAUNDERS, Judge. PETERS, J.,

license: Public Domain

text:
    Dr. Clark GUNDERSON, et al. v. F.A. RICHARD & ASSOCIATES, INC., et al.
    Nos. CW 2007-331, CW 2007-400, CA 2007-264.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 27, 2008.
    Rehearing Denied April 16, 2008.

      William B. Monk, Stockwell, Sievert, et al., Lake Charles, LA, for Plaintiff/Appel-lee, Dr. Clark Gunderson.
    Thomas A. Filo, Cox, Cox, Fily & Camel, L.L.P., Lake Charles, LA, for Plain-tif&Appellee, Dr. Clark Gunderson.
    Arthur M. Murray, The Murray Firm, New Orleans, LA, for Plaintiff/Appellee, Dr. Clark Gunderson.
    Perry Staub, Jr., Taggart, Morton, et al., New Orleans, LA, for Defendant/Appellant, First Health Group, Corp.
    John E. Galloway, Galloway, Johnson, et al., New Orleans, LA, for Defendant/Appellant, F.A. Richard & Associates, Inc.
    Todd A. Rossi, Kean, Miller, etc., Baton Rouge, LA, for Defendant/Appellee, Focus Healthcare Management, Inc.
    Michael D. Kendall, McDermott Will & Emery, Boston, MA, for Defendant/Appel-lee, Focus Healthcare Management, Inc.
    David W. O’Quinn, Irwin, Fritchie, et al., New Orleans, LA, for Defendant/Appellant, Cambridge Integrated Services, Inc.
    Janice Unland, Rabalais, Unland, et al., Covington, LA, for Third Party Appellant, National Loss Control Management, Inc.
    Edward P. Sensenbrenner, Adams & Reese, L.L.P., New Orleans, LA, for Third Party Appellant, AIG Claims Service, Inc.
    Theodore R. Scarborough, Sidley Austin, LLP, Chicago, IL, for Third Party Appellant, AIG Claims Service, Inc.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   SAUNDERS, Judge.

Lin these consolidated writs, the defendants, National Loss Control Management, Inc. and AIG Domestic Claims, Inc. (hereinafter “the defendants”), seek review of the trial court’s judgment denying their exceptions of lack of subject matter jurisdiction. They also appeal the trial court’s ruling certifying the matter as a class action. For the following reasons, we deny the application for supervisory writs on the trial court’s denial of the defendants’ subject matter exception and affirm the trial court’s ruling certifying this matter as a class action.

FACTS AND PROCEDURAL HISTORY:

On April 14, 2004, the plaintiffs, Clark A. Gunderson, M.D. (A Medical Corporation), Beutler-England Chiropractic Clinic, and Frank W. Lopez, M.D. (A Professional Medical Corporation)(hereinafter “the healthcare providers”), filed the instant Petition for Damages, Injunctive Relief, and Class Certification. Southwest Louisiana Hospital Association d/b/a Lake Charles Memorial Hospital was added as an additional plaintiff in an amending petition. The following parties were named as defendants: F.A. Richard & Associates, Inc.; First Health Group Corporation; Focus Healthcare Management, Inc.; Cambridge Integrated Services Group, Inc.; National Loss Control Management, Inc.; and AIG Claim Services, Inc (hereinafter “AIG”). The healthcare providers subsequently entered into a Memorandum of Understanding with defendant AIG, and this court signed on November 14, 2007, a court order staying the instant matter as to AIG during the pendency of the class settlement proceedings.

In their petition, the healthcare providers stated that the defendants had entered into contracts with them pursuant to the Preferred Provider Organization Act (hereinafter “PPOA”), La.R.S. 40:2201 et seq., which allowed them to pay a | discounted rate for the provision of health care. They alleged that the defendants routinely reimbursed them in workers’ compensation cases at the lower Preferred Provider Organization (hereinafter “PPO”) contracted rates, rather than at the higher mandated workers’ compensation rates. La.R.S. 23:1203(B). In doing so, the healthcare providers claim that the defendants violated the provisions of La. R.S. 40:2203.1 by failing to provide them with prior notice of their intent to reimburse at the PPO rates either by providing the injured worker with a PPO card or by providing thirty days’ written notice of their intent to utilize an existing PPO agreement. La.R.S. 40:2203.1(B). In addition to the penalties provided by La.R.S. 40:2203.1(G), the healthcare providers sought an injunction and certification of the matter as a class action.

Two and a half years into the litigation, each defendant filed a declinatory exception of lack of subject matter jurisdiction alleging that the Office of Workers’ Compensation (hereinafter “OWC”) had exclusive jurisdiction over this matter. This came about as a result of this court’s holding in Southwest Louisiana Hospital Association v. Superior Carriers, Inc., 06-807 (La.App. 3 Cir. 11/2/06), 942 So.2d 754. There, we held that La.R.S. 23:1310.3(E), as amended, granted “exclusive jurisdiction over contractual and coverage disputes ... to workers’ compensation judges.” Id. at 755-56. Following a hearing, the trial court denied the defendants’ exceptions, and the defendants sought supervisory writs. The trial court later certified this matter as a class action, and the defendants appealed that decision to this court. These matters have been consolidated for disposition by this court.

ASSIGNMENTS OF ERROR:

1. Did the trial court commit legal error when it concluded that it, and not the OWC, possessed jurisdiction to adjudicate plaintiffs’ claims that the ^reimbursements at issue violated the Louisiana PPO Act?
2. Did the trial court abuse its discretion in certifying this matter for class action treatment under La. Code Civ.P. art. 591?

ASSIGNMENT OF ERROR # 1:

The defendants first seek supervisory writs, arguing that the trial court erred in concluding that it possessed subject matter jurisdiction over the claims asserted in this action.

Subject matter jurisdiction is “the legal power and authority of a court to hear and determine a particular class of actions or proceedings.” La.Code Civ.P. art. 2. Any judgment rendered by a court that lacks subject matter jurisdiction is null. La. Code Civ.P. arts. 2001, 2002; Bryant v. Pierson, 583 So.2d 97 (La.App. 3 Cir.1991).

“Except as otherwise authorized by [the] constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters.” La. Const, art. 5, § 16(A)(1) (emphasis added). Louisiana Revised Statute 23:1310.3 provides for the original jurisdiction afforded to the OWC under the Worker’s Compensation Act (hereinafter “WCA”) as follows:

Except as otherwise provided ... the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, group self-insurance indemnity contract disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers’ compensation insurers or self-insurance group funds for indemnification or contribution, concursus proceedings pursuant to Louisiana Code of Civil Procedure Articles 4651 et seq. concerning entitlement to workers’ compensation benefits, payment for medical treatment, or attorney fees arising out of an injury subject to this Chapter.

l4La.R.S. 23:1310.3(E) (emphases added). “This court will not read La.R.S. 23:1310.3 more broadly than its explicit language since the general rule is that district courts are vested with original jurisdiction and exceptions to this general rule are to be narrowly construed.” Covington v. A-Able Roofing, Inc., 95-1126, p. 3 (La.App. 3 Cir. 3/6/96), 670 So.2d 611, 613 (citing Cajun Bag & Supply v. Baptiste, 94-1218 (La.App. 3 Cir. 3/1/95), 651 So.2d 943). Thus, unless the health care providers’ claims at issue here explicitly “arise out of’ the WCA, original jurisdiction over those claims must lie with the district court, and not with the OWC.

The defendants contend that this court’s holding in Southwest, 942 So.2d 754, mandates the original, exclusive subject matter jurisdiction of the OWC in the instant case. There, a healthcare provider rendered medical services to an employee of the defendant-employer, who then reimbursed the healthcare provider at the discounted rate provided for in a PPO contract, rather than at the rate called for by the workers’ compensation reimbursement schedule. The healthcare provider thereafter filed a petition for declaratory relief in the district court, asking the court to declare the discount invalid and unenforceable for failing to comply with the PPOA, and for discounting the workers’ compensation bill below the amount allowable under the workers’ compensation fee schedule. The trial court granted both of the healthcare provider’s requests. On appeal, this court reversed the trial court’s judgment on grounds that this court’s disposition of a previous case dictated that the trial court lacked subject matter jurisdiction:

In Beutler England [Chiropractic Clinic v. Mermentau Rice, Inc., 05-942 (La.App. 3 Cir. 5/31/06), 931 So.2d 553], the court held that La.R.S. 23:1310.3(E), as amended, applies retroactively and grants original and exclusive jurisdiction over contractual and coverage disputes like the ones in the case at bar to workers’ compensation judges. LCMH argues that, even if that is the case, the district court had | ¡jurisdiction over the claim for violation of La.R.S. 40:2203.1 and that part of the judgment should stand. We are unpersuaded by this argument. Aside from the court’s interest in avoiding piecemeal litigation, the resolution of that dispute affects the payment of benefits under the workers’ compensation act and, therefore, the Office of Workers’ Compensation had exclusive jurisdiction. Accordingly, the district court lacked subject matter jurisdiction in this case.

