author: WALTER J. ROTHSCHILD, Judge.

text:
    INPUT/OUTPUT, INC. and I/O Marine Systems, Inc. v. WILSON GREATBATCH, INC. & Wilson Greatbatch, Ltd. d/b/a Electrochem Lithium Batteries.
    No. 07-CA-570.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 22, 2008.

      Miles P. Clements, Michael B. North, Attorneys at Law, New Orleans, Louisiana, Jerry von Sternberg, Pro Hac Vice, Houston, Texas, for PlaintiffrAppellant.
    Joseph W. Looney, Attorney at Law, New Orleans, Louisiana, Michael E. Maxwell, Attorney at Law Buffalo, New York for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

| ¡¡Plaintiff, Input/Output Marine Systems, Inc., filed the instant suit for damages and injunctive relief against Wilson Greatbatch Technologies, Inc. and Wilson Greatbatch Ltd. d/b/a Electrochem Lithium Batteries alleging various causes of action for breach of fiduciary duty, breach of contract, violations of Louisiana Unfair Trade Practices Act and Uniform Trade Secrets Act, unjust enrichment and conversion. Plaintiff subsequently filed an amended petition naming I/O Marine Systems, Inc. an additional plaintiff and alleging additional causes of action in breach of confidence and fraud.

Defendants subsequently filed a motion for summary judgment on the grounds that plaintiffs are unable to meet their burden of proof at trial. Specifically, defendants argue that plaintiffs failed to submit sufficient evidence to prove that defendants used confidential information as defined in the agreement between the parties or any novel information that was protected by a trade secret. They also argued that any confidential information was obtained from plaintiffs or others prior to the execution of the confidentiality agreement. The trial court granted the summary | ¿judgment and dismissed plaintiffs’ suit with prejudice. Plaintiffs now appeal from this ruling.

Facts and Procedural History

The following facts are not in dispute:

Plaintiffs are engaged in the business of providing seismic instrumentation and surveying products to the land and marine mineral exploration industry. During late 1996 and early 1997, plaintiffs contacted several battery manufacturers, including defendants, regarding the possibility of these manufacturers developing a specialized long-term life battery for use with plaintiffs’ marine seismic exploration product, known as and referred to the parties as “the Bird.” The Bird, a radar-emitting device, controls the depth and position of a towed marine seismic cable as a vessel navigates, and the battery was necessary to power the Bird.

On April 24, 1997, plaintiffs’ predecessor, DigiCOURSE, Inc. entered into a Mutual Confidential Disclosure and Trust Agreement (“the Confidentiality Agreement”) with defendants which precluded both parties from disclosing the other’s confidential information and trade secrets and prohibited both parties from relying on information obtained from the other for its own benefit. After this agreement was executed, the ■ parties began exchanging technical information for the development of the project. However, negotiations fell through based on the parties’ inability to agree on a price for the battery. Defendants continued to develop the battery and eventually marketed a “Super D” battery for use in the “Bird” at a price less than the price charged by plaintiffs for its battery. Plaintiffs’ suit followed.

By their motion for summary judgment, defendants argued that the terms of the Confidentiality Agreement governs the obligations of the | ¡¡parties, and pursuant to this agreement, the provisions are to be construed in accordance with New York law. Defendants further contend that because there is an express contract between the parties, plaintiffs’ non-contractual claims of breach of confidence, breach of fiduciary duty and unjust enrichment must fail.

Plaintiffs opposed the motion, and argued that the choice of law provision in the agreement between the parties only applies to the breach of contract claims and not to plaintiffs’ tort claims. Further, plaintiffs contend that defendants failed to meet their burden of proof on summary judgment to rebut each cause of action asserted as a matter of law. Finally^ plaintiffs contend that they submitted sufficient proof to meet their burden at trial to establish that defendants obtained and disclosed confidential information from plaintiffs in violation of the confidentiality agreement.

In rendering summary judgment in favor of defendants on all claims asserted by plaintiffs, no reasons for judgment were assigned by the trial court.

Issues

Plaintiffs present the following issues on appeal:

1. The District Court did not properly apply Louisiana Summary Judgment Standards and procedure when it granted WGL’s global summary judgment and dismissed all of I/O’s claims in the face of numerous genuine issues of material fact.
2. The District Court improperly applied New York law to all of I/O’s claims.

| «Summary Judgment Law

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991); Pizani v. Progressive Ins. Co., 98-225, p. 3 (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. Mohsan v. Roule-Graham, 05-122, p. 4 (La.App. 5 Cir. 6/28/05), 907 So.2d 804, 806, writ denied, 05-1976 (La.2/3/06), 922 So.2d 1184.

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 law. La. 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. La. C.C.P. art. 966(C)(2). The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Mitchell v. Kenner Regional Medical Center, 06-620 p. 5 (La.App. 5 Cir. 1/30/07), 951 So.2d 1193, 1196. 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., Hyman v. East Jefferson [General Hosp., 04-1222, pp. 3-4 (La.App. 5 Cir. 03/01/05), 900 So.2d 124, 126.

In determining whether to admit expert opinion evidence at the summary judgment stage, the Daubert-Foret standards should be considered by the trial judge. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 16 (La.2/29/00), 755 So.2d 226, 236, citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and State v. Foret, 628 So.2d 1116 (La.1993). In the Independent Fire Ins. case, the Supreme Court reinforced several underlying important principles:

The first is that the trial judge cannot make credibility determinations on a motion for summary judgment. See Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-C-0201, p. 6 (La.10/19/99), 748 So.2d 417 (“[t]he rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony”); Maraist & Lemmon, supra, p. 145 (“[i]n deciding a motion for summary judgment, the court must assume that all of the affiants are credible ... ”). Second, the court must not attempt to evaluate the persuasiveness of competing scientific studies. In performing its gatekeeping analysis at the summary judgment stage, the court must “focus solely on the principles and methodology, not on the conclusions they generate.” Daubert, supra at 595, n. 6, 113 S.Ct. 2786. Third, the court “must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion.” Maraist & Lemmon, supra, p. 145. Fourth, and most importantly, summary judgments deprive the litigants of the opportunity to present their evidence to a jury and should be granted only when the evidence presented at the motion for summary judgment establishes that there is no genuine issue of material fact in dispute. If a party submits expert opinion evidence in opposition to a motion for summary judgment that would be admissible under Daubert-Foret and the other applicable evidentiary rules, and is sufficient to allow a reasonable juror to conclude that the expert’s opinion on a material fact more likely than not is true, the trial judge should deny the motion and let the issue be decided at trial.
Id. 99-2181 at pp. 16-17, 755 So.2d at 236; See also, Willis v. Medders, 00-2507, pp. 2-3 (La.12/8/00), 775 So.2d 1049, 1050-51.

The Confidentiality Agreement

The Mutual Confidential Disclosure and Trust Agreement which was executed between the parties and upon which this lawsuit is based provides as follows:

This Agreement, made by and between Wilson’ Greatbatch, Ltd. (WGL) and DigiCOURSE, INC.; and WHEREAS, each party wishes to disclose to the other party certain confidential information pertaining to WGL power sources and DigiCOURSE seismic surveying equipment; and WHEREAS, each considers such Confidential Information to be of great value, it is agreed as follows:
1. The term “Confidential Information” as used herein means all information, data, drawings, models, processes, trade secrets and written or oral descriptions relating to WGL power sources and DigiCOURSE seismic surveying equipment. Each party agrees to provide a written description of all Confidential Information which is orally disclosed to the other party. . Such written description shall be submitted within thirty days of such disclosure.
2. Each party agrees to receive in trust and keep confidential any such Confidential Information obtained from the other, and not to disclose such information to any third party nor use same for their own benefit nor permit its use-for the benefit of others without the prior written consent of the disclosing party.
3. The obligation of confidence herein imposed shall not apply to any information (i) that was known by the receiving party before disclosure thereto by the disclosing party as evidenced by the receiving party’s prior written records, (ii) which is or becomes published through no fault of the receiving party, or (iii) which is obtained by the receiving party from a third party under no obligation to the disclosing party not to disclose same.
4. The obligation of confidence with respect to a given disclosure shall continue for a period of five years from the time of disclosure.
5. The parties mutually agree that this Agreement and its respective provisions are and shall be construed in accordance with the laws of the State of New York.
19(Emphasis in the original).

In support of its motion for summary judgment, defendants submitted evidence including pleadings, answers to interrogatories, a copy of the agreement between the parties, excerpts from depositions, as well as copies of memorandum, data sheets and specification’sheets. Defendants also rely on a copy of correspondence from George Blomgren of Blomgren Consulting Services Ltd. to defendants’ counsel opining that defendants possessed most of the information required to design the battery prior to the execution of the non-disclosure agreement and that any information they obtained from plaintiffs could have been easily obtained from an end user of plaintiffs’ product.

