author: JAMES F. McKAY III, Chief Judge.

text:
    Shelia Hurst, Wife of/and Randall E. HURST v. HILTON HOTELS CORPORATION, Fred W. Sawyers, Paul Buckley and Keryn Lewis.
    No. 2013-CA-0872.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 2013.

      Benjamin J. Birdsall, Jr., Birdsall Law Firm, Inc., New Orleans, Louisiana, for Plaintiffs/Appellants.
    G. Bruce Parkerson, George C. Dren-nan, Plauche’ Maselli Parkerson LLC, New Orleans, Louisiana, for Defendants/Appellees, Hilton Hotels Corporation, Fred W. Sawyers, Paul Buckley, Kevyn Lewis, International Rivercenter Lessee, L.L.C., and Ace American Insurance Company.
    Christopher J. Aubert, James G. Wash-burn, The Aubert Law Firm, Covington, LA, for Defendant/Appellee, Schindler Elevator Corporation.
    Court composed of Chief Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU.
   JAMES F. McKAY III, Chief Judge.

_JjIn this personal injury action involving an elevator door, the plaintiffs, Shelia and Randall Hurst, appeal the trial court’s granting of summary judgment in favor of defendants, Hilton Hotels Corporation, Fred Sawyer, Paul Buckley and Kevyn Lewis. The plaintiffs also appeal the trial court’s maintaining of a peremptory exception of prescription in favor of defendant Schindler Elevator Corporation. We affirm.

FACTS AND PROCEDURAL HISTORY

Shelia and Randall Hurst allege that they were injured on February 22, 2005, when an elevator door at the New Orleans Hilton Riverside malfunctioned and closed on them while they were exiting the elevator side by side. On February 6, 2006, Mr. and Mrs. Hurst filed a petition for damages against the Hilton Hotels Corporation. On April 12, 2006, the plaintiffs filed a first supplemental and amended petition naming Hilton employees, Fred Sawyer, Paul Buckley, and Kevyn Lewis, as additional defendants. On July 1, 2009, the plaintiffs filed a second supplemental and amending petition naming International Rivercenter |2Lessee, LLC, d/b/a New Orleans Hilton Riverside, Schindler Elevator Corporation, Lerch Bates, Inc. and Pratt Landry Associates, Inc. as additional defendants. On August 5, 2009, the plaintiffs amended their petition for the final time and added ACE American Insurance Company, Hilton’s insurer, as a defendant.

On October 12, 2009, the Hilton defendants re-urged a motion for summary judgment previously filed on May 27, 2009. Schindler also filed a peremptory exception of prescription on July 27, 2009. The Hilton defendants asserted that the plaintiffs failed to come forward with evidence demonstrating a defect in the elevator which presented an unreasonable risk of the doors pinning exiting passengers between the closing doors which the defendant knew of or should have known. In support of their motion for summary judgment, the defendants produced the affidavits of former hotel manager Paul Buckley, hotel manager Fred Sawyer, hotel security officer Kevyn Lewis, and assistant director of hotel property operations Roger Lawson. In addition, the defendants provided a report generated by Lerch Bates, Inc., the company that performs the hotel’s annual elevator system audit and inspection. The plaintiffs opposed the motion for summary judgment with the affidavit of their expert, Dr. Jack W. Sparks. The trial court granted the defendants’ motion for summary judgment. The plaintiffs appealed that judgment to this Court.

This Court found that Dr. Sparks’s affidavit created genuine issues of material fact as to whether the elevator was functioning normally at the time of the alleged incident and whether the defendants knew or should have known of an|3alleged elevator defect which could have caused the elevator to malfunction so as to pin guests between the doors and cause injuries, thus precluding summary judgment. Hurst v. Hilton Hotels Corp., 2010-1088 (La.App. 4 Cir. 6/15/11), 72 So.3d 353. However, this Court stated that Dr. Sparks’s affidavit did not indicate specifically what the defect was. Id. This court reversed the judgment of the trial court and remanded the matter for further proceedings. Id.

After the case was remanded to the trial court, the Hilton defendants deposed the plaintiffs’ expert, Dr. Sparks, on January 30, 2012 and February 29, 2012. Based on the answers given by Dr. Sparks during his deposition, the defendants questioned his qualifications as an expert in the field of elevator operation and maintenance. On July 5, 2012, the Hilton defendants filed a Daubert/Foret motion to strike the affidavit of Dr. Sparks and to exclude his testimony. At the same time, the Hilton defendants also filed a second motion for summary judgment. On December 6, 2012, the trial court held a hearing on both of these motions as well as on Schindler’s peremptory exception of prescription. On December 13, 2012, the trial court granted the Hilton defendants’ Daubert/Foret motion to strike the affidavit of Dr. Sparks and to exclude his testimony. That same day the trial court also granted the Hilton defendants’ second motion for summary judgment. On December 18, 2012, the trial court granted Schindler’s ^peremptory exception of prescription. It is from these judgments that the plaintiffs now appeal.

DISCUSSION

On appeal, the plaintiffs raise the following assignments of error: 1) the trial court erred in granting the Hilton defendants’ motion for summary judgment, particularly in light of this Court’s prior opinion on the same issue; 2) the trial court erred in disqualifying Dr. Sparks as an expert for the plaintiffs and/or refusing to permit the plaintiffs to present another expert; and 3) the trial court erred in granting Schindler Elevator Corporation’s exception of prescription, based on Schindler’s status as a joint obligor with Hilton.

We will first address the plaintiffs’ second assignment of error as it has a direct impact on their first assignment of error. In its judgment striking Dr. Sparks as an expert, the trial court held that he “lacks the specialized knowledge in the field of elevator engineering to assist the jury and that his opinions lack the reliability to be relevant or admissible.” Louisiana Code of Evidence Article 702 requires that an expert be “qualified as an expert by knowledge, skill, experience, training, or education” and possess “scientific, technical, or other specialized knowledge” that can “assist the trier of fact.” State v. Foret, 93-0246 (La.11/30/93), 628 So.2d 1116. In performing the gate-keeping function required by Foret, through its adoption of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the trial court has to determine | ¿whether a purported expert can offer an opinion with a “reliable basis in the knowledge and experience of his discipline.” Foret, 628 So.2d at 1121-1122.