Id. at 755-56. Based on the combined reasoning of Southwest and Beutler, then, the defendants argue that all claims challenging reimbursements that are covered by workers’ compensation insurance and discounted pursuant to a PPO contract are subject to the original, exclusive jurisdiction of the OWC, regardless of whether the claim is asserted as a violation of the WCA or of the PPOA. We disagree.

The defendants rely on Southwest’s wholesale incorporation of the holding in Beutler for the proposition that, because Beutler previously found that a claim involving a dispute between a healthcare provider and an employer regarding the alleged underpayment of medical bills incurred for treatment of work-related injuries “arose out of’ the WCA, claims relating to all such disputes necessarily must “arise out of’ that legislation. Such a reading is not supported by Beutler. On the contrary, as Beutler makes clear, jurisdiction hinges properly on the nature of the specific claim asserted: “[I]f the claim actually arises out of the act, the OWC has jurisdiction to decide the case; if the cause of action merely relates to workers’ compensation in general, the district court has the jurisdiction to decide the case.” Beut-ler, 931 So.2d at 556. Thus, notwithstanding the defendants’ reading of Southwest, the dispositive question presented by the case at bar is the same as that posed in all jurisdictional disputes involving the WCA: does the cause of action asserted in the instant case arise out of the WCA, or does it merely relate to workers’ compensation in general? If the former scenario proves true, then original and exclusive jurisdiction must lie with the OWC; if the latter, then the OWC has no competence to hear the claim, and jurisdiction must lie instead with the district court.

| (¡Here, the health care providers argue that the cause of action asserted “arises” not out of the WCA at all, but out of the PPOA. We agree. In pertinent part, La.R.S. 40:2203.1(B) provides:

A preferred provider organization’s alternative rates of payment shall not be enforceable or binding upon any provider unless such organization is clearly identified on the benefit card issued by the group purchaser or other entity accessing a group purchaser’s contractual agreement or agreements and presented to the participating provider when medical care is provided....
(5) When no benefit card is issued or utilized by a group purchaser or other entity, written notification shall be required of any entity accessing an existing group purchaser’s contractual agreement or agreements at least thirty days prior to accessing services through a participating provider under such agreements.

Further, La.R.S. 40:2203.1(G) provides:

Failure to comply with the provisions of Subsection A, B, C, D, or F of this Section shall subject a group purchaser to damages payable to the provider of double the fair market value of the medical services provided, but in no event less than fifty dollars per day of noncompliance or two thousand dollars, together with attorney fees to be determined by the court. A provider may institute this action in any court of competent jurisdiction.

(Emphasis added). Within the context of these provisions, the health care providers’ assertion that their claims arise out of the PPOA proves justified. Rather than engendering claims provided for by the WCA, the claims asserted before the district court in the case at bar — namely, those alleging the defendants’ failure to issue benefit cards or to issue adequate prior written notice — arise explicitly out of the provisions of the PPOA. As such, we must find this assignment of error to be without merit. Where, as here, the claim asserted is provided for clearly in some legislation other than the WCA — in this case, La.R.S. 40:2203.1 — there can be no question whether that claim “arises out of’ the WCA; it does not, for it arises out of a separate act of the legislature, entirely. Thus, original and exclusive jurisdiction over such a claim must rest with the district court, regardless of the claim’s “relation] to worker’s ^compensation in general.” Beutler, 931 So.2d at 556.

In reaching this result, we note further that our reasoning here partially brings this court into conflict with its own language in Southwest. There, having first decided that La.R.S. 23:1310.3(E) conferred original and exclusive jurisdiction over claims arising out of the WCA to the OWC, we concluded almost as an afterthought that jurisdiction over the simultaneously-asserted PPOA claim also necessarily must lie with the OWC:

LCMH argues that ... the district court had jurisdiction over the claim for violation of La.R.S. 40:2203.1 and that part of the judgment should stand. We are unpersuaded by this argument. Aside from the court’s interest in avoiding 'piecemeal litigation, the resolution of that dispute affects the payment of benefits under the workers’ compensation act and, therefore, the Office of Workers’ Compensation had exclusive jurisdiction. Accordingly, the district court lacked subject matter jurisdiction in this case.

Southwest, 942 So.2d at 756 (emphasis added). The defendants argue that this language supports their contention that jurisdiction over the La.R.S. 40:2203.1 claims must lie with the OWC, yet this language more accurately reflects judicial oversight on the part of this court than a correct statement of the law. As our jurisprudence in the area of subject matter jurisdiction directs, the exercise of original jurisdiction by the OWC rather than by a district court is an exception to the general rule, and is valid only when justified clearly by explicit statutory language. See Cajun Bag, 651 So.2d at 948 (“Article 5, Section 16 [of the Louisiana Constitution] requires the Louisiana legislature to enact a specific provision designating a claim as a ‘worker’s compensation matter’ before the district courts will be divested of jurisdiction over a claim.”). In order for jurisdiction to lie with the OWC, it is not enough for the resolution of a claim merely to affect the payment of benefits under the WCA; unless that claim arises explicitly out of the WCA, original and exclusive subject matter jurisdiction must lie with the district court. Moreover, in light of this rule, neither |swas this court justified in invoking our desire for judicial efficiency in order to extend the jurisdiction of the OWC past the boundaries imposed by the WCA. Because we now hold that a claim brought pursuant to La.R.S. 40:2203.1 for failure to' comply with the provisions of that statute “arises out of’ the PPOA and not the WCA, this court hereby disavows that portion of our holding in Southwest which suggests that subject matter jurisdiction for such a claim could lie properly with the OWC. As with all other civil or criminal matters not specifically excepted by either the constitution or legislation, original jurisdiction of such claims lies properly with the district court.

ASSIGNMENT OF ERROR # 2:

The defendants next assert that the trial court abused its discretion in certifying this matter for class action treatment under La.Code Civ.P. art. 591.

Louisiana Code of Civil Procedure Article 591 reads, in pertinent part:

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:
(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 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;
1 a(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;

In order for class certification to be proper, “the burden is on the plaintiffs to establish that the statutory criteria for a class certification are met.” Duke v. Texaco, Inc., 99-2002, p. 11 (La.App. 3 Cir 2/7/01), 779 So.2d 1070, 1078, writ denied, 01-637 (La.4/27/01), 791 So.2d 637; see also Clark v. Trus Joist MacMillian, 02-676, 02-512 (La.App. 3 Cir. 12/27/02), 836 So.2d 454, 459, writ denied, 03-275 (La.4/21/03), 841 So.2d 793 (“Plaintiffs must establish by preponderance of the evidence that each of the elements for class certification has been met.”). However, “[t]he district court has wide discretion in deciding whether to certify a class and the decision will not be overturned absent a finding of manifest error or abuse of discretion.” Roberson v. Town of Pollock, 05-332, p. 9 (La.App. 3 Cir. 11/9/05), 915 So.2d 426, 432, writ denied, 06-213 (La.4/24/06), 926 So.2d 550. Further, “[t]he court should err on the side of maintaining the class action since the judge may always modify or amend the class at any time prior to a decision on the merits.” Clark, 836 So.2d at 459-60 (citing La.Code Civ.P. art. 592 A(3)(c)). Thus, unless the trial court abused its wide discretion in certifying the class in the instant case, the class certification must stand.

Louisiana Code of Civil Procedure Article 591(B)(3):

Predominance of Common Questions:

The defendants first charge that the trial court abused its discretion by 1 mconcluding, pursuant to La.Code Civ.P. art. 591(B)(3)(a), that questions common to members of the class predominate over those affecting only individual members. Specifically, the defendants assert that certain individualized inquiries necessitated by the case at bar predominate over any issues common to the class: namely, the determinations of whether proper notice was given to each named plaintiff, of whether each provider waived or was es-topped from asserting his or her rights under the PPOA, and of what statutory penalty applies properly for each instance of prohibited conduct. We disagree.

