author: JUDE G. GRAVOIS, Judge.

text:
    Elizabeth L. WEISS and John Weiss v. MAZDA MOTOR CORPORATION, Mazda Motor of America, Inc. Royal Oldsmobile/Mazda Company, Inc. and XYZ Insurance Company.
    No. 10-CA-608.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 23, 2010.

      Wayne W. Yuspeh, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Keith W. McDaniel, Lance B. Williams, Quincy Crochet, Attorneys at Law, Cov-ington, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

| .¿Plaintiffs, Elizabeth and John Weiss, have appealed the trial court’s grant of the defendants’ Motion for Summary Judgment. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On March 16, 1999, plaintiffs filed suit against Mazda Motor Corporation of America, Inc. (“Mazda”) and Royal Oldsmobile/Mazda Co., Inc. alleging that Mrs. Weiss was injured when the air bags deployed in her 1994 Mazda MX3. The petition alleges that the air bags deployed upon impact when Mrs. Weiss struck a parked vehicle while driving at a slow rate of speed. Plaintiffs allege that the air bags caused severe injuries to Mrs. Weiss including multiple fractures in her arm, injuries to her eye, and severe contusions and bruising throughout her body, resulting in permanent injury. Mr. Weiss alleged that he sustained loss of consortium due to the injuries sustained by his wife.

13On November 25, 2009, the defendants filed a Motion for Summary Judgment claiming that the plaintiffs cannot sustain their burden of proof under the Louisiana Products Liability Act. Plaintiffs opposed the motion arguing that the failure to provide an adequate warning explaining how and when the air bags would deploy and failure to explain that severe injury could occur to the driver if the air bags deployed rendered the vehicle unreasonably dangerous. The defendants filed a reply to plaintiffs’ opposition repeating their argument. Plaintiffs then supplemented their opposition with the deposition of Mrs. Weiss’s treating physician. At a hearing on March 9, 2010, the plaintiffs were granted a continuance on the arguments of the motion to allow their attorney time to obtain affidavits from both plaintiffs. These affidavits were obtained and the merits of the motion were argued on March 30, 2010. Following the hearing, the trial judge took the matter under advisement and then rendered judgment granting the defendants’ motion for summary judgement. Plaintiffs have appealed this judgment.

APPLICABLE LAW

Appellate courts conduct a de novo review of a summary judgment under the same criteria which govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730. The summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by law. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to |4material fact and that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The burden of proof remains with the movant. La. C.C.P. art. 966(C)(2). When the moving party, who will not bear the burden of proof at trial on the matter before the court on summary judgment, points out an absence of support for one or more elements essential to the adverse party’s claim, action or defense, the non-moving party must produce support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. If the non-moving party fails to do so, there is no genuine issue of material fact for trial and summary judgment is appropriate. La. C.C.P. arts. 966 and 967.

The Louisiana Product Liability Act (“the LPLA”), which is set forth in Louisiana Revised Statutes 9:2800.51, et seq., establishes the exclusive theories of liability for manufacturers for damages caused by their products. LSA-R.S. 9:2800.52. Specifically, the LPLA provides that “[t]he manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product.” LSA-R.S. 9:2800.54A. A product may be deemed “unreasonably dangerous” due to its composition or construction, its design, the manufacturer’s failure to provide adequate warning, or the product’s failure to conform to an express manufacturer’s warranty. LSA-R.S. 9:2800.54B. It is the burden of the claimant seeking recovery to prove that the product is unreasonably dangerous. LSA-R.S. 9:2800.54D. The existence of a vice or defect in a product will not be inferred on the sole fact that an accident occurred. Jaeger v. Automotive Casualty Ins. Co., 95-2448 (La.App. 4 Cir. 10/9/96), 682 So.2d 292, 298, writ denied, 96-2715 (La.2/7/97), 688 So.2d 498.

\ ARGUMENTS OF THE PARTIES

In the case at bar, plaintiffs initially claimed the Mazda was defective in that it was improperly designed and manufactured, that there was a breach of express and implied warranties, and that there was a failure to warn of severe potential injures from the air bag deploying in low speed impacts. However, by the time the matter proceeded to the hearing on the defendants’ Motion for Summary Judgment, plaintiffs’ counsel stated that plaintiffs had abandoned all theories of liability and their claim was based solely on the theory of inadequate warning.

With reference to the allegation that Mazda failed to provide adequate warning, in their Motion for Summary Judgment, the defendants argued that plaintiffs cannot prove that the subject vehicle was unreasonably dangerous due to a warning defect. The defendants acknowledge that the LPLA requires a manufacturer to provide adequate warnings about its product if the product possesses a characteristic that may cause damage. The defendants argue, however, that in order to prevail on an inadequate warning claim, the plaintiffs must not only show the warning was inadequate, they must also propose an adequate warning that if provided would lead an ordinary reasonable user to contemplate the danger in using the product in such a manner as to avoid the danger for which the claim is made. The defendants argue that the plaintiffs failed to identify a particular defective warning and have not identified an expert witness to testify regarding the warnings used or to propose an alternative warning.

In their opposition memorandum, plaintiffs cited excerpts from the owner’s manual stating that the “air bags will inflate only during a frontal or near-frontal collision that is at least moderate in force.” Plaintiffs contend that the accident in question was not a “true ‘frontal collision’ ” but rather a “glancing blow to the front edge/side of the car.” They argue that it occurred at low speed which “certainly | ¿was not at least ‘moderate’ in force.” Plaintiffs point out that there are no definitions of the words “moderate impact” in the manual. They conclude that the implication to the ordinary driver, like Mrs. Weiss, was that the seat belts work to protect you in an accident such as the one Mrs. Weiss incurred and that the air bags deploy in a high speed severe impact. They further argue that there is no warning whatsoever stating that severe injury could occur from the air bags deploying, which alone makes the warning inadequate and the car unreasonably dangerous in normal use. Additionally, plaintiffs state that Mrs. Weiss’s seat was positioned as far back as possible and she still suffered severe permanent injuries from the air bags.

In support of these arguments, plaintiffs submitted the deposition testimony of Mr. and Mrs. Weiss. Mrs. Weiss testified that she was driving 20 miles per hour or less at the time she struck the parked vehicle. She did not think she applied her brakes before striking the vehicle. Mrs. Weiss explained that she was wearing her seat belt, her seat was positioned back as far as it would go at the time of the accident, and the driver’s side air bag deployed upon impact. Mrs. Weiss testified that when she was shopping for this car, safety was the first criteria. She explained that this was the first vehicle she owned with an air bag and she read the owner’s manual right after she purchased the vehicle. She did not recall any specific information contained in the owner’s manual regarding the air bags, but she assumed that the air bags would provide “great safety at high speeds.”

In the portions of Mr. Weiss’s deposition that were submitted by plaintiffs, Mr. Weiss testified that he had also read the owner’s manual for the vehicle immediately after they purchased the car. He explained that from reading the manual, it was his impression that the air bag would deploy in a frontal collision on |7a highway. He expounded that he did not expect the air bags to deploy in an accident that occurred at 20 miles per hour.

In their reply to plaintiffs’ opposition, defendants again argue that the plaintiffs cannot prevail on their inadequate warning claim. The defendants contend that plaintiffs have not established that the vehicle’s supplemental restraint system contained a dangerous characteristic nor they have presented any admissible evidence of a proposed alternative adequate warning or shown that an alternative warning would have changed the behavior of an ordinary reasonable user. Defendants further argue that plaintiffs failed to present any proof that an alternative warning would have prevented plaintiffs’ damages. They contend that the possible proposed alternative warning as argued in plaintiffs’ opposition is insufficient to carry their burden of proof. Further, the defendants contend that the plaintiffs have not shown that the air bag caused Mrs. Weiss’s injuries.

In response to the defendants’ arguments, the plaintiffs submitted the deposition of Dr. Joseph Rauchwerk, Mrs. Weiss’s treating physician. Dr. Rauch-werk testified that the impact from the air bag caused the injury to Mrs. Weiss’s arm. Plaintiffs were also granted a continuance in order to submit their own affidavits. In her affidavit, Mrs. Weiss attests that safety was a prime concern in purchasing this car and if she had known that the air bag can deploy in a non-frontal impact from accident at speeds of 20 miles per hour or less and can cause severe permanent injury even if the seat is positioned all the way back, she would not have purchased this car. She also attests that had she read this information in the owner’s manual after purchasing the car, she would have returned the car immediately. Mr. Weiss makes the same attestations in his affidavit. Additionally, Mr. Weiss attests that he had the air bags dismantled shortly after this accident due to his fear of them deploying and causing damage in a slow speed collision.

|RAt the hearing on the motion, the defendants pointed out that the accident was due to the fault of Mrs. Weiss who drove her vehicle into a parked car. The defendants repeated their argument that the plaintiffs have failed to submit an alternative adequate warning or a proposed alternative adequate warning that would have led an ordinary reasonable user to do something differently. The defendants further argued that the plaintiffs’ self-serving affidavits do not carry their burden under the LPLA. The defendants contend that these affidavits only state what the plaintiffs would have done if there had been an additional warning; however, plaintiffs’ burden under the LPLA is to prove what a reasonable ordinary user would have done differently had there been an additional warning.

