text:
    Leslie CARTER, Individually and on Behalf of the Estate of Wayne Verhein v. Cullen A. HEBERT, M.D.
    No. 2005 CA 1986.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 2006.
    Sumpter B. Davis, III, Baton Rouge, Counsel for Plaintiff/Appellee Leslie Carter, individually and on behalf of the estate of Wayne Verhein.
    Janie Languirand Coles, Paul R. Mayer, Jr., Baton Rouge, Counsel for Defendant/Appellant Cullen A. Hebert, M.D.
    Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

12Cullen Hebert, M.D., appeals a partial summary judgment wherein the trial court ruled that he breached the applicable medical standards of care and that his breach caused the death of his patient. Concluding that the appellee did not prove her entitlement to summary judgment, we reverse the judgment.

PERTINENT FACTS AND PROCEDURAL HISTORY

Following a September 7, 2003 automobile accident, Wayne Verhein developed a pulmonary embolus and was admitted to Our Lady of the Lake Regional Medical Center (OLOL) on September 14, 2003, where he was treated by Dr. Hebert. Mr. Verhein was discharged from OLOL on September 18, 2003, medicated with 7.5 milligrams of Coumadin by mouth daily. Thereafter, Mr. Verhein was seen in Dr. Hebert’s office on September 26, 2003, and was referred to an outpatient lab for blood work. The result of the “Protime” test was 73.0 and the INR level was 8.99. On September 28, 2003, Mr. Verhein became ill and was transported to Summit Hospital in Baton Rouge, where he was diagnosed with “aortic dissection, cardiac rupture, or pericarditis with bleeding secondary to Coumadin with elevated INR.” Mr. Ver-hein was then transported to OLOL for further treatment, but died en route.

Leslie Carter, individually and on behalf of her deceased son, Wayne Verhein, filed a petition against Dr. Hebert in February 2005 alleging that his deviation below the appropriate standards of medical care caused her son’s death. She sought survival damages and wrongful death damages. The suit was instituted after a medical review panel issued a split decision in which two doctors concluded that Dr. Hebert had deviated from the standard of care in failing to properly monitor Mr. Verhein’s INR [International ^Normalization Ratio] since it was unstable at the time he was released from the hospital. The third doctor was undecided regarding whether there was a breach of the standard of care. All three doctors agreed that the elevated INR was a contributing factor in Mr. Verhein’s death.

In May 2005, Ms. Carter filed for summary judgment, and Dr. Hebert timely filed his opposition. The matter was heard in July 2005. The trial court rendered judgment “against [Defendant] Dr. Cullen A. Hebert, M.D., decreeing that the Defendant breached the applicable medical standards of care in this case and his breach caused the death of Plaintiffs decedent, Wayne Verhein.” The trial court certified this partial summary judgment on the issue of liability as final for purposes of appeal, finding that there was no just reason for delay.

Dr. Hebert appeals, asserting three assignments of error:

1. An uncertified medical review panel opinion is not admissible as evidence to support a summary judgment;
2. An affidavit of a physician, stating that the defendant physician did not deviate from the standard of medical care in treating the patient whose care is at issue, establishes a genuine issue of material fact which precludes summary judgment.
3. Adequate discovery had not been completed at the time that Plaintiff/Ap-pellee filed her motion for summary judgment.

DISCUSSION

We observe initially that Ms. Carter has failed to submit any competent evidence on the issue of medical malpractice in support of her motion for summary judgment. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. In determining whether summary judgment is appropriate, 14appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Osborne v. JAG Const. Services, Inc., 04-0437, p. 4 (La. App. 1 Cir. 2/16/05), 906 So.2d 601, 603, writ denied, 05-0739 (La.5/6/05), 901 So.2d 1101.

Here, Ms. Carter supported her motion for summary judgment with copies of the pleadings, answers to interrogatories, and copies of the decision of the medical review panel, one of which was attached to an affidavit of the attorney/chairman of the medical review panel. Apart from the fact that the report of the medical review panel shows no agreement on the issue of whether Dr. Hebert’s conduct fell below the appropriate standard of care, the report is, by law, not conclusive on the issue of liability. La. R.S. 40:1299.47 H; Simmons v. Berry, 98-0660R, p. 7 (LaApp. 1 Cir. 12/22/00), 779 So.2d 910, 915.

Further, in Simmons, this court held that La. R.S. 40:1299.47 H “does not in any way broaden the avenues available to medical malpractice litigants utilizing summary judgment proceedings, unless the deposition of a medical doctor who served on the medical review panel is taken or his opinion is put in the form of a sworn affidavit. If presented in an affidavit form or by deposition, the expert’s opinion may be admissible if it meets the standards of Daubert-Foret.” Id., 98-0660R at pp. 7-8, 779 So.2d at 916.

Here, Ms. Carter did not support her motion for summary judgment with an affidavit or deposition from an expert medical provider to prove that Dr. Hebert’s medical treatment of Mr. Verhein fell below the applicable standard of care. See La. R.S. 9:2794 A, establishing a plaintiffs burden of proof in a malpractice action. Without such evidence, we conclude that Ms. Carter failed in the threshold requirement of showing that she is entitled to ^summary judgment as a matter of law. La. C.C.P. art. 966 B & C(l). Therefore, the burden never shifted to Dr. Hebert to require him to show support for his claims and defenses. La. C.C.P. art. 966 C(2). Accordingly, we conclude the trial court erred in granting summary judgment in favor of Ms. Carter. We reverse the judgment of the trial court.

Because we conclude on our de novo review that the summary judgment entered in favor of Ms. Carter must be reversed, we pretermit discussion of the interesting issues raised in Dr. Hebert’s assignments of error.

DECREE

For the foregoing reasons, we reverse the judgment of the trial court granting summary judgment in favor of Ms. Carter and against Dr. Hebert. Costs of this appeal are assessed to Ms. Leslie Carter.

REVERSED

      . We recognize that Dr. Hebert filed an affidavit, which was admitted into evidence, by the physician who was initially undecided on the medical review panel in which he explained how he became decided that no malpractice occurred. Because of our disposition herein, we do not decide the efficacy of this affidavit in the context of this summary judgment proceeding.


source: Caselaw Access Project

author: DAVID S. GORBATY, Judge. /s/ James F. McKay III JUDGE JAMES F. MCKAY III /s/ Michael E. Kirby JUDGE MICHAEL E. KIRBY /s/ Terri F. Love JUDGE TERRI F. LOVE

license: Public Domain

text:
    TOO EASY ENTERTAINMENT, LLC v. SEVEN ARTS PICTURES, INC., Asylum Productions UK Limited, and Peter Hoffman. Too Easy Entertainment, LLC. v. Seven Arts Pictures, Inc., Asylum Productions UK Limited, and Peter Hoffman.
    Nos. 2006-CA-0015, 2006-CA-0515.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 20, 2006.
    Order Granting Rehearing Dec. 7, 2006.
    James M. Garner, Timothy B. Francis, Joshua S. Force, Christopher C. Cho-cheles, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, For Plaintiff/Appellee.
    Michael P. Arata, Eugene J. Radcliff, Shannon Ruddy, Jason A. Cavignae, Montgomery Barnett Brown Read Hammond & Mintz, LLP, New Orleans, LA, for Defendants/Appellants.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   DAVID S. GORBATY, Judge.

hln this appeal, defendants aver that the trial court erred in granting summary judgment against them. Defendants also appeal the trial court’s award of sanctions and attorneys’ fees. For the reasons set forth below, we affirm in part and reverse and remand in part.

FACTS AND PROCEDURAL HISTORY

This case arises out of a series of intermingled, multi-party agreements, including a Loan Agreement, a Promissory Note Secured by Mortgage of Copyright (“Promissory Note”), a Mortgage of Copyright, and a Security Agreement and Personal Guaranty, all executed on or about August 18, 2003, as well as an Intercreditor Agreement executed by numerous parties on October 13, 2003, and a Deed of Release Relating to Asylum executed on April 5, 2004.

Too Easy Entertainment, LLC (“Too Easy”) is a company whose sole member is professional basketball star Baron Davis. Defendants Seven Arts Pictures, Inc. (“Seven Arts”) and Asylum Productions UK Limited (“Asylum UK”) are corporations with their principal place of business in California. Defendant Peter M. Hoffman, a citizen of the state of California, originally guaranteed the Loan Agreement pursuant to the Personal Guaranty. The various agreements by | ?.and between Too Easy, Seven Arts, and Asylum UK were related to several other international finance and production agreements regarding financing and production of the motion picture “Asylum,” produced and filmed in Ireland.