The defendants claim that whether or not the various forms in which the defendants transmitted information regarding PPO discounts to healthcare providers qualify as “notice” under La.R.S. 40:2203.1 stands as an inherently individualized inquiry, yet the case at bar frames the question of notice as decidedly common to the members of the class. As discussed above, defendants’ liability under La.R.S. 40:2203.1 in the instant case hinges on whether or not adequate notice of a discount taken pursuant to a PPO agreement was given to the healthcare provider, either “when medical care is provided” — in instances where a benefit card has been issued — or “at least thirty days prior to accessing services through a participating provider” — where no benefit card has been utilized. La.R.S. 40:2203.1(B)(l-5). As such, rather than merely being common to the class, the question of what exactly constitutes adequate notice under the PPOA is central to the claims asserted by all members of the class, and thus it predominates over individualized issues in satisfaction of La.Code Civ.P. art. 591(B)(3). Within this context, we find the defendants’ assertion that variations in the form of communications regarding PPO discounts violate the commonality and predominance requirements of La.Code Civ.P. art. 591(B)(3) to be without merit.

The defendants further claim that the potential applicability of various affirmative defenses to the claims of individual class members defeats the | T-]predominance of common issues called for under La. Code Civ.P. art. 591(B)(3). In support of such contention, the defendants cite Banks v. New York Life Insurance Co., 98-551 (La.7/2/99), 737 So.2d 1275. There, in holding that a trial court abused its discretion in certifying several plaintiffs’ claims of fraud and negligent misrepresentation as a class action, the supreme court proclaimed:

In sum, we conclude that there are too many individual issues affecting New York Life’s and its agents’ liability in this case to find that common issues predominate. As stated in In Re Ford Motor Co. Vehicle Paint Litig., 182 F.R.D. 214, 220 (E.D.La.1998), “[w]hen defendant’s conduct means different things for different class members, trying the issue of its liability for that conduct on an aggregated basis is problematic.”

Id. at 1283. The defendants now ask this court to reach a similar result in the case at bar,' yet, as Banks makes clear, the result reached in that case turned on the nature of the underlying claims asserted:

First, we recognize the essence of plaintiffs’ claims are fraud and negligent misrepresentation causes of action committed by New York Life and, its agents. In Young v. Ray Brandt Dodge, Inc., 176 F.R.D. 230 (E.D.La.1997), plaintiffs brought suit for certification of a class of Louisiana automobile buyers who purchased and financed liability insurance from defendants. In denying certification the court reasoned that because the underlying claims are based on fraud, a reliance. of each aggrieved person as to each credit purchase must be shown. A fraud class action cannot be certified when individual reliance will be an issue.

Id. at 1281 (emphasis added). In contrast to the fraud claims at issue in Banks, the case at bar does not involve underlying claims that require the reliance of individual claimants in order for liability to attach. On the contrary, by the terms of La.R.S. 40:2203.1(G), liability for the claims at issue here depends simply upon “[fjailure to comply with the provisions of Subsection A, B, C, D, or F of [the] Section....” Thus, we find the defendants’ argument that the asserted applicability of various affirmative defenses defeats the predominance of common issues required under La.Code Civ.P. art. 591(B)(3) to be without merit. Whatever the applicability of | ^affirmative defenses in limiting or extinguishing the defendants’ liability to certain individual claimants, the initial imposition of such liability remains rooted solely in the failure to give timely notice.

Finally, the defendants assert that the penalty phase of the lawsuit will defeat the La.Code Civ.P. art. 591(B)(3) predominance requirement. In pertinent part, La. R.S. 40:2203.1(0 provides:

Failure to comply ... shall subject a group purchaser to damages payable to the provider of double the fair market of the medical services provided, but in no event less than the greater of fifty dollars per day of noncompliance or two thousand dollars, together with attorney fees to be determined by the court.

The defendants argue that the necessity of determining statutory penalties in the case at bar precludes predominance, in that calculating such penalties involves the consideration of individual issues that predominate over common issues. In support, the defendants cite Defraites v. State Farm Mutual Automobile Insurance Co., 03-1081 (La.App. 5 Cir. 1/27/04), 864 So.2d 254. There, in ruling that the necessity of determining statutory damages individually for a number of automobile accident cases precluded the certification of those claims as a class action, the fifth circuit held: “Claims for diminution of value as well as claims for failure to comply with statutory obligations to initiate loss adjustment must be assessed on an individual basis. Plaintiffs claim for statutory penalties also requires individualized proof.” Id. at 261 (emphasis added). The defendants request that we interpret that language to require individualized proof for the statutory penalties associated with the instant case, yet, as with Banks, De-fraites .makes clear that, rather than the involvement of a statutory penalty provision generally, the disposition of that case hinged instead on the type of claim underlying the proposed class action:

By this action, plaintiff seeks a declaratory judgment applicable to the entire class that State Farm is obligated to pay a third party claim of diminution in value due solely to the fact that the vehicle was 11sinvolved in an accident. There is no dispute in this case that diminution in value is an available item of damages in an automobile accident case. However, Louisiana law does not presume that there is inherent diminution in value involved in every automobile accident. Rather, recovery in automobile accident cases is generally limited to the cost of repair. Romco, Inc. v. Broussard, 528 So.2d 231 (La.App. 3 Cir. 6/22/88), writ denied, 533 So.2d 356 (La.11/28/88). Additional damages may be recovered for diminution in value by virtue of the automobile being involved in an accident, provided proof of such diminished value is made.

Id. (emphasis added). In effect, Defraites required individualized assessments of claims not because statutory penalties were involved, but because liability for the claims involved in that proposed class action hinged upon claimants’ ability to prove diminution in value, which in turn needed to be established on an automobile-by-automobile basis. Here, by contrast, the determination of class-wide liability is in no way dependent upon the calculation of penalties, whether statutory or otherwise. As such, the instant matter aligns squarely with the holding in Bartlett v. Browning-Ferris Industries Chemical Services, Inc., 99-194 (La.11/12/99), 759 So.2d 755. There, the supreme court stated: “As we have made clear before and reiterate today, the mere fact that varying degrees of damages may result from the same factual transaction and same legal relationship or that class members must individually prove their right to recover does not preclude class certification.” Id. at 756; see also McCastle v. Rollins Envtl. Serv. of La., 456 So.2d 612, 620 (La.1984) (“With respect to the question of damages, individual questions of quantum do not preclude a class action when predominant liability issues are common to the class.”). Thus, we find the defendants’ argument that the damages phase of this class action will preclude the predominance of common issues required by La.Code Civ.P. art. 591(B)(3) to be without merit.

Class Action Superiority:

The defendants next charge that the trial court abused its discretion by | uconcluding, pursuant to La.Code Civ.P. art. 591(B)(3), “that a class action is superior to other available methods for the far and efficient adjudication of the controversy.” More particularly, the defendants argue that a class action is inferior because individual claims are sufficiently great to support individual suits, because the aggregation of statutory penalties is an abuse of the class mechanism, and because class litigation will be unmanageable. We disagree.

The defendants first argue that the value of individual claims is sufficiently great to invalidate the superiority of a class action as the means for adjudicating the ease at bar. Specifically, the defendants argue that because the amount of recovery available to individual plaintiffs is substantial enough to support individual suits, cumulation of the claims at issue into one class action provides no benefits not secured by individual litigation. In response, the healthcare providers argue that, the value of individual claims notwithstanding, the interest of the judicial system in avoiding multiple lawsuits with potentially inconsistent results is a compelling enough reason to find superiority. We agree. The issue raised by the instant case strongly resembles that found in Oubre v. La. Citizens Fair Plan, 07-66 (La.App. 5 Cir. 5/29/07), 961 So.2d 504, uxrit denied, 07-1329 (La.9/28/07), 964 So.2d 363. In that case, in response to a challenge to the superiority of class action proceedings, the plaintiffs argued that the risk of inconsistent adjudications which could potentially be disposi-tive of the interests of class members who were not parties to individual suits validated the superiority of the class action. In holding that the class action was superior, the fifth circuit reasoned:

In the present case, each plaintiffs claim involves whether or not Citizens failed to timely initiate loss adjustment under the provisions of LSA-R.S. 22:658(A)(3). There should be uniformity in the application of this law ... This uniformity can only be obtained by utilizing the class action procedure. Further, the class action procedure is a superior method under these circumstances to ensure individual fairness and to promote judicial efficiency.

| ^Id. at 512. Here, as in Oubre, the possibility of individualized litigation producing inconsistent results is too great to conclude that the trial court abused its wide discretion in determining the superiority of class action treatment. Thus, we find this argument to be without merit.