The plaintiffs argued that the LPLA does not require the plaintiff to provide an alternate warning. Citing LSA-R.S. 9:2800.57, plaintiffs argued that the defendant failed to provide an adequate warning that the vehicle possessed a characteristic that may cause damage, i.e., an air bag exploding at high velocity in a 20 miles per hour crash. The plaintiffs contend that this was not a frontal collision; however, after some discussion with the trial judge, plaintiffs’ counsel admitted that this was a near frontal collision. The plaintiffs then argued that because “moderate accident” was not defined in the owner’s manual, an ordinary person does not know what that term means, rendering the warning inadequate.

In rebuttal, the defendants argued that the plaintiffs failed to hire an expert to determine the speed and force of the accident. The defendants concluded that the plaintiffs failed to show that a reasonable ordinary user would have acted differently if there had been a different warning.

ANALYSIS

LSA-R.S. 9:2800.57 provides in pertinent part:

LA. A product is unreasonably dangerous because an adequate warning about the product has not been provided if, at the time the product left its manufacturer’s control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.
B. A manufacturer is not required to provide an adequate warning about his product when:
(1) The product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the community as to the product’s characteristics; or
(2) The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.

The LPLA defines “adequate warning” as “a warning or instruction that would lead an ordinary reasonable user or handler of a product to contemplate the danger in using or handling the product and either decline to use or handle the product or, if possible, to use or handle the product in such a manner as to avoid the damage for which the claim is made.” LSA-R.S. 9:2800.53(9).

To recover under the theory of failure to warn, the plaintiffs bear the burden of establishing that (1) “the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product”; and (2) that the failure to do so proximately caused the claimant’s injuries. LSA-R.S. 9:2800.54 and 2800.57.

As discussed above, the defendants contend that the plaintiffs cannot carry their burden under the LPLA because the plaintiffs failed to present competent evidence to determine the speed and force of the accident or to show that an ordinary reasonable ordinary user would have acted differently if there had been a different warning. Plaintiffs simply respond that the provided warnings were not adequate to alert them of the risk of injury from the air bag due to a low speed [ incollision, specifically arguing at the hearing that the term “moderate force” was not defined.

In opposing a Motion for Summary Judgment on a failure to warn claim, a “mere allegation of inadequacy” is insufficient for a plaintiff to show they will be able to carry their burden of proof at trial. Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 265 (5th Cir.2002).

Plaintiffs’ sole evidence consists of portions of the owner’s manual and the self-serving affidavits of plaintiffs attesting that had they known of the risk of injury from the air bags at a slow speed accident, they would not have purchased the vehicle. While plaintiffs have submitted the testimony of Mrs. Weiss stating that she was going “around 20 [miles per hour] or less” at the time of impact and that she did not think she applied her brakes before impact, there is no specific evidence regarding the force of the impact. Although plaintiffs state in several pleadings that this was not a frontal or near frontal accident, at the hearing on the motion, plaintiffs’ counsel conceded that this accident was a near frontal accident. The evidence and arguments presented by plaintiffs indicate that they were adequately warned that the air bags could deploy in a near frontal accident of moderate impact. Plaintiffs have not come forth with competent evidence to show that the accident in question was of less than moderate impact. Since the plaintiffs cannot prove that the accident in question resulted in a less than moderate impact, plaintiffs cannot carry their burden of proving that the defendants’ warning was inadequate. In other words, plaintiffs have failed to show that they will be able to carry their burden of proving that the defendants’ alleged failure to warn that the air bags could deploy at an accident that occurs at low speed resulting in a less than moderate impact was the proximate cause of the plaintiffs’ injuries.

| ^Plaintiffs also argue that there is no warning whatsoever in the owner’s manual stating that severe injury could occur from the air bags deploying. However, plaintiffs have not submitted the entire owner’s manual. Rather, they have submitted only select portions of the owner’s manual. Accordingly, plaintiffs have not shown that the manual is void of any warning stating that severe injury could occur from the air bags deploying.

Finally, plaintiffs argue that the LPLA does not require them to produce an alternative warning in order to carry their burden of proof under the LPLA. While the wording of the LPLA does not specifically state that a proposed alternative warning must be produced, there is at least one case in which the court interpreted the LPLA to require the plaintiff to produce an alternative warning. In Seither v. Winnebago Industries, Inc. 2002-2091, (La.App. 4 Cir., 7/2/03), 853 So.2d 37, 42, writ denied, 03-2797 (La.2/13/04), 867 So.2d 704, the court stated:

At trial, plaintiffs presented no evidence on any of the components of an inadequate warning claim. Plaintiffs did not present expert testimony concerning warnings, nor did they present any language of a proposed adequate warning. Indeed, the only possible warning could have been not to crash the vehicle into a tree. Because plaintiff failed to present any evidence on a warning claim, the trial judge abused his discretion in failing to render the directed verdict.

In the case at bar, the only alternative warning presented by the plaintiffs is that of the argument of plaintiffs’ counsel who formulated a specific potential alternative warning stating that deployment of air bags can occur in non-frontal impacts occurring at slow speeds of 20 miles per hour or less. Since plaintiffs’ counsel conceded that the accident in question was a near frontal collision, even if this alternative warning was considered to be competent evidence, it would not be applicable to plaintiffs’ accident.

^CONCLUSION

For the foregoing reasons, the grant of the defendants’ Motion for Summary Judgment is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: EDWARD A. DUFRESNE, JR., Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Nicholas V. TRANCHANT.
    No. 10-KA-459.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 23, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Anthony L. Glorioso, Attorney at Law, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JUDE G. GRAVOIS, and MARC E. JOHNSON.
   EDWARD A. DUFRESNE, JR., Chief Judge.

IgOn July 26, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Nicholas V. Tran-chant, with attempted aggravated rape upon an adult female in violation of LSA-R.S. 14:27 and LSA-R.S. 14:42, and aggravated burglary in violation of LSA-R.S. 14:60. At the July 27, 2006 arraignment, defendant pled not guilty.

On September 28, 2006, defendant filed a motion for mental examination, alleging a history of mental illness and seeking a mental evaluation to determine his sanity at the time of the commission of the offense. On October 4, 2006, the trial court granted defendant’s request for the appointment of a sanity commission and set the matter for a competency hearing. Pursuant to the court’s order, Dr. Rafael Salcedo, a forensic psychologist, and Dr. Richard Richoux, a forensic psychiatrist, examined defendant, and on October 11, 2006, issued a written report wherein they concluded that defendant was competent to proceed to trial. With regard to defendant’s mental state at the time of the alleged offense, Dr. Salcedo and Dr. Ri-choux advised the court that they had insufficient data upon which to prender an opinion and requested additional information and documentation regarding defendant’s history and the alleged offense.

At the competency hearing on October 25, 2006, the parties stipulated that Dr. Salcedo and Dr. Richoux would testify in accordance with their October 11, 2006 report. Based on his review of the report, the trial judge found defendant competent to stand trial. Following this determination, defendant withdrew his plea of not guilty and entered a plea of not guilty and not guilty by reason of insanity.

On November 3, 2006, defendant filed a notice of insanity defense pursuant to LSA-C.Cr.P. art. 726. Thereafter, on November 6, 2006, newly retained counsel filed a motion for appointment of a sanity commission “to make an examination as to the defendant’s mental condition at the time of the offense and at the present time.” On November 9, 2006, the trial judge granted this motion.

On February 14, 2007, pursuant to court appointment and after reviewing additional information provided by defense counsel, Dr. Salcedo and Dr. Richoux issued a report regarding their follow-up examination of defendant. In this report, the doctors recommended to the court that defendant was legally sane at the time of the offense. However, on March 21, 2007, the court vacated its previous order which granted the sanity commission the authority to make a determination as to defendant’s competency at the time of the alleged offense.

On May 15, 2008, defendant withdrew his not guilty plea, and after being advised of his constitutional rights, pled guilty as charged. In accordance with the plea agreement, the trial judge sentenced defendant to twenty years imprisonment at hard labor on each count, to run concurrently, without benefit of parole, probation, or suspense of sentence.

|4On February 5, 2009, defendant filed a motion for post-conviction relief, motion to reconsider sentence, and motion to withdraw guilty plea. On February 18, 2009, the trial court denied the motions. In denying defendant’s motion to withdraw guilty plea, the trial court found that he was not entitled to the relief sought because his plea was not constitutionally infirm. On March 13, 2009, defendant filed a uniform application for post-conviction relief alleging that his guilty plea was involuntary because he lacked the capacity to understand the nature of the charges and the consequences of his guilty plea. The trial court, on April 1, 2009, denied defendant’s application on the grounds that his claim was procedurally barred pursuant to LSA-C.Cr.P. art. 930.4. On April 21, 2009, defendant filed another application for post-conviction relief requesting an out-of-time appeal. On May 4, 2009, the district court granted defendant’s request for an out-of-time appeal. It is in this posture that the ease is presently before this Court.