In the instant case, Dr. Sparks acknowledged that his opinions were his subjective beliefs. Dr. Sparks did not employ the scientific method, nor was he able to identify the methodology or scientific basis his conclusions were based on. He also did not know of any industry publication that supported his conclusions. Furthermore and perhaps most importantly, he stated that he was not aware of any reason that the Hilton defendants would have known in advance that the elevator door could perform as alleged. Therefore, based on the Daubert standard, we find no error in the trial court’s striking of Dr. Sparks’s affidavit and excluding him as an expert witness.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration. The summary judgment procedure is now favored, and the standard for summary judgment is well-established in Louisiana. See La. C.C.P. art. 966; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191; Two Feathers Enterprises, Inc. v. First Nat’l Bank of Commerce, 98-0465 (La.App. 4 Cir. 10/14/98), 720 So.2d 398. A motion for summary judgment shall be granted when 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. La. C.C.P. art. 966; Gallina v. Hero Lands Co., 2003-0331 (La.App. 4 Cir. 10/7/03), 859 So.2d 758, 761. If the mover will not bear the burden of proof at 1 fitrial, the mover need only point out to the court 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). Although the burden of proof remains with the movant, if the movant will not bear the burden of proof at trial, the movant’s burden does not require him to negate all essential elements of the adverse party’s claim; if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, no genuine issue of fact exists. La. C.C.P. art. 966(C)(2); Fleming v. Hilton Hotels Corp., 99-1996 (La.App. 4 Cir. 7/12/00), 774 So.2d 174, 177.

In this Court’s earlier decision, it held that the affidavit of Dr. Sparks “at a minimum, established a genuine issue of material fact with regard to whether Defendants/Appellees knew or should have known of an alleged elevator defect which could have caused the elevators to malfunction in the manner asserted by the Appellants.” Hurst v. Hilton Hotels Corp., 2010-1088 (La.App. 4 Cir. 6/15/11), 72 So.3d 1004, 1007. Now that Dr. Sparks has been excluded as an expert witness and his affidavit struck, this impediment to summary judgment no longer exists.

A plaintiff asserting a cause of action in either negligence or strict liability against a premises owner for injury caused by a premises defect or vice must prove: (1) that the defendant knew or should have known of the vice or defect; (2) that the damage could have been prevented by the exercise of reasonable care; and (3) that the defendant failed to exercise reasonable care. See La. C.C. art. 2317.1; Greenhouse v. C.F. Associates Ltd. Partnership, 98-0496 (La.App. 4 Cir. 1/10/98), 723 So.2d 1004, 1007. Because the Hursts claim that they were injured as a result of a defect in an elevator in the care, custody or control of the Hilton defendants, they must prove that the involved elevator presented an unreasonable risk of harm about which the Hilton defendants knew, or in the exercise of reasonable care, should have known. However, the Hilton defendants presented the affidavits of hotel employees to establish that the defendants had no knowledge of any vice or defect in the elevators. They also provided reports from elevator inspectors and affidavits from service company representatives to show that the elevators were properly maintained. Without the affidavit of their expert witness or his testimony, the plaintiffs were unable to prove an essential element of their case, i.e., that the Hilton defendants knew or should have known of the alleged vice or defect in the elevator. Accordingly, summary judgment was properly granted.

In their third assignment of error, the plaintiffs contend that the trial court erred in granting Schindler’s exception of prescription based on Schindler’s status as a joint obligor with Hilton.

The incident giving rise to the instant case occurred on February 22, 2005. The Hursts filed suit against Hilton on February 6, 2006. However, the plaintiffs’ second supplemental and amended petition, which named Schindler, was not filed until July 1, 2009. On December 13, 2012, the trial court granted summary judgment in favor of the Hilton defendants and dismissed the case against them with prejudice. Thereafter, the trial court granted Schindler’s exception of ^prescription on December 18, 2012. At that time, Schindler was the only remaining defendant.

The plaintiffs did not file suit against Schindler until more than four years after the alleged accident. On its face, the plaintiffs’ action against Schindler is prescribed because it is a delictual action subject to a liberative prescriptive period of one year. See La. C.C. art. 3492. Although the plaintiffs argue that prescription was interrupted by the filing of suit against a joint-tortfeasor, that is not the situation we have in this case. If the timely sued defendants are determined not to be liable to the plaintiffs, the petition for damages does not interrupt prescription against those defendants who were not timely sued. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). Accordingly, we find no error in the trial court’s maintaining Schindler’s exception of prescription.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court’s judgments striking the affidavit of Dr. Sparks and excluding him as an expert witness, granting summary judgment in favor of the Hilton defendants, and maintaining Schindler’s peremptory exception of prescription.

AFFIRMED.

      . Following the deposition of Dr. Sparks, Lerch Bates filed a motion for summary judgment. This motion was not opposed by the plaintiffs and was granted by the trial court. The plaintiffs also agreed to dismiss their claim against Pratt Landry leaving Hilton (including its employees, insurer and International Rivercenter Lessee, LLC, d/b/a New Orleans Hilton Riverside) and Schindler as defendants.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    John W. DAVIS, CPA v. STATE BOARD OF CERTIFIED PUBLIC ACCOUNTANTS OF LOUISIANA.
    No. 2013-CA-0514.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 2013.

      Jason R. Anders, A. Albert Ajubita, James R. Washington, III. Ajubita, Left-wich & Salzer, L.L.C., New Orleans, LA, for Plaintiff/App ellant.
    Eric J. Derbes, Albert J. Derbes, III, Daniel J. Poolson, Jr., The Derbes Law Firm, L.L.C., Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   PAUL A. BONIN, Judge.