Too Easy filed suit, alleging that Seven Arts and Asylum UK failed to pay the amount of $1,505,000.00 advanced by Too Easy under the Loan Agreement, and that Hoffman was personally obligated to pay this amount under the Personal Guaranty. Defendants, in answer to Too Easy’s claims, alleged, among other things, that (1) the principal amount was not then due by reason of the Intercreditor Agreement; (2) that the principal amount was, in fact, only $1,250,000, with the balance being usurious interest under California law; and (3) that Too Easy exonerated Hoffman under California law as a surety of the principal amount when in the Deed of Release Too Easy waived its security interest in the motion picture without Hoffman’s consent. After a hearing, the trial court granted summary judgment in favor of Too Easy and ordered defendants to pay Too Easy $1,505,000 in the principal amount of the loan, $40,000.00 in liquidated damages, ten percent interest compounded annually, and attorneys’ fees and costs. Defendants subsequently filed a devolutive appeal, which bears docket number 2006-CA-0015.

In August 2005, Too Easy filed a Motion for Award of Attorneys’ Fees and a Motion to Examine Judgment Debtors (“JD Exams”) to discover what assets defendants had available to satisfy the judgment. Hurricane Katrina forestalled any immediate action on these motions. The trial court ordered defendants to appear for JD Exams on December 8, 2005. Defendants did not appear, but instead that morning filed a Motion for Protective Order that argued that defendants had not been properly served with the order setting the JD Exams. The trial court denied defendants’ motion and ordered defendants to appear for the JD Exams on | ¡¡January 4, 2006. Defendants did not appear at this hearing, and the trial court sanctioned defendants in the amount of $5,000.00. and held them in contempt of court. At that time, the trial court also awarded attorneys’ fees in the amount of $495,611.41. Defendants filed another appeal, which bears docket number 2006-CA-0515. This appeal was subsequently consolidated with the earlier appeal.

DISCUSSION

The parties agreed that California law would govern the Loan Agreement, the Intercreditor Agreement, the Personal Guaranty, and the Promissory Note. The parties further agreed that the Deed of Release is subject to English law.

Defendants assert that the trial court erred in granting summary judgment. The California Code of Civil Procedure, Section 437c(c), provides that summary judgment shall be granted only if there is “no triable issue as to any material fact.” Section 437c(p)(l) provides further that the burden is on the mover to establish that there are no triable issues as to any material facts. The cases are clear that all doubts are to be resolved against the moving party and the issue is reviewed de novo on appeal. See WYDA Assoc. v. Merner, 42 Cal.App.4th 1702, 1709, 50 Cal.Rptr.2d 323 (1996); Kulesa v. Castleberry, 47 Cal.App.4th 103, 112, 54 Cal.Rptr.2d 669 (1996).

Plaintiffs Motion for Summary Judgment states that “Defendants have not repaid a single cent of the money loaned to them by Too Easy.” Defendants assert that this contention is false and is directly contradicted by the documents Too Easy presented in support of the summary judgment (Section 8.4 of the Intercreditor Agreement), and the uncontroverted testimony of Peter M. Hoffman via affidavit.

[lj | ¿Defendants argue that the Loan Agreement references an advance — the “Principal” — in the amount of $1,505,000. However, as stated by Hoffman in his affidavit, $300,000 of this amount was immediately repaid to Too Easy’s sole member, Baron Davis, as a fee for advancing the Principal. ($50,000 of the $300,000 was actually paid to Too Easy’s broker, Marion Muller.) Additionally, three months after executing the Loan Agreement, Too Easy executed the Intercreditor Agreement, whereby Too Easy agrees in Section 8.4(a)(i) that the “repayment amount” of the Loan Agreement was $1,250,000 and not $1,505,000. Specifically, the Intercred-itor Agreement states, “the proceeds of the Too Easy Territory Collateral shall be paid directly into the CNB Collection Account, until such time as Too Easy has received the amount due to Too Easy pursuant to the Too Easy Loan Documents up to the aggregate sum of One Million Two Hundred Fifty Thousand Dollars ($1,250,-000), if and to the extent advanced to Borrowers thereunder and, after such payment, shall be paid directly to Comerica.”

The conflict between the Loan Agreement, which purports to reflect a Principal of $1,505,000, and the Intercreditor Agreement, wherein Too Easy agrees that the Principal due under the Loan Agreement is $1,250,000, reflects one of the numerous glaring material factual and legal disputes at issue in this ease. The Intercreditor Agreement was executed by Too Easy three months after it executed the Loan Agreement, and three months after Davis was paid a “producer fee” for advancing the Principal. Defendants, citing to Hoffman’s affidavit, argue that the “producer fee” was, in.fact, disguised interest under California law, rendering the Loan Agreement usurious on its face. The usury issue raises more issues of material fact that were not addressed in the trial court.

|BFurther, the trial court did not have an opportunity to examine the amount of debt allegedly past due because the defendants did not raise the issue in their motion for summary judgment. Considering that we are conducting a de novo review and the matter is properly befox-e this court, Too Easy’s assertion that we do not have to consider the defendants’ argument is without merit. Additionally, Too Easy assei’ts that the “Intercreditor Agreement” does not affect the rights created in the other loan documents. However, the interpretation of the pai'ties’ agreement in totem cannot be discerned without the consideration of the language contained in all of the contractual documents.

Appellee also argues that the allegation of the $300,000 payment is parole evidence that cannot be used to contradict express tex-ms in a written contract. California’s parole evidence rule is codified in California Code of Civil Procedure Section 1856, which provides that (a) when “the validity of the agreement is the fact in dispute this section does not preclude evidence relevant to the issue” and (b) the “terms set forth in a -writing ... may be explained or supplemented ... by course of performance ...” Proof of the payment and its effect on the Usury Issue is not in any way prevented by Section 1856.

Further, defendants assert that there has been inadequate discovery in this matter. Defendants attempted to conduct the depositions of Too Easy and Davis on three separate occasions, but these depositions have not yet taken place. Accordingly, prior to the hearing on the Motion for Summary Judgment, the trial court had no testimony or reliable discovery to determine if Too Easy’s claims had any merit. Indeed, the only sworn testimony in this matter has been the uncontroverted Affidavit of Hoffman. Hoffman’s testimony clearly establishes triable issues of fact and law. We therefore conclude that the defendants’ | ^assignment of error has merit. The motion for summary judgment was improperly granted, and this case must be remanded. In light of this ruling, defendants’ argument concerning excessive attorneys’ fees is moot.

In their last assignments of error, defendants argue that the trial court improperly denied their Motion for Protective Order. Additionally, defendants aver that the trial court erred in holding them in contempt of court and issuing sanctions.

Defendants did not appear for the judgment debtor examinations scheduled for December 8, 2005. The trial court at that time ordered them to appear for JD Exams on January 4, 2006, and set that as a hearing date for the Motion for Sanctions that Too Easy planned to file as a result of defendants’ failure to appear for the December JD Exams. When, on January 4, 2006, defendants again failed to appear for their JD Exams, the trial court granted Too Easy’s Motion for Sanctions, held defendants in contempt, and awarded Too Easy $5,000. On appeal, defendants claim that the trial court erroneously denied their motion seeking protection from the JD Exams, held defendants in contempt, and clearly abused its discretion in sanctioning them.

La. C.C.P. art. 2456 provides that, if a judgment debtor has been served with ah order setting a JD Exam and refuses to appear, the “judgment debtor may be punished for contempt.” Here, defendants had been properly served with orders setting JD Exams in December and January. Because defendants failed to adhere to the orders and appear for the JD Exams, the trial court had full discretion to punish them. The court’s exercise of its discretion was not erroneous or abusive. Thus, we find that these assignments of error lack merit, and we affirm this portion of the trial court’s judgment.

\ .MOTIONS

The outstanding Motions to Supplement the Record are hereby GRANTED.

Further, since the two appeals have been consolidated, the Motion to Strike Defendants’ Assignments of Error filed by appellee is moot.

CONCLUSION

Accordingly, for the foregoing reasons, we reverse the trial court’s ruling granting the Motion for Summary Judgment, and remand this matter for proceedings not inconsistent with this ruling. We affirm the portion of the trial court’s judgment as it pertains to the Motion for Protective Order and sanctions awarded.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

|, ORDER

Considering the foregoing motion on the application for rehearing, this motion is hereby GRANTED.

/s/ James F. McKay III JUDGE JAMES F. MCKAY III

/s/ Michael E. Kirby JUDGE MICHAEL E. KIRBY

/s/ Terri F. Love JUDGE TERRI F. LOVE

      . A former member of the original panel has recused.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Sandra M. ANDERSON v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE by and through the LOUISIANA STATE UNIVERSITY HEALTH SCIENCE CENTER.
    No. 06-CA-153.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 17, 2006.