VALIDITY OF GUILTY PLEA

In his first two assigned errors, defendant challenges the validity of his guilty plea. He contends that the plea was not freely and voluntarily given because the trial court improperly allowed him to plead guilty without withdrawing his plea of not guilty by reason of insanity. In addition, defendant contends that the trial court failed to advise him of his right to pursue the defense of insanity before accepting his guilty plea. According to defendant, his plea is constitutionally deficient and should be vacated.

In response, the State contends that defendant’s plea was freely and voluntarily made and points out that the trial judge fully informed defendant of his constitutional rights and also made a determination that defendant was competent to enter into the plea agreement.

| ¡¡If a defendant pleads guilty, he normally waives all non-jurisdietional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Additionally, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

We have reviewed the record in the instant case and find that there is no evidence to indicate that defendant’s guilty plea was constitutionally infirm in any way. On May 15, 2008, defendant informed the court that he wished to withdraw his former plea of not guilty and enter a plea of guilty as charged. The record indicates that prior to the actual hearing, defense counsel completed an acknowledgment and waiver of constitutional rights form with defendant. The form, which was signed by the trial judge, the defendant, and the defense counsel specifically informed defendant of his right to trial by jury, his right to confront his accusers, and his right to remain silent. In the waiver of rights form, defendant initialed next to each of these rights and signed the form, indicating that he understood that he was waiving these rights prior to pleading guilty.

In addition to the execution of this form, the trial judge personally addressed defendant in open court. The trial judge advised defendant of the nature of the charges to which he was pleading and further advised him of his right to a jury | (¡trial, his right to confrontation, and his privilege against self-incrimination. During the colloquy, defendant indicated that he understood these rights and that by pleading guilty, he was waiving those rights.

Defendant was further advised, during the colloquy with the trial court and via the waiver of rights form, of the possible sentences that he could receive and of the actual sentences which would be imposed upon acceptance of his plea. Both in the colloquy and the waiver of rights form, defendant indicated that he understood the sentencing range and also understood that he would be sentenced to twenty years at hard labor on each count, to run concurrently. Defendant was also advised that the State had agreed not to file a multiple offender bill of information. He was further advised that he would be found to be a sex offender as defined in LSA-R.S. 15:536, and that he would be required to comply with certain additional requirements and regulations applicable to sex offenders, which he acknowledged as receiving and understanding.

Defendant further indicated that he was satisfied with the representation of his attorney. He stated that he had not been forced, coerced, or threatened to enter his guilty plea.

Prior to accepting defendant’s guilty plea, the trial court requested that the State set forth the factual basis of the charges against defendant, which defendant admitted to committing. Finding defendant competent to enter into the proposed plea agreement, the trial court specifically determined (1) that defendant was aware of the nature of the crimes to which he pled guilty; (2) that defendant did, in fact, commit the crimes to which he pled guilty; and (8) that defendant understood the consequences of his pleas of guilty, and that he made a knowing, intelligent, free and voluntary act of pleading guilty. As such, the trial court accepted defendant’s guilty plea and sentenced him in accordance with the plea agreement.

|7Pespite defendant’s assertions to the contrary, we find that his plea was freely and voluntarily given. Both the transcript of the plea colloquy and the waiver of rights form show that defendant was advised of his constitutional rights, the nature of the crimes charged, and the consequences of his guilty plea. Throughout the proceedings, defendant indicated that he understood his rights and the consequences of his guilty plea. Accordingly, we cannot say that defendant’s guilty plea was constitutionally infirm in any way.

Defendant does not allege that the trial court failed to advise him of his constitutional rights, nor does he allege that he was coerced in any way to enter his plea. Rather, defendant alleges that his plea is constitutionally deficient because the trial court allowed him to plead guilty without withdrawing his plea of not guilty by reason of insanity and further failed to advise defendant of his right to pursue the insanity defense. However, defendant fails to cite any authority that would support a finding that his plea was constitutionally deficient on these grounds.

As part of his argument on appeal, defendant asserts that, despite evidence of mental illness and mental retardation, the trial judge made no attempt to determine whether defendant was able to understand the consequences of his guilty plea or to inform him that he may have been waiving his plea of not guilty by reason of insanity. Defendant also contends that the trial judge made no attempt to determine whether he was allowed to continue medication while incarcerated or to interrogate defendant regarding his education.

A defendant in a criminal case is presumed sane and responsible for his actions and the defendant has the burden of proving otherwise. The standard of proof is by a preponderance of the evidence and the defendant must show that it was more probable than not that he lacked mental capacity to enter the guilty plea. State v. Wry, 591 So.2d 774, 780-781 (La.App. 2 Cir.1991); State v. Dorsey, 447 So.2d 636, 637 (La.App. 1 Cir.1984). As noted by the trial court in its February 18, 2009 order denying defendant’s motion to withdraw guilty plea, defendant failed to provide any documentation to support his allegation that his mental disorders prevented him from entering a free and voluntary plea to the charged offenses. Moreover, defendant had the opportunity to inform the court if he was under the influence of medication or for any other reason failed to understand the proceedings against him. We further note that both the attorney and the court observed defendant at the time of his guilty plea and found no reason to question defendant’s ability to follow the court proceedings. Lastly, we note that defendant had, in fact, been found competent to proceed to trial.

Based on the foregoing discussion, we find no merit to defendant’s arguments pertaining to the validity of his guilty plea.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his third assigned error, defendant contends that he failed to receive effective assistance of counsel. As noted by the State, defendant does not actually specify a deficient act on the part of trial counsel, nor does he specifically assert that he was prejudiced by his counsel’s deficient performance. Rather, defendant, in his appellate brief, contends that “[t]he court approved examination of Tranchant by Dr. Biswas should have been obtained and a hearing that was granted by the trial judge should have been held in order to determine Tranchant’s sanity at the time of the offense. Although such a hearing prior to trial is not guaranteed to a defendant, the court did grant the hearing which was never held.” Defendant does not assign blame for the aforementioned failures, does not include any argument regarding a deficient act on the part of trial counsel, and does not brief, in any manner, what prejudice he suffered as a result of trial counsel’s actions.

| ^According to Rule 2-12.4 of the Uniform Rules, Courts of Appeal, all specifications or assignments of error must be briefed, and the appellate court may consider as abandoned any specification or assignment of error which has not been briefed. Because defendant’s limited briefing of assignment of error three does not contain sufficient information to support an ineffective assistance of counsel claim, we consider this assignment of error abandoned.

ERROR PATENT DISCUSSION

We have also conducted a review of the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors which require corrective action.

Accordingly, for the reasons set forth herein, we affirm defendant’s convictions and sentences.

DEFENDANTS CONVICTIONS AND SENTENCES AFFIRMED.

      . Under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the decision to plead guilty will not be considered to be free and voluntary unless, at the very least, the defendant was advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. State v. Ursin, 98-435 (La.App. 5 Cir. 10/28/98), 720 So.2d 1248, 1249.


author: CHATELAIN, Judge.

text:
    STATE in the Interest of K.E.C.
    No. 10-953.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, Louisiana, for Juvenile, K.E.C.
    Trent Brignac, District Attorney, Julhe-lene E. Jackson, Assistant District Attorney, Ville Platte, Louisiana, for State of Louisiana.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge.

h This matter involves the trial court’s adjudication of a juvenile as delinquent for committing simple burglary of a religious building and theft of more than $500. Finding an error patent on the face of the pleadings and proceedings, we reverse and set aside the trial court’s adjudication and dismiss the petition against the juvenile.

FACTS AND PROCEDURAL HISTORY

On January 5, 2010, Juvenile Officer Zelda Deshotel filed a petition alleging that on or about July 19, 2009, K.E.C., who was thirteen years of age at the time, violated La.R.S. 14:62.2, simple burglary of an inhabited dwelling; La.R.S. 14:62.3, unauthorized entry of an inhabited dwelling; La.R.S. 14:67, theft of more than $500; La.R.S. 14:63, criminal trespass; and La. R.S. 14:59, criminal mischief. All of these alleged crimes either involved personal items belonging to Father Brian J. Taylor or cash money belonging to Saint Augustine Catholic Church in Basile, Louisiana (St. Augustine’s). The personal items and the cash were all located in the rectory at the time the crimes occurred. Based upon these criminal allegations, Officer Deshotel petitioned the court to declare K.E.C. a delinquent child. On January 5, 2010, K.E.C., accompanied by his grandmother and counsel, entered a denial to the allegations detailed in the petition. At that time, the trial court accepted KE.C.’s denial of the allegations, continued his release on bond, and set his trial for April 27, 2010.