Plaintiffs complain that the bulk of the evidence submitted by defendants in support of their motion is unauthenticated hearsay documents which are inadmissible and should not have been considered by the trial court. We agree.

Pursuant to Article 966(B), a summary judgment should be granted only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Moreover, Article 967 provides, in pertinent part, as follows with regard to the requirements for affidavits and evidence in support thereof:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

h (Articles 966 and 967 do not permit a party to utilize unsworn and unverified documents as summary judgment evidence. In meeting the burden of proof, unverified documents, such as letters or reports annexed to motions for summary judgment are not self-proving and, therefore, will not be considered as competent summary judgment evidence. Mitchell v. Kenner Regional Medical Center, supra, 06-620, p. 7, 951 So.2d at 1197.

A document that is not an affidavit or sworn to in any way, or which is not certified or attached to an affidavit, is not of sufficient evidentiary quality to be given weight in determining whether there are remaining genuine issues of material fact. Further, unless the motion for summary judgment is supported by affidavits, together with sworn or certified copies of all papers or documents referred to, La. C.C.P. art. 967 does not shift the burden to the adverse party to set forth specific facts showing that there is a genuine issue for trial. Robertson v. Northshore Regional Medical Center, 97-2068, pp. 5-6 (La.App. 1 Cir. 9/25/98), 723 So.2d 460, 464, 465. See also, Sanders v. J. Ray McDermott, Inc., 03-64, pp. 6-7 (La.App. 1 Cir. 11/7/03), 867 So.2d 771, 775.

Plaintiffs argue that the report of defendants’ designated expert, George Blomgren, is unauthenticated hearsay and was the subject of a Daubert motion which the trial court failed to rule upon prior to granting summary judgment. The record indicates that on January 31, 2007, plaintiffs brought a Daubert/Foret motion and memorandum in support of motion in limine to disqualify and exclude testimony of defendants’ expert George Blomgren. Attached to this motion is Mr. Blomgren’s resume as Liwell as excerpts from his deposition. The record also indicates that this matter was not heard by the trial court prior to its ruling on February 16, 2007 on defendants’ motion for summary.

The documents attached to defendants’ motion for summary judgment contain correspondence prepared by George Blom-gren at the request of defendants’ counsel. Neither Mr. Blomgren’s deposition nor an affidavit by him were submitted in support of the motion for summary judgment. Rather, the correspondence prepared by Mr. Blomgren is unsworn and as such it does not meet the requirements for documents to oppose a motion for summary judgment. La. C.C.P. art. 967; Skidmore v. Initial DSI Transport, Inc., 99-1066, p. 5 (La.App. 5 Cir. 2/29/00), 757 So.2d 107, 109.

Much of the remaining evidence offered in support of defendants’ motion for summary judgment was in the form of excerpts of depositions and documents identified in conjunction therewith. The first is an eight page excerpt of the deposition of Michael Pyszczek, an employee of defendants, who identified a document referred to as “Exhibit 14.” This exhibit is an interoffice memorandum dated February 2, 2000 from another employee, Brian LaPrade, containing a summary of the key inputs that were used to define requirements of the “Super D” battery pack designed by defendants. This memo refers to a group of documents upon which defendants relied in the development of the battery pack. There is no affidavit or deposition of Mr. LaPrade in the record which identifies the memo prepared by him, nor are the documents referred to in Mr. LaPrade’s memo sworn to or otherwise verified.

1 ^During his deposition, Mr. Pyszczek was questioned as to whether defendants used additional information other than what was contained in “Exhibit 14” to develop the battery pack. The witness testified as follows:

I can’t speak to the final design of the battery pack. And the design of the cell of which there were four in the batter pack, no, we didn’t use any additional information other than what was in here.
The final — again, truthfully, the. final design of the battery pack what rolled out the door as that part number, I can’t say what went into the final adjustment of that. I was not with the program.

In Premier Restaurants, Inc. v. Kenner Plaza Shopping Center, L.L.C., 99-1310, p. 10 (La.App. 5 Cir. 8/29/00), 767 So.2d 927, this Court stated as follows:

The initial determination, on a motion for summary judgment, is whether the supporting documents presented by the moving party are sufficient to resolve all material issues of fact, if they are not sufficient, summary judgment should be denied. To satisfy this burden, the mover must meet a strict standard of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact.
A document which is riot an affidavit or sworn to in any way, or which is not certified or attached to an affidavit, is not of sufficient evidentiary quality to be given weight in determining whether or not there remain genuine issues of material fact. An unsworn and unverified document is insufficient. Thus, statements made in letters rather than by affidavits have no evidentiary value.
Id., 99-1310, p. 10, 767 So.2d at 932-933. (Citations omitted.)

After a careful review of the documentation submitted in support of defendants’ motion for summary judgment, we fail to find these documents are of sufficient evi-dentiary quality to be given weight in determining whether or not there remain genuine issues of material fact. Unless the | lsmotion has been made and supported by affidavits, together with sworn or certified copies of all papers or documents referred to, or depositions or answers to interrogatories, La. C.C.P. art. 967 does not shift the burden to the adverse party to set forth specific facts showing that there is a genuine issue for trial. Murphy v. L & L Marine Transp., Inc., 97-33 (La.App. 5 Cir. 5/28/97), 695 So.2d 1045, 1048. To satisfy this burden, the mover must meet a strict standard of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact. In making this determination, the mover’s supporting documents must be closely scrutinized and the non-mover’s indulgently treated. Since the moving party bears the burden of proving the lack of a material issue of fact, inferences to be drawn from the underlying facts before the court must be viewed in light most favorable to the non-moving party. Id. Without the appropriate supporting documentation, the mover cannot be said to be entitled to summary judgment.

Although we conclude herein that defendants failed to meet its burden on summary judgment we nevertheless find that plaintiffs submitted evidence indicating there remain issues of material fact which preclude summary judgment in this case. If qualifying evidence is submitted in opposition to a motion for summary judgment that creates a dispute as to a genuine issue of material fact, a motion for summary judgment should be denied. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 19 (La.2/29/00), 755 So.2d 226, 237.

In opposition to defendants’ motion, plaintiffs presented the authenticated sworn report as well as the deposition testimony of Dr. Samuel Levy which opines that defendants misappropriated and used 114confídential information belonging to plaintiffs, specifically the development of the target board, the electrical requirements of the “Bird,” and the internal configuration of the device. When the party opposing the summary judgment motion submits expert evidence that would be admissible and that is sufficient to allow a reasonable juror to conclude the expert’s opinion more likely than not is true, the court should deny the summary judgment motion. Willis v. Medders, 00-2507 p. 3 (La.12/8/00), 775 So.2d 1049, 1051.

In addition to the expert report, plaintiffs provided the sworn deposition testimony of Prabhat Jain which details numerous instances when plaintiffs provided confidential information to defendants. Specifically, Mr. Jain referred to the absence of cutoff voltage for the battery, the specific oscilloscope readings, the diode specifications, little nuances of the float in the connectors, and the type of materials to be used for seawater immersion. Mr. Jain concluded that although defendants may have obtained general information from other sources, the “Super D” battery could not have been developed by defendants without getting input from plaintiffs on a number of details because it was a special application battery.

At the very least, this documentation presents genuine issues of material fact which preclude the granting of summary judgment in this matter. Whether plaintiffs provided confidential information or trade secrets to defendants are factual questions and material issues of fact that are still in dispute and require a determination by the trier of fact. As there are material issues of fact in dispute, this case was not appropriate for summary judgment.

| n^Defendants argued on its motion for summary judgment that New York law applies to the contract between the parties and any duties arising as a result of the agreements contained in the contract. As no reasons for judgment were assigned by the trial court, we are unable to determine whether the court applied New York or Louisiana law in granting defendants’ summary judgment. Nevertheless, we have determined that notwithstanding the parties’ agreement to interpret the contractual provisions in accordance with New York law, defendants have failed to meet their burden of proving they are entitled to judgment as a matter of law on any of the causes of action asserted by plaintiffs.

Conclusion

For the foregoing reasons, the trial court judgment granting summary judgment in favor of defendants is hereby reversed, and this matter is remanded to the trial court for further proceedings. Costs are assessed to defendants, Wilson Great-batch, Inc. and Wilson Greatbatch, Ltd. d/b/a Electrochem Lithium Batteries.

REVERSED AND REMANDED.