      Deborah E. Lavender, David C. Whit-more, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Patricia S. LeBlanc, Kelly McCarthy Rabalais, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

Ii>ln this medical malpractice case, plaintiff, Sandra Anderson, appeals a jury verdict and trial court judgment in favor of defendant, Board of Supervisors of Louisiana State University and Agricultural and Mechanical College by and through the Louisiana State University Health Sciences Center (“LSU”). For the reasons which follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 18, 1998, Sandra Anderson, who is a licensed practical nurse, underwent plastic surgery at Magnolia Surgical Facility. The doctors performing the surgery were Dr. Forrest Wall, who was a resident in the LSU plastic surgery department, and Dr. Walton Montegut, a physician in private practice who also served as a faculty member at LSU Medical School. Dr. Montegut performed a coronal forehead lift and a fat transfer to the upper and lower lips. Dr. Wall misperformed a full face lift and a neck lift, and he was supervised by Dr. Montegut during the surgery. As a result of these procedures, Ms. Anderson suffered nerve damage to her face, which causes hemifa-cial spasms.

A medical review panel was convened to consider Ms. Anderson’s claims that the nerve injury to her face was caused by the negligence of Drs. Wall and Montegut. Ms. Anderson’s primary claim was that she was not sufficiently informed of the risks of the procedures, i.e. she did not give an informed consent to these procedures. After considering the arguments of the parties, the medical review panel issued an opinion, finding that “[tjhere is a question of fact as to whether or not the patient was pre-operatively informed of the potential of a facial nerve injury as a complication of facelift surgery.”

On June 17, 2002, plaintiff filed this lawsuit against LSU for the actions of Drs. Wall and Montegut, asserting that both doctors deviated from the standard of care, failed to properly inform Ms. Anderson of known complications of the plastic surgery, and failed to obtain an informed consent for the plastic surgery procedures performed. Prior to trial, counsel for both parties signed a pre-trial order containing a stipulation that the only claim to be presented at trial was “whether Sandra Anderson was adequately consented regarding the risk of a rare but known complication of her surgery.”

A jury trial was held on August 1, 2, and 3, 2005. At the conclusion of the trial, the jury found that the plaintiff did not prove by a preponderance of the evidence the existence of a material risk unknown to her. On August 10, 2005, in accordance with this finding, the trial judge signed a judgment dismissing plaintiffs claims against defendant, LSU. Plaintiff, Ms. Anderson, appeals.

\ ¿DISCUSSION

In her first assignment of error, plaintiff argues that the trial court erred in granting defendant’s Motion in Limine and ruling that plaintiffs counsel could not ask Dr. Montegut if he had passed the examination for board certification. Apparently, defendant filed a Motion in Limine asking the trial court to exclude testimony concerning whether or not Dr. Montegut was board certified in plastic surgery at the time of plaintiffs surgery, arguing that it was not relevant to plaintiffs informed consent claim. Arguments on the Motion in Limine were heard just before the trial began. At the hearing, defendant argued that plaintiffs only purpose in asking if Dr. Montegut was board certified would be to prejudice the jury and to embarrass Dr. Montegut. Defendant further asserted that the jury had to assess credibility to determine whether or not Dr. Montegut informed plaintiff of the risks of surgery, and Dr. Montegut never lied about whether or not he was board certified, so this question was not relevant to credibility. Plaintiff responded that the issue of board certification is one that is asked of almost every medical expert who testifies in court and that the answer relates to whether or not Dr. Montegut was qualified to supervise Dr. Wall and whether or not he disclosed his education and experience to plaintiff.

After questioning plaintiffs counsel regarding whether or not she had proof that Dr. Montegut failed the board certification exam, the trial judge stated:

.... I will permit counsel to conduct an evidentiary hearing with the witness so that the facts may be established. Therefore, counsel will not be permitted to argue this before the jury nor engage in voir dire on that particular point because the matter has not been established sufficiently before the court to determine whether or not that is something which the jury will hear. And I state that because the representations in chambers were such that I was satisfied that this had, in fact, occurred and I’m not so at this point and therefore I will lBnot permit it. I will allow the eviden-tiary hearing if counsel wishes to. (Emphasis added.)

At trial, plaintiffs counsel asked Dr. Montegut if he had failed the board certification examination. Defense counsel objected to the question, arguing that there had been no evidentiary hearing and thus, plaintiff could not question Dr. Montegut on this issue. The trial judge sustained the objection. Plaintiffs counsel then stated:

You know what, I’ll just stay away from it. That’s okay. I just won’t even touch it again....

On appeal, plaintiff argues that the trial court erred in granting the Motion in Li-mine on this issue, but defendant asserts that this issue cannot be reviewed on appeal because plaintiff did not make an objection for the record or request a proffer of evidence. We agree with defendant.

In order to preserve an eviden-tiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence and state the reasons for the objection. Matthews v. Breaux, 04-958 (La.App. 5 Cir. 2/15/05), 896 So.2d 1146, 1150. The failure to make a contemporaneous objection in the trial court waives the right of a party to complain about the ruling on appeal. Hyland v. American Guarantee and Liability Insurance Company, 04-305 (La.App. 5 Cir. 9/28/04), 885 So.2d 30, 34.

In the present case, plaintiffs counsel did not request an evidentiary hearing prior to Dr. Montegut’s testimony and did not make a contemporaneous objection when the trial judge sustained defendant’s objection to her question regarding whether or not Dr. Montegut passed the examination for board certification. Rather, plaintiffs counsel simply stated, “That’s okay,” and “I’ll just stay away from it.” Accordingly, because plaintiff did not make a contemporaneous objection when the trial judge ruled that she could not question Dr. Montegut on | fithis issue, we find that plaintiff has waived her right to contest this ruling on appeal. Thus, this assignment of error is without merit.

In her second assignment of error, plaintiff asserts that the trial court erred in granting defendant’s Motion in Limine and excluding evidence which suggested that Dr. Montegut had exceeded the scope of informed consent by performing additional surgery on plaintiff. At the hearing on the Motion in Limine, plaintiff argued that the medical records reveal that Dr. Montegut performed an additional procedure on Ms. Anderson to which she had not consented and that this evidence is relevant to Dr. Montegut’s credibility. Defendant responded that plaintiff should not be allowed to argue that Dr. Montegut exceeded the scope of plaintiffs consent by performing an additional surgical procedure, because this issue had never been presented to the medical review panel and the parties stipulated in their pre-trial order that the only claim to be presented at trial was whether or not plaintiff was adequately informed of the risk of a rare but known complication of surgery. The trial judge granted the Motion in Limine on this issue, finding that there was no evidence that the issue of exceeding consent was ever presented to the medical review panel and that the pre-trial order did not indicate that it was an issue for trial.

In a medical malpractice lawsuit, a patient is prohibited from asserting claims that have not been specifically raised in a complaint before the medical review panel. See Gele v. Binder, 05-121 (La.App. 5 Cir. 5/31/05), 904 So.2d 836, 837. In the instant case, the evidence does not establish that the medical review panel was presented with the issue of whether or not Dr. Mon-tegut performed an additional procedure on plaintiff that exceeded her consent.

The trial court has great discretion when ruling on evidentiary matters, such as motions in limine. Heller v. Nobel Insurance Group, 00-261 (La.2/2/00), 753 17So.2d 841; Scott v. Dauterive Hosp. Corp., 02-1364 (La.App. 3 Cir. 4/23/03), 851 So.2d 1152, 1164, writ denied, 03-2005 (La.10/31/03), 857 So.2d 487. Considering the record before us, we find that the trial court did not abuse its discretion by granting defendant’s motion in limine, and this assignment of error is without merit.

In her third assignment of error, plaintiff argues that the jury erroneously concluded that she had failed to prove by a preponderance of the evidence the existence of a material risk unknown to her. She contends that facial nerve damage was a material risk that Dr. Montegut did not disclose to her and, although Dr. Montegut asserts that he did inform her of this risk, plaintiff argues that the evidence submitted at trial clearly contradicted Dr. Monte-gut’s testimony. Defendant responds that the jury made a credibility call and chose to believe Dr. Montegut when he testified that he had informed Ms. Anderson of the possibility of facial nerve damage. Defendant contends that the jury’s finding was reasonable and was not manifestly erroneous or clearly wrong.

It is well settled that a court of appeal may not set aside a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Brandt v. Engle, 00-3416 (La.6/29/01), 791 So.2d 614, 621. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even if the appellate court believes that its inferences and evaluations are as reasonable. Id. Where there are two permissible views of the evidence, the factfinder’s choice cannot be manifestly erroneous or clearly wrong. Felix v. Briggs of Oakwood, Inc., 01-781 (La.App. 5 Cir. 11/27/01), 803 So.2d 989, 990. A court of appeal may find manifest error only where the objective evidence so contradicts a witness’ story or the story itself is so internally inconsistent or Isimplausible that a reasonable factfinder would not credit a witness’ testimony. Robinson v. Doe, 02-258 (La.App. 5 Cir. 9/30/02), 829 So.2d 577, 579.