The defendants next argue that the aggregation of potential statutory penalties effectuated by cumulation of the claims at issue into a single class action invalidates the superiority of class action procedure in the case at bar. In effect, the defendants argue that certifying the matter now before us for class action treatment imposes inordinate monetary strain upon the defendants, in that the potential financial liability produced by aggregating the healthcare providers’ myriad claims into one action frames individual litigation of claims as the superior method of resolving the disputes at issue here. We disagree. Certifying the instant matter for class action treatment does nothing to increase the defendants’ potential monetary liability for their alleged violations of the statute. On the contrary, class certification serves only to cumulate the myriad claims for penalties already asserted against the defendants into a single, more manageable action. Moreover, were we to ratify the defendants’ argument that the current matter should not be certified as a class action, the defendants would actually be subject to increased costs, as the costs of defending a single action would be supplanted by the more prohibitive costs associated with defending multiple individual suits in numerous different courts. Within this context, we are loathe to hold that the trial court abused its vast discretion in holding that class action treatment was superior to any other available method for resolution of the instant matter. As such, we also find this argument to be without merit.

Finally, the defendants argue that class action treatment is not superior to other available methods of adjudication because class litigation will be unmanageable. As 11fitheir sole ground for support of such contention, the defendants note the high number of hospitals, physicians, and chiropractors located within the state of Louisiana, most of whom would fall within the putative class of healthcare providers embraced by the case at bar. As such, the defendants claim that a class action is not superior to other available methods for resolving the claims at issue here. We disagree. It is true that a class action involving so expansive a class likely will be unwieldy, yet, as discussed above, the cumbersome nature of class action treatment for the case at bar is significantly outweighed by the virtue of avoiding inconsistent results by concentrating the claims into a single action. Whatever the difficulties likely to be encountered in the management of the instant case, then, a class action remains the most efficient available method for resolving the numerous related claims asserted by the healthcare providers against the defendants. Thus, we find this argument to be without merit.

Louisiana Code of Civil Procedure Article 591(A) (3—4):

The defendants next argue that class certification was improper because one of the representative parties of the class, Lake Charles Memorial Hospital (LCMH), fails to satisfy the typicality and adequacy requirements of La. Code Civ.P. art. 591(A)(3^4). Specifically, the defendants contend that LCMH has a conflict of interest that prevents it from serving as a class representative, in that LCMH has an intertwined business relationship with Lake Charles Physician Hospital Organization (LCPHO), which could be construed as a “group purchaser” for PPOA purposes. As such, the defendants argue that LCMH cannot make decisions that are in the best interest of the class, as it is effectively indistinguishable from an entity—here, |17LCPHO—that will be subject to the same penalties under the PPOA that LCMH seeks to impose against the named defendants in the instant case. We disagree.

The defendants claim that LCMH’s conflict arises from LCPHO’s engaging in activities that cast it in the same mold as the named defendants in this class action, yet the scope of LCPHO’s business does not include those activities which the healthcare providers allege to be in violation of La.R.S. 40:2203.1. As the healthcare providers point out in their brief, LCPHO does not pay claims, discount bills, or provide access to networks under which discounts are taken. Within this context, we find no basis for concluding that LCPHO’s interests preclude LCMH from acting in the best interests of the claimant class. Whether in combination with LCMH or in its own right, LCPHO simply has no conflict with the named defendants in the instant case.

The defendants further argue that two of the class representatives, LCMH and Dr. Gunderson, cannot serve adequately under La.Code Civ.P. art. 591(A)(4) due to a federal stay order enjoining them from pursuing claims against one of the defendants, First Health. While we agree that the stay order prevents those plaintiffs from serving as class representatives with respect to the claims against First Health, such an order does nothing to render LCMH and Dr. Gunder-son inadequate as class representatives for those claims asserted against the other defendants. In addition, as for those claims against First Health, two other named plaintiffs whose claims are not stayed have been found to be adequate representatives. Most notably, the record indicates that the certifying judge, Judge Wyatt, was aware of the alleged conflict before he certified the class with both Gunderson and LCMH as class representatives. Affording due deference to the vast discretion with which the trial judge is imbued, we find this argument to be insufficient to invalidate the certification of the class.

Louisiana Code of Civil Procedure Article 591(B)(2):

|1sNext, the defendants argue that class certification was improper in that the trial court specifically certified the class pursuant to both La.Code Civ.P. art. 591(B)(2) and La.Code Civ.P. art. 591(B)(3). The defendants contend that, because the healthcare providers failed to demonstrate that they are seeking primarily injunctive relief, as required for class certification under La.Code Civ.P. art. 591(B)(2), the certification order must be reversed. We disagree.

Louisiana Code of Civil Procedure Article 591(B) reads, in pertinent part:

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:
(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 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.

(Emphasis added). The defendants ask that we reverse the certification order based upon the instant matter’s alleged deficiencies in satisfying La.Code Civ.P. art. 591(B)(2), yet even assuming arguendo that those deficiencies are present, the Code mandates that a class action may be maintained provided that either La.Code Civ.P. art. 591(B)(2) or La.Code Civ.P. art. 591(B)(3) is satisfied. As discussed above, we have already found the defendants’ challenges predicated upon La.Code CivJP. art. 591(B)(3) to be without merit. Therefore, in determining whether the case at bar may be maintained as a class action, the question of whether or not the instant matter measures up to the requirements of La.Code Civ.P. art. 591(B)(2) is. moot. Because we hold that certification is proper under La.Code Civ.P. art. 591(B)(3), the case at bar may validly be maintained as a class action.

Overinclusiveness:

Finally, the defendants assert that the class definition in the instant matter is 119overinclusive, in that it includes claimants who have entered into agreements containing either arbitration clauses or forum selection clauses which designate a forum other than Louisiana for resolution of disputes. As such, the defendants argue that we must amend the class definition to exclude those class members who have confected such agreements. We disagree.

The defendants argue that defining the class without reference to either arbitration clauses or forum selection clauses will result in the extension to certain claimants of the right to litigate in an arena other than that for which they bargained, yet as shown by Lakeland Anesthesia, Inc. v. United Healthcare of La., Inc., 03-1662 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, that is not the case. There, the fourth circuit was confronted with a class action involving several claimants, some of whom were determined to be subject to arbitration agreements. In dealing with such a scenario, the court held that the trial court acted properly in staying the proceedings only as to the claims subject to arbitration and otherwise allowing the class action to proceed for those claims not subject to arbitration. Thus, although those claimants who had agreed to arbitrate were included in the class definition, their arbitration agreements were nevertheless given full effect.

As in Lakeland, the instant case involves a class definition that includes no limiting language regarding arbitration clauses or forum selection clauses, yet the absence of such limitations in no way detracts from the effect of such clauses upon the rights of whichever claimants may have agreed to them, assuming that the clauses are in other respects valid. Within this context, the impact of allowing the class definition to remain in its current form is relatively innocuous. The defendants may still move to have claims which are subject to such clauses stayed pending arbitration or resolution in an alternate forum, leaving the class action proceedings to continue uninterrupted as to those claims not subject to such clauses. Thus, particularly in | flight of the great discretion afforded to the trial court in making class certification decisions, we see no reason now to alter the class definition.

CONCLUSION:

For the reasons set forth above, we deny the defendants’ application for supervisory writs and affirm the judgment of the trial court. All expenses to be taxed to appellants.

WRITS DENIED; AFFIRMED.

PETERS, J., concurs in the result and assigns additional reasons.

GREMILLION, J., concurs in the results for the reasons assigned by Judge PETERS in his concurring opinion.