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

      . Defendants state in their appellate brief that Mr. Pyszczek is their "chief engineer" but this information is not contained in the portion of the deposition contained in the record.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Harold YOUNCE v. PACIFIC GULF MARINE, INC. and ABC Insurance Company.
    No. 07-CA-421.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 22, 2008.

      Sean D. Alfortish, Attorney at Law, Kenner, LA, Wiley J. Beevers, Attorney at Law, Gretna, LA, for Plaintiff/Appellant, Harold Younce.
    John H. Clegg, Attorney at Law, New Orleans, LA, for Defendant/Appellee-Sec-ond Appellant, Pacific Gulf Marine, Inc.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

LThis personal injury case has been before this Court repeatedly on applications for supervisory writs and on prior appeals. It now comes before us following a second bench trial on the merits. Both parties have appealed.

On December 31, 1995, Harold Younce was a Jones Act seaman employed by Pacific Gulf Marine, Inc. (hereafter “PGM”) as an able-bodied seaman aboard the MTV SUGAR ISLANDER. On that.day he was injured in the course of his employment while engaged in off-loading C02 (carbon dioxide) tanks from the ship onto a pier. He was. serving as signalman to the winch operator. During the operation his left arm or jacket became caught on a metal cargo basket being used for the offloading and his left arm was pulled upward as the winch began to lift the basket. The injuries he sustained are the basis of this lawsuit.

HISTORY OF THE CASE

On January 2, 1998 Younce filed this lawsuit against PGM, alleging he sustained injuries to his left arm, left shoulder, neck, upper and lower back, and left knee. He sought damages under the Jones Act and general maritime law, as well as maintenance and cure. He also sought attorney’s fees for arbitrary cessation of maintenance and cure payments.

|sThe case was originally tried in a bench trial in 1999, with judgment in favor of the plaintiff. On appeal this Court affirmed, but the Louisiana Supreme Court vacated the judgment on the basis the trial judge should have been recused, and remanded the matter for a new trial before a different judge.

On remand, the matter was allotted to another judge. PGM filed reconventional demands against Younce and onq of his attorneys. Younce and the attorney filed exceptions of prescription, which were sustained. On appeal the ruling was upheld by this Court.

Thereafter PGM moved for summary judgment on the basis that Younce had forfeited his rights to maintenance and cure by intentional misrepresentation of his medical condition during a medical examination prior to beginning to work on the SUGAR ISLANDER. The trial court granted partial summary judgment and dismissed the claim for maintenance and cure. On appeal this Court reversed the summary judgment, finding there were genuine issues of material fact that precluded summary judgment.

The case was retried on its merits for seven days in April 2006. On September 1, 2006, the district court rendered judgment, in which it found that PGM was negligent, that Younce was comparatively negligent, and that the parties were equally at fault.

With respect to causation of Younce’s injuries, the court found that the neck and shoulder injuries were consistent with the facts of the accident and were established by credible medical evidence. However, the court found that the left knee and lumbar spine injuries were not attributable to this accident. The court | concluded the knee injury was caused by other accidents that occurred prior to the incident on the SUGAR ISLANDER, and the lumbar spine pain manifested too long after this accident to be convincingly related.

The court further found the vessel was not unseaworthy. The court concluded that neither the basket in which the plaintiffs arm/sleeve was caught, nor the negligence of his coworker Jack Hanley, created an unseaworthy condition. The court specifically found that the basket was reasonably suited for its intended use and that Hanley’s negligence was an isolated act.

Finally, the court found the plaintiff was not entitled to maintenance and cure benefits beyond those he had already received from PGM. Thus, the issue of whether the plaintiff was entitled to attorney’s fees for egregious denial of maintenance and cure was moot.

Based on its findings regarding causation, the court awarded the plaintiff medical expenses related to treatment of his shoulder and cervical spine injuries, less amounts paid by PGM as cure benefits.

With regard to the claim for loss of earning capacity, the court attributed one hundred percent of the plaintiffs lost wages to his shoulder and cervical spine injuries up to February 1997. After February 1997, the court found that fifty percent of the plaintiff’s lost wages were attributable to his shoulder and cervical spine injuries.

The court concluded it would be inequitable to award pre-judgment interest against the defendant, and pointed out, “The specific peculiarities which pervaded this entire litigation are too numerous to mention, but we note they are well-reflected in the trial and appeal records.” The court noted that the accident occurred more than ten years prior to the second trial; final judgment and appeal were delayed due to the case’s multiple trips baek- and-forth through the judicial |fisystem; after re-allotment and resetting for new trial, the parties were particularly contentious; and other events while the second trial was pending caused unusual delays and created peculiar circumstances. Based on the “extraordinary delay in reaching an ultimate trial judgment,” the court held it would be inequitable for the defendant to pay prejudgment interest in this matter.

The court also noted it had previously ordered the parties to bear one-half the cost of the special master’s expenses. The court declined to revisit that decision because the appointment of the special master was for the mutual benefit of the parties. The court also denied PGM’s motion for sanctions for the plaintiffs failure to comply with discovery requests.

Based on the equal apportionment of fault between the plaintiff and PGM, the court awarded the plaintiff fifty percent of reasonable expert expenses as determined by the court, and assessed PGM'its own costs.

The court awarded the plaintiff a total of $566,901.18, reduced by the plaintiffs fifty-percent fault, as follows:

Summary of Damages
Pain and Suffering $250,000.00
Medical Expenses $ 50,255.10
Louisiana Clinic $23,222.00
Diagnostic Imaging Services 2,123.00
The Wellness Center 4,081.00
St. Charles General Hosp. 18,863.10
Orleans Anesthesia Group 1,159.00
Dr. Richard Meyer 218.00
Radiology Consultants 139.00
Dr. Fortier-Benson 450.00
$50,255.10
Lost Wages $266,646.08
TOTAL $566,901.18
Comparative Negligence (TOTAL x .5) $283,450.59
Costs ($5,790.00 x .5) $ 2,895.00
Dr. Larry Stokes $ 1,040.00
Dr. Amusa 1,200.00
Matthew Slimming 450.00
Dr. Randy Rice 300.00
Commander Cole 400.00
Dr. Watermeier + 2,400,00
$ 5,790.00
TOTAL AWARD $286,345.59

| fiBoth the plaintiff and the defendant appealed.

PACTS

On December 31, 1995, Younce was a 36-year-old able-bodied seaman. He had served aboard the M/V SUGAR ISLANDER since October 1995. On the day of the accident, he was helping to prepare the ship for a Coast Guard inspection. The vessel was docked at Moorehead City, N.C.

Younce was helping to move C02 canisters. The crew first used a cargo net for the task, until one of the crew members suggested using a cargo basket that had been either discarded or abandoned on the dock. The basket had a steel gate on one end that was warped or deformed, so that the gate could not be closed easily. The workers had to exert pressure to pull the bent or warped metal back into line so a pin could be inserted through the eyelet openings to secure the gate closed while the canisters were being lifted.

Younce testified it had been raining and so he had to contort his body to maintain a firm foothold in order to exert pressure, and also to brace himself while using his hands and arms to pull the metal back into place. He hooked his armpit over the top of the basket in order to brace himself.

Just as Younce and a coworker, Jean Couvillion, were slipping the pin into place on one of the loads, the basket was suddenly raised by the winch operator, Jack Hanley, who was the chief mate employed by PGM aboard the vessel. Younce’s arm was caught and wrenched upward. Younce testified he felt himself being lifted, and then fell to the deck, He claimed he went to his knees and grabbed his shoulder due to excruciating pain. In contrast, Couvillion said Younce never fell to his knees. Hanley testified he only looked away from the operation for a matter of seconds and when he looked back, Younce was running around the |7pier. Both Cou-villion and Hanley testified that if Younce was lifted by the basket, it could only have been a few inches. The accident occurred in a matter of seconds, the winch was very slow-moving, and could not have lifted Younce to any great height. Hanley said the basket was only a few inches off the ground when he stopped raising it.

One of the contested facts was whether Younce, who was acting as signalman to the crane operator, had signaled to the third mate to lift the basket. Couvillion testified that he thought Younce made a “thumbs up” signal to Hanley. Hanley also testified that Younce gave him the signal to lift.

Younce was taken to the emergency room of Carteret General Hospital. After examination, the emergency room doctor released Younce “to home” and placed him on restriction of “no heavy lifting.” The doctor also prescribed Nalfon, a muscle relaxant. Upon returning to the vessel with his arm in a sling, Younce was allowed to stand watch on the gangway to see if he could “shake off’ his injuries. He testified the Nalfon made him drowsy and unable to stand his watch.