In reviewing a jury’s determination regarding whether or not a doctor obtained the patient’s informed consent, an appellate court should focus on the duty of the doctor to provide material information to the patient under the circumstances of the particular case. Thibodeaux v. Jurgelsky, 04-2004 (La.3/11/05), 898 So.2d 299, 316. LSA-R.S. 40:1299.40(0 does not require that the information necessary to obtain a patient’s informed consent be written. The information given to a patient about potential risk may be given verbally. See Siliezar v. East Jefferson General Hospital, 04-939 (La.App. 5 Cir. 1/11/05), 894 So.2d 373, 379, wherein this court stated that the failure to obtain a written consent is not malpractice per se and that a patient’s consent may be verbal.

In the present case, plaintiff signed two consent forms and Dr. Monte-gut asserts that he informed plaintiff of specific risks of the surgery verbally. The two consent forms signed by plaintiff list general risks associated with surgery and anesthesia, such as death, paralysis, brain damage, and disfiguring scars, but neither form sets forth nerve damage as a material risk. The consent forms signed by plaintiff also indicate:

This operation has been explained to me. Alternate methods of treatment, if any, have also been explained to me, as have the advantages and disadvantages of each. I am advised that though good results are expected, the possibility and nature of complications cannot be accurately anticipated and that, therefore, there can be no guarantee as expressed or implied either as to the result of surgery or as to cure.

At trial, plaintiff testified that she did not realize prior to surgery that facial nerve damage was a material risk. She stated that neither Dr. Montegut nor Dr. Wall ever told her that nerve damage could possibly result from her surgery. In fact, she stated that Dr. Montegut never discussed any possible complications of |flthe procedure with her. Plaintiff argues that the Pre-Op Facial Sheet used by Dr. Montegut lists nerve injury as a risk of the surgery, but she did not receive a copy of this form. She also asserts that this form has spaces for the doctor to check off when he informs the patient of a particular risk and spaces for the patient to initial the form, but Dr. Montegut did not check off the risks listed, so this shows that he did not inform her of these risks. She further stated that the nurse rushed her into signing the written consent form because she was in a hurry that day. Ms. Anderson also testified that she watched a video at Magnolia Surgery Facility about face-lift procedures, but this video did not contain information regarding possible material risks, such as nerve injury.

Dr. Montegut testified that he understands it is the duty of the doctor who is going to perform a procedure to provide the patient with the information necessary to obtain her informed consent. He stated that he is confident that he told plaintiff of the risks associated with facial plastic surgery, including facial nerve damage, because he always discussed this with patients having this surgery. Dr. Montegut testified that the Pre-Op Facial Sheet is a document that he uses for his own notes, that he does not always check things bn the sheet as he discusses them, and that he does not give a copy of this document to the patient.

Rebecca Famularo, a nurse at Magnolia Surgery Facility who worked with Dr. Montegut, testified that she was often in the office with Dr. Montegut when he consulted with patients about surgery. She stated that Dr. Montegut was always very thorough, would answer questions, explain the procedures, and draw pictures. She testified that Dr. Montegut verbally informed patients of all of the risks on his Pre-Op Facial Sheet every time, even if he did not specifically indicate on the form that he had done so. She further stated that the Pre-Op Facial Sheet was just a form that Dr. Montegut used for himself and that patients never received this form.

ImMs. Famularo also testified that her handwriting is on plaintiffs written consent forms, which indicates that she was the nurse who filled out the form and presented it to plaintiff. She stated that she goes over the form with patients only after they have discussed the procedures and the risks with the doctor and, if the patient has questions, she refers them back to the doctor. She did not have an independent recollection of meeting with plaintiff, but she stated that she would never rush a patient into signing a consent form because she was in a hurry.

Dr. Forrest Wall testified that he worked with Dr. Montegut on several occasions and that Dr. Montegut supervised the surgery that he performed on plaintiff. He stated that Dr. Montegut always thoroughly explained the risks and benefits of the patient’s surgery. He testified that facial nerve injury is a complication of cosmetic plastic surgery and he heard Dr. Montegut regularly discuss this risk and others with every patient. He stated that there was no doubt in his mind that Dr. Montegut discussed the risk of facial nerve injury with plaintiff.

The jury was presented with conflicting testimony and had to make a determination of which witnesses they believed to be most credible. Apparently, the jury chose to believe Dr. Montegut when he indicated that he had verbally informed Ms. Anderson of the risk of facial nerve injury, and they did not believe Ms. Anderson when she testified that she had never been informed of this risk. Considering the testimony and the evidence in this case, we find that a reasonable factual basis exists to support the jury’s finding that Ms. Anderson did not prove by a preponderance of the evidence a material risk that was unknown to her. Accordingly, we cannot say that the jury’s decision was manifestly erroneous or clearly wrong, and this assignment of error is without merit.

J^DECREE

For the reasons set forth above, we affirm the judgment of the trial court, dismissing plaintiffs claims against defendant.

AFFIRMED.

      . The Motion in Limine is not contained in the appellate record. However, the record includes a transcript from the hearing on this motion, which sets forth the parties’ arguments on this issue. We note that the technical wording of the motion is not relevant to the issue on appeal.


author: DALEY, Judge.

text:
    Lawrence BOUCVALT, Jr., Kathryn Boucvalt, Allison Boucvalt, Jason Boucvalt, David Jones, Matthew Jones, Stacie Recotta, and Shawn Ploger Individually and as Representative of the Minors Brendon Ploger and Megan Ploger v. SEA-TRAC OFFSHORE SERVICES, INC., Willie J. English, Jr. and Raymarine, Inc. Lawrence X. Boucvalt, III, Slick-Liquor Charters, LLC, and Clarendon National Insurance Company v. Sea-Trac Offshore Services, Inc., Raymarine, Inc. and Ship and Sail, Inc.
    Nos. 06-CA-103, 06-CA-104.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 17, 2006.

      Kenneth M. Klemm, James H. Daigle, Nyka M. Scott, Baker, Donelson, Bear-man, Caldwell & Berkowitz, PC, New Orleans, Louisiana, for Plaintiffs/Appellants, Lawrence X. Boucvalt, III, Slick-Liquor Charters, LLC and Clarendon National Insurance Company.
    Gary P. Koederitz, Koederitz & Wilkins, LLC, Baton Rouge, Louisiana, for Plaintiffs/Appellants, Lawrence Boucvalt, Jr., Kathryn Boucvalt, Allison Boucvalt, Jason, Boucvalt, David Jones, Matthew Jones, Stacie Recotta, and Shawn Ploger, Individually and as Representative of the Minors, Brendon Ploger and Megan Ploger.
    Craig R. Nelson, Nelson Fay, LLC, New Orleans, Louisiana, for Defendant/Appellee, Raymarine, Inc.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.
   DALEY, Judge.

| aPlaintiffs appeal the grant of summary judgment in favor of defendant, Rayma-rine, Inc. (hereinafter referred to as Ray-marine), dismissing plaintiffs’ cause of action for punitive damages under general maritime law. The trial court found that the allegations in plaintiffs’ petition did not rise past ordinary negligence, and accordingly dismissed that cause of action. Plaintiffs appeal. We affirm the judgment of the trial court.

This lawsuit arises out of an allision in the Gulf of Mexico between the 40-foot yacht Slick Liquor and a well jacket owned by Chevron, USA. Plaintiff Lawrence X. Boucvalt, III, was the owner of the yacht and a passenger at the time of the accident. The other plaintiffs were passengers on the yacht. None of the plaintiffs are seamen. The accident happened on Father’s Day, June 20, 2001. Defendant, Raymarine, manufactured the autopilot on board the yacht, which is alleged to have malfunctioned and contributed to the cause of the accident. Other defendants are not part of this appeal.

^Plaintiffs’ Second Amended and Supplemental Petition for Damages asserted causes of action against defendant, Rayma-rine, for gross negligence under General Maritime Law, and requested punitive damages. Raymarine filed a Motion for Summary Judgment seeking the dismissal of all of plaintiffs’ punitive damage claims in both actions against it, arguing that 1) Louisiana law does not provide for the recovery of punitive damages under negligence, products liability, redhibition, or breach of warranty actions; 2) punitive damages are not allowed in claims made under the general maritime law that have been made in this case, and 3) plaintiffs have alleged no acts of intentional wanton or reckless conduct that amount to a conscious disregard for the rights of others.

Plaintiffs, in their Opposition to Rayma-rine’s Motion for Partial Summary Judgment, argue that:

“ “Punitive damages are available under the general maritime law and may be imposed for “conduct which manifests ‘reckless or callous disregard’ for the rights of others or for conduct which shows ‘gross negligence or actual malice or criminal indifference’ ” ”

At the hearing on this Motion, the trial court found that the allegations against Raymarine in the Second Amended and Supplement Petition failed to constitute gross negligence as a matter of law, and that these allegations sounded only in ordinary negligence. Accordingly, he granted Raymarine’s Motion for Partial Summary Judgment.