PETERS, J.,

concurring.

hi agree that the district court has subject matter jurisdiction in this matter, and that the trial court properly certified this matter as a class action. However, I do not find it necessary to reject the decision rendered in Southwest La. Hosp. Ass’n v. Superior Carriers, Inc., 06-807 (La.App. 3 Cir. 11/2/06), 942 So.2d 754 with regard to the jurisdiction issue because I do not find its holding, that La.R.S. 23:1034.2(F) confers exclusive jurisdiction over the contractual dispute at issue to the Office of Workers’ Compensation, in conflict with the trial court ruling in this matter. In the matter now before us, the defendants are different entities from those in either Southwest or Beutler England Chiropractic Clinic v. Mermentau Rice, Inc., 05-942 (La.App. 3 Cir. 5/31/06), 931 So.2d 553. In Southwest, the defendant was an employer while in Beutler the dispute was between the health care provider and the employer/insurer. In the matter before us, the plaintiffs made it a point not to include employers, their insurers, or their self-insured funds. Rather, the defendants are PPO networks, third party administrators, and bill review companies. Since this is not a dispute “between a health care provider and the employee, employer, or workers’ ^compensation insurer,” La.R.S. 23:1034.2(F) does not require the suit to be brought in the Office of Workers’ Compensation.

That being the case, I reach the same conclusion with regard to the jurisdiction issue, but for different reasons.

      . The defendants submit that there are currently 240 hospitals in Louisiana, more than 10,500 physicians with Louisiana business addresses, and more than 500 chiropractors licensed to practice in this state. As the sources of these statistics, the defendants list the respective websites of the Louisiana Hospital Association, the Louisiana State Board of Medical Examiners, and the Louisiana State Board of Chiropractic Examiners.


author: IRVING, J.,

text:
    UNIVERSITY OF MISSISSIPPI MEDICAL CENTER, Appellant, v. Gloria JOHNSON, Administratrix of the Estate of Brenda Easter, Deceased, Appellee.
    No. 2005-CA-02191-COA.
    Court of Appeals of Mississippi.
    May 22, 2007.
    Rehearing Denied Sept. 18, 2007.

      Anastasia G. Jones, Mildred M. Morris, Walter T. Johnson, Jackson, attorneys for appellant.
    Ellis Turnage, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. The University of Mississippi Medical Center (UMC) appeals a judgment of the Hinds County Circuit Court finding it liable under the Mississippi Tort Claims Act for the death of Brenda Easter. Gloria Johnson, Easter’s sister, filed a medical malpractice action against UMC, alleging that its doctors, nurses, and medical lab staff deviated from the standard of care by failing to diagnose Easter with pneumonia. Johnson alleged that this failure and lack of treatment during Easter’s hospital stay resulted in Easter’s untimely death. Following a two-day bench trial, the trial court entered a ruling in Johnson’s favor, awarding her $534,025. Aggrieved, UMC appeals and makes several arguments which we recast as follows: (1) the trial court erred in admitting a critical hearsay statement and in making findings of fact that are either unsupported by the record or are based on incredulous testimony, (2) the trial court disregarded evidence that is in conflict with its ruling, and (3) the trial court improperly calculated the damages by not taking into account Easter’s medical condition.

¶2. Although some of the trial court’s findings of fact mischaracterize the testimony upon which they are based, we find that there is substantial, credible, and reasonable evidence undergirding the trial court’s judgment. Therefore, we affirm.

FACTS

¶ 3. On August 17, 1999, Easter arrived at UMC, in Jackson, Mississippi, for a cesarean section. Although UMC nurses noted that Easter had an expiratory wheeze before delivery, she went on to deliver a healthy baby girl. Following her delivery, Easter experienced hot flashes, and on August 20, 1999, she was noted as having “episodes of dry coughing during the day.” According to Lou Jessie Griffin, the father of Easter’s children, she was scheduled to be released from UMC on Thursday, August 19, 1999. However, Griffin testified that Easter informed him that she would not be released from the hospital until Friday, August 20, 1999, because her blood pressure was elevated and she was having difficulty breathing.

114. Sandra Russell was also a patient at UMC on August 17, 1999. She had delivered a child the previous day and shared a room with Easter. Russell testified that she observed Easter sleeping upright in a chair the day after Easter gave birth. Russell stated that Easter told her that she did not sleep lying down because when she did she felt as if she were drowning. Further, Russell testified that she suggested to Easter that Easter tell her doctors about the breathing problem that she was experiencing. Russell was discharged before Easter, and she had no further communications with Easter.

¶ 5. Easter was discharged on Friday, August 20, 1999. Griffin testified that he took Easter and the baby to their home in Carthage, Mississippi. He stated that Easter appeared to be doing well on Friday, but she began having trouble breathing late Saturday evening into the early morning hours of Sunday, August 22, 1999. Griffin also testified that Easter asked him to go to her mother’s house, which was nearby, to get some Vicks VapoRub because she was having trouble breathing. He stated that he returned home, rubbed the VapoRub on Easter’s chest, and'that he and Easter fell asleep. Griffin stated that their son woke him up and informed him that something was wrong with Easter. He testified that he found Easter standing on the porch of their home trying to breathe. Griffin called an ambulance, but Easter collapsed in his arms before it arrived. He stated that prior to her collapsing, she began regurgitating pinkish foam and after she collapsed white foam started coming out of the side of her mouth. The ambulance arrived, and Easter was , rushed to Leake County Memorial Hospital where resuscitation efforts were conducted, but to no avail. Emergency medical personnel noted that Easter had pink frothy sputum in her airway. The Leake County coroner pronounced Easter dead at 2:14 a.m.

¶ 6. Additional facts, as necessary, will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. “A circuit judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” City of Clinton v. Smith, 861 So.2d 323, 326(¶ 16) (Miss.2000) (quoting Maldonado v. Kelly, 768 So.2d 906, 908(114) (Miss.2000)). In addition, the Mississippi Supreme Court has held that “[w]here a chancellor adopts, verbatim, findings of fact and conclusions of law prepared by a party to the litigation, this Court analyzes such findings with greater care, and the evidence is subjected to heightened scrutiny.” In re Estate of Grubbs; Jacks v. Woods, 753 So.2d 1043, 1046(118) (Miss.2000) (citing Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995)). UMC contends, and our review of the record confirms, that the trial court adopted substantially all of the Appellee’s findings of fact. Therefore, we review the record de novo. Miss. Dep’t of Transp. v. Johnson, 873 So.2d 108, 111(¶8) (Miss.2004) (citing Brooks, 652 So.2d at 1118).

¶ 8. We begin our analysis with a discussion of the specific arguments raised by UMC and conclude with a discussion of the expert testimony which, in .our view, supports the trial court’s finding of liability against UMC, notwithstanding the misstatements in the trial court’s findings of fact.

1. The Hearsay, Incredulous Testimony, and Unsupported Findings of Fact

(a) Testimony of Sandra Russell, Easter’s Roommate

¶ 9. UMC provides several reasons to support its contention that Russell was not a credible witness. First, UMC contends that Russell was not credible because she “was under the influence of pain medication during the period of time that the events occurred regarding her testimony.” Second, UMC asserts that Russell was biased in favor of Easter’s family because her trial testimony contradicted her statement in her affidavit that Easter appeared to be feeling well during the time the two of them shared a room. Third, UMC argues that Russell’s testimony regarding Easter’s breathing problems is not corroborated by Easter’s medical records.

¶ 10. Finally, UMC contends that Russell’s testimony regarding what Easter told her about Easter’s breathing problems was inadmissible hearsay that carried considerable weight with the trial court. UMC argues that the trial court’s decision to place in bold print the portion of Russell’s testimony regarding Easter’s breathing problems is proof of its importance to the court, as this is the only testimony in the entire opinion that is in bold print, other than the portion which enumerates the amount of damages.

¶ 11. “The trial judge, sitting in a bench trial as the trier of fact, has the sole authority for determining the credibility of the witnesses.” City of Jackson v. Lipsey, 834 So.2d 687, 691(¶ 14) (Miss.2003) (citing Rice Researchers, Inc. v. Hitar, 512 So.2d 1259, 1265 (Miss.1987)). Therefore, it was the trial judge’s prerogative to place whatever weight she chose on Russell’s testimony. This said, we hasten to add, however, that the resolution of the issue of UMC’s negligence, vel non, does not depend on Russell’s testimony, as negligence on the part of a defendant in a medical malpractice action can only be established by medical expert testimony that the defendant failed to use ordinary skill and care. Brooks v. Roberts, 882 So.2d 229, 232(¶ 10) (Miss.2004). Since we find the medical testimony sufficient to support the trial court’s judgment of liability against UMC, Russell’s testimony is essentially irrelevant. We also disagree with UMC’s assertion that Russell’s statement was inadmissible hearsay. Although Johnson did not address this issue, Rule 803(3) of the Mississippi Rules of Evidence clearly allows the admission of Russell’s testimony.