On January 2, 1996 Younce went to the Carteret Clinic, where he was given a slip that stated he was not to return to work before January 7, 1996, and he was to undergo physical therapy. Fellow crew members Jack Hanley and Jeffrey Sutton testified it was obvious that Younce left the vessel to get medical attention and that he was in pain.

Younce testified that after leaving the vessel he did not immediately seek treatment because he still believed his injuries would resolve over time and he would be able to return to duty. He filled out a registration form with the Miami SIU office seeking employment on another mission. He was offered the ^opportunity to sail, but did not do so because he felt he had not recovered from his injuries.

On March 6, 1996, Younce was first seen by Dr. John Watermeier, a New Orleans orthopedist. Dr. Watermeier ultimately found and diagnosed four separate injuries: a ruptured cervical disc; a rotator cuff tear in the left shoulder; a bruised bone and partial tear of the lateral meniscus of the left knee; and, in January 1997, degenerative changes in the lumbar back area with neural encroachment.

Eventually Younce underwent a two-level anterior fusion for the cervical injury and surgery for the rotator cuff tear, followed by arthroscopic surgery to his left knee, and later an anterior lumbar fusion to remove a disk in the lumbar spine and stabilize the spine. Younce claims he continues to experience pain in his lower back.

PGM denied the knee injury and the lumbar injury were related to the accident here. PGM pointed out that on the initial visit to Dr. Watermeier, Younce attributed his knee pain to a prior accident in August 1995, when he was employed by Waterman Steamship. (Dr. Watermeier sent the bills for treatment of the knee to Waterman.) Younce expressly denied having low back pain. He did not disclose an April 1995 cervical disc herniation and the successful physical therapy for that injury. Nor did he disclose to Dr. Watermeier that he had an intervening accident between the time of the SUGAR ISLANDER incident and when he was first examined by Dr. Water-meier.

Dr. Watermeier stated that Younce’s left leg pain, numbness, and weakness in all medical probability resulted from nerve irritation stemming from a back injury which, in his opinion, resulted from trauma from the December 31, 1995 accident. However, when given opportunity to review medical reports issued at the time of the December 31, 1995 accident, and Younce’s January 25, 1996 | Registration to Return to Work, Dr. Watermeier revised his opinion on causation and stated he believed that Younce was ready to return to work as of January 1996. Dr. Watermeier also was unaware of an unreported incident, in which involved Younce “stepping in a hole.” Dr. Watermeier testified that this type of an injury would cause injuries to his knee, back and neck. He could not rule out that the intervening accident may have caused Younce’s neck problems. He could not testify with any degree of medical certainty that this was a superseding event. Dr. Watermeier said that after February 1997, he did not provide anything more than “palliative treatment” for Younce’s knee, shoulder and neck.

PGM terminated maintenance and cure payments after February 1997.

In November and December 1998, Younce lived at a mobile home park owned by the Churchill Group, where he performed property management supervision for various contractors and vendors who service the trailer park. He stated he had experience as an engineer in property management. His work included observing the contractors, monitoring their work, checking the out-of-state contractors’ licenses, and making sure the contractors were paid. He also took bids, assessed the capacity of the contractors to perform the work, and investigated their capacity to complete tasks. To keep his unemployment benefits, he instructed his employers, “Due to union benefits, please list on payroll check Judy Gisclaire [his girlfriend] as manager.” This job paid $800 to $900 per month. Younce believed that if there was written evidence that showed he was employed, it would jeopardize his benefits.

According to Dr. Watermeier, he never told Younce he could not return to work. In 1998, after the four, surgeries, Dr. Wat-ermeier provided functional limits for Younce. By the time of trial, however, those limits were not relevant; Dr. 110Watermeier said that Younce’s recovery was good and he surpassed those functional limits.

Dr. Watermeier did not treat Younce from 1999 to 2003. Rather, Younce saw only pain management doctors, who gave him a variety of drugs upon which he became dependent. He stopped taking drugs in 2005. At the trial Younce testified his shoulder was “fine” and, outside of changes in the weather, his neck was “much better.”

Dr. Thomas Purser treated Younce for a cervical disc injury 13 times between June 5, 1995 and July 30, 1995. Younce had severe neck spasms, and reduced left bicep and triceps reflexes. Dr. Pursuer diagnosed a herniated disc at C-5/C-6 on the left, with nerve root compression. Dr. Watermeier testified that Dr. Purser’s records, which he did not have when he treated Younce, established objective evidence of a pre-existing herniated cervical disc. At trial, however, Younce denied that Dr. Purser ever treated him for neck and shoulder pain.

In addition, Dr. Watermeier did not have Younce’s medical records from the SUGAR ISLANDER incident until trial. When he reviewed those at trial, he amended his opinion on causation. Previously he had stated that the SUGAR ISLANDER incident “aggravated” Younce’s pre-existing neck problems. Now, after seeing that Younce made no contemporaneous complaints of neck pain at or near the SUGAR ISLANDER incident, and that Younce registered to go back to work on January 25, 1996, Dr. Watermeier believed that as of January 1996 Younce could return to work. He also believed there was no evidence that the SUGAR ISLANDER incident aggravated Younce’s pre-existing neck injury.

Dr. Watermeier testified that board-certified orthopedists put greater weight on written medical reports than on a patient’s description of events when there is a Indirect contradiction. The written medical reports show no complaints whatsoever of neck pain arising from the SUGAR ISLANDER incident.

In trial testimony Younce disclosed for the first time that he had an intervening accident. Following his departure from the SUGAR ISLANDER and his registration to return to work, but prior to seeing Dr. Watermeier, he stepped in a hole. He claimed he reported this to Dr. Watermeier, but Dr. Watermeier denied that he was told about this incident. Dr. Watermeier concluded this accident could have injured Younce’s neck.

Younce appeals the finding of comparative negligence against him, the determination that his low back and knee injuries were unrelated to this accident, the finding that the vessel was not unseaworthy due to the damaged cargo basket, the failure to award damages for future loss of earning capacity, and the failure to award prejudgment interest and proper expert costs.

PGM appeals the award of damages attributable to Younce’s neck injury, the award of future damages based on pre-tax earnings, and the failure to consider Younce’s post-accident work experience.

LAW AND ANALYSIS

We note first that Younce has asserted both negligence and unseaworthiness as bases for recovery. Louisiana courts of appeal should apply the state manifest error standard of review in general maritime and Jones Act cases. Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89, 96.

In reviewing a claim under the Jones Act and for unseaworthiness, the appellate court must determine if the factual findings of the trial court are manifestly erroneous, or clearly wrong. As in any manifest error review, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The issue 112to be resolved by the reviewing court is whether the fact-finder’s conclusion was a reasonable one, [or] whether the factfinder was right or wrong. Thus, where two permissible views of the evidence exist, the factfin-der’s choice between them cannot be manifestly erroneous or clearly wrong. Only when the documents or objective evidence so contradicts a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, may the court of appeal find manifest error, even in a finding purportedly based upon a credibility determination. [Citations omitted.]

Louis v. State ex rel Dept. of Transp. and Development, 01-1334 (La.App. 5 Cir. 5/15/02), 819 So.2d 379, 384-385.

It is uncontested that Younce is a seaman under the Jones Act, 46 App. U.S.C. § 688, which allows an injured seaman to bring a negligence suit against his employer.

[Under the Jones Act,] [t]he employer’s potential liability extends to all personal injuries arising during the course of the seaman’s employment, but proof of negligence is essential to recovery. Such negligence may arise in many ways including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the vessel, or any other breach of the duty of care. The duty of care owed by an employer under the Jones Act is that of ordinary prudence, namely the duty to take reasonable care under the circumstances. The seaman bears the evidentiary burden of proving that a breach of the duty owed by the employer was a cause of his injuries. However, a seaman need only present “slight evidence” that his employer’s negligence caused his injuries in order to reach the jury or to be sustained upon appellate review. The employer can introduce evidence of the seaman’s own negligence to reduce damages through application of pure comparative fault principles. Like his employer, the seaman must meet the standard of ordinary prudence by acting as a reasonable seaman would act under the same circumstances. [Citations omitted.]

Foster v. Destin Trading Corp. (on rehearing), 96-0803 (La.5/80/97), 700 So.2d 199, 208.

lisThe owner of a vessel has a duty to furnish a seaworthy vessel. This duty is absolute and nondelegable. It extends to a defective condition of the ship, its equipment, or appurtenances. A ship’s equipment and appurtenances include most objects and things on or attached to the vessel regardless of whether the item belongs to the ship or is brought aboard by a third party.
A breach of the duty of seaworthiness gives rise to a claim for general damages. The plaintiff bears the burden of proving that “the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.”
The test for determining unseaworthiness is one of reasonable fitness. The vessel, its equipment, and appurtenances need not be perfect, but all must be reasonably fit for their intended use. Unseaworthiness, then, is a relative term dependent on the circumstances.