Plaintiffs argue on appeal that the trial court improperly placed the burden of proof on the plaintiffs to show what Ray-marine could not demonstrate, and improperly weighed the evidence. Further, they argue that the trial judge improperly held them to the standard of demonstrating some intentional act.

Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of | Rlaw. C.C.P. art. 966(B). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086. The decision as to the propriety of a grant of a Motion for Summary Judgment must be made with reference to the substantive law applicable to the case. Sun Belt Constructors, a Div. of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350 (La.App. 5 Cir.1988).

Even though this case was brought in state court, reference to admiralty law is necessary to determine the rights and liabilities of the parties. Thorough research has revealed that neither the United States Supreme Court nor the Federal Fifth Circuit has spoken definitively on the narrow issue whether a cause of action for punitive damages arises under the general maritime law in favor of these plaintiffs, none of whom are seamen. The Supreme Court’s ruling in Miles v. Apex Marine, 498 U.S. 19, 111 S.Ct. 317,112 L.Ed.2d 275 (1990), upon which defendants rely to argue that the cause of action is disallowed, recognized a general maritime cause of action for the wrongful death of a seaman, but held that damages recoverable in an action for wrongful death of a seaman do not include nonpecuniary damages, such as loss of society. In reaching this conclusion, the Court enunciated principles of uniformity | ^relevant to wrongful death actions, whether under DOHSA, the Jones Act, or general maritime law. In other words, the court emphasized the importance of uniformity of remedies in the face of applicable legislation. The court held that it could not, in its place in the constitutional scheme, recognize a cause of action under general maritime law where remedies to seaman and their survivors were limited by legislation such as the Jones Act and DOHSA.

The opinion in Miles, however, made no mention of punitive damages. As the court stated in Kelly v. Bass Enterprises Production Co., 17 F.Supp.2d 591 (E.D.La.8/5/98):

The concept of punitive damages has had a long and turbulent voyage through the annals of maritime history. See Robertson, Punitive Damages in American Maritime Law, 28 J. Mar. & Com. 73 (1997) (tracing punitive damages in maritime law from 1851 to the present). Since the Supreme Court’s ruling in Miles, there has been considerable dialogue by both the courts and commentators over not only the vitality but also the very existence of the punitive damage remedy in maritime law. (cites omitted) While the Miles decision had nothing directly to do with punitive damages, many lower courts have concluded that the analytical framework of Miles dictates the elimination of punitive damages under general maritime law. See Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir.1995) (en banc). See also Force, The Curse of Miles v. Apex Marine Corp.: The Mischief of Seeking “Uniformity” and “Legislative Intent” in Maritime Personal Injury Cases, 55 La. L.Rev. 745 (1995); Robertson, Punitive Damages in American Maritime Law, 28 J. Mar. L. & Com. 73 (1997).

The Kelly court noted that the Eastern District of Louisiana is one of the many courts who have expanded Miles’s holding and disallowed a cause of action for punitive damages to nonseaman plaintiffs under the general maritime law, citing Hunter v. Seabulk Offshore, Ltd., 993 F.Supp. 973 (E.D.La.2/19/98). The court in Kelly, however, declined to “navigate in these choppy waters in an effort to discover whether or not punitive damages exist with regard to nonseafarers injured on state territorial waters because the facts of the present case do not satisfy |7the formidable requirements for punitive damages even if they are still available to nonseafar-ers.”

This Court notes that the Louisiana appellate circuits have addressed the issue of the availability of punitive damages under general maritime law. This Court, in Crane v. Diamond Offshore Drilling, Inc., 99-166 (La.App. 5 Cir. 9/15/99), 743 So.2d 780, held that punitive damages were not available under general maritime law to a Jones Act seaman suing his ■ employer. The case does not address the particular issue before this Court in this case, however.

The Louisiana First Circuit, in Rebardi v. Crewboats, Inc., 04-0641 (La.App. 1 Cir. 2/11/05), 906 So.2d 455, reversed the grant of an Exception of No Cause of Action and held that a cause of action for punitive damages existed under general maritime law to injured nonseamen because the cause of action did not arise under the Jones Act or DOHSA and thus, was not barred under the Miles damages uniformity principle as no federal legislation touched upon the circumstances presented in that case.

The Third Circuit has recognized a cause of action for punitive damages in cases arising under the general maritime law for both property damage and for the death of a nonseaman.

The Fourth Circuit, however, has held that there is no cause of action under general maritime law for the wrongful death of a nonseaman, and further held that punitive damages are not recoverable under general maritime law claims brought within state court. Brodtmann v. Duke, supra. In reaching its conclusion, the court discussed the jurisprudential progeny of Miles. The court found that its previous 1 sholding in Bridgett v. Odeco was not distinguishable from the facts before it, since Bridgett, who was a seaman, brought his claim against defendant, Ode-co, solely as the owner of the vessel, under maritime law; in other words, Bridgett was not a seaman vis a vis defendant, Odeco.

The trial court’s disposition on summary judgment does not require us to address whether or not a cause of action for punitive damages exists under general maritime law for a nonseaman. In the instant case, without discussing whether the cause of action for punitive damages exists, the trial court determined that plaintiffs’ allegations did not rise to the level of gross negligence. This Court finds that Rayma-rine, as the mover who does not bear the burden of proof on this issue at trial, properly pointed out a lack of factual support for the plaintiffs’ claims for punitive damages. The burden then shifted to plaintiffs to come forward with factual support sufficient to show that they will be able to meet their evidentiary burden of proof at trial, which they failed to do.

The allegations against Raymarine can be summarized as failure to adequately test the product before it went to market, failure to warn, failure to conduct sufficient testing on the product’s components, breach of express and implied warranties, and failure to adequately communicate installation guidelines to its dealers, etc. In support of their position, in their appellate brief, plaintiffs point out the deposition testimony of three witnesses, Dr. John Kreifeldt, Carl Busuttil-Reynaud, and Christopher Martin. Plaintiffs argue that these witnesses’ testimonies establish that Raymarine knew about erratic behavior of the fluxgate compass when a vessel using the autopilot passed large metal objects; Raymarine declined to perform hazards testing on the flux gate compass component of the 19auto pilot, and knew about problems with the flux gate compass, but did not investigate further until this litigation. This Court notes that in the deposition testimony of Reynaud, the statement plaintiffs rely on was taken out of context. This witness testified that the entire auto pilot system was tested, of which the flux gate compass was a component, though no testing was performed on the flux gate compass individually and separate from its function within the autopilot system, because the flux gate compass was a known technology at the time. Plaintiffs do not allege that no testing was performed.

The trial court was correct in its ruling that plaintiffs’ allegations of Raymarine’s negligence did not rise to reckless or callous disregard for the rights of others, or gross negligence. See Kelly v. Bass Enterprises Production Co., supra (failing to adequately light and mark the structure, allowing a hazardous navigational condition to persist, failing to take into account the safety of others, and failing to adequately warn other vessels did not constitute gross negligence); See also Jurgensen v. Albín Marine, Inc., 214 F.Supp.2d 504 (D. Maryland 8/5/2002) (alleged failures by vessel designer-manufacturer to investigate flooding problems experienced by one vessel owner and to conduct stability calculations, exercise quality control, ensure that vents were cut into vessel hulls in correct location, and failure to warn other owners of these defects, at most gave rise to claim for negligence, strict product liability, or breach of warranty, and did not rise to the level of conscious disregard for the rights of others required, under maritime law, to support punitive damages claims asserted by the owners of a sailboat that sank approximately six months after the owners purchased it.) Our review of the transcript of this hearing shows that the trial judge correctly enunciated the standard for gross negligence, and did not hold the plaintiffs to the standard of proving an intentional act.

1 Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . Brodtmann v. Duke, 96-0257 (La.App. 4 Cir. 2/11/98), 708 So.2d 447, writ denied, 98-0645 (La.4/24/98), 717 So.2d 1177, and 98-0658 (La.4/24/98), 717 So.2d 1178; cert denied 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).

      . Death on the High Seas Act, 48 U.S.C. § 761 et seq.

      . Doxey v. Lake Charles Pilots, Inc., 00-530 (La.App. 3 Cir. 1/31/01), 781 So.2d 589, writ denied, 01-0614 (La.5/4/01), 791 So.2d 654, cert. denied, 534 U.S. 895, 122 S.Ct. 215, 151 L.Ed.2d 153 (2001), and Poe v. PPG Indus., 00-1141, 00-1142, 00-581 (La.App. 3 Cir. 3/28/01), 782 So.2d 1168, writ denied, 01-1239 (La.6/22/01), 794 So.2d 801.

      . Quinn v. St. Charles Gaming Co., Inc., 01-1038 (La.App. 3 Cir. 2/6/02), 815 So.2d 968, writ denied, 2002-0694 (La.4/12/02), 813 So.2d 412.