¶ 12. Our review of the record reveals that neither of Johnson’s experts relied on any of Russell’s testimony. In fact, Johnson’s medical experts testified by depositions which were taken prior to Russell’s trial testimony. Therefore, they could not have relied on any of Russell’s trial testimony in forming their medical opinions. Further, as to UMC’s contention that “there is no credible testimony to support [the trial court’s] finding of fact that Brenda Easter had trouble breathing while she was hospitalized,” we point to the trial testimony of Griffin that on the day following Easter’s delivery “she had complications of breathing.” We also note that Griffin’s deposition testimony corroborated his trial testimony on this issue, except that in his deposition, Griffin said that Easter complained of breathing on the second day instead of the next day following delivery.

(b) Unsupported, Findings of Fact

¶ 13. In this issue, UMC argues that the trial court made findings of fact which are not supported by the record. First, UMC directs our attention to a footnote in the opinion which states: “[Dr. Steven Hayne] is the only expert with extensive experience in forensic pathology whereby he is charged with determining the manner, means and cause of death.” We agree that the trial court erred in reaching this conclusion, as defense expert Dr. Leroy Riddick is board certified in forensic pathology and, at the time of trial, was the medical examiner for the State of Alabama. He had held this position since 1979. Nevertheless, we do not consider this erroneous finding of fact to constitute reversible error, as it is not outcome determinative.

¶ 14. Second, UMC asserts that the trial court erred in finding that “Easter described [her] difficulty breathing as feeling as if [she] was drowning.” In support of this assertion, UMC contends that Russell never testified that “Easter had difficulty breathing,” and that “the medical records state the opposite.” On this point, the record reveals the following exchange between Russell and Johnson’s attorney:

Q. At night how did Brenda Easter sleep?
A. I guess she would lay down, but sometimes.
Q. Okay. And did you ever observe her sleeping in a chair?
A. Yes, I did.
Q. Why was she sleeping in a chair?
A. Because she told me when she lay down, it felt like she was drowning.

On cross-examination, under questioning from UMC’s attorney, Russell continued her testimony:

Q. The doctors would come around at 5:00 in the morning, 5:30 a.m. is that right?
A. That’s correct.
Q. And Brenda Easter would be sitting up in a chair at that time because it’s your testimony she couldn’t breathe?
A. Yes.

In our view, the quoted passages are ample support for the trial court’s finding that Russell testified that Easter had difficulty breathing.

¶ 15. Third, UMC contends that the trial court erred in making the following finding: “Dr. Hayne does not believe that [the large amount of gray pus, fluid and mucous in Easter’s lungs] was related to the resuscitation efforts of the emergency medical personnel.” Again, we agree with UMC that Dr. Hayne did not testify specifically to this finding, but his autopsy report finds that Easter died of bronchop-neumonia, and the postmortem examination revealed “a large amount of purulent serosanguinous fluid that [had] an opaque pink discoloration [exuding] from the cut surfaces of the lungs.” Additionally, Dr. Hayne’s autopsy report indicated that “[c]ompression of the lungs [revealed] the presence of gray-pus in the walls of both the right and left lungs diffusely.” Therefore, it is reasonable to infer that Dr. Hayne attributed the condition of Easter’s lungs to bronchopneumonia, and not to the resuscitation efforts as theorized by UMC in support of its contention that Easter died of cardiomyopathy.

¶ 16. Notwithstanding UMC’s theory as to the cause of Easter’s death, we note that UMC failed to broach with either Dr. Hayne or Dr. Robert E. Pieroni, Johnson’s expert witnesses, the matter of the gray-pus or purulent serosanguinous pink-colored fluid in Easter’s lungs. It would seem logical that UMC would have extensively cross-examined Drs. Hayne and Pieroni on this point since this went to the heart of Johnson’s case.

¶ 17. Fourth, UMC contends that the trial court erred in finding that Easter developed bronchopneumonia prior to her release from UMC, and argues that “[t]here is no expert testimony that Easter had bronchopneumonia at that time.” UMC points out that Dr. Pieroni stated that pneumonia can present itself within hours; thus, UMC argues that if Easter in fact died from pneumonia, she could have developed it after her discharge because she died thirty-six hours after her release. We note that Dr. Pieroni also stated, “And just looking back, I mean, she had the pneumonia on [the date of] her death which, as you mentioned, was just 36 hours after she was discharged from the hospital. So it’s undoubtedly [sic] the pneumonia was preexisting and it would have shown up on x-ray." (Emphasis added) Therefore, based on the totality of Dr. Pieroni’s testimony, we cannot agree that the record is devoid of expert testimony indicating that Easter had bronchopneumonia. Although Dr. Hayne was not as emphatic as Dr. Pieroni that Easter had pneumonia while a patient at UMC, he was certain that “it would take more than one day, probably several days for this type of infection to develop.” Based on the testimony of Drs. Pieroni and Hayne, we find no merit to this allegation of error.

¶ 18. Fifth, UMC argues that the trial court erred in finding that Easter had breathing difficulty “[o]n August 17, 1999, the morning after the surgery.” UMC further argues that this finding is “critical because whether Easter had breathing problems during her hospitalization was a central issue in the case” and “there is no other finding of fact that Easter had a breathing problem at another time.” UMC presses the point further with its assertion that “there is no evidence in the medical records that she had a breathing problem as a hospital patient.” UMC is correct that there is no evidence that Easter had a breathing problem on August 17, but, as previously discussed, there is evidence from Griffin that Easter had a breathing problem during her hospital stay. Further, according to Dr. Pieroni, Easter could have had pneumonia while at UMC even if she did not experience breathing difficulty while there, because “[pneumonia] can smolder and then all of a sudden go into a brushfire in a conflagration, as what happened in this patient, who had been par-most likely partially treated with 5 million [sic] units of penicillin she received on one occasion, on the 17th.”

¶ 19. Sixth, UMC argues that the trial court erroneously found that “Dr. Riddick noted that Easter had developed a heart murmur and should have obtained a cardiology consult.” Specifically, the trial court’s opinion stated, “Dr. Riddick noted that Easter’s UMC chart indicated she developed a heart murmur on August 19, 1999, yet no cardiology consult was obtained.” We find that UMC has mischar-acterized the trial court’s finding, as there is nothing erroneous in the trial court’s statement. We find no merit to this allegation of error.

(¾) The Trial Court’s Disregard of Evidence in Conflict with its Ruling

¶20. In this issue, UMC argues that the trial court’s decision is not based on substantial evidence because the opinion disregards evidence which is in conflict with its ruling. Specifically, UMC contends that the trial court ignored the testimony of its experts, who provided an explanation for the cause of Easter’s symptoms.

¶ 21. We note at the outset that a trial court commits no error in finding one expert more persuasive than another, as the trial court, sitting as the trier of fact, is the sole judge of the credibility of all witnesses, including experts. Jacob Hartz Seed Co. v. Simrall & Simrall, 807 So.2d 1271, 1274-75(¶ 15) (Miss.Ct.App.2001) (citing McCallum v. Laird, 244 Miss. 273, 275, 142 So.2d 32, 32 (1962)). In Simrall, this Court held that “[t]he mere fact that testimony is disputed does not render it incredible.” Id. “Unless the testimony is so incredible as to be absolutely unworthy of belief, this Court will not re-weigh the evidence.” Id. We next address in further detail the expert testimony supporting both theories as to the cause of Easter’s death, and will return to this issue after our discussion of the expert testimony.

3. Expert Testimony

(a) Johnson’s Experts

¶ 22. Johnson offered two experts, who testified by deposition: Dr. Hayne, an expert in the fields of anatomical, clinical, forensic pathology, and forensic medicine, and Dr. Pieroni, an expert in internal medicine. Dr. Hayne performed an autopsy on Easter and testified that she died from bronchopneumonia, which, in his opinion, probably took several days to develop. The postmortem examination also found atelectasis, which is defined as a collapse of the small airways. He also testified that Easter’s lungs were slightly enlarged, specifically stating that her left lung was double its normal size. Dr. Hayne concluded that the enlargement was caused by a bacterial infection involving both lungs. He also stated that Easter suffered from coronary artery blockage on the left and the right, which played a contributory role in her death. Despite the coronary artery disease, Dr. Hayne stated that Easter would have survived in the absence of the bronchopneumonia, as it was the immediate cause of death.