Foster, 700 So.2d at 209. “Unseaworthiness results from a defective condition and is not the result of an isolated negligent act.” Foster, 700 So.2d at 204.

1. Causation

Younce asserts the trial court committed manifest error in failing to find that his low back and left knee injuries were related to the accident of December 31, 1995.

PGM asserts the trial court erred when it found that Younce’s neck injury was related to the incident aboard the SUGAR ISLANDER and not caused by Younce’s unreported superseding accident.

We find no error in the trial court’s determination on these issues. First, the court specifically stated that Younce’s testimony lacked credibility. His medical records established he consistently attributed the knee injury to an accident that occurred in August 1995, prior to the SUGAR ISLANDER incident. Further, although Younce claimed the basket lifted him up several feet before he dropped to the ground, that testimony was contradicted by his co-workers, Couvillion and | uHanley, neither of whom saw him drop, but rather said he was “running around” in pain after the incident. The court found the co-workers more credible than Younce, and we are unable to reverse that determination on the face of the record. Louis, 01-1334 at p. 8, 819 So.2d at 384-385.

Further, the court found Dr. Watermeier’s testimony on the causation of the knee injury not credible, partly because Dr. Watermeier did not receive a complete history from Younce, which should have included the information that Younce stepped in a hole several weeks after the December 1995 incident. Dr. Watermeier, upon being told of this at trial, stated it would have affected his opinion had he known of it.

As to the neck injury, the court found it related to this accident because it had manifested by the time the plaintiff saw Dr. Watermeier on March 8, 1996. The court ruled it was consistent with the facts of this accident, and was established by credible medical evidence. PGM contends the court should have considered the neck injury, like the knee and back injuries, to be more likely the result of the intervening accident when Younce stepped in a hole. Further, PGM points out that Younce had had cervical neck problems previously.

We find the trial court was not clearly wrong in attributing the neck injury to this accident. The evidence establishes that Younce had been treated by Dr. Thomas Purser, III for a cervical neck pain in June and July 1995. Dr. Purser determined that the problem was muscular rather than due to disk pathology, and the pain was fully resolved when Dr. Purser released Younce on July 30,1995.

2. Comparative Negligence/Proximate Cause

Younce contends the trial court erred in using the wrong standard of law by failing to determine that Younce’s negligence, if any, was a proximate cause of his 1 isaccident. Younce asserts the trial court failed to find that his negligence was a proximate cause of his injuries, but only applied the “standard of ordinary prudence” of a reasonable seaman under the circumstances. He does not contest that the causation standard against PGM is “featherweight” or “the slightest negligence.”

PGM asserts that a recent case has established that in Jones Act cases, negligence and comparative negligence must be determined with identical standards. In Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007), the United States Supreme Court held that in cases under FELA (Federal Employers’ Liability Act), a single standard of causation applies when assessing both the negligence of the employer and the contributory negligence of the employee. Jones Act cases apply the standards of FELA. Therefore, after the Norfolk Southern case, the standards for determining the negligence of a seaman and a vessel owner are identical. There is no different burden for establishing negligence.

Here, as found by the trial court, the shipowner’s negligence was through the action of the chief mate, Hanley, in operating the winch before the seamen were clear of the basket, and in looking away momentarily from the operation on the pier. The plaintiffs negligence was in signaling Hanley to lift before he himself was clear of the basket.

Considering the above, we find no error in the trial court’s determination that Younce was comparatively negligent at fifty percent.

\lfí3. Regulatory Violations

Younce contends the trial court committed manifest error when it failed to find that PGM violated 46 C.F.R. § 91.25-25 and as a matter of law, could not place any comparative fault on Younce. Specifically, he argues that PGM was required to have a certificate of inspection for the basket it used during the incident. He asserts that, without the certificate, PGM violated the regulation and thus cannot plead comparative fault.

As pointed out by PGM, the 1995 version of 46 C.F.R. § 91 (in effect at the time of this accident) included section 91.37-3, which defined and regulated “cargo gear.” It limited the gear to “that part of the shipboard cargo gear used in connection with the loading and unloading” of cargo. It expressly excludes “material handling gear.” The basket in question was neither an appurtenance of the vessel nor was it “cargo gear.” The vessel is a “gearless self-trimming bulk carrier”— that is, it has no “masts, booms, winches, cranes, elevators or conveyors” used for cargo operations. Instead, the SUGAR ISLANDER requires assistance with the use of shoreside cranes for loading and unloading cargo. It has no “cargo gear”; therefore, the U.S. Coast Guard regulations applicable to vessels that have cranes for loading cargo do not apply to the SUGAR ISLANDER.

Accordingly, we find no manifest error in the trial court’s conclusion on this issue.

4. Unseaworthiness

Younce contends the trial court erred when it found that the cargo basket was defective, but not unseaworthy. He argues that had the cargo basket been fit for its intended use, it would not have required two people to close it; a single worker could have operated the basket, and no worker would have been placed in [17harm’s way. He asserts the warped door of the cargo basket played a substantial part in bringing about or actually causing injury, and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.

We find the basket, even if unsea-worthy, was not the proximate cause of Younce’s injuries. Rather, the basket had already been used several times without incident prior to this accident. Younce testified the gate of the basket was closed prior to the basket’s being lifted, and that once the pin was inserted the warping of the gate had no effect on the lifting of the basket. The gate did not open while the basket was lifted. Thus, the warped basket functioned properly.

Younce also argues that unseaworthiness arises from the negligence of the crew, specifically, Jack Hanley. The plaintiff points to Hanley’s testimony that he lifts the loads irrespective of the location of the employees. The plaintiff also cites the testimony of Commander David Cole, an expert in marine safety, seamanship, cargo operations, vessel operations, United States Coast Guard regulations, and in casualty reporting and investigation. Cole testified that the crane operator is never supposed to take his eyes off the load when it is being lifted, has authority to stop or refuse to handle loads at all times, and should verify that all personnel are in the clear before starting the crane.

“An isolated act of operational negligence will not suffice to create an unseaworthy condition; rather, operational negligence must be ‘pervasive’ or repeated frequently for it to rise to the level of an unseaworthy condition as in an ‘improper method of operation.’ ” Vendetto v. Sonat Offshore Drilling Co., 1997-3103 (La.1/20/99), 725 So.2d 474, 481.

Younce argues that Jack Hanley’s apparent lack of knowledge of his duties and authority as a crane operator indicates his actions were not isolated but were and are committed on a repeated basis—thus making the vessel unseaworthy by |1slaw. However, Younce had no proof that Han-ley’s actions have been repeated. To adopt Younce’s argument that Hanley had a “history” of failing to safely operate a winch, based on Hanley’s statements, would be mere speculation.

Accordingly, we conclude the trial court did not err in ruling that the basket, and the vessel, were not unseaworthy.

5. Maintenance and Cure

Younce contends the trial court committed reversible error when it failed to follow the uncontradicted findings of Younce’s treating physician, Dr. John Watermeier, that Younce did not reach maximum medical improvement on February 23, 1997. Younce asserts he is entitled to continuing maintenance and cure because none of his physicians has stated that he reached maximum medical improvement.

The trial court ruled that the plaintiff was not longer entitled to maintenance and cure because by February 1997, Dr. Watermeier’s treatment of the neck and shoulder injuries was purely palliative. Because the court had determined that the knee and low back injuries are not attributable to this accident, the court ruled that PGM is not liable for maintenance and cure for those injuries.

“[T]he right to maintenance and cure must be construed liberally....” “Cure” involves the payment of therapeutic, medical, and hospital expenses, that are not otherwise furnished to the seaman, until the point of maximum cure. “When maintenance and cure terminates is a question of fact to be determined on the evidence presented.” The duty of the shipowner to furnish medical care continues until the sick or injured person has been cured or until the sickness or incapacity has been declared to be permanent. Maintenance and cure extends during the period when a seaman is incapacitated and continues until he reaches maximum medical recovery. It is the medical, not the judicial, determination of permanency that results in the termination of the right to maintenance and cure. “[Mjaximum cure is achieved when it appears probable that further treatment will result |19in no [b]etterment of the seaman’s condition.” “Thus, where it appears that the seaman’s condition is incurable, or that future treatment will merely relieve pain and suffering but not otherwise improve the seaman’s physical condition, it is proper to declare that the point of maximum cure has been achieved.” [Citations omitted.]