_JjThe State Board of Certified Public Accountants of Louisiana revoked the CPA license of John W. Davis, imposed an administrative fine of $55,000, and ordered the payment of the Board’s “costs,” including attorney fees totaling $105,679.85. Mr. Davis timely appealed the Board’s decision to the Civil District Court for the Parish of Orleans. After reviewing the record of the administrative proceedings, the district court affirmed the revocation of Mr. Davis’ license and the imposition of the fine, but reversed the Board’s order requiring Mr. Davis to pay the Board’s attorney fees incurred as a result of the adjudication proceedings. From the ruling of the district court, Mr. Davis only appeals the revocation of his license. The Board, seeking reinstatement of the attorney fees, appeals that aspect of the district court’s ruling.

After de novo review of the entire record and based upon our own determination by a preponderance of the evidence, we find that the Board’s conclusions that Mr. Davis engaged in fraud and unprofessional conduct are sustainable and support its adjudication revoking Mr. Davis’ CPA license. With Lrespect to the Board’s appeal of the district court’s ruling, we have also conducted a de novo review of this matter, and conclude that the district court was legally correct in reversing the Board’s order that Mr. Davis pay its attorney fees. Thus, we affirm the district court’s ruling. We explain our decision in greater detail below.

I

Because this matter involves the judicial review of a state agency’s adjudication, we begin by describing the Board and its authority pertinent to the matters under review, and then consider the special procedures provided by law for judicial review of an adjudication of an administrative agency.

A

The State Board of Certified Public Accountants of Louisiana is a state agency within the office of the governor. See La. R.S. 37:74 A. The Board consists of seven members, all licensed, appointed by the governor, and confirmed by the Senate. See La. R.S. 37:74 B(l), C(l). The Board takes appropriate administrative actions to regulate holders of a certificate and permits, and to enforce the provisions of the Louisiana Accountancy Act. See La. R.S. 37:74 E(5); La. R.S. 37:71. One of the purposes of the Louisiana Accountancy Act is to ensure the public that certified public accountants will maintain certain professional standards or forfeit the privilege to represent themselves as such. See La. R.S. 37:72.

^Importantly, the Board is authorized to adopt rules in accordance with the Administrative Procedure Act governing the administration and enforcement of the Louisiana Accountancy Act as well as “the conduct of holders of a certificate and permits.” La. R.S. 37:74 J. Thus, the Board may adopt rules “controlling the quality and probity of services ... including but not limited to those dealing with independence, integrity, and objectivity, competence and technical standards, responsibilities to the public, and responsibilities to clients.” La. R.S. 37:74 J(4) (emphasis added).

The Board is also specially authorized, after notice and a hearing, to revoke a certificate because of a holder’s violation of professional standards or rules of professional conduct adopted by the Board, performance of any fraudulent act, conduct reflecting adversely upon his fitness to perform services as a CPA, engaging in efforts to deceive or defraud the public, professional incompetency, or rendering, submitting, or verifying false, deceptive, misleading, or unfounded reports. See La. R.S. 37:79 A(5), (7)-(8), (11)-(13).

Once a license is issued to a certified public accountant, it may not be revoked without affording to the licensee the procedural due process required by the Fourteenth Amendment as such state action adjudicates important interests of the licensees. See Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). The nature of the process that is required, however, varies depending on the individual deprivation. See id. at 540, 91 S.Ct. 1586; Wilson v. City of New Orleans, 479 So.2d 891, 895 (La.1985). In order to revoke a license of a certified public accountant, the Board must hold a Lhearing. The Board’s administrative hearings, however, are not “bound by technical rules of evidence.” La. R.S. 37:81 F. But, the Board’s decision in a given case may not rest entirely on hearsay evidence. See Thomas v. State Bd. of Certified Pub. Accountants, 08-1491, pp. 8-9 (La.App. 4 Cir. 1/27/10), 30 So.3d 1102, 1108.

The Board may impose a penalty on evidence of the commission of a single act prohibited by the Louisiana Accountancy Act without the necessity of establishing a general course of conduct. See La. R.S. 37:85. The Board may also impose an administrative fine not to exceed two thousand dollars per violation. See La. R.S. 37:79 A. Additionally, at the time of this adjudication, the Board could require the licensee to pay the “costs of any proceedings” involved in the adjudication. See La. R.S. 37:79 B(3). Thus, the Board has the legal authority to revoke a CPA certificate as well as impose fines and costs upon the certificate holder.

Any person who is adversely affected by the Board’s adjudication may file a written petition for review of the adjudication in the Civil District Court for the Parish of Orleans. See La. Const. art. 5, § 16(B) (“A district court shall have appellate jurisdiction as provided by law.”); La. R.S. 37:81 J. “The procedures for review and scope of review shall be as specified in the judicial review of adjudication procedures of the Administrative Procedure Act.” Ibid. We therefore turn to the Administrative Procedure Act.

Generally, “a person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review” under the Administrative Procedure Act. La. R.S. 49:964 A(l); La. R.S. 49:950. Proceedings are instituted in the appropriate district court by the filing of a petition for judicial review. See La. R.S. 49:964 B. “The review shall be conducted by the court without a jury and shall be confined to the record” from the agency adjudication. La. R.S. 49:964 F. The court, upon request, shall also hear oral argument and receive written briefs. See ibid.

A reviewing court may affirm the decision of the agency or remand the case for further proceedings. See La. R.S. 49:964 G. A reviewing court may reverse or modify an agency’s findings, inferences, conclusions, or decisions “if substantial rights of the appellant have been prejudiced” because the agency’s findings, inferences, conclusions, or decisions are “[n]ot supported and sustainable by a preponderance of evidence as determined by the reviewing court.” La. R.S. 49:964 G(6) (emphasis added). “In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of the evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review.” Ibid. (emphasis added). But also, “[i]n the application of this rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of the demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.” Ibid, (emphasis added). We also give deference to agency determinations of questions of law and mixed questions of law and fact which the agency has been charged to answer as well as the judgments of agencies upon the professional behavior of a member of the profession which the agency is charged to oversee.