The matter went to trial on April 27, 2010, to determine whether K.E.C. should be declared a delinquent child in accordance "with La.Ch.Code arts. 801-922. At the beginning of the proceeding, the State, over the objection of defense counsel, amended its petition to delete the charge of simple burglary of an inhabited dwelling |?and add the charge of simple burglary of a religious building, a violation of La.R.S. 14:62.6. After hearing the testimony of seven individuals, four of whom testified on behalf of K.E.C., the trial court adjudicated K.E.C. as delinquent as to both simple burglary of a religious building and theft over $500.

On June 15, 2010, K.E.C., accompanied by defense counsel, appeared at his disposition hearing. The trial court placed K.E.C. on two years supervised probation with conditions of probation that he perform one hundred forty hours of community service, with all but sixty hours suspended, that he attend anti-theft classes, that he submit to random drug tests, that he pass his school classes, that he stay out of trouble at school, that he pay one-half of the restitution of $1,950, and that he observe a six o’clock p.m. to six o’clock a.m. curfew, unless he was participating in an organized sporting event or church activity. The trial court ruled that if, at the conclusion of one year of probation, K.E.C. had completed all of the conditions of probation, K.E.C.’s disposition would be amended to unsupervised probation. At the end of the disposition hearing, the trial court indicated that the adjudication, probationary period, and special conditions applied to both the charge of simple burglary of a religious building and the charge of theft over $500.

On June 29, 2010, counsel for K.E.C. filed a motion for appeal, asserting three assignments of error. However, because we find an error patent that is dispositive of this matter, we pretermit discussion of K.E.C.’s assignments of error.

| .-¡DISCUSSION

ERRORS PATENT REVIEW

Although the Louisiana Children’s Code is silent as to whether a juvenile proceeding is entitled to an error patent review, this court has found that La.Ch. Code art. 104 and La.Code Crim.P. art. 920 mandate such a review. See State in Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081. A patent error is “[a]n error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.Code Crim.P. art. 920(2). Our review of the record shows one error patent that requires us, for reasons expressed below, to vacate and set aside the adjudication and disposition because the State failed to timely commence the adjudication hearing.

Louisiana Children’s Code Article 877 states:

A. If the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.

Utilizing well-accepted jurisprudence on the nature of an error patent, it is evident that the failure to timely commence an adjudication hearing in a juvenile matter is readily apparent on the face of the record and, as such, constitutes an error patent. Accord State ex rel. M.N.H., 01-1218 (La.App. 3 Cir. 2/6/02), 807 So.2d 1149, writ denied, 02-1041 (La.5/24/02), 816 So.2d 857 (holding that the failure to timely conduct a disposition hearing is an error patent).

Commenting upon Article 877 of the Louisiana Children’s Code, Justice Marcus, writing for the majority, stated:

[T]he Children’s Code builds in a mechanism in La.Ch.Code art. 877(D) for the state to obtain an extension of the time limits to commence the adjudication hearing by making a showing of good cause. Under this article, there is no need for the state to dismiss and then justify its refiling after the period has run; rather, it is incumbent on the state to make a showing of good cause and obtain an extension before the period has run. In the event that a good cause extension is not granted and the period runs out, the state may not refile its petition. Otherwise, the good cause requirement of La.Ch.Code art. 877(D) would be rendered meaningless, since the state could always circumvent an adverse decision by simply dismissing and refiling the petition.

State in Interest of R.D.C., Jr., 93-1865 (La.2/28/94), 632 So.2d 745, 748 (bold emphasis added) (footnote omitted).

As provided in La.Ch.Code art. 107, “[t]he word ‘shall’ is mandatory, and the word ‘may5 is permissive.” See e.g., State ex rel. L.A., 09-1029, 09-1030 (La.App. 4 Cir. 12/9/09), 28 So.3d 515. Accordingly, from our review of the pleadings and the proceedings in the record before us, KE.C.’s adjudication hearing was required under La.Ch.Code art. 877 to have commenced within ninety days of January 5, 2010, because K.E.C. was not continued in custody. It was actually set for and took place on April 27, 2010, one hundred eleven days after he appeared to answer the petition, twenty-one days in excess of the ninety-day limitation. Moreover, the record further | sshows that at no time prior to the expiration of the period in which the State was required to commence the adjudication hearing did it seek to extend the period.

Having found that the State failed to seek an extension on the grounds of good cause before the period for commencing adjudication ran, we find it readily apparent on the face of the record that the adjudication hearing was not timely commenced as mandated in La.Ch.Code art. 877. Therefore, under the holding of State in Interest of R.D.C., Jr., 632 So.2d at 749, particularly its determination that “La.Ch. Code art. 877 sets out mandatory time limits within which the adjudicatory hearing must be commenced,” we are compelled to reverse, vacate, and set aside the trial court’s adjudication of K.E.C. as delinquent, together with its dispositional ruling, and dismiss the petition against K.E.C.

DECREE

For the foregoing reasons, we reverse, vacate, and set aside the trial court’s adjudication of K.E.C. as delinquent, as well as its disposition, and dismiss the petition against K.E.C.

| REVERSED, VACATED, AND ADJUDICATION AND DISPOSITION SET ASIDE; PETITION FOR DELINQUENCY DISMISSED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . Pursuant to La.Ch.Code art. 412, we are using initials to maintain the confidentiality of the juvenile’s records.

      . Although one of K.E.C.’s assignments of error relied upon an assertion of ineffective assistance of counsel and was premised upon the untimely commencement of the adjudication hearing, we reach that issue on an error patent review without having to examine whether trial counsel was ineffective.

      . Because the published opinion fails to give the public domain page breaks, we are unable to provide a domain page.

      . Implicit in the trial court’s statement at the conclusion of the adjudication hearing that it would allow K.E.C. to go home on his previous bond is that K.E.C. was not continued in custody. We have found nothing in either the record or the briefs to dispute that implication.

      . Likewise, K.E.C.'s disposition hearing was held forty-eight days after his adjudication hearing, eighteen days in excess of the thirty-day limitation. Because we find the adjudication hearing was untimely, we do not reach the possible ramifications flowing from the untimely disposition hearing and the legal implications attendant thereto for the simple reason that without an adjudication there can be no basis for the continued viability of a disposition.

      . In State in Interest of R.D.C., Jr., 632 So.2d 745, the supreme court cautioned against an unusually harsh definition of good cause. There it stated:
      However, our decision should not be interpreted to mean that judges should apply a draconian definition of "good cause" when the state seeks an extension. The judge should be mindful of those situations where defense motions or causes beyond the control of the state may impinge on its ability to prepare for the hearing. Likewise, given the importance of the good cause determination, the judge should allow the state latitude to seek expedited appellate review of an adverse ruling.

        Id. at 749 (footnote omitted). In the present case, we are simply not faced with any timely assertion of good cause.


author: THIBODEAUX, Chief Judge.

text:
    Dwight PHILLIPS and Joy Phillips, Indiv., etc. v. LAFAYETTE PARISH SCHOOL BOARD, et al.
    No. 10-373.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Jarvis Jerome Claiborne, Kenneth M. Willis, Opelousas, LA, for Plaintiffs/Appellants, Dwight Phillips, Joy Phillips, and Joseph Shelvin.
    Dawn L. Morris, Law Office of Dawn L. Morris, Lafayette, LA, for Defendants/Ap-pellees, Lafayette Parish School Board and Dr. Louella Cook, Indiv., Etc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

| lAppellants, Dwight and Joy Phillips, individually, and on behalf of their minor son, Joseph Shelvin, assert that the trial court erred by striking their opposition to a motion for summary judgment and an affidavit attached to it, by granting a summary judgment in favor of Lafayette Parish School Board (the Board) and Louella Cook, and by relying on an affidavit not based on personal knowledge. For the following reasons, we affirm.

I.

ISSUES

We shall consider whether the trial court erred by:

(1) striking Appellants’ opposition to a motion for summary judgment and an affidavit attached to it where the trial court held a hearing over four months after Appellees filed the motion and the Appellants filed their opposition three days before the hearing; and,
(2) granting Appellees’ unopposed motion for summary judgment on the claims of defamation and intentional infliction of emotional distress.

II.

FACTS

In August of 2007, Dwight was dropping off his step-son, Joseph Shelvin, at the school’s bus-unloading area. The school’s principal, Louella Cook, was on duty that day. After noticing Dwight’s vehicle, she approached it and advised |2Pwight that he was unloading the child in the wrong area. Cook then directed him to the car drop-off area. Then, according to Cook, Dwight began screaming at Cook, and, during this screaming, Dwight told Cook that he would return and “get her.”

Fearing for her safety and the safety of the staff and visitors of the school, Cook contacted the police. The investigating officer, after an interview with Cook, interviewed Dwight. In the course of that interview, according to the officer, Dwight admitted that he threatened Cook. Relying on both Cook’s complaint and Dwight’s admission, the officer arrested Dwight for disturbing the peace by threats.