¶ 23. Similarly, Dr. Pieroni noted that Easter had coronary heart disease, but, based on his review of Easter’s medical records, concluded that she died of severe or massive bilateral pneumonia, which was caused by a bacterial organism. Dr. Pier-oni stated that the pneumonia may have been masked by five milli-units of penicillin which Easter received prior to her cesarean section to prevent Easter and her newborn' from developing an infection. Prior to delivery, Easter’s temperature was 99.3, which Dr. Pieroni considers a low-grade fever. In Dr. Pieroni’s view, this low-grade fever was significant because “this particular patient didn’t show fevers when she was having infections.” According to Dr. Pieroni, Easter’s temperature dropped to about 96 at the time of her cesarean section. He opined that such a drop in temperature “can be ominous.” He also noted that on August 20, Easter’s hospital progress notes indicate that she was suffering from “mild abdominal and back pain and that she was given Tylenol and ibuprofen.” Dr. Pieroni noted that Tylenol can suppress a fever and that Easter was discharged on ibuprofen. However, Easter was not given any antibiotics to treat the pneumonia, which Dr. Pieroni concluded would have been standard treatment.

¶ 24. Dr. Pieroni further testified that Easter was anemic, which he did not consider uncommon because of her pregnancy. However, he noted that Easter’s hemoglobin and hematocrit counts were lower than what he would expect, even after taking into consideration that smokers usually have increased hemoglobin counts. Dr. Pieroni also addressed Easter’s smoking as it related to his conclusion that Easter died of pneumonia. He stated that it is possible for atelectasis to occur postopera-tively in people who smoke cigarettes.

¶ 25. In reaching his conclusion as to Easter’s cause of death, Dr. Pieroni focused on Easter’s white blood count prior to and after delivery, which he opined was higher than it should have been. Dr. Pier-oni reached this conclusion by relying on a study which found that prior to delivery the white blood count should be below 11,600. Easter’s white blood count was recorded at 13,700. He also noted that Easter’s white blood count rose to 15,200 after her cesarean, which he concluded was higher than the normal range for post-cesarean patients.

¶26. Dr. Pieroni conceded, on cross-examination, that an elevated white blood count after a cesarean is not uncommon; however, he stated that a count of 15,200 is considerably high. Dr. Pieroni opined that the increase in Easter’s white blood count should have alerted UMC’s nurses and physicians that she was suffering from an infection. Nevertheless, Easter’s white blood count was not addressed by the medical staff, which, according to Dr. Pieroni, is a deviation from the standard of care. Dr. Pieroni stated: “So the standard of care would indicate that one finds out what are the reasons for these abnormal findings, this — these signs and symptoms of infection.”

¶ 27. In Dr. Pieroni’s opinion, Easter did not die from peripartum cardiomyopa-thy, because there was no evidence of a myocardial infarction. Upon considering Easter’s expiratory wheeze, hot flashes, low-grade temperature, and dry cough, he stated that “[t]he most logical diagnosis is respiratory infection, and I saw no workup.” Dr. Pieroni noted that Easter was given Entex LA for her dry cough. Dr. Pieroni concluded that Easter’s symptoms signaled a respiratory infection which required at least a chest x-ray, because the x-ray yields a more accurate, result than auscultatory findings. The record reflects the following exchange on this point:

Q. So you — you just totally play down all the references in the regular care records for the days that she was in the hospital that the nurse or the physician noted lungs “CTA”?
A. Yes. That’s “clear to auscultation.” And I have already told you auscul-tatory findings are notoriously unreliable. One depends more on a positive finding than they do on a negative. Was this patient sitting up? Was it taking deep respira-tions? These are all important factors when you’re talking about breath sounds. As I have already stated to you, the diagnosis is best made with the chest x-ray if you’re looking for causes of abnormal breath sounds, if you’re looking for causes of coughing, which this patient continued to exhibit.

¶ 28. Dr. Pieroni also testified that UMC personnel did not do any follow-up lab tests or chest x-rays. He stated: “it’s undoubtedly [sic] the pneumonia was preexisting and it would have shown up on x-ray.” In Dr. Pieroni’s opinion, an x-ray would have yielded the most accurate diagnosis. When taking all of Easter’s symptoms together, Dr. Pieroni stated that “the patient obviously wouldn’t [sic] have been discharged from the hospital, as she was on the 20th.”

(b) UMC’s Experts

¶ 29. UMC presented six expert witnesses at trial: Dr. John Morrison, chairman of the Department of OB-GYN at UMC; Dr. James Jones, a pulmonary and critical care physician; Dr. Grace Shumaker, a hematologist and oncologist; Dr. Rid-dick, a forensic pathologist; Dr. Stanley Chapman, an infectious disease specialist; and Dr. Malcolm Taylor, a cardiologist. Ivory Davis, UMC’s nursing clinical director, testified as a lay witness rather than as an expert.

¶ 30. According to Davis, she met Easter for the first time on the day Easter was discharged. Davis stated that she asked Easter if she had any complaints, and Easter responded that she did not. She testified that Easter was seen by nurses numerous times throughout her stay. Davis pointed out that the nurses’ notes indicates that Easter’s lungs were “clear to auscultation,” in addition to being clear bilaterally. She stated that if there had been a problem with Easter’s lungs, the nurses would have detected it during Easter’s chest examination.

¶ 31. On cross-examination, Davis stated that Easter’s white blood count on August 17 was 13,700, which she considered high. Further, Davis testified that Easter’s white blood count rose to 15,200 the following day. She stated that Easter’s hematocrit and hemoglobin counts were low prior to and after Easter’s cesarean. Davis testified that Easter’s chart does not indicate that any further lab tests were done. Johnson’s attorney posed the following question to Davis: “And you recognize as a nurse that these are abnormal lab values, right?” She responded, “Yes.”

¶ 32. Davis testified that the nurses’ notes did not indicate that any physician had been notified about Easter’s white blood count, hematocrit, and hemoglobin levels. However, on redirect, Davis stated that the reference ranges to which she had been referring were for the general population and not for the pregnant population. She explained that UMC’s lab uses a general lab sheet which does not take into account that pregnant patients’ levels fall into different ranges than the general population. She also stated that it is common to see postpartum patients with white blood counts in the range of Easter’s. Davis testified further that it is not unusual for a patient to experience hot flashes after delivery.

¶ 33. Dr. Morrison also testified that Easter’s white blood counts were within the normal range for a pregnant female and that there was no need for any additional testing. Additionally, he stated that the expiratory wheeze and hot flashes were normal. Specifically, Dr. Morrison testified that expiratory wheezing commonly occurs during pregnancy, because the abdomen is “pressing up on her thorax or where the lungs are.” Dr. Morrison stated that hot flashes commonly occur because “[w]hen you remove the placenta after the baby is delivered, you take away all the hormones that the placenta is producing.” He further explained that “that abrupt drop, just like when women go through menopause, will give you, you know, a hot flash.... ”

¶34. Further, Dr. Morrison testified that, in his opinion, Easter’s heart murmur was a pre-existing condition that did not develop while she was a patient at UMC. Dr. Morrison provided two explanations for Dr. Hayne’s autopsy findings: (1) Easter experienced rapid onset pneumonia after her release from UMC, or (2) the autopsy is flawed. Dr. Morrison firmly stated that there is no indication that Easter had pneumonia nor any type of infection while she was a patient at UMC. He also testified that a dry cough is not a symptom of pneumonia.

¶ 35. Dr. Jones also did not believe that Easter’s dry coughing was a symptom of pneumonia. He testified that if Easter had suffered from pneumonia, she would have had a productive cough, rather than a dry cough, which can derive from many sources. Dr. Jones also pointed out that Easter was treated for this dry coughing. He addressed Easter’s wheeze by stating, “There was mentioned prior to her delivery of a transient wheeze [sic], which you will occasionally encounter in term pregnancies just because of the compression of a lung from the elevated uterus and fun-dus. That is not remarked on any other exam after her delivery.” As for Easter’s temperature, Dr. Jones stated that Easter did not have any significant fever and that her vital signs summary indicated that her temperature was within normal range. Moreover, Dr. Jones testified that there were no alterations in Easter’s blood pressure which would have indicated a significant infection.

¶ 36. Dr. Jones made reference to the autopsy report and concluded that the congestion which was noted in Easter’s lungs could have been caused by the efforts to resuscitate her. Dr. Jones stated that the attempts at resuscitation “would include the physical breathing for her with a bag valve or an amboo [sic] bag. All of these things, plus the introduction of an endotra-cheal tube through her mouth would give you bacteria in the respiratory tract.” Dr. Jones disagreed with Dr. Hayne’s findings, but conceded that he is not a pathologist. He also stated that Easter’s temperature decrease from 99.3 to 97 was not alarming and was within the normal range.