Dejean v. St. Charles Gaming Co., Inc., 2005-0019 (La.App. 3 Cir. 5/4/05), 903 So.2d 521, 523-524, writ denied, 2005-1927 (La.2/10/06), 924 So.2d 166.

A seaman is entitled to cure payments only until such time as he reaches, maximum medical cure. Coulter v. Ingram Pipeline, Inc., 511 F.2d 735, 739 n. 4 (5th Cir.1975). Maximum medical cure is reached when no further improvement can be expected from further treatment and care of a continuing disability resulting from injuries sustained by a seaman. Coulter, id.

The cut-off date for both maintenance and cure is not the point at which the seaman recovers sufficiently to return to work. Rather, it is the date of maximum possible cure. Brown v. Aggie & Millie, Inc., 485 F.2d 1293, 1296 (5th Cir.1973). Maximum cure is achieved when it is probable that further treatment will result in no betterment of the seaman’s condition. Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 530, 58 S.Ct. 651, 654, 82 L.Ed. 993, 998 (1938). Where it appears that the condition is incurable or that further treatment will merely relieve pain and suffering and not otherwise improve the physical condition, it is proper to declare the point of maximum cure. Pelotto v. L & N Towing Co., 604 F.2d 396, 404 (5th Cir.1979).

Considering the case law, we conclude the trial court was not clearly wrong in determining that Younce was not entitled to further maintenance and cure for the injuries attributable to this accident. Thus, like the trial court, we hold that issue of attorney’s fees for failure to pay maintenance and cure is moot.

12n6‘. Loss of Earnings

Younce asserts the trial court committed manifest error in failing to award him damages for his future loss of earning capacity, when the court found that Younce would not work again as a seaman.

PGM, on the other hand, contends the trial court committed manifest error in its calculation and assessment of lost earnings by basing his earning capacity on pre-tax earnings from a joint tax return which included his spouse’s income, and in failing to provide a set-off for future earnings based on evidence of his actual 1998 employment.

In determining lost wages, the trial court selected the lower of the figures presented by Dr. Randolph Rice, plaintiffs economic expert. (The defense offered no figures to contradict those presented by Dr. Rice.) The court found there was no evidence the plaintiffs pre-injury earnings ever approached the higher figure, and the lower figure offered ($26,798.49 reflected in the plaintiffs 1995 tax return) was the highest actual yearly earnings figure presented. The court adopted the lower figure based on the 1995 income tax return, which the court felt “represents a more realistic view of the plaintiffs lost earnings capacity.”

The trial court determined that one hundred percent of the plaintiffs lost wages up to February 1997 were attributable to the shoulder and cervical spine injuries, which the court found were related to the accident on the SUGAR ISLANDER. The court attributed fifty percent of the plaintiffs lost wages from February 1997 to his shoulder and cervical spine injuries. Dr. Rice testified that the plaintiffs past loss of earnings, based on the $26,798.49 figure, was $236,701.00, and that the plaintiffs future work-life expectancy from the date of trial was 12.94 years, so that his future loss of earnings, with the after-tax discounted value based on the $26,798.49 figure, was $271,574.00.

121 To support a claim for loss of earning capacity, a plaintiff need not show a loss of income as compared to his pre-accident income. However, he must show, by a preponderance of the evidence, that his ability to earn a living is impaired. We recognize that loss of earning capacity may be awarded to a plaintiff if the injury has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily....
Before a plaintiff can recover for loss of future earning capacity, he must prove the loss, not with mathematical certainty, but with reasonable certainty. Future loss of earnings is inherently speculative, and must be proved with a reasonable degree of certainty; purely conjectural or uncertain future loss earnings will not be allowed. [Footnotes and citations omitted.]

Burgard v. Allstate Ins. Co., 04-1394 (La.App. 5 Cir. 5/31/05), 904 So.2d 867, 879, unit denied, 2005-1743 (La.1/13/06), 920 So.2d 240.

The court awarded a total of $266,646.08 designated as “Lost Wages” in the judgment, without dividing into past and future loss of earnings or earning capacity.

The total of the figures for past and future lost wages, as calculated by Dr. Rice based on the 1995 tax return figure, was $372,488.00. The trial court, however, concluded that the plaintiff was entitled to full past loss earnings only to February 1997 and thereafter only fifty percent of his lost wages were attributable to the injuries from the accident involved in this case. We conclude the figure selected by the trial court, $266,646.08, was intended to include both past and future lost wages, based on the percentages the court found attributable to the accident here. The award also could have been intended to make up for the discrepancy in the 1995 tax return, in which Mr. Younce’s earnings were lumped with his former wife’s, and no information was given to Dr. Rice to separate the overall income amount.

^Considering that “future loss of earnings is inherently speculative,” we find no manifest error in the court’s determination. Burgard v. Allstate Ins. Co., supra.

7. Judicial Interest

Younce argues the trial court committed manifest error when it failed to award the plaintiff prejudgment interest in this matter. Younce contends the trial court also committed manifest error because the judgment was silent on an award to the plaintiff of judicial interest from the date of judicial demand. The plaintiff asserts, “based on the litigious nature in which defendant has prosecuted this matter,” if this Court fails to make a specific award of interest from date of judicial demand, despite the clear case law PGM will contend it owes no such interest.

The trial court reasoned that because the “specific peculiarities which pervaded this entire litigation are too numerous to mention”—including extensive delays due to changes in plaintiffs counsel, contentiousness between the parties, and lengthy discovery proceedings—the “extraordinary delay in reaching .an.ultimate trial judgment” made it inequitable for the defendant to pay prejudgment interest.

We find no abuse of discretion by the trial court in that determination. Louisiana law provides that legal interest shall attach “from date of judicial demand, on all judgments, sounding in damages, ‘ex delic-to’, which may be rendered by any of the courts.” La.R.S. 13:4203. In actions'ex delicto, interest attaches automatically until the judgment is paid, whether prayed for in the petition or mentioned in the judgment. Thomas v. St. Charles Parish, 613 So.2d 698, 700 (La.App. 5 Cir.1993). Thus, under Louisiana law, when a judgment is silent regarding the award of interest, the plaintiff is entitled to be paid legal interest without formal amendment of the judgment.

|2SIn a Jones Act case, however, federal law controls the award of interest. Mihalopoulos v. Westwind Africa Line, 511 So.2d 771, 781 (La.App. 5 Cir.1987). The statute governing the payment of interest in civil cases in federal courts, 28 U.S.C. § 1961, provides that interest shall be calculated from the date of entry of the judgment. Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89, 97. Like federal courts, state courts hearing general maritime claims under the “saving to suitors” clause and Jones Act claims without a jury have the discretion to award prejudgment interest only on past damages. Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89, 97.

Recovery of prejudgment interest is prohibited in an action at law under the Jones Act. Theriot v. J. Ray McDermott & Co., 742 F.2d 877, 883 (5th Cir.1984). When a Jones Act claim is brought under the court’s admiralty jurisdiction, and hence the case is tried to the court and not to the jury, the allowance of prejudgment interest is within the discretion of the trial court even if there is not a finding of unseaworthiness. Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 491 (C.A.La.1985).

An award of prejudgment interest in state maritime cases is substantive in nature such that federal law controls.
Under federal law, a plaintiffs entitlement to prejudgment interest in a maritime case depends upon the nature of his claim, .particularly the basis from which the federal court derives its subject matter- jurisdiction. Federal courts derive their maritime jurisdiction from either the constitutional and statutory grant of such power, referred to as “admiralty jurisdiction,” or from conventional sources such as diversity or federal question.
If the court’s jurisdiction is based solely upon conventional sources, such as federal question, the court applies federal law with respect to awarding interest. Since the statute governing the payment of interest in civil cases in federal courts, 28 U.S.C. § 1961, provides that interest shall be calculated from the date of entry of the judgment, prejudgment interest is generally | ^prohibited in such maritime cases. As such, the courts have consistently refused to grant prejudgment interest on awards recovered under the Jones Act.
Nonetheless, there is an exception to this general rule. Even if the court hears a suit based solely upon federal question, it can sit in “admiralty” if the case is tried before a judge and not a jury. Thus, when an action is based strictly upon the Jones Act, prejudgment interest may be recovered as long as the case is tried to the court and the court exercises its admiralty jurisdiction. In the case at bar, the trial court, as the trier of fact, awarded prejudgment interest on the Jones Act award.
Likewise, where the court’s power to hear a case arises from its admiralty jurisdiction, such as a general maritime action for unseaworthiness, the applicable substantive law is federal maritime law, which gives courts the discretion to award prejudgment interest.
In sum, federal courts have the discretion to award prejudgment interest on causes of action based upon their admiralty jurisdiction. However, courts have clearly chosen not to grant prejudgment interest on awards for future losses, including future earnings and future pain and suffering. The rationale underlying this rule being that “recovery of interest on losses not yet incurred effectively grants the recipient double recovery.”
With these principles defined, it is clear that the trial court had discretion to grant Milstead prejudgment interest on the sums awarded as past damages in his general maritime and Jones Act claims. However, it had no authority to grant interest on the general maritime and Jones Act awards for future damages, be they future lost earnings or future pain and suffering, and the court of appeal erred in so finding.
The trial court did not apportion the sums awarded to the plaintiff. Thus, we remand this case to the trial court for a division of the judgment into past and future damages. In the trial court’s discretion, prejudgment interest may be awarded only on past damages.