According to Cook, sometime prior to this incident, a bus driver reported that during a bus stop a man, who was talking loudly, got on the bus and refused to get off the bus. To determine the identity of the man, Cook and her staff questioned students who were present on the bus at the time of the incident. One of the students was Joseph Shelvin. After speaking with the students, Cook and her staff learned that the man was Dwight Phillips. At no time was Cook alone with any of the students, and no interview lasted over ten minutes.

After Dwight’s arrest, Appellants filed the suit asserting various causes of action. Some of them were dismissed, and the only causes of action subject to this appeal are Dwight’s defamation and Joseph Shel-vin’s intentional infliction of emotional distress. The Board and Cook motioned for summary judgment on these claims in June of 2009. To support the motion, they submitted Cook’s and the police officer’s affidavits describing the events.

After rescheduling several times, the trial court ultimately scheduled the hearing for November 9, 2009. Appellants filed their opposition and an affidavit on Friday, November 6, 2009. The Board and Cook motioned to strike these late filings, and the trial court granted the motion. Then, the trial court granted a summary judgment in favor of the Board and Cook.

Jain.

STANDARD OF REVIEW

Appellate courts review for abuse of discretion the trial court’s exclusion of an opposition to a motion for summary judgment. Higginbotham v. Rapides Found., 07-588 (La.App. 3 Cir. 10/31/07), 968 So.2d 1226. Appellate courts review summary judgments de novo. Guilbeaux v. Times of Acadiana, Inc., 96-360 (La.App. 3 Cir. 3/26/97), 693 So.2d 1183, writ denied, 97-1840 (La.10/17/97), 701 So.2d 1327.

IV.

LAW AND DISCUSSION

(1) Motion to Strike for Untimeliness

Unless the trial court sets a shorter time, the party opposing the motion for summary judgment must serve the opposing affidavits and memorandum in support at least eight calendar days before the hearing. La.Code Civ.P. art. 966(B); District Court Rules, Rule 9.9(b). “The time limitation established by La. C.C.P. art. 966(B) for the serving of affidavits in opposition to a motion for summary judgment is mandatory; affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court.” Buggage v. Volks Constructors, 06-175, p. 1 (La.5/5/06), 928 So.2d 536, 536 (citing Am. Bank & Trust Co. v. Int’l Dev. Corp., Inc., 506 So.2d 1234 (La.App. 1 Cir.1987)). See also Guillory v. Chapman, 10-1370 (La.9/24/10), 44 So.3d 272 (reversing this court and holding that the trial court did not |4abuse its discretion by deciding to follow the mandatory language of La.Code Civ.P. art. 966(B) regarding timing).

The supreme court’s language indicates that the trial courts have some discretion to allow the late-filed materials. Nevertheless, these decisions indicate that it is not an abuse of discretion to disallow the late-filed materials because of the statute’s mandatory language.

Here, the hearing on the motion for summary judgment occurred over four months after the motion’s filing. Appellants requested and were granted a continuance. Yet, they filed their opposition and affidavit three days before the hearing, and on the Friday preceding a hearing on Monday. The trial court did not abuse its discretion when it granted Appellees’ motion to strike the untimely opposition and affidavit.

(¾) Motion for Summary Judgment

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Although the burden of proof remains with the movant, if the movant will not bear the burden of proof at trial, the movant need not negate all essential elements of the adverse party’s claim, action, or defense. La.Code Civ.P. art. 966(C)(2). Instead, the movant must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id.

If the movant has made a prima facie case that the motion should be granted, the burden shifts to the adverse party to produce enough evidence to show that some issues of material fact remain. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228. If the non-moving party fails to produce the evidence sufficient to raise an issue of material fact, the court must grant the motion as a matter of law. Id.

Once the movant satisfied his initial burden, the non-moving party may not simply rely on the allegations or denials contained in the pleadings. La.Code. Civ.P. art. 967; Ardoin v. Pitre, (La.App. 3 Cir.1983), 430 So.2d 815. Instead, the non-moving party must submit affidavits or other evidence or state specific facts that would show a genuine issue for trial. Id.

(A) Intentional Infliction of Emotional Distress (IIED)

The essential elements of an IIED claim are: (1) intent to cause (2) severe emotional distress by (3) extreme and outrageous conduct. White v. Monsanto Co., 585 So.2d 1205 (La.1991). “The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Id. at 1209. Merely tortious or illegal conduct does not rise to the level of extreme and outrageous. Nicholas v. Allstate Ins. Co., 99-2522 (La.8/31/00), 765 So.2d 1017. Thus, “[liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” White, 585 So.2d at 1209. “The distress suffered must be such that no reasonable person could be expected to endure it.” Id. at 1210.

Here, Appellees submitted Cook’s affidavit that on the day of the incident she simply directed Phillips to drop off his son at the proper area. She further attested that she did not speak with Joseph Shel-vin, Phillips’s step-son, about this incident. She and several members of her staff questioned Joseph Shelvin and other students about the incident that occurred several days earlier. That was the ^incident where a man refused to get off the school bus. Cook stated that she and her staff, in an attempt to ascertain the identity of the man, questioned the students who were on the bus at the time of the incident. At no time was Cook alone with any of the students, and no interview lasted over ten minutes. Based on this, this court concludes that Appellees carried their initial summary judgment burden.

The next question is whether Appellants sustained their burden of producing evidence sufficient to raise an issue of material fact. The only evidence in the record are Cook’s and the arresting officer’s affidavits. Appellants’ opposition to the summary judgment and Phillips’s affidavit were stricken from the record as untimely. Therefore, Appellants did not sustain their burden of production. Based on these considerations, the trial court committed no error by granting Appellees’ motion.

(B) Defamation

The elements of a defamation claim are: (1) false and defamatory statement about another; (2) an unprivileged publication to a third party; (3) fault on the part of the publisher; and, (4) resulting injury. Trentecosta v. Beck, 96-2388 (La.10/21/97), 703 So.2d 552. Statements that expressly or implicitly accuse another of criminal conduct are defamatory per se. Kennedy v. Sheriff of E. Baton Rouge, 05-1418 (La.7/10/06), 935 So.2d 669 (citing Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129; Cangelosi v. Schwegmann Bros. Giant Super Mkts., 390 So.2d 196 (La.1980)). Fault and injury are presumed when the plaintiff shows a publication of statements defamatory per se. Id. (citing Costello, 864 So.2d 129).

In some cases, conditional privilege is a defense to a defamation action. Id. “The doctrine of privilege rests upon the notion that sometimes, as a matter of public policy, in order to encourage the free communication of views in certain 17defined instances, one is justified in communicating defamatory information to others without incurring liability.” Id. at 681 (citing Toomer v. Breaux, 146 So.2d 723 (La.App. 3 Cir.1962)).

To determine whether the conditional or qualified privilege exists, “[fjirst, it must be determined whether the attending circumstances of a communication occasion a qualified privilege.” Id. at 682 (citation omitted). Next, the court must determine whether the privilege was abused. Id. (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730). Grounds for abuse are malice or lack of good faith. Id.

Qualified privilege exists when a possible criminal activity is reported to the proper authorities, provided that the report was made in good faith. Kennedy, 935 So.2d 669 (citations omitted). Thus, where a private, non-public figure plaintiff brings an action against a private, non-media defendant who spoke on the matter of public concern (the report to law enforcement of suspected criminal activity), the defendant may assert qualified privilege as a defense. Id.

The privilege’s effect is to rebut the allegations of malice or fault and to shift the burden of proof onto the plaintiff to establish abuse of the privilege. Id. (citing Smith, 639 So.2d 730). The plaintiff may establish the defendant’s abuse of the privilege by showing that the defendant either knew the matter to be false or acted in reckless disregard as to its truth or falsity. Id. (citing Trentecosta, 703 So.2d 552). The showing of mere negligence is insufficient. Id.

Here, because Cook and the Board assert an affirmative defense of conditional privilege, they have the burden of proof. It is undisputed that Cook reported Phillips’s alleged threats to the police. That communication of an allegedly criminal activity was on the matter of public concern to the proper authorities. Thus, the circumstances surrounding the publication to the third party occasioned a |8qualified privilege. Therefore, the burden shifted onto Phillips to prove that Cook abused the privilege.

By submitting Cook’s and the police officer’s affidavits, Appellees made a prima facie case that their motion for summary judgment should be granted. Phillips, because the publication accused him of criminal conduct, was entitled to a presumption in his favor on the elements of falsity, fault, and injury. Nevertheless, Appellees’ supported assertion of privilege rebutted Phillips’s allegations of fault and shifted onto Phillips the burden of establishing Cook’s abuse of the privilege. While in the petition Phillips alleged that he never threatened Cook, he submitted no evidence whatsoever. At this point, Phillips could not rely on mere allegations in his pleadings. Instead, he had to produce some evidence which would show a disputed issue of material fact. He failed to do so, and, therefore, the trial court committed no error by granting Appellees’ motion for summary judgment.