      . 93-1536 (La.App. 4 Cir. 12/15/94), 646 So.2d 1249, writs denied 95-0381, 95-0398 (La.3/30/95), 651 So.2d 840.

      . The Federal Fifth Circuit has held that sea men do not have a cause of action for punitive damages under general maritime law against non-employer defendants. See Scarborough v. Clemco Industries, 391 F.3d 660 (5th Cir.2004), abrogating Stogiter v. Cent. Boat Rentals, Inc., 326 F.Supp.2d 754 (E.D.La.5/11/2004).

      . Plaintiffs sought to exclude the testimonies of Reynaud and Martin.


author: WICKER, Judge. DUFRESNE, J.,

text:
    ST. JOHN THE BAPTIST PARISH and Frisco Hunting Club and Tattoon’s Hunting Club and St. John Hunting Club and Reserve Hunting and Fishing Club and Dirty Dozen Camp, and Reserve Gun and Rod Club v. STATE of Louisiana, DEPARTMENT OF WILDLIFE AND FISHERIES.
    No. 05-CA-1002.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 17, 2006.

      Joel T. Chaisson, Attorney at Law, Des-trehan, Louisiana, Catherine Leary, West-wego, Louisiana, for Plaintiff/Appellee.
    Frederick C. Whitrock, Donald E. Puckett, Louisiana Department of Wildlife & Fisheries, Attorney at Law, Charles C. Foti, Charles F. Perry, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., MARION F. EDWARDS, SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WICKER, Judge.

IsThis is an injunction and declaratory judgment action. Defendant, State of Louisiana, through the Department of Wildlife & Fisheries (“DWF”), appeals from a judgment granting plaintiff, St. John the Baptist Parish (“the Parish”), a permanent injunction prohibiting DWF from removing, destroying or dismantling certain camps and related structures within the Parish’s right of use servitude area as declared by the trial court. For the following reasons, we reverse the judgment of the trial court.

In January of 1952, the Parish and Lutcher & Moore Cypress Lumber Company, Ltd. (“L & M”) entered into an agreement (“1952 Agreement”) wherein L & M granted the Parish a servitude to construct a drainage canal (“Reserve Canal”) through their property. Shortly af-terwards, the Parish dredged Reserve Canal within the boundaries provided in the 1952 Agreement. Subsequent to the Lconstruction of the Reserve Canal, L & M executed camp site lease agreements respecting five tracts of land immediately adjacent to the canal, one each to: Reserve Rod and Gun Club; Dirty Dozen Camp; St. John Hunting Club; Tattoon’s Hunting Club; and Reserve Hunting and Fishing Club (referred to hereafter collectively as “the hunting clubs”). Each of the hunting clubs constructed buildings and associated structures immediately adjacent to Reserve Canal. During the time period prior to 2001, the hunting clubs did not seek or obtain the Parish’s permission for their activities; further, the Parish did not issue or enter into leases with the hunting clubs or their predecessors. In June 2001, L & M notified the hunting clubs that their camp site lease agreements with L & M would not be renewed, and that any and all rights that they had with respect to their leases would be terminated on June 30, 2001. Shortly thereafter, approximately 23,913 acres, including Reserve Canal and the property surrounding Reserve Canal, were donated to DWF and established as the Maurepas Swamp Wildlife Management Area (“MSWMA”). Each of the hunting clubs subsequently received two certified letters from DWF, the first dated August 28, 2001 and the second, November 13, 2001. In the August 28, 2001 letter, DWF stated that MSWMA would be managed to provide wildlife habitat and outdoor recreational opportunities for all citizens of the State of Louisiana; all private camps on the MSWMA must be removed or abandoned because, “[ujnfortunately, camps on the State’s public Wildlife Management Areas are not consistent with Department policy or the Deed of Donation.” The hunting clubs were given through October 31, 2001 to remove all of their personal belongings and salvage their camps; after that date, through January 31, 2002, no one would be permitted to use or occupy the camps. From February 1, 2002 through June 30, 2002, the hunting clubs could apply for a special permit to continue to salvage their camps during this period; as of July 1, | s2002, all camps would be considered salvaged and DWF would take possession. In the November 13, 2001 letter, DWF noted that the hunting clubs had expressed concern about not having enough time to remove their camps; therefore, DWF decided to allow the hunting clubs to use the camps through February 1, 2002, provided they would make an effort to begin dismantling the camps. DWF also stated that it was considering supplying a barge to assist camp owners in transporting dismantled camps and materials to a central location. The July 1, 2002 deadline remained the same. On or about March 26, 2002, the hunting clubs donated whatever interest they had in the buildings and associated structures to the Parish, which, in turn, without advertising for, or otherwise seeking, public bids, leased the donated buildings and associated structures back to the hunting clubs.

On March 27, 2002, the Parish, the hunting clubs, and Frisco Hunting Club filed a petition for declaratory judgment, temporary restraining order, preliminary and permanent injunctions against DWF to “resolve a dispute over ownership of certain real property” located in the Parish. The Parish contends that the rights granted to it under the 1952 Agreement “include the right to own and maintain physical improvements (such as the hunting camps) on the property if these physical improvements are of benefit to the Parish in maintaining and operating the permitted canal or otherwise of benefit to the Parish.” The Parish further contends that its rights include the right to lease the physical improvements in the permitted area on terms similar to the leases granted to the hunting camps. Accordingly, plaintiffs’ petition seeks a declaratory judgment recognizing the Parish’s interest in the property, its right to execute leases of the property or portions thereof, and the validity of the leases to the clubs and the rights of the clubs pursuant to the leases. IfiFurther, plaintiffs’ petition seeks a temporary restraining order and preliminary and permanent injunctions prohibiting DWF from interfering with plaintiffs’ peaceable possession of the property.

On April 2, 2002, DWF filed a declinato-ry exception of improper venue, contending that this action can only be properly maintained in the domicile of the DWF, the Nineteenth Judicial District Court for the Parish of East Baton Rouge. The trial court denied the exception and, on October 16, 2002, this Court affirmed the judgment of the trial court. This Court reasoned that because the servitude in this case is a personal servitude of right of use (La.C.C. art. 639), “a form of real property,” venue is proper where the real property in dispute is located, i.e., the Parish, pursuant to La.C.C.P. art. 80. St John the Baptist Parish v. State ex rel. Dept. of Wildlife & Fisheries, 02-612 (La.App. 5 Cir. 10/16/02), 828 So.2d 1229, 1233 writ denied, 02-3136 (La.3/14/03), 839 So.2d 40.

This matter was heard on May 24, 2005, at which time the parties filed a stipulation of facts. The record includes the depositions of Allen St. Pierre (former Director of Public Works for the Parish), Irvin Tregre (Road and Bridge Manager for the Parish), Davis Madere, Jr. (St. John Hunting Club member), Ricky Jacob (President of the Reserve Gun and Rod Hunting Club), and Dean Torres (Tattoon’s Hunting Club member). Additionally, the parties submitted memoranda.

After taking the matter under advisement, the trial court rendered and signed a judgment on September 12, 2005, with attached reasons, finding:

That St. John the Baptist Parish enjoys concurrent personal and predial servitudes of rights of use of the Reserve Canal, which servitudes encompass the entire width of the Reserve Canal at its high water mark, and an additional fifty (50) feet on each side of the canal, from its high water mark, said servitudes being no less than one hundred fifty (150) feet wide at any point; and
17That the Louisiana Department of Wildlife and Fisheries is the owner of the camp structures located both on the Parish servitude and beyond the Parish servitude; and
That the camp buildings and related club activities have become necessary to St. John the Baptist Parish for the enjoyment of its servitudes, and the camp buildings impose neither a greater burden nor a significant inconvenience to the Louisiana Department of Wildlife and Fisheries; and
That because irreparable harm would occur to St. John the Baptist should the camps be removed or destroyed, the Parish is entitled to a Permanent Injunction against the Louisiana Department of Wildlife and Fisheries, prohibiting it from removing, destroying or dismantling the camps and related structures located within the Parish servitude; and
That St. John the Baptist is within its rights of servitude to enter into leases that further the legitimate purposes of the servitude, limited to the existing buildings ...

DWF appeals, assigning as errors all of the above findings, except for the trial court’s ruling that DWF is the owner of the camp structures located both on the Parish servitude and beyond the Parish servitude.

LAW AND ANALYSIS

Personal and Predial Servitudes

There are two kinds of servitudes, personal and predial. La.C.C. art. 533. A personal servitude is a charge on a thing for the benefit of a person. La.C.C. art. 534. The personal servitude of right of use confers in favor of a natural person or a legal entity a specified use of an estate less than full enjoyment. La.C.C. arts. 639, 641. Predial servitudes may be established by an owner on his estate or acquired for its benefit; they are established on, or for the benefit of, distinct corporeal immovables. La.C.C. arts. 697-698. A predial servitude is further described as a charge on a servient estate for the benefit of a dominant estate. La.C.C. art. 646. The two estates must belong to different owners. Id. In the present matter, we find that the 1952 Agreement confers only a personal servitude of right of use, i.e., it confers in favor of a legal entity (the Parish), a specified use of an estate (the right |sto use L & M’s property to “construct, maintain and operate ... one single continuous drainage canal”), less than full enjoyment. Accordingly, tbe trial court erred in ruling that the Parish enjoys concurrent personal and predial servitudes of right of use of the Reserve Canal.