Milstead, 676 So.2d at 96-97.

As noted above, the trial judge set forth reasons for her decision to deny prejudgment interest. We find no abuse of discretion in those reasons. Nevertheless, by law the plaintiff is entitled to interest from the date of judgment and, to avoid further litigation of this point, we shall amend the judgment to provide for interest from the date of judgment.

I ?.$■ Costs

Younce asserts the trial court committed manifest error when it failed to award the full expert costs of the experts who testified at trial of this matter. Younce attached bills of experts David Cole and Randolph Rice to his appellate brief. We cannot consider those, however, because there is nothing to indicate those bills were entered in evidence in the trial court, and this Court cannot accept evidence that is not part of the appellate record. A Court of Appeal is a court of record, which must limit its review to evidence in the record before it. La.C.C.P. art. 2164; Black v. Anderson, 06-891 (La.App. 5 Cir. 3/13/07), 956 So.2d 20, 23, writ denied 2007-0794 (La.6/1/07), 957 So.2d 180.

DECREE

For the foregoing reasons, the judgment of the district court is amended to award legal interest from the date of the judgment. In all other respects, the judgment is affirmed.

AFFIRMED IN PART AND AMENDED IN PART.

      . The plaintiff originally filed suit in federal court under the Jones Act and general maritime law, but voluntarily transferred the case to state court under the saving-to-suitors clause of 28 U.S.C. § 1333, which allows a person injured in a maritime tort to sue for damages in a state court.

      . Younce v. Pacific Gulf Marine, Inc., 01-546 (La.App. 5 Cir. 4/10/02), 817 So.2d 255, reversed and remanded, 2002-4343 (La.10/4/02), 827 So.2d 1144.

      . Younce v. Pacific Gulf Marine, Inc., 04-170 c/w 04-424 (La.App. 5 Cir. 9/28/2004), 883 So.2d 1154 (not designated for publication).

      . Younce v. Pacific Gulf Marine, Inc., 04-839 (La.App. 5 Cir. 1/25/05), 893 So.2d 909.

      . SIU is the Seafarers International Union.

      . "[T]he rights of Jones Act seamen against their employers are fixed by the rules set forth in the Federal Employers' Liability Act....” Prejean v. Industrial Cleanup, Inc., 1998-0948 (La.12/1/98), 721 So.2d 1273, 1274.


text:
    STATE of Louisiana v. Gregory C. CUMMINGS.
    No. 07-KA-686.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 22, 2008.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Assistant District Attorneys, Gretna, Louisiana, for PlaintifPAppellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|2On October 20, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Gregory C. Cummings, with possession with intent to distribute cocaine, a violation of LSA-R.S. 40:967(A). He pled not guilty at arraign^ ment. Defendant filed several pre-trial motions, including a 'motion to suppress evidence. After a hearing on March 8, 2007, the trial court denied defendant’s motion to suppress. After a one-day trial on April 24, 2007, the jury found defendant guilty as charged. He-filed a motion for new trial, which' was denied by the trial court. The trial court sentenced defendant to T5 years at hard labor with the first two years to be served without benefit of parole, probation or suspension of sentence. Defendant appeals.

FACTS

At trial, Deputy Robert Miles and Deputy Justin Brown of the Jefferson Parish Sheriffs Office testified that they were on patrol in Jefferson Parish on | ?,October 4, 2006. At approximately 10:30 p.m., they were stopped in the parking lot of a Baker’s Dozen donut shop when they saw defendant and an unidentified man come from around the corner of the shop. According to Deputy Miles, the business appeared abandoned and was in a high crime area. Defendant threw a cup on the ground, which Deputy Miles described as littering. Deputy Brown also saw one of the men throw down a cup. The officers ordered the men to pick up the cup.

Deputy Miles and Deputy Brown decided to question the two men about the littering violation and to investigate what they were doing behind the closed or abandoned business late at night. For their safety, the officers asked the two men to step over to their police car. Deputy Miles began to question the men about their activities, and he asked them for identification. At that time, defendant acted as if he was choking or coughing. According to Deputy Brown, defendant was doubled over, as if he was ill. Deputy Miles asked defendant if he was choking. When Deputy Brown moved closer to defendant, he pushed Deputy Brown and began to run.

Deputy Brown chased defendant on foot, never losing sight of him. Deputy Miles pursued defendant in his vehicle. During the chase, Deputy Brown observed defendant reach into his pocket with his right hand, pull out two plastic bags, and discard them. The bags landed in the street. As Deputy Miles was exiting his vehicle, he also observed defendant stick his hand into his right pocket and throw two off-white colored objects that struck a parked vehicle and landed in the street. While pursuing defendant, both deputies lost sight of the other man. Deputy Miles testified that the other man was not his primary concern because he had not committed a battery on a police officer or any other crime in his presence.

^Defendant was subsequently apprehended and placed under arrest. Deputy Miles retrieved the objects defendant had thrown, which he described as two individual packages containing rocks of crack cocaine. Deputy Miles testified that the packaging was consistent with the sale of narcotics. When asked if he found proceeds from the sale of narcotics on defendant, Deputy Miles replied, “We found some cash.”

Thomas Angelica, a forensic scientist for the Jefferson Parish Sheriffs Office, testified that the off-white material in the two plastic bags tested positive for cocaine. The net weight of the cocaine was approximately 11.13 grams.

Lieutenant Bruce Harrison of the Jefferson Parish Sheriffs Office, an expert in the use, packaging, distribution, and value of controlled dangerous substances, testified that the drugs in this case were in very large chunks and could be cut into smaller pieces for resale. The weight of the drugs, based on his visual inspection, was consistent with possession with intent to distribute. He stated that the value of the drugs seized would be approximately $400 to $500, which was not consistent with personal use. Rather, the value was consistent with a business operation. This amount of drugs, after being cut into smaller pieces, could be sold on the street for between $1000 and $2000, depending on the number of pieces.

Defendant testified that on the night in question, he was coming from his house, which is three houses away from Baker’s Dozen. When he was asked by the police if he was going to leave the cup on the ground, he told them that the cup did not belong to him but he would pick it up. He testified that when he brought the cup to the police officer, the officer told him that he looked like a drug dealer and told him to place his hands on the car. Defendant stated that he complied. Robert, the man walking with him that night, also placed his-hands on the car. The officers began to question defendant about drugs, but defendant told them that he | sdid not know about any drugs or have drugs because he had only been released from prison for six weeks. He told the officers that he had just finished serving a sixteen-month sentence. Defendant claimed that he was not in possession of the drugs recovered by the police, but it was possible that the other man he was with threw down the drugs. He also claimed that he did not push one of the deputies.

DISCUSSION

In his first assignment of error, defendant asserts that the trial court committed manifest error by accepting the jury’s guilty verdict despite the fact that the record does not contain sufficient evidence to establish that defendant — not the unidentified male with defendant — was in possession of illegal drugs. However, defendant does not brief the issue of sufficiency of the evidence on appeal. Rather, in his brief, he argues that the trial court erred in denying his motion to suppress the evidence.

Assignments of error that are neither briefed nor argued are considered abandoned on appeal. Uniform Rules Courts of Appeal, Rule 2-12.4. Since defendant has failed to brief the assigned sufficiency errors, they are abandoned and will not be addressed. However, we will address defendant’s arguments regarding the motion to suppress evidence, which was briefed on appeal.

Defendant argues that the trial court erred in denying his motion to suppress evidence, because the drugs discovered by the officers were obtained as the result of an illegal arrest. He contends that the police did not observe him engaging in any illegal activity. Defendant claims that the drugs either belonged to the other man or the drugs were just lying on the ground in a drug infested high crime section of the city. The State responds that the officers had reasonable suspicion to stop | (¡defendant because they observed him littering and walking from behind a closed or abandoned building at night in a high drug trafficking area. The State claims the officers’ experience with drug activity occurring in this manner gave them reasonable suspicion to justify the investigatory stop.