V.

CONCLUSION

Summary judgment in favor of Lafayette Parish School Board and Louella Cook is affirmed. Costs of this appeal are assessed to Dwight and Joy Phillips.

AFFIRMED.

      . Appellants also argued that the trial court erred by relying on an affidavit not based on personal knowledge. "[A]n appellate court may not decide issues the trial court did not consider.” Ducote v. Union Pac. R.R. Co., 08-1208, p. 9 (La.App. 3 Cir. 2/4/09), 4 So.3d 240, 247, writ denied, 09-940 (La. 6/5/09), 9 So.3d 877 (citing Gorham v. Mathieson Alkali

        Works, Inc., 210 La. 462, 27 So.2d 299 (1946)). Here, Appellants neither objected to the introduction of the affidavit, nor did they file a motion to strike it. Under the circumstances of this case, we decline to consider the issue because it is not properly before this court.

      . The recent changes to La.Code Civ.P. art. 966 altered the language of the article's timing provisions. Instead of explicitly stating the time limit, the amended La.Code Civ.P. art. 966 directs one to the District Court Rule 9.9. The District Court Rule 9.9, in turn, supplies the eight-day time limit. Because under the old and the new versions of La. Code Civ.P. art. 966 the time limit is the same, this court does not need to address whether the amendment was procedural and, therefore, retroactive.


author: EDWIN A. LOMBARD, Judge. MURRAY, J.,

text:
    Leslie BRAUD, Rudolph Braud, Jr., Marty Braud and Kelly Braud Mercadel v. WOODLAND VILLAGE L.L.C., Charles Simonson, M.D., and The Louisiana Patient’s Compensation Fund.
    No. 2010-CA-0137.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 2010.
    Rehearing Denied Jan. 13, 2011.

      Richard C. Trahant, Richard C. Tra-hant, Attorney at Law, Metairie, LA, John H. Denenea, Jr., Shearman-Denenea, L.L.C., New Orleans, LA, for Plaintiffs/Appellees.
    Karl J. Koch, Rusty M. Messer, Baton Rouge, LA, for Woodland Village, LLC.
    Irving H. Koch, Henry R. Vogt III, Koch & Koch, L.L.C., Metairie, LA, for Louisiana Patient’s Compensation Fund.
    Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD.
   EDWIN A. LOMBARD, Judge.

| j Woodland Village, L.L.C., defendant in this medical malpractice and wrongful death action, and the Louisiana Patient’s Compensation Fund, as appellant — inter-venor, appeal to this Court the jury trial’s finding of wrongful death and awarding of. damages to plaintiffs. Woodland Village also appeals the judgment of the trial court denying their motion for judgment notwithstanding the verdict, motion for new trial, and motion for remittitur, all of which were filed following the rendering of the jury verdict. Plaintiffs, Leslie Braud, Rudolph Braud Jr., Marty Braud, and Kelly Braud Mercadel, cross-appeal the decision of the trial court to reduce the damages award to the statutory “cap” of $500,000.

For the reasons provided below, we hold that the trial court committed legal error in not including jury interrogatories that would allow the jury to consider the possibility of the establishment of a separate loss of chance of survival claim, that which would be distinguishable from a claim of wrongful death. Therefore, we reverse the judgment on jury verdict, and remand the matter for a new trial with proceedings consistent to this opinion.

Factual History

| gRudolph Braud, Sr. was a 64 year old man diagnosed with Alzheimer’s disease and Pick’s Dementia, a very rare form of frontal-lobe dementia that, in addition to general memory loss, causes anti-social and inappropriate behavior, over-eating, and abrupt mood changes. Mr. Braud began showing signs of dementia in his late fifties, in approximately 1998. According to medical experts testifying at trial, the life expectancy range of a person diagnosed with Pick’s Dementia was approximately five to eight years.

Eventually the Braud family was unable to care for Mr. Braud at their home, and in December 2002 Mr. Braud was placed in the home of a caregiver. However, this initial caregiver’s license and certification materials were not in order, and the Braud family decided to move Mr. Braud to Woodland Village Nursing and Rehabilitation Center in New Orleans.

Mr. Braud was admitted to Woodland Village on October 1, 2008. Prior to admission, Mr. Braud was taking one medication for treating dementia, Reminyl at 8 milligrams. Mr. Braud’s treating physician at Woodland Village was Charles Si-monson, M.D., a former director of Woodland Village who was a private physician at the time he began treating Mr. Braud. According to trial testimony, Mr. Braud began displaying some aggression and hostility soon upon his arrival at Woodland Village. Dr. Simonson began prescribing additional “anti-psychotic” medication as part of his treatment of Mr. Braud’s dementia. Throughout his eleven months, Mr. Braud exhibited anti-social behaviors and displayed other unfortunate symptoms of extreme dementia beyond his control. The trial court record reveals ample medical notes taken by the doctor, nurses, and other caretakers for Mr. Braud.

bin late August 2004, Mr. Braud’s wife notified Dr. Simonson that he had become quite “zombie-like,” and that he was spending an inordinate amount of time sleeping. Dr. Simonson ordered checkups on Mr. Braud every 15 minutes, to check for any signs of distress or discomfort. Ruth Umfrey, the licensed Practical Nurse on duty on the night of Mr. Braud’s death, testified that these 15 minutes checks were to be performed by a nursing assistant walking by each patient’s room, and they did not require her to enter into the room to check for vital signs, but to only view through the door outward signs of distress, such as falling out of bed or crying.

On September 2, 2004, at 10:04 p.m., Mr. Braud was discovered by the Woodland Village staff to be unresponsive. There was testimonial evidence showing that the 15 minute checks were either not performed, or that Mr. Braud experienced a myocardial infarction (heart attack) long before any nurses had realized. Paramedics were called, but Mr. Braud was pronounced dead shortly thereafter. Ryan Hagaman, the paramedic called to the scene, testified at trial that did not know if CPR had ever been started, and that Mr. Braud’s appearance and coldness of body indicated that he had been expired for at least 60 minutes. By 10:17 p.m., lividity, post-mortem body changes such as the pooling of blood and purple hue of skin, had set in, leading one expert to believe that Mr. Braud had been deceased for over an hour. It was largely agreed upon by all testifying experts that Mr. Braud had expired as a result of an acute myocardial infarction, or heart attack.

Procedural History

The Braud family first filed a complaint with the state Division of Administration— Medical Review Panel, concerning Mr. Braud’s death against Dr. |,(Simonson and Woodland Village, alleging that Mr. Braud was overly-medicated during his time at Woodland Village, and that a nurse at Woodland Village failed to perform CPR on him. The panel, consisting of three medical doctors, concluded that Dr. Simon-son’s evaluation and treatment of Mr. Braud, including his use of medications, “was appropriate and within the standard of care.” The panel also found there to be a material issue of fact as to whether or not CPR was ever attempted by the Woodland Village staff during the final events surrounding Mr. Braud’s death.

Plaintiffs then filed this medical malpractice / wrongful death action against Dr. Simonson, Woodland Village, and the Louisiana Patient’s Compensation Fund (“PCF”), alleging negligence in failure to formulate an appropriate plan of care, improper administration of chemical restraints, and failure to attempt to immediately resuscitate, among other alleged acts of negligence.

Following a six-day jury trial, following the closing of evidence, a jury verdict was rendered finding Woodland Village negligent in their care for Mr. Braud. Dr. Simonson was not found liable by the jury. The jury awarded damages in the amount of $1,650,000 for wrongful death damages: $900,000 to Mr. Braud’s widow and $250,000 each to Mr. Braud’s three adult children. On July 7, 2009, the trial court then signed and entered a Judgment on Jury Verdict confirming in writing the jury’s verdict on liability and the award of $1,650,000.

Following the rendering of the jury verdict, appellant Woodland Village filed a Motion for Judgment Notwithstanding the Verdict, or in the alternative, New Trial, or Remittitur. Woodland Village argued that all of the testifying experts at trial concluded that no harm was caused to Mr. Braud for alleged medication errors. Appellant also claimed that plaintiffs did not present any ^evidence that Mr. Braud would have been able to have been resuscitated. Woodland Village also argued that the jury award was excessive and incorrectly beyond the statutory cap of $500,000 for members of the Louisiana Patient’s Compensation Fund, set forth in La.Rev. Stat. § 40:1299.42.

Most importantly, appellant further argued that plaintiff did not present any evidence to establish that Woodland Village caused the heart attack which led to Mr. Braud being found unresponsive. Woodland Village argued that plaintiffs failed to establish by a preponderance of the evidence that Woodland Village caused or contributed to Mr. Braud’s death, and that at a minimum, plaintiffs may have only established evidence for a loss of chance of survival claim. The district court denied Woodland Village’s motions for judgment notwithstanding the verdict, new trial, and remittitur, but reduced the plaintiffs’ award to $500,000. Woodland Village then timely appealed to this Court, and plaintiffs cross-appeal the trial court’s subsequent judgment reducing the jury’s damage to $500,000.