A reviewing court may also reverse or modify an adjudication if the agency’s holding was “arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” La. R.S. 49:964 G(5). A reviewing court should not intervene unless the administrative agencies’ conduct is clearly unreasonable and arbitrary. See Bourgeois v. Louisiana State Racing Comm’n, 10-0573, p. 6 (La.App. 4 Cir. 11/12/10), 51 So.3d 851, 856. This provision applies to our review of final questions of law and mixed questions of law and fact, which the Board has been charged to answer. See Carpenter v. State, Dept. of Health and Hospitals, 05-1904, p. 5 (La.App. 1 Cir. 9/20/06), 944 So.2d 604, 608. See, e.g., Clark v. Louisiana State Racing Comm’n, 12-1049, p. 10 (La.App. 4 Cir. 12/12/12), 104 So.3d 820, 827. This deference is granted to an administrative agency due to its heightened expertise in the matters that the agency reviews.

Finally, a reviewing court may reverse or modify the agency’s findings, inferences, conclusions, or decisions “if substantial rights of the appellant have been prejudiced” because the agency’s findings, inferences, conclusions, or decisions are (1) in violation of constitutional or statutory provisions, (2) in excess |7of the statutory authority of the agency, (3) made upon unlawful procedure, or (4) affected by other error of law. See La. R.S. 49:964 G(l)-(4). These grounds present questions of law, and are reviewed de novo — without any deference to the agency or the district court as the first court of review. See Carpenter, 05-1904 at p. 5, 944 So.2d at 608.

“An aggrieved party may obtain review of any final judgment of the district court by appeal to the appropriate circuit court of appeal. The appeal shall be taken as in other civil cases.” La. R.S. 49:965. We have appellate jurisdiction over this matter. See La. Const, art. 5, § 10 A. The scope of our appellate review is defined by the same sections of the Administrative Procedure Act as those for the district court, the first court of appellate review. See La Const, art. 5, § 10(B); La. R.S. 49:964 G.

II

On September 9, 2011, the Board rendered its Final Decision following an administrative hearing, issuing one hundred two Findings of Fact and fifty-seven Conclusions of Law including violations of La. R.S. 37:79, La. R.S. 37:83, and Chapter XIX of Section 46 of the Louisiana Administrative Code. After our independent and, for the most part, non-deferential evaluation of the entire record of these administrative proceedings, we conclude that the Board’s Findings of Fact |sare sustainable and supported by a preponderance of the evidence, and uphold the Board’s revocation of Mr. Davis’ license. We find the following.

A

Mr. Davis was a holder of a certifícate as a certified public accountant in Louisiana since January 27, 1984. See La. R.S. 37:73(3). In 1990, Mr. Davis began to provide accounting and tax preparation services for the Magee family and its pharmacy business, Family Health Centers, Inc. In 2003, however, the nature of their business relationship changed when Mr. Magee decided to open multiple new drugstores and partner in this venture with Mr. Davis and Mr. Tinnerello, a pharmacist at one of Mr. Magee’s businesses. Mr. Davis received ownership or equity interests in these newly-forming entities including Albany Pharmacy, L.L.C., Dutchtown Pharmacy, L.L.C, and several others in exchange for his professional “in-house” accounting services. These services varied from forming the businesses themselves to bookkeeping, maintaining the check book and general ledger, and preparing financial statements as well as sales and income tax returns. Mr. Davis also prepared the personal income tax returns of the Tinnerello and Magee families.

All proceeded in a seemingly proper manner until 2007 when Mr. Magee engaged an outside CPA to provide fair market valuations of his various business entities. Upon reviewing those entities’ financial records, that CPA terminated the engagement, citing material differences between the amounts of income, expenses, assets, and liabilities in compiled financial statements and income tax returns for the same time periods.

19Mr. Davis asserts that the Board erred in finding that the financial information provided by Mr. Davis to that outside CPA could not be relied upon for the purposes of performing a business valuation, and that those documents were not prepared in accordance with Mr. Davis’ professional obligations. Mr. Davis claims that the outside CPA never testified as to either conclusion. Whether that outside CPA testified about these matters, however, is unimportant as those conclusions are the types of decisions specifically entrusted to the Board. The Board’s conclusion as to whether Mr. Davis deviated from his professional obligations, and provided data that falls below the minimum standards required of a practitioner of public accounting are at the essence of the Board’s specialty and competence. In our review of such administrative actions, we are cognizant of the “strong presumption of validity and propriety in such administrative actions where casting judgment upon the professional behavior of a fellow member of a profession is a matter peculiarly within the expertise of an agency composed of members of that profession.” Armstrong v. Louisiana State Bd. of Medical Examiners, 03-1241, p. 11 (La.App. 4 Cir. 2/18/04), 868 So.2d 830, 838 (quoting Montalbano v. Louisiana State Bd. of Med. Examiners, 560 So.2d 1009, 1011 (La.App. 4th Cir.1990)). Thus, in our review of this matter under La. R.S. 49:964 G(5), we find that the Board’s determination was reasonable and affirm its holding.

After the outside CPA explained his reasons for terminating the engagement to Mr. Magee, Mr. Davis was terminated. A subsequent review of the income tax returns filed by Mr. Davis for the 2003-2006 years resulted in the filing of multiple h (¡amended tax returns along with substantial additional payments to the Internal Revenue Service and the Louisiana Department of Revenue.

B

Mr. Davis also systematically and consistently underreported monthly sales figures in his preparation of the businesses’ sales and use tax reports for the appropriate taxing authorities. His reports caused the entities to pay significantly less than the proper amount of sales tax, and disregarded each entity’s point-of-sale computers, which aggregated this data to accurately calculate the tax due. From December 2004 to March 2007, Albany alone underreported sales in excess of $4 million dollars.