The Fourth Amendment to the United States Constitution and the Louisiana Constitution Article 1 § 5 protect individuals from unreasonable searches and seizures. State v. Massey, 03-1166, p. 4 (La.App. 5 Cir. 1/27/04), 866 So.2d 965, 968. Law enforcement officers are authorized by LSA-C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to perform investigatory stops, which permits officers to stop and interrogate a person who is reasonably suspected of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Gresham, 97-1158, p. 10 (La.App. 5 Cir. 4/15/98), 712 So.2d 946, 951, writ denied, 98-2259 (La.1/15/99), 736 So.2d 200. The Terry standard, as codified in LSA-C.Cr.P. art. 215.1, authorizes a police officer “ ‘to stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense’ and to demand that the person identify himself and explain his actions.” State v. Melancon, 03-514, p. 5 (La.App. 5 Cir. 10/28/03), 860 So.2d 225, 229, writ denied, 03-3503 (La.4/23/04), 870 So.2d 297. Without reasonable suspicion, an investigatory stop is illegal and the evidence seized from that stop is suppressible. State v. Triche, 03-149, p. 6 (La.App. 5 Cir. 5/28/03), 848 So.2d 80, 84.

An area with the reputation of having “high crime” is an articulable fact upon which the police may rely and is relevant in the determination of whether there is reasonable cause to conduct an investigatory stop. State v. Barney, 97-777, pp. 4-5 (La.App. 5 Cir. 2/25/98), 708 So.2d 1205, 1207. Flight, nervousness, or a startled look at the sight of a police officer is insufficient to justify an [7investigatory stop by itself. Id. However, these types of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable suspicion. Massey, 03-1166 at p. 5, 866 So.2d at 968. In addition, a police officer’s experience, his knowledge of recent criminal patterns and his knowledge of an area’s frequent incidence of crimes, are factors that may support a finding of reasonable suspicion for an investigatory stop. Id. at p. 6, 866 So.2d at 969.

On a motion to suppress evidence, the State has the burden of establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D), State v. Manson, 01-159, p. 5 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755. A trial court’s denial of a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Gagnon, 01-1302, p. 8 (La.App. 5 Cir. 4/10/02), 817 So.2d 167, 171. The appellate court may consider the evidence adduced at the hearing on the motion to suppress, as well as all pertinent evidence given at the trial of the case, in determining whether a motion to suppress ruling was correct. State v. Roche, 05-237, pp. 7-8 (La.App. 5 Cir. 4/25/06), 928 So.2d 761, 765, writ denied, 06-1566 (La.1/8/07), 948 So.2d 120.

In the present case, both officers testified at the suppression hearing and at trial that they observed defendant and his companion come from around the back of an abandoned building and drop a cup. This littering violation alone gave the officers reasonable suspicion to stop defendant. The officers decided to question the two men concerning their activities behind the closed or abandoned building late at night. Officer Miles testified that the incident took place in a high drug and crime area. In fact, the business that defendant came from behind had previously been the site of drug activity. Defendant’s actions in this high crime area at night |sgave the officers reasonable suspicion to believe that he was involved in other criminal activity. Therefore, the officers had reasonable suspicion to stop defendant and to demand that he identify himself and explain his actions.

Once defendant ran and discarded the drugs, the officers had the legal right to seize them to be used in the resulting prosecution. Property may be lawfully seized and used against the citizen in a resulting prosecution, if a citizen abandons or otherwise disposes of property prior to any unlawful intrusion into the citizen’s right to be free from governmental interference. State v. Butler, 01-0907, p. 11 (La.App. 5 Cir. 2/13/02), 812 So.2d 120, 127.

Considering the totality of the circumstances in this case, we find no error in the trial judge’s denial of defendant’s motion to suppress.

In his second assignment of error, defendant asserts that the trial court committed reversible error by arbitrárily allowing the State to present to the jury defendant’s prior bad acts as support for its contention that defendant must have been in possession of illegal drugs because of his criminal disposition. He claims that the testimony of Deputy Miles concerning other crimes allegedly committed by defendant on the same day, i.e., a battery on a police officer, was evidence of other crimes, wrongs, or acts that prejudiced him, because it gave the jury the impression that he was a career criminal and, therefore, was in possession of the drugs.

The State argues that defendant proceed to trial without a ruling on his motion in limine. Therefore, it is waived. In addition, the State argues that even if the testimony was an impermissible reference to other crimes, it was unattributable to the verdict because of the overwhelming evidence against defendant.

“If a defendant does not object to the trial court’s failure to rule on a motion prior to trial, the motion is considered waived.” State v. Ruffin, 02-798, p. 16 (La.App. 5 Cir. 12/30/02), 836 So.2d 625, 636, writ denied, 03-3473 (La.12/10/04), 888 So.2d 831. To preserve the right to seek appellate review of an alleged trial court error, the party alleging the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. LSA-C.Cr.P. art. 841; State v. Browning, 06-929, p. 9 (La.App. 5 Cir. 4/11/07), 956 So.2d 65, 72. The purpose behind this rule is to put the trial judge on notice of an alleged irregularity, thereby allowing the trial judge the opportunity to make the proper ruling and correct any claimed prejudice to the party alleging the error. Id.

In the present case, on the day of trial, defendant filed a motion in limine to exclude any reference to the crime of battery of a police officer. However, the record indicates that defendant proceeded to trial without a ruling on the motion in limine. Therefore, this issue was waived and should not be considered. • However, even if we consider this issue, defendant’s argument is without merit.

“[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” LSA-C.E. art. 404(B)(1). However, “evidence of other crimes, wrongs or acts may be introduced when it is independently relevant or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.’ ” Id.; State v. LaGarde, 07-288, p. 8 (La.App. 5 Cir. 10/30/07), 970 So.2d 1111. It is required that there be a close connexity between the charged and uncharged conduct to ensure that the purpose of the admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the narrative of the crime for which the defendant is currently on trial by proving the immediate context of happenings near in time and place. State v. Taylor, 01-1638, p. 10 (La.1/14/03), 838 So.2d 729, 741, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004).

| min the present case, the alleged battery of Deputy Brown was admissible because it was an integral part of the crime for which defendant was on trial. There was a close temporal connection between the two incidents. During the investigatory stop, defendant pushed Deputy Brown and ran. The officers chose to pursue defendant, instead of the man with defendant, because of this battery. As the officers pursued defendant, they observed him discard the drugs that were retrieved by the officers and that formed the basis of the charges brought against defendant.

Considering the evidence before us, we find that Officer Miles’ testimony regarding defendant’s alleged battery on a police officer was admissible, because it was an integral part of the transaction at issue in this case.

ERRORS PATENT

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals that there are two errors patent.

First, the record indicates that the trial judge failed to notify defendant of the two-year prescriptive period for filing an application for post-conviction relief, as required by LSA-C.Cr.P. art. 930.8. Although the commitment/minute entry indicates that defendant was advised of the prescriptive period for filing for post-conviction relief, the sentencing transcript indicates that he was not so advised. When there is a discrepancy between the transcript and the eommitment/minute entry, the transcript governs. See State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand the case and order the trial court to inform defendant of the appropriate prescriptive period for filing for post-conviction relief by sending appropriate written notice to defendant within ten days of the rendition of this Court’s opinion and by filing written proof that defendant received the notice in the _Jjjrecord. See State v. Mutz, 04-1072, p. 9 (La.App. 5 Cir. 2/15/05), 896 So.2d 1129, 1135.

Second, defendant filed a motion to reconsider sentence on May 17, 2007, but the record does not indicate that the trial court ruled on this motion. Although defendant does not challenge his sentence on appeal, we must remand the case for the trial court to rule on the motion to reconsider sentence and for supplementation of the record with the results. State v. Badeaux, 01-618, p. 7 (La.App. 5 Cir. 11/27/01), 802 So.2d 905, 909, writ denied, 01-3403 (La.10/4/02), 826 So.2d 1121; State v. Simmons, 00-1037, p. 7 (La.App. 5 Cir. 2/28/01), 781 So.2d 821, 826.

DECREE

For the foregoing reasons, we affirm defendant’s conviction. We remand the case and order the trial court to send written notice to defendant of the prescriptive period for filing an application for post-conviction relief. We further order the trial court to rule on defendant’s motion to reconsider sentence, if it has not already done so.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Deputy Brown identified defendant in court as the man who pushed him and ran.

      . Defendant testified that the sixteen-month sentence was for false imprisonment with a weapon. At trial, defendant also admitted that he previously was convicted for being a convicted felon in possession of a firearm in 1994, possession of cocaine in 1992, and burglary in 1976. ■