¶ 37. Dr. Shumaker also disagreed with Dr. Hayne’s findings and testified that Easter’s white blood count, hematocrit, and hemoglobin levels were within the normal range. She testified that she would not have done any follow-up tests, because Easter did not display any sign of an infection and because Easter’s levels, though elevated were within the normal range.

¶ 38. Dr. Riddick performed a slide presentation'where he compared autopsy photographs of Easter’s lungs with photographs of the lungs of a female who had chronic lung disease, emphysema, and pneumonia. He testified that the air spaces in Easter’s lungs were clear, unlike the lungs of the female in the slide presentation, which were filled with fluid and inflammatory cells. Dr. Riddick opined that the photographs of Easter’s lungs did not show any signs of pneumonia. Further,. Dr. Riddick testified that if Easter died from pneumonia, he would expect her lungs to look more like the lungs of the female in the slide presentation.

¶ 39. Dr. Riddick also disagreed with Dr. Hayne regarding Easter’s cause of death. He concluded that Easter died of peripartum cardiomyopathy. He also provided several reasons for Easter’s heart murmur: (1) she was anemic, (2) she had recently given birth, (3) she had lost some blood, and (4) she had a rapid heart rate. When asked whether a heart murmur would indicate the need for a cardiology consult or further testing, Dr. Riddick replied, “I would defer to a cardiologist or an internist of how assiduous you’re going to be in a workup of just having a murmur for the first time in somebody who is anemic and postpartum.” Dr. Riddick also disagreed with Dr. Hayne regarding the collapse of Easter’s lungs, as he attributed the collapse to the resuscitation efforts.

¶ 40. Dr. Chapman disagreed with Dr. Pieroni’s findings that Easter’s hospital records indicated the need for a consultation with an infectious disease specialist. Dr. Chapman also took issue with Dr. Pieroni’s conclusion that Easter’s temperature of 99.3 constituted a fever. He stated that a temperature of 99.3 is not accepted as a fever. Furthermore, he testified that a red flag is not raised until a patient has had a temperature of at least 100.3 on two consecutive occasions.

¶ 41. Dr. Chapman’s conclusion was different from Dr. Pieroni’s conclusion regarding the findings in the Journal of Obstetrics and Gynecology which were relied upon by Dr. Pieroni. Dr. Chapman testified: “actually the article that he cited looked at the change in the white count in patients who are admitted for cesarean section, 24 hours after cesarean section whether the change in the white count can be used as an indicator of underlying infection.” Dr. Chapman testified that the standard of care was met because Easter’s white blood count was taken within twenty-four hours and not twenty-four hours after her cesarean, because at this time Easter’s white blood count was within normal range.

¶ 42. Dr. Taylor opined that Easter died from postpartum cardiomyopathy, pointing out that Easter had significant underlying coronary artery disease. He attributed Easter’s dry cough to her smoking habit. Dr. Taylor also disagreed with Dr. Hayne’s conclusion that Easter died of pneumonia, and contends that there is nothing to support Dr. Hayne’s analysis. Dr. Taylor testified that atelectasis is consistent with heart failure and pneumonia, but noted that it is not consistent with bilateral severe pneumonia, which was Dr. Hayne’s diagnosis. Dr. Taylor also noted that, while at UMC, Easter’s heart and lungs were examined, her vital signs were taken, and she did not show any signs of a cardiac problem. When asked whether the color of the sputum that was seen in Easter’s airways and emanating from her mouth was significant or made a difference, Dr. Taylor gave this response:

Well, in heart failure [the foam-like substance] can be white. In some people it can be white or pinkish. But the fact that she was in heart failure and fluid overloaded after she was discharged, not during the hospitalization, is more consistent with heart failure. We see this as a classical finding of heart failure in my experience.

¶ 43. Now that we have discussed the expert testimony offered by both Johnson and UMC, we briefly return to UMC’s argument that the trial judge ignored or disregarded evidence in conflict with its ruling. This is an interesting assertion because in every case the trier of fact accepts certain evidence while rejecting other evidence. This is the classic case of the battle of the experts, as Johnson’s experts contend that Easter had symptoms of pneumonia which were ignored by UMC, while UMC’s experts contend that Easter showed no signs of pneumonia while at UMC.

¶ 44. We cannot agree with UMC that simply because the trial court was more persuaded by the findings of Dr. Hayne and Dr. Pieroni it “disregarded glaringly obvious evidence.” “Disregard” means to pay no attention to. There is a huge difference between rejecting something because the argument in support of it is unpersuasive, and failing to embrace something because it was never noticed. Our review of the record indicates that it was the former course of action that was taken by the trial court. This assessment is borne out by the following quote from the trial court’s opinion: “Defendants’ expert witnesses Dr. Jones ... and Dr. Taylor rendered expert opinions that Easter’s death was sudden and most likely a cardiac event and that there were no clinical signs and symptoms of pneumonia or of an infection.” Therefore, although the trial judge may not have accepted Drs. Jones’ and Taylor’s findings, she did take them into consideration in reaching her decision.

Ip. Damages

¶45. The trial court awarded Easter’s family a total of $534,025 in damages. The court determined the present value of Easter’s future earnings to be $170,000. Additionally, the trial court awarded $1,900 for funeral expenses, $10,000 for pain and suffering, $2,125 for past medical bills, and $350,000 to Easter’s children for loss of companionship. UMC challenges the method that the trial court used to calculate Easter’s future earnings and argues that “the calculation did not consider Easter’s reduced life expectancy because of her cardiac condition.” We cannot agree with UMC’s contention, as the record clearly belies this allegation of error.

¶ 46. Louis Smith, Ph.D. was accepted as an economic expert qualified to calculate the present value of future earnings. Smith testified as follows on cross-examination:

Q. And I take it that you were not told that according to the pathologist who performed her autopsy, she did have a heart condition that would have affected her life expectancy?
A. It would have affected her life expectancy. That’s a medical opinion. I wouldn’t know that.
Q. And, of course, you didn’t take that into account and figure in the work expectancy because you didn’t know that, right?
A. Well, the work life expectancy does take into account absences because of health and other types of reasons.
Q. And again it’s average, is it not?
A. It is an average.
Q. And some people live a lot shorter time than the life span calculated to come to that work life expectancy, and some people may live and work a longer time?
A. That’s the definition of average, ma’am.

Thus, based on Smith’s testimony, we cannot find that the trial court erred in finding Easter’s future earnings to be $170,000. This issue lacks merit.

5. Reliability of Johnson’s Experts

¶ 47. Finally, UMC contends that the trial court erred in relying on the testimony of Drs. Hayne and Pieroni because neither satisfies the Daubert standard for reliability. Additionally, UMC argues that Dr. Pieroni’s testimony is based on facts which are not supported by the record. We acknowledge that UMC moved to strike Dr. Pieroni’s deposition testimony and sought to have it removed from evidence based on its conclusion that “[Dr. Pieroni’s testimony] contains numerous errors of fact which have been refuted by the introduction of a lot of evidence during the defense case.” . However, we point out that there is nothing in the record to reflect that UMC made a Daubert objection at trial or in any motion to the testimony of either Dr. Pieroni or Dr. Hayne. The issue as to Dr. Hayne’s reliability in any form was raised for the first time in UMC’s reply brief. The Daubert challenge to Dr. Pieroni was also made for the first time in UMC’s reply brief. Therefore, this issue is procedurally barred. Johnson v. State, 508 So.2d 1126, 1127 (Miss.1987) (citing Evans v. State, 485 So.2d 276, 282 (Miss.1986)).

¶ 48. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. GRIFFIS, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Brenda Easter is survived by two children, both fathered by Griffin.

      . Rule 803 provides several exceptions to the prohibition against the admission of hearsay evidence, including an exception that is applicable here. Subsection (3) provides for the admission of:
      [a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
      Clearly, Easter's statement to Russell was a statement of Easter’s "then existing state of mind, emotion, sensation, or physical condition.”

      . The record indicates that at the time of her death Easter smoked approximately a half pack of cigarettes a day.

      . Dr. Jones defines a productive cough as a cough which produces sputum, which is corn-monly referred to as phlegm.

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