The resulting liability from this scheme was eventually realized. The Ascension Parish Sales & Use Tax Authority audited Dutchtown, and assessed $129,330.38 in interest and penalties for the failure to remit sales tax and $267,491.23 in sales tax that was collected but not remitted. Also, the Livingston Parish School Board audited Albany, which subsequently reached a settlement agreement to pay $330,312.74 in unpaid sales tax and $110,713.12 in interest.

A review of the companies’ financial records also revealed that Mr. Davis was using Albany’s collected, but not remitted, sales tax funds for his own personal benefit without the authorization of Mr. Magee and Mr. Tinnerello, and that Mr. Davis misrepresented how those funds were used in the company’s records. Prior to his termination, Mr. Davis ordered Linda Gomez, a CPA ^employed by Mr. Davis, to issue numerous blank checks drawn on Albany’s account. The checks were either deposited into the Treasury Tax and Loan Account of Mr. Davis’ CPA firm, paid to Mr. Davis’ sister, or used for an appeal bond on behalf of Mr. Davis. These funds were not applied to any of Albany’s expenses or liabilities. At the direction of Mr. Davis, Ms. Gomez also improperly coded the entries into the general ledgers noting the withdrawal of the funds to indicate different uses for those funds.

Mr. Davis challenges these findings arguing that, as a member of that limited liability company, he was entitled to distributions. These checks were entered into evidence at the hearing. Mr. Davis does not contest the validity of the checks. Further, Mr. Davis does not contest that these withdrawals were misrepresented in the corporate books as sales tax payments. Finally, we find that Mr. Davis’ use of these funds was unauthorized. Mere membership in a limited liability company does not entitle that member to unilateral use of the funds of that entity.

D

Mr. Davis also improperly structured the ownership of Albany and Dutchtown through entities wholly-owned by Roth IRAs. Mr. Davis personally formed some of these entities, and arranged for the Roth IRAs to be set up through the Stanford Group. The use of Roth IRAs in this manner is considered by the IRS to be an “abusive tax shelter.” Mr. Davis did not inform his business partners that these positions were risky or aggressive, subjecting them to the possibility of adverse action by the IRS. Prior to forming these entities, Mr. Davis did solicit a |12draft opinion from a tax attorney, which was read by Mr. Magee but not Mr. Tinnerello. Neither partner spoke with that attorney or any other accountant regarding the matter. Both partners relied entirely on Mr. Davis’ advice and recommendations regarding the use of Roth IRAs in this manner.

Mr. Davis asserts that Mr. Magee’s review of the draft opinion from the tax attorney undermines the Board’s factual findings that Mr. Magee and Mr. Tinnerel-lo relied entirely on Mr. Davis’ advice and recommendations, and that Mr. Davis failed to inform Mr. Magee and Mr. Tin-nerello of the risky and aggressive nature of this course of action. The Board weighed the credibility of numerous testifying witnesses, including Mr. Magee, Mr. Tinnerello, the outside tax attorney, and a defense expert, in making this determination. We give due regard to those credibility determinations. See La. R.S. 49:964 G(6).

E

Mr. Davis also committed numerous other violations during this time period. First, his firm issued multiple Compilation Reports after his firm’s registration with the Board had lapsed. Second, Mr. Davis did not note that he was not independent of the entities for which he had prepared Compilation Reports as required by the Statement on Standards for Accounting and Review Services issued by the American Institute of Certified Public Accountants. Finally, Mr. Davis also forged a signature on a tax return, and, as a notary, improperly executed several documents filed with the Secretary of State of Louisiana related to the entities formed by Mr. Davis.

Mr. Davis, again, challenged the Board’s credibility determination regarding a witness to this accusation of forgery. This witness’ testimony was supported by experts testifying on behalf of both Mr. Davis and the Board. Both stated that the 113signature was that of the person in question. We give due regard to this determination as well. See La. R.S. 49:964 G(6).

After our review of the entire record, we conclude that the Board’s findings in this matter are supported and sustainable by a preponderance of the evidence. We affirm the Board’s revocation of Mr. Davis’ CPA license.

Ill

We turn now to the Board’s appeal of the district court’s ruling. The Board contends that the district court erred in reversing its decision to include $105,679.85 in attorney fees as part of the “costs” of its adjudication proceedings under La. R.S. 37:79 B(3). The Board’s decision as to whether attorney fees are included as a “cost” under La. R.S. 37:79 B(3) is a question of law. Thus, we review this issue de novo — without regard for the reasonings set forth in the Board’s Final Decision or the district court’s ruling. See Wooley v. Lucksinger, 09-0571, p. 49 (La.4/1/11), 61 So.3d 507, 554.

Citing Women’s and Children’s Hosp. v. State, Dept. of Health and Hospitals, 08-946 (La.1/21/09), 2 So.3d 397, the Board asserts that we should give deference to its interpretation of La. R.S. 37:79, one of the agency’s governing statutes. We disagree. We only defer to the Board’s interpretation of its own regulations provided that the regulations are promulgated pursuant to statutory grants of authority and the procedures of the Louisiana Administrative Procedure Act. See id., 08-946 at pp. 5-7, 2 So.3d at 401-402. This deference stems from the agency’s unique statutory charge to interpret and apply those specific regulations. See Bowers v. Firefighters’ Retirement System, 08-1268, p. 4 (La.3/17/09), 6 So.3d 173, 176. The Board’s interpretations of its governing statutes and judicial decisions, however, are not entitled to any deference by us. See id., 08-1268 at p. 4-5, 6 So.3d at 176 (citing Entergy Louisiana, L.L.C. v. Louisiana Pub. Serv. Comm’n, 08-0284, p. 11 (La.7/1/08), 990 So.2d 716, 723). Thus, we continue our review of the scope of “costs” under La. R.S. 37:79 B(3) without any deference to the Board’s interpretation.