Use and Extent of the Servitude

A right of use servitude is regulated by application of the rules governing usufruct and predial servitudes to the extent that then’ application is compatible with the rules governing a right of use servitude. La.C.C. art. 645. Accordingly, a voluntary or conventional right of use servitude may be established by juridical act. A juridical act is a lawful volitional act intended to have legal consequences; it may be a unilateral act, such as an affidavit, or a bilateral act, such as a contract, and onerous or gratuitous. See, section (c) of the 1982 Revision Comments to La.C.C. art. 3471. A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La.C.C. art. 1906.

In the present matter, the servitude of right of use was established by contract, the 1952 Agreement. The use and extent of the servitude is regulated by this contract. La.C.C. art. 697. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La.C.C. art. 2046.

The 1952 Agreement provides that the Parish is granted permission to construct, maintain and operate one single continuous fifty feet wide drainage canal, “for drainage purposes only,” over and across a one hundred and fifty feet wide strip of land, with, “[t]he center line of said drainage canal to be located (allowing reasonable deviation due to the nature of the construction) on and along the center of the strip of land hereinabove described.” Therefore, the clear and explicit words of the contract provide that the servitude is limited to a one hundred 1 ¡¿fifty feet wide strip of land. Accordingly, we find that the trial court erred when it found that the servitudes encompass the entire width of the Reserve Canal at its high water mark and an additional fifty feet on each side of the canal, from its high water mark, said servitudes being no less than one hundred fifty feet wide at any point.

Exercise of the Servitude

The 1952 Agreement states that any “spoil” from the construction of the drainage canal “shall be deposited on both banks of said drainage canal.” Additionally, it provides, in pertinent part:

It is further distinctly understood and agreed that the permit herein granted for the construction of the drainage canal shall be for drainage purposes only and for no other purposes, and Lutcher & Moore Cypress Lumber Company, Ltd. Specifically declares that it does not by this instrument in any manner convey any right, title or interest in or to the fee of any of the property herein-before described or to any minerals underlying same, (emphasis added)

Further, the 1952 Agreement obligates the Parish “to keep and maintain the drainage canal ... open and free from obstructions to drainage.” Pursuant to La.C.C. arts. 645 and 745, the Parish has the right to enter with its workmen and equipment into the part of the DWF’s property that is needed for the construction or repair of works required for the use and preservation of the servitude. La. C.C. art. 745. The Parish may deposit materials to be used for the works and the debris that may result, under the obligation of causing the least possible damage and of removing them as soon as possible. Id.

Each provision of a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La.C.C. art. 2050. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages and the conduct of the parties before and after the 1 information of the contract. La.C.C. art. 2053. In the case of doubt that cannot be otherwise resolved, a contract must be interpreted against the obligee and in favor of the obligor of a particular obligation. Doubt as to the manner of exercise of a servitude shall be resolved in favor of the servient estate (DWF). La.C.C. art. 730.

After the formation of the servitude contract and the construction of Reserve Canal, L & M executed agreements with the hunting clubs respecting tracts of land immediately adjacent to the canal. The record includes a copy of a June 13, 2000 “Camp Site Lease Agreement,” between L <& M and Reserve Hunting and Fishing. The parties stipulate that each of the other camps signed an agreement which is identical to it, except for the identifying language specific to each individual hunting club. Therein the hunting clubs were granted “the exclusive (except as herein provided) right to use the leased premises for a camp site.” The leases were made, “specifically subject to any existing or future oil, gas or mineral leases on the property.” The hunting clubs were prohibited from cutting, injuring, damaging, or destroying any timber on the premises, as well as, extracting, killing or otherwise taking any fish or game on the premises. However, no reference is made therein to the 1952 servitude agreement. During the time period prior to 2001, the hunting clubs did not seek or obtain the Parish’s permission for their activities and the Parish did not issue or enter into leases with the hunting clubs or their predecessors. This is indicative of and consistent with the Parish having a limited personal servitude of right of use.

The record also includes testimony regarding the Parish’s maintenance of the canal and hunting club members’ activities on the property. Irvin Tregre testified that he works for the Parish as Road and Bridge Manager. His duties include maintaining, constructing, and repairing drainage canals, including Reserve Canal. He has supervised parish workers in removing limbs, trees, and other | ^ potentially harmful “stuff” from the canal. Tregre testified that they, “just monthly find out if they [boaters] got anything bothering them or if they got any trees that fell, you know, because they pass back there regular than us, the boat people, you know.” He stated that in recent years, the Parish has hired a contractor to remove stumps in the canal and falling trees. The contractor used a barge with equipment on it to accomplish the job. Occasionally, the Parish will “grub the bottom” of the canal, i.e., take mud from the bottom of the canal and throw it on the side of the adjacent bank. Their work is limited to either in the canal or right on the banks of the canal. Tegre testified that he has never used the camps for any parish work activities. He stated that, “we might have stopped there to, you know, use the bathroom or something like that, but that was it.” None of the jobs that the parish work crews have done have taken longer than a normal working day. Further, he does not have keys to the camps and he knows of no parish policy with regard to the campowners giving parish personnel a set of keys. He knows of no agreement between the Parish and the campowners requiring them to clear out or take care of the canal in any manner.

Ricky Jacob testified that he is President of the Reserve Gun and Rod Hunting Club. He stated that on average he has personally removed debris from the canal approximately three times a year. His reason for removing the materials is for safety and passage; keeping the area clear around the camp benefits those who use the camp. Jacob further testified that he has never had any type of agreement with the Parish to clean the canal.

A right of use includes the rights contemplated or necessary to enjoyment at the time of its creation as well as rights that may later become necessary, provided that a greater burden is not imposed on the property unless otherwise stipulated in the title. La.C.C. art. 642. Rights that are necessary for the use of a servitude are | iaacquired at the time the servitude is established. La.C.C. art. 743. They are to be exercised in a way least inconvenient for the servient estate. La.C.C. art. 743.

Upon review of the record, we find that the camp buildings and related club activities are not necessary to the Parish’s enjoyment of its servitude. Accordingly, the trial court erred in issuing a permanent injunction against DWF, prohibiting it from removing, destroying or dismantling the camps and related structures located within the Parish servitude; and in finding that the Parish is within its rights of servitude to enter into leases of the existing camp buildings.

For the foregoing reasons, we vacate the permanent injunction and reverse the judgment of the trial court.

REVERSED.

DUFRESNE, J., dissents.

DUFRESNE, J.,

dissenting.

Li respectfully dissent.

The camp members have historically accepted substantial responsibility for the canal maintenance. Their diligence in this regard has relieved St. John Parish of this burden for many years.

Further, to allow these camp members and their respective camps to remain on the property would not burden the LDWF at all. Although LDWF has indicated that this is against their policy, these camps and the present camp members should be “grandfathered” and allowed to remain.

Accordingly, I would affirm the trial court’s judgment prohibiting LDWF from removing, destroying or dismantling these camps.

      . Frisco Hunting Club was dismissed from this suit, with prejudice, in a judgment dated June 20, 2005.

      . A temporary restraining order was issued on March 27, 2002.

      . In Louisiana, the word "estate” means a distinct corporeal immovable. See, section (b), 1977 Revision Comments for La.C.C. art. 646.


author: THOMAS F. DALEY, Judge.

text:
    Kurt ROBINZINE v. LABOR FINDERS.
    No. 06-CA-389.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 17, 2006.

      Jonathan P. Friedman, Silbert & Garon, L.L.P., New Orleans, Louisiana, for Plaintiff/Appellant.
    John J. Rabalais, Janice B. Unland, Robert T. Lorio, Rabalais, Unland & Lo-rio, Covington, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   THOMAS F. DALEY, Judge.

I ¡¡This appeal stems from the granting of the defendant-employer’s Motion for Summary Judgment. For the following reasons, we affirm the judgment of the trial court as amended and remand this matter for further proceedings.

FACTS:

On November 6, 2003, the plaintiff-employee, Kurt Robinzine, was working as a laborer for the defendant-employer, Labor Finders, Inc., when he fell from a roof during the course and scope of his employment. Plaintiff was taken to the hospital where he remained for nearly one month, and then he was transferred to a long term care facility. As per Labor Finders, Ine.’s policy, a drug test was performed upon his admission to the hospital. The results of this test indicated the presence of benzoy-lecgonine (be), a cocaine metabolite. Plaintiff admitted to using crack cocaine the evening before the accident.