Assignments of Error

Defendant/Appellant Woodland Village asserts that the jury erred in finding Woodland Village liable for wrongful death. They argue that the plaintiffs presented no evidence which would establish by a preponderance of the evidence that Woodland Village caused or contributed to Mr. Braud’s fatal heart attack. Appellant argues that the trial court erred in not granting a new trial on the grounds that plaintiffs, at best, established only a loss of chance of survival, not wrongful death, and that the jury interrogatories and final jury verdict did not address a claim for loss of chance of survival.

| (Pause of Heart Attack, Loss of Chance of Survival

DefendanVAppellant Woodland Village first argues that the jury erred in concluding that it was negligent in medical malpractice for the wrongful death of Rudolph Braud, Sr. In order for a plaintiff to prevail on a medical malpractice claim, the Louisiana Legislature requires a plaintiff to prove, by a preponderance of the evidence, the three elements set forth in La. Rev.Stat. § 9:2794(A), provided below:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Beaucoudray v. Walsh, 2007-0818, p. 12 (La.App. 4 Cir. 3/12/09), 9 So.3d 916, 923. The plaintiffs burden of proof in a medical malpractice case has been previously set forth by the Louisiana Supreme Court:

“[T]he plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician’s alleged negligence and the plaintiffs injuries resulting therefrom.”

Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94) 643 So.2d 1228, 1232; Beaucoudray, supra, 9 So.3d at 923. Allegations against a nursing home 17for failure to provide adequate medication and medical care fit within the ambit of medical malpractice actions under La.Rev.Stat. § 9:2794 and other relevant Louisiana medical malpractice statutes. Mineo v. Underwriters at Lloyds, London, 2007-0514, p. 6 (La.App. 4 Cir. 10/22/08), 997 So.2d 187, 192.

Medical malpractice claims are subject to the general rules of proof applicable to any negligence action: the plaintiff must prove a standard of care, a breach of the standard, causation, and damages. Whether alleged malpractice constitutes negligence is a question for the jury. Stamps v. Dunham, 2007-0095, p. 4 (La.App. 4 Cir. 9/19/07), 968 So.2d 739, 743. The Louisiana Supreme Court has provided a two-prong test for the reversal of a fact-finder’s determinations: 1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must further determine that the record establishes that the finding is manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993), citing Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

Secondly, Woodland Village argues that the district court erred in preventing the jury from considering a claim of loss of chance of survival, which defendant argues is a separate and distinguishable claim from that of wrongful death in medical malpractice. The loss of chance of survival is a distinct compensable injury caused by a defendant’s negligence, distinguishable from the loss of life in wrongful death cases. Smith v. State of Louisiana, Dept. of Health and Hospitals, 95-0038 (La.6/25/96), 676 So.2d 543, 547. There is no variation in the burden of proof in a claim for loss of chance of survival. Id. Thus, in a medical malpractice case seeking damages for the loss of a less than even chance of survival because of negligent treatment of a pre-existing condition, the plaintiff must prove by a | ^preponderance of the evidence that the tort victim had a chance of survival at the time of the professional negligence, and that the tortfeasor’s action or inaction deprived the victim of all or part of that chance, and must further prove the value of the lost chance. Id.

The plaintiff need not prove that the patient would have survived but for the defendant’s malpractice; however, the plaintiff must establish by a preponderance of the evidence that he or she had a chance for survival, and that this chance was lost due to the defendant’s negligence. Hebert v. Parker, 2000-0686, p. 12 (La.App. 4 Cir. 5/31/01), 796 So.2d 19, 27; see also Snia v. Medical Center of New Orleans, 93-2367 (La.App. 4 Cir. 5/26/94), 637 So.2d 1290, 1292. The fact-finder must focus on the loss of chance of survival as a distinct compensable injury, and value the lost chance as a lump sum award based on all the evidence in the record, as is done for any other item of general damages. Smith v. State of Louisiana, Dept. of Health and Hospitals, supra, 676 So.2d at 547. “The lost chance of survival in professional malpractice cases has a value in and of itself that is different from the value of a wrongful death or survival claim.” Id., 676 So.2d at 548.

As to the jury’s findings of fact that Woodland Village caused or contributed to Mr. Braud’s death, this Court finds that the inherent failure of the district court to provide proper jury instructions as to lost chance of survival led to a finding not supported by a reasonable factual basis. In essence, the record clearly does not support a finding that Woodland Village’s actions or inactions caused Mr. Braud’s fatal heart attack.

While the plaintiffs may have presented evidence that Woodland Village employees may have had problems related to the dispensing of medication or | recording notes on Mr. Braud’s progress, there was no evidence presented to the jury that showed that these actions caused Mr. Braud’s fatal heart attack. Dr. Simonson, when questioned about any relation between Mr. Braud’s anti-psychotic medications and his subsequent heart attack, testified that “I don’t think ... there was any medical literature at all that suggested that these might cause a heart attack.” Dr. Simonson further denied that any over-sedation caused by the anti-psychotic medications prescribed to Mr. Braud could cause a heart attack, or even an increase in heart rate.

Dr. Timothy Hammond, an internal medicine physician and the plaintiffs’ expert in nursing home care, initially stated he did not think Mr. Braud experienced over-sedation, and that he does not believe sedation caused his heart attack. Dr. Hammond did say, however, “over-sedation” leads to “decondition,” and that over-sedation may lead to an early heart attack. On cross-examination, though, Dr. Hammond clearly stated that he saw no signs of over-sedation in Mr. Braud. Dr. Hammond also testified that Woodland Village’s failure to stop administering Ability, an anti-psychotic medication, until three days after Dr. Simonson’s orders to do so, did not cause Mr. Braud’s heart attack, and did not lead to his death. Dr. Hammond refuted any testimony that may have indicated that Mr. Braud may have been over-sedated. He further testified that Mr. Braud’s Ambien medication had nothing to do with his death. Dr. Hammond essentially, on cross-examination, stated his belief that Mr. Braud’s heart attack was not caused by over-sedation, and was not caused by medication.

Dr. James Teebe, a physician who was on the medical review panel for this case, testified that the combination of medications Mr. Braud was on, and in the doses he was given, did not contribute to his death. He further opined that Mr. | inBraud’s fatal myocardial infarction was a result of his Pick’s Dementia and eating disorder derived therefrom. When asked to relate Mr. Braud’s heart attack to any possible over-sedation from medication, Dr. Teebe stated that “[o]nce again I’m not aware of any science that shows sedation as increase in risk factor for myocardial infarction.” More specifically, Dr. Teebe also testified that any changes in sedation or medication in the week prior to Mr. Braud’s death would not have caused his heart attack.

Because there was no testimony offered at trial that displayed any causal connection between Mr. Braud’s medication, or the note-taking habits of Woodland Village employees, there is no reasonable basis in which to conclude that Woodland Village caused or contributed to Mr. Braud’s death. In essence, there is no injury that Mr. Braud suffered that he would not have otherwise suffered. La.Rev.Stat. 9:2794(A)(3). All of the testifying medical experts at trial conclusively agreed that Mr. Braud’s heart attack was not brought on by the medication he received, or his level of sedation, and that his fatal myocardial infarction was the result of his eating disorder caused by Pick’s Dementia. Though the plaintiffs presented at trial substantial and reasonable evidence relating to Woodland Village’s breach of standard of care in administering CPR to Mr. Braud on the night of his death, this evidence can, at best, only establish a claim for a loss of chance of survival.

Plaintiffs presented credible testimony at trial that the actions of Woodland Village employees on the night of Mr. Braud’s death fell below the established standard of care, and that their failure to timely perform CPR on Mr. Braud denied him a chance of survival from his heart attack. First, while Dr. Simonson had ordered routine check-ups on Mr. Braud every 15-minutes, trial testimony |! suggested that such check-ups were not performed after 9:00 p.m., or that they were at least performed insufficiently. Shortly after 10:00 p.m., a nurse discovered Mr. Braud to be unresponsive. Dr. Simonson, though he was not present on the night of Mr. Braud’s death, testified as to his understanding of the surrounding events:

Mr. Braud had an order to be observed for safety every 15 minutes. Unfortunately that did not happen for 45 minutes or longer and he was found unrousable at that point of time. There is some confusion in the chart there is one notation CPR was started, resuscitation was started 4 minutes passed 10, with the paramedics coming 30 minutes later. There is no resuscitation going on and no oxygen being given and suddenly he’s not brought back to life and he dies.

Furthermore, Candace Andrus, a representative from the Department of Health and Hospitals, received a report stating that CPR was not performed on Mr. Braud, and that the nurse on duty was terminated as a result of the failure to initiate CPR.