We find the district court’s interpretation to be legally correct, and affirm its exclusion of the Board’s attorney fees from the calculation of its “costs” under La. R.S. 37:79 B(3). It is a well-settled rule in Louisiana that attorney fees may not be assessed in the absence of specific statutory authority or express authorization by contract. See State, Dept. of Transp. and Dev. v. Wagner, 10-0050, p. 2 (La.5/28/10), 38 So.3d 240, 241. See also Sher v. Lafayette Ins. Co., 07-2441, p. 18 (La.4/8/08), 988 So.2d 186, 201; Favrot v. Favrot, 12-1573, p. 7 (La.App. 4 Cir. 5/1/13), 115 So.3d 1190, 1195. This limited statutory interpretation stems from the exceptional and penal nature of the award of attorney fees. See Cracco v. Barras, 520 So.2d 371, 372 (La.1988). “An award of attorney fees is a type of penalty imposed not to make the injured party whole, but rather to discourage a particular activity on the part of the opposing party.” Langley v. Petro Star Corp. of La., 01-0198, p. 3 (La.6/29/01), 792 So.2d 721, 723 (citing Sharbono v. Steve Lang & Son Loggers, 97-0110, p. 7 (La.7/1/97), 696 So.2d 1382, 1386). Thus, the inclusion of attorney fees in an award stemming from a claim under a particular statute necessitates an express legislative determination that such an award is appropriate and proportional to a particular violation’s affront to society, barring the parties’ contractual agreement to its inclusion.

At the time of Mr. Davis’ violations and adjudication, La. R.S. 37:79 B(3) provided the Board with the authority to “require a licensee or privilege holder to ... [p]ay the costs of any proceedings.” (emphasis added). La. R.S. 37:79 B(3) was [15amended during the 2013 Regular Session of the Louisiana Legislature to provide the Board with the authority to require licensees to pay “all costs of board proceedings, including ... attorney fees.” This entire adjudication, however, occurred prior to the effective date of that amendment. Furthermore, the legislature did not express a retrospective intent in the law, and the amendment is unquestionably substantive under La. Civ. Code. art. 6 as it establishes new rights to attorney fees. See, e.g., Sher, 07-2441 at pp. 15-17, 988 So.2d at 199-201. Therefore, the amendment does not apply retroactively to this case. In reading the statute prior to this amendment, it is clear that attorney fees are not expressly included within the gambit of sanctions which the Board has the authority to impose. The statute simply provides for the “costs of any proceedings.”

The Board, in its interpretation, asserts that attorney fees are impliedly included in “costs.” We hold, however, that attorney fees cannot be impliedly included as a statutory remedy. Furthermore, this argument falters when we examine La. R.S. 37:79 in its entirety, noting that there is specific mention of the inclusion of reasonable attorney fees as part of the remedy for the Board’s enforcement of its order against a non-compliant practitioner or firm in a court of competent jurisdiction. See La. R.S. 37:79 C(2). The availability of attorney fees as a remedy elsewhere in the statute implies their exclusion as a remedy in other sections. See Filson v. Windsor Court Hotel, 04-2893, p. 6 (La.6/29/05), 907 So.2d 723, 728 (“[Wjhen the legislature specifically enumerates a series of things, the legislature’s omission of other items, which could have been easily included in the statute is deemed intentional.”). Thus, the inclusion of attorney fees elsewhere in the same statute precludes their implied inclusion as part of the “costs” of the adjudication proceedings against Mr. Davis.

LfiThe district court correctly reversed the Board’s inclusion of attorney fees as “costs” under La. R.S. 37:79 B(3).

DECREE

The Board’s findings that Mr. Davis engaged in unprofessional conduct are supported and sustainable by a preponderance of the evidence. We affirm the Board’s revocation of Mr. Davis’ CPA license, and the district court’s ruling reversing the Board’s order that Mr. Davis pay its attorney fees. Each party is to pay its own costs of the appellate proceedings. See La. C.C.P. art. 2164; La. R.S. 49:964.1 A.

AFFIRMED.

      . Mr. Davis has not assigned as error the amount of the fine or the remainder of the costs.

      . Subsections E and F do allow for the taking of additional evidence before the agency or, in cases of alleged irregularities, before the court.

      . The violations that the Board found are extensive. They include La. R.S. 37:79 A(4), (5), (7), (8), (11), (12); La. R.S. 37:83 B, D, I; La. Admin. Code 46:XIX:1701 B(l); 1703 B, C; 1707 A(2), (5), (6), (11). These statutes and regulations define the parameters of professional conduct for certified public accountants, and prohibit acts of fraud, professional incompetence, and other dishonorable conduct.

      . Mr. Davis also held a Louisiana CPA Firm Permit to operate John W. Davis, C.P.A., L.L.C. See La. R.S. 37:73(12). This permit was also revoked.

      . Mr. Davis asserts that the Board’s findings for the amount of additional taxes paid by Mr. Magee and his businesses as a result of filing amended tax returns are not correct, and claims that Mr. Magee substantially lowered his overall tax liability by filing another set of amended tax returns later. The Board does not contest some change in overall tax liability as a result of those filings. This change, however, has no effect on any of the Board’s Conclusions of Law.


author: MAX N. TOBIAS, JR., Judge.

text:
    Elaine DEROCHE and Gerald Deroche. v. Rian M. TANENBAUM, M.D., Metropolitan Gastroenterology Associates, and C.B. Fleet Company, Inc.
    No. 2013-CA-0979.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 2013.

      Leo J. Palazzo, Jason John Markey, Pa-lazzo Law Firm, APLC Gretna, LA, for PlaintiffiAppellant.
    Stewart Earl Niles, Jr., Karen Marie Fontana, Niles Bourque Fontana & Knight, L.L.C. New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU).
   MAX N. TOBIAS, JR., Judge.

|, The plaintiffs, Elaine and Gerald De-roche, appeal a summary judgment dismissing their medical malpractice action against the defendant, Rian M. Tanen-baum, M.D., with prejudice. For the following reasons, we affirm.

I.