Plaintiff filed a claim for workers’ compensation. The defendant answered the claim alleging that plaintiff was intoxicated at the time of the accident, which | ¡¡precluded him from receiving compensation benefits. The trial court granted the defendant’s Motion for Summary Judgment based on the intoxication defense. This timely appeal followed.

LAW AND DISCUSSION:

A Motion for Summary Judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Craig v. Bantek West, Inc., 2004-0229 (La.App. 1st Cir.9/17/04), 885 So.2d 1241. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The burden of proof is on the mover to show that he is entitled to judgment as a matter of law. La. C.C.P. art. 966(C)(2) If, however, 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 need only 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. Id. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. Id.

When appropriate, under Articles 966 and 967, summary judgment is available in workers’ compensation cases. Craig, 885 So.2d at 1244. On appeal, appellate courts conduct a de novo review of evidence submitted in support of and |4in opposition to summary judgment using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

In order for plaintiff to receive workers’ compensation benefits, he must establish by a preponderance of the evidence, “personal injury by accident arising out of and in the course of his employment”. La. R.S. 23:1081(A). In this case, it is undisputed that plaintiff was injured by an accident during the course of his employment. However, La. R.S. 23:1081(l)(b) provides that an employee may not recover workers’ compensation benefits if his injury was caused by intoxication, unless the intoxication resulted from activities that were in pursuit of the employer’s interests or in which the employer procured the intoxicating beverage or substance and encouraged its use during the employee’s work hours. Louisiana Revised Statute 28:1081(5) provides that an employee is presumed to be intoxicated if there is evidence of use of a non-prescribed controlled dangerous substance. In such cases and in order to support a finding of intoxication, an employer need only prove the use of such drugs by the employee by a preponderance of the evidence. La. R.S. 23:1081(8). Appropriate drug tests performed as a result of a written and promulgated drug testing policy are admissible as evidence in such cases. La. R.S. 23:1081(8) and (9). Once the employer has satisfied its burden of proving intoxication at the time of the accident, a presumption of causation due to the intoxication arises. La. R.S. 23:1081(12). The burden then shifts to the employee to prove that “the intoxication was not a contributing cause of the accident. ...” La. R.S. 23:1081(12).

Thus, there are two separate presumptions that apply in intoxication cases. First, evidence of use of a non-prescribed controlled substance creates a Ispresumption that the employee was intoxicated at the time of the accident. The Shaw Group v. Kulick, 2004-0697 (La.App. 1 Cir. 4/8/05), 915 So.2d 796. Once the employer has proven that the employee was intoxicated, the second presumption arises, that such intoxication caused the accident. Id. At that point, the burden of proof shifts to the employee to prove by a preponderance of the evidence that the intoxication was not a contributing cause of the accident. Id. If he does so, the intoxication defense of the employer is defeated. Johnson v. EnviroBlast, 2001-0200 (La. App. 1st Cir.12/28/01), 804 So.2d 924, 927.

In support of its Motion for Summary Judgment, defendant submitted the drug test report showing the positive result for a cocaine metabolite, the joint stipulation in which the parties stipulated to the accuracy of the test, and portions of plaintiffs deposition. In his deposition, plaintiff admitted to using cocaine for years, including smoking crack cocaine the night before the accident. Plaintiff testified that he was working alone on the sloped roof of a building when he slipped on moisture and fell to the ground. Plaintiff testified that he was unable to recall how he got to work the morning of the accident, the time he arrived at defendant’s office, or the time he arrived at the accident scene. Defendant filed a supplemental memorandum to its motion attaching an affidavit from a toxicologist, Patricia Pizzo. Ms. Pizzo attested that she had reviewed plaintiffs drug test results, as well as his deposition. As a result of plaintiffs longstanding cocaine use, Ms. Pizzo opined that plaintiff was addicted to cocaine. She explained that crack cocaine has been documented to provide impairment effects for several days after its use and the user may experience various withdrawal symptoms including “visual hallucinations, impaired hand-eye coordination, impaired depth perception, impaired short term memory, balance and cooi’dination problems and poor | ¡-judgment in performing tasks.” She further opined that since the plaintiff was likely addicted to cocaine, the withdrawal effects would be intensified.

In his memorandum in opposition to the motion, plaintiff stated he will “testify at trial that when he woke up the next morning he felt neither tired, nor intoxicated in any way as a result of the use of crack cocaine, and further that his use of cocaine was not a contributing cause of the accident.” Plaintiff argues that in deciding the Motion for Summary Judgment, the trial court should accept as true a witness’s uncontradicted testimony although the witness is a party. He seems to argue that the trial court must accept as true his testimony that he slipped on moisture on the roof and this was the cause of the accident. However, although the memorandum stated that plaintiff will testify that he did not feel intoxicated and the use of cocaine the night before did not contribute to the accident, there was no sworn testimony to this effect.

Plaintiff also attached portions of the deposition of Ms. Pizzo, arguing that Ms. Pizzo testified that the presence of a cocaine metabolite in a person’s urine is not a measure of a person’s intoxication. She further testified that she does not allege that plaintiff was intoxicated at the time of the accident only that the use of cocaine the night before could adversely affect his job performance. While we acknowledge this testimony, we find this insufficient to rebut the presumption that the accident was caused by plaintiffs intoxication. According to LSA-R.S. 23:1081(8) the positive drug test was sufficient to prove intoxication. LSA-R.S. 23:1081(12) provides a presumption that the accident was caused by the intoxication. In the case at bar, intoxication is proved by the positive drug test and the cause of the accident is presumed to be intoxication. The evidence submitted by plaintiff, which consisted solely of portions of plaintiffs deposition, the drug test report, the joint stipulation (stipulating to the results of the drug test), and [7portions of Ms. Pizzo’s deposition, failed to show that he will be able to satisfy his burden of proof at trial that his presumed intoxication was not a contributing cause of the accident.

In Forrester v. New Orleans Iron Works, 03-1194 (La.App. 5 Cir. 2/23/04), 869 So.2d 216, this Court found the plaintiff successfully rebutted the presumption that intoxication caused the accident. In Forrester, the plaintiff testified that he had used marijuana two days prior to the accident and his co-worker testified that he had worked with plaintiff for several hours prior to the accident and he had no reason to believe that plaintiff was impaired. Additionally, this Court found that the type of accident plaintiff was involved in was not explained solely by intoxication. In For-rester, the plaintiff was injured when he stepped off of a roof at night. The testimony indicated that plaintiffs employer was trying to finish the job so they were working into the night and only portions of the roof were illuminated. This Court specifically found that the accident took place in an area of the roof that was not fully illuminated.

In The Shaw Group, supra, the court reversed the trial court’s grant of summary judgment in favor of defendant finding that plaintiff would be able to satisfy his burden of proof at trial. In that case, the employee was injured when a manway cover struck him. The court found that the employee had rebutted the presumption based on the employee’s uncontradict-ed testimony and that of his son/co-employee that the employee had not smoked marijuana on the day of the accident, that the employee was alert and acting normally at the time of the accident, that he did not cause the manway cover to shift and fall, and the employee had his back to the cover when it unexpectedly fell.

In contrast to the above cited cased, in the case at bar the plaintiff attempted to rebut the presumption that his presumed intoxication was a contributing cause of lathe accident using testimony of the defendant’s expert toxicologist that she was unable to state that plaintiff was intoxicated at the time of the accident. This is insufficient to rebut the presumption, because plaintiffs presumed intoxication was proved by the drug test. See: Porche v. S & M Const., 97-923 (La.App. 5 Cir. 4/15/98), 711 So.2d 429. In order to defeat defendant’s Motion for Summary Judgment and show that he has evidence sufficient to rebut the presumption that the presumed intoxication is a contributing cause of the accident, plaintiff must come forward with sworn testimony, either his own or that of an independent witness, setting forth specific facts based on personal knowledge that the presumed intoxication was not a contributing cause of the accident. It is insufficient for plaintiff to argue that he will testify at trial that the use of cocaine was not a contributing cause of the accident. Accordingly, the judgment of the trial court granting defendant’s Motion for Summary Judgment on plaintiffs workers’ compensation claim is affirmed.

Under LSA-R.S. 23:1081(13), even if the employee cannot overcome the presumption that his presumed intoxication was the cause of the accident, the employer shall be responsible for the reasonable medical care provided the worker until such time as he is stabilized and ready for discharge from the acute care facility. Accordingly, the judgment of the trial court is amended to delete the portion of the trial court judgment stating plaintiffs claims are “dismissed in their entirety”. This matter is remanded to the trial court for disposition of plaintiffs claim regarding medical care following the accident.

For the foregoing reasons, the judgment of the trial court is affirmed as amended. This matter is remanded to the trial court for proceedings consistent with this opinion.

AFFIRMED AS AMENDED; REMANDED.