The nurse who was terminated, Ruth Umfrey, also testified at trial, and stated that there was a 45 minute period of time in which no one checked on Mr. Braud. When she did discover him, he was cold to the touch, had no respiration, and had no pulse. It is from the testimony of these individuals that we can surmise that plaintiffs presented reasonable evidence to establish that Woodland Village’s negligence prevented Mr. Braud from the opportunity to survive his heart attack. But it is equally clear that no actions or inactions of Woodland Village caused his fatal myocardial infarction.

Jury Interrogatories

In a trial by jury, the trial court has a duty to instruct the jury only on the law that pertains to the evidence adduced in that particular case. Barnett v. New Orleans Public Service Inc., 489 So.2d 452, 455 (La.App. 4 Cir.1986); Hebert v. Parker, supra, p. 7, 796 So.2d at 25. To accomplish this duty, the trial court must both require that the jury consider only the correct law and avoid confusing the jury. Guilfore v. D.H. Holmes Co., Ltd., 93-0076 (La.App. 4 Cir. 1/13/94), 631 So.2d 491, 498, writ denied, 94-0376 (La. 4/4/94), 635 So.2d 1125. When the jury instructions contain plain fundamental error, where the legal error is seen to have interdicted the fact-finding process, a de novo review of the record is required. Hebert v. Parker, supra, pp. 7-8, 796 So.2d at 25.

In this matter, this Court finds that the district court committed legal error in not presenting jury instructions and correct law as to the separate and distinguishable claim for the loss of chance of survival. Prior to trial, defendant Woodland Village proposed jury interrogatories that would have addressed the clearly evident notion that the case may not rise to the level of wrongful death:

PROPOSED JURY CHARGE NO. 13:
In a medical malpractice case seeking damages for the loss of a less-than-even chance of survival because of negligent treatment of a pre-existing condition, the plaintiff must prove by a preponderance of the evidence that the tort victim had a chance of survival at the time of the professional negligence and that the tortfeasor’s action or inaction deprived the victim of all or part of that chance, and must further prove the value of the lost chance, which is the only item of damages at issue in such a case. Alphonse v. Acadian Ambulance Services, Inc., 2002-0773 (La.App. 1 Cir. 3/28/03) 844 So.2d 294, 301; Smith v. State, Dep’t of Health and Hosps., 95-0038 at p. 6, 676 So.2d at 547.

We believe the district court committed legal error in failing to allow the jury to consider what clearly seems to be a case concerning the loss of chance of survival. Following the trial and rendering of verdict, Woodland Village re-urged this notion in their motion for new trial. The district court erred in not allowing the jury to consider the loss of chance of survival under the guidance of Smith, and it should have granted a new trial on these grounds.

11SConclusion

On remand, the district court must include in its jury interrogatories the opportunity to consider a loss of chance of survival claim as envisioned by the Louisiana Supreme Court in Smith. The district court committed clear legal error in failing to allow the jury to quantify potential damage awards as to this separate and distinguishable claim. As a result, the fact-finding processes of the jury were clearly and wrongfully affected. Jones v. Peyton Place, Inc., 95-0574 (La.App. 4 Cir. 5/22/96), 675 So.2d 754. For the reasons provided above, the plaintiffs did not present any evidence that the actions of Woodland Village caused or contributed to Mr. Braud’s heart attack. At best, the evidence on record can only suggest the plaintiffs may have a right to recovery as a result of Mr. Braud’s lost chance of survival. Because we remand the matter for a new trial, a discussion of the plaintiffs’ cross-appeal to restore the original jury damage award is not necessary.

Decree

The jury verdict in favor of plaintiffs for finding wrongful death liability on the part of Woodland Village is reversed, and the matter is remanded to the district court for further proceedings consistent with this opinion.

REVERSED; REMANDED FOR NEW TRIAL.

MURRAY, J., Concurs with reasons.

MURRAY, J.,

Concurs with reasons.

| ^though I concur in the majority’s decision to reverse the jury verdict and to remand for a new trial, I do so for different reasons than those expressed in the majority opinion. In their petition, the plaintiffs asserted only survival and wrongful death claims; they did not assert a loss of a chance of survival claim. See La. C.C.P. art. 891 (requiring the petition contain a short, clear, and concise statement of all causes of action). At trial, evidence regarding Woodland Village’s negligence causing Mr. Braud a loss of a chance of survival was presented and thus the pleadings were expanded to include such a claim. La. C.C.P. art. 1154. At the close of the trial, the trial court submitted to the jury interrogatories addressing only the survival and wrongful death claims asserted in the petition. Answering those interrogatories, the jury awarded no survival damages and $1,650,000 in wrongful death damages.

The majority correctly concludes that the evidence presented at trial was insufficient to support the jury’s finding that Woodland Village’s malpractice (professional negligence) caused Mr. Braud’s death (fatal heart attack). The expert testimony at trial simply does not support the jury’s finding. Nonetheless, as the majority further finds, the evidence presented at trial could support a finding that | ¡.Woodland Village’s malpractice caused Mr. Braud a loss of a less than even chance of survival.

Addressing the nature of a loss of a chance of survival claim in the medical malpractice context, the Louisiana Supreme Court in Smith v. State, Dept. of Health & Hosp., 95-0038 (La.6/25/96), 676 So.2d 543, stated that the focus is on “the damages that the defendant caused-the loss of a chance of avoiding a death that might not have occurred if the health care provided had performed properly,” and that the issue is “whether the tort victim lost any chance of survival because of the defendant’s negligence,” and that “[t]he pre-existing condition causes the conceptual problem.” Smith, 95-0038 at p. 6, 676 So.2d at 546-47, n. 5; Jackson v. University Hosp., 00-2535 (La.App. 4 Cir. 2/6/02), 809 So.2d 1145, 1153-54. The Supreme Court further explained that “the loss of a less-than-even chance of survival is a distinct injury compensable as general damages.” Smith, 95-0038 at p. 9, 676 So.2d at 548. The loss of a chance of survival “has a value in and of itself that is different from the value of a wrongful death or survival claim.” Id.

In this case, the jury was not instructed on the difference between a loss of a chance of survival claim and a wrongful death or survival claim. The jury also was not given the option on the jury interrogatories to quantify the percentage loss of a chance and to assign a value to that loss. On appeal, as it did in its post-trial motions, Woodland Village contends that the trial court legally erred in failing to distinguish in the jury interrogatories between loss of a chance of survival and wrongful death claims. Given the jury interrogatories failed to make this distinction, Woodland Village contends that it is entitled to a new trial so that the jury can consider the loss of a chance of survival claim.

The plaintiffs counter that Woodland Village’s contention is flawed, substantively and procedurally. Substantively, the plaintiffs point out that the jury’s finding in its verdict that the plaintiffs proved their wrongful death claims — [¿he jury’s affirmative answer to the interrogatory “[d]o you find that Woodland Village’s breach of the applicable standard of care caused, or contributed to, the death of Rudolph Braud? — moots the need to address the loss of a chance of survival claim”. Procedurally, the plaintiffs contend that Woodland Village’s failure to file a timely, contemporaneous objection to the trial court’s failure to include the loss of a chance claim in the jury instructions and interrogatories precludes Woodland Village from raising this issue on appeal.

Woodland Village does not dispute the plaintiffs’ allegation that it failed to make a timely objection. As the Louisiana Patient Compensation Fund points out in its brief, the record is silent regarding any objections to the jury interrogatories. Nonetheless, the general rule requiring a timely objection to preserve the issue for appeal has been relaxed when the jury instructions or interrogatories contain a plain and fundamental error. Berg v. Zummo, 00-1699 (La.4/25/01), 786 So.2d 708, 716, n. 5; see also Audubon Orthopedic and Sports Medicine, APMC v. Lafayette Ins. Co., 09-0007, p. 16 (La.App. 4 Cir. 4/21/10), 38 So.3d 963, 975 (relaxing timely objection requirement in analogous situation because “the instructions contained in the jury interrogatories were not only confusing, but they also contained an incorrect statement of the law.”) A plain and fundamental error has been defined to mean one “so fundamental as to result in a miscarriage of justice.” Branch-Hines v. Hebert, 939 F.2d 1311, 1319 (5th Cir.1991). Such is the case here.

The plain and fundamental error in this case is the trial court’s failure to instruct the jury on the distinction between a loss of a chance of survival claim and a wrongful death claim, and its failure to give the jury the option of finding Woodland Village’s negligence caused Mr. Braud to lose a chance of survival. For this reason, I agree with the majority’s decision to reverse the trial court and to remand for a new trial. However, I would limit the issue to be litigated on remand 14to whether the plaintiffs have established a loss of a chance of survival claim and, if so, the value of their claim.

      . The trial court's subsequently reduced the damage award to $500,000 to conform to the medical malpractice cap. In light of this court’s reversal of the jury's verdict, the issue raised by the plaintiffs’ answer of whether the trial court erred in reducing the award to conform to the cap is rendered moot.