On 16 January 2008, Elaine Deroche filed a complaint with the Louisiana Patients’ Compensation Fund (“LPCF”) alleging that Dr. Tanenbaum, a gastroen-terologist, deviated from the prevailing standards of care when he ordered her to follow the instructions prepared by Metropolitan Gastroenterology Associates (“MGA”) for the use of a Fleet Phospho-Soda preparation (“FPS prep”) that was “contrary to the instructions” of the manufacturer prior to her scheduled colonos-copy in February 2007.

| gElaine Deroche was initially treated by Dr. Tanenbaum in 1998 for irritable bowel syndrome. In 2004, she underwent her first colonoscopy performed by Dr. Tanenbaum. Prior to the 2004 procedure, Dr. Tanenbaum instructed Mrs. Deroche to use the same FPS prep at issue in the instant case, which she did without incident or difficulty.

Mrs. Deroche returned to Dr. Tanen-baum on 28 January 2007 upon referral by her family physician following complaints of blood-tinged diarrhea. Blood work performed by the referring physician the previous day indicated Mrs. Deroche was not dehydrated at that time. Given her history of loose bowels for approximately three weeks duration, Dr. Tanenbaum recommended and had his staff schedule Mrs. Deroche for a colonoscopy for 7 February 2007 to take place at MGA’s facilities. According to Dr. Tanenbaum, because Mrs. Deroche had used the same FPS prep prior to her 2004 colonoscopy and done very well with it, he determined that the FPS prep would likewise be an appropriate bowel preparation for her colonoscopy in 2007. Dr. Tanenbaum discussed the procedure with Mrs. Deroche, explained why he was recommending she undergo the procedure, and explained what she needed to do in preparation for the procedure, including utilizing the FPS prep. Dr. Tanenbaum admittedly did not discuss with Mrs. 1 oDeroche the rare complication regarding potential renal failure and ne-phrotoxicity as a consequence of taking the FPS prep.

Mrs. Deroche was given written instructions prepared by MGA that provided a step-by-step process for using the FPS prep that she was to complete during the days immediately preceding her scheduled colonoscopy. As per the written instructions, Mrs. Deroche was to avoid certain foods and medication beginning three days prior to the procedure. The instructions further instructed her to drink one quart of Gatorade two days prior to the colonos-copy and another quart the day before the procedure. Regarding the day of her colo-noscopy (scheduled for 12:30 p.m.), the instructions directed Mrs. Deroche to consume bottle (ljé oz.) of Fleet Phospho-soda to one-half glass (4 oz.) of clear liquid” at 6:00 a.m., followed “with one full glass (8 oz.) of clear liquid.” At 9:00 a.m., the instructions stated that Mrs. Deroche was to “add the remaining [FPS] (1/&) to one-half glass (4 oz.) of clear liquid,” also followed “with one full glass (8 oz.) of clear liquid.” At 9:30 a.m., the instructions directed Mrs. Deroche to use a Fleet enema. The written instructions also advised what the patient should expect while taking the FPS prep. Additionally, the instructions directed the patient to call the physician if any vomiting occurred while taking the FPS prep.

pin her deposition, Mrs. Deroche testified that she purchased a single three-ounce bottle of FPS prep, but did not read or retain the package insert. She claimed that after measuring half of the bottle and mixing it with apple juice, she took the first dose at 6:00 a.m. on the morning of the procedure, which caused her to immediately regurgitate. She explained that due to her nausea and vomiting, she was unable to drink the required eight ounces of liquid following the first dose as directed.

Mrs. Deroche testified that she telephoned Dr. Tanenbaum’s office at MGA to report having vomited the first dose and left a message with MGA’s answering service. According to Mrs. Deroche, within 15 to 30 minutes, a MGA nurse returned her call and advised her to proceed with taking the second dose of the FPS prep since she had regurgitated the first dose. She could not recall telling the MGA nurse that she had not consumed any liquids after ingesting the first dose. Mrs. De-roche testified that she then took the second FPS prep dose at approximately 6:30 a.m. (rather than at 9:00 a.m. pursuant to the written instructions), followed by an eight-ounce glass of apple juice.

It is undisputed that Dr. Tanenbaum was not notified at any time prior to performing Mrs. Deroche’s colonoscopy — by Mrs. Deroche or anyone else — that she was nauseous, had vomited the morning of the procedure, or that she had taken | sboth doses of the FPS prep within 30 minutes of one another without hydration in-between doses contrary to the written instructions.

Dr. Tanenbaum conceded that he did not know for a fact whether Mrs. Deroche was dehydrated before she ingested the FPS prep. However, based upon the results of blood work performed two weeks earlier by the referring physician (indicating that after several weeks of diarrhea she had not become dehydrated as a result of her symptoms), and his personal evaluation of her in his office, he opined that even if Mrs. Deroche’s symptoms had persisted from the date of the blood test to the date of the colonoscopy, she would not have been dehydrated prior to ingesting the FPS prep. Moreover, Dr. Tanenbaum stated that, given the above, unless Mrs. Deroche informed him that there had been a change in her symptoms (which she did not), and assuming she properly hydrated according to MGA’s written instructions while taking the FPS prep, he had no reason to believe that she was dehydrated prior to performing the colonoscopy.

According to Dr. Tanenbaum, Mrs. De-roche’s colonoscopy was performed under moderate sedation without complications. He did not find any abnormalities; to the naked eye, the colon looked completely normal. Biopsies were obtained for further analysis. Mrs. Deroche was then discharged home with her husband. Further written instructions were provided and Mr. Deroche was advised to make sure that his wife had plenty of fluids to drink that evening. Though Mrs. De-roche contends she continued to feel nauseous even after the colonoscopy was completed, she confirmed that she failed to report this to either | ñDr. Tanenbaum or to anyone at MGA. Moreover, she concedes that, contrary to the discharge instructions to drink plenty of fluids that evening, she only managed to ingest a few sips of juice before going to bed for the night.

On the day following the procedure, Mrs. Deroche experienced difficulty urinating. She contacted Dr. Tanenbaum’s office and was instructed to go to the hospital. She presented to the emergency room at West Jefferson Medical Center and was thereafter admitted to the hospital with a diagnosis of dehydration and, based on elevated blood urea nitrogen (BUN) and creatinine levels, acute renal failure and nephrocalcinosis. Mrs. De-roche was discharged on 1 March 2007 once her renal function was stabilized.

The Deroches filed a complaint with the LPCF in January 2008 alleging that Dr. Tanenbaum breached the standard of care for gastroenterologists when he instructed Mrs. Deroche to follow MGA’s prepared instructions for taking the FPS prep which were contrary to the instructions of Fleet in preparation for her colonoscopy. The medical review panel convened four years later on 28 February 2012 and unanimously determined that Dr. Tanenbaum (and MGA) complied with all prevailing standards of care.

|7The Deroches subsequently filed the instant state court action against Dr. Tanenbaum, MGA, and Fleet in March 2012. Specifically, the Deroches’ petition alleged that Dr. Tanenbaum deviated from the prevailing standard of care for gas-troenterologists in providing medical care to Mrs. Deroche when he negligently: (1) failed to determine if Mrs. Deroche was dehydrated prior to instructing her to take the FPS prep; (2) failed to inform her of the potential risk of nephrotoxicity associated with taking the FPS prep; (3) instructed her to use the FPS prep contrary to the instructions and warnings provided by Fleet; and (4) advised Mrs. Deroche to immediately take the second dose of FPS despite her having regurgitated after ingesting the first dose. The plaintiffs further averred that Mrs. Deroche’s acute renal failure and nephrocalcinosis was directly caused by Dr. Tanenbaum’s breach of the applicable standard of care.

Dr. Tanenbaum and MGA answered the plaintiffs’ petition. In November 2012, they moved for summary judgment seeking dismissal of the Deroches’ claims on the basis that the plaintiffs failed to identify any expert medical witness to establish the applicable standard of care and/or to establish their claim that Dr. Tanenbaum’s actions deviated from that standard of care causing Mrs. Deroche’s acute renal failure. In support of his motion for summary judgment, Dr. Tanenbaum submitted a copy of the expert opinion of the medical review panel which had determined that the evidence did not support the conclusion that he failed to meet the applicable standard of care as charged by the plaintiffs. Specifically, the panel unanimously concluded:

1. There was no reason to suspect the patient was dehydrated prior to [taking] the [FPS] prep.
|82. The patient did not have any contraindications for the use of Fleet Phospho-Soda prep.
3. The prescribed prep was within the variations that were considered appropriate at the time of this procedure.
4. While disputed as to whether there was a telephone call, the panel finds that it was appropriate to let the patient take a second dose of Fleet Phospho-Soda prep after immediately vomiting the first dose.

In further support of his motion, Dr. Tanenbaum attached a copy of MGA’s written instructions for the colonoscopy preparation with FPS prep; a copy of Mrs. Deroche’s deposition; excerpts from the deposition of Dr. J. Kevin Modisette, Mrs. Deroche’s treating nephrologist; a chart access record for Mrs. Deroche; and Dr. Tanenbaum’s responses to the plaintiffs’ third set of interrogatories.

Mrs. Deroche’s deposition testimony established that she had used a bowel cleansing prep prior to her colonoscopy in 2004 without incident and about which she had no complaints. According to Dr. Tanen-baum, the prep Mrs. Deroche used in 2004 colonoscopy was the same FPS prep he instructed her to use in preparation for her 2007 colonoscopy. Mrs. Deroche’s deposition testimony further established that prior to her colonoscopy in 2007, Dr. Tanenbaum’s assistant discussed with her MGA’s written instructions for taking the FPS prep. Specifically, the assistant went over the importance of hydration and the need to drink a quart of green Gatorade on each of the two days preceding the procedure, as well as drinking the specified amounts of clear liquids during the course of the preparation. Despite those instructions, Mrs. Deroche advised that she did not Rdrink any fluids between the two doses of the FPS prep. Mrs. Deroche further stated that immediately following the colonoscopy, she was instructed regarding the need to drink fluids that evening. Again, despite those instructions to hydrate, Mrs. Deroche testified that she ingested only a few sips of juice before retiring for the night.

The deposition testimony of Dr. Modi-sette supports Dr. Tanenbaum’s contention that the instructions given to Mrs. De-roche prior to her colonoscopy regarding the use of FPS prep were appropriate. Specifically, Dr. Modisette testified as follows:

Q. Do you have any criticism of the instruction to the patient to drink a quart of green Gatorade on Monday, another quart of green Gatorade on Tuesday, and on Wednesday to take half a bottle, one and a half ounces of Fleet Phospho-Soda mixed with a four-ounce glass of clear liquid, followed up with a full glass of eight-ounce clear liquid and then waiting three hours for the second half of the dose?
A. No. That seems to be actually more appropriate than the company recommendations based on what I’ve read. That is a low dose prep and it sounds like if she was, in fact, told to drink that much Gatorade, they were trying to protect against dehydration.

In opposition to Dr. Tanenbaum’s motion, the Deroches submitted a photocopy of the affidavit of Dr. Karen Kim, an expert retained by Fleet to defend against the prior product liability action the Der-oches brought against Fleet in federal court, which action was dismissed in 2009. Dr. Kim’s affidavit was prepared for and presented in the federal court action. The plaintiffs presented no |lf)other expert witness testimony, countervailing affidavit, or supporting documentation to rebut the expert opinion of the medical review panel.

Dr. Tanenbaum’s motion for summary judgment came for hearing in January 2013, nearly five years from the date the Deroches’ instituted their initial claim against Dr. Tanenbaum with the LPCF. Following oral argument, the trial court granted Dr. Tanenbaum’s motion, without written reasons, dismissing the Deroches’ suit against him with prejudice.

The Deroches’ timely filed a motion to set aside the judgment and for new trial. In support of their motion, the plaintiffs again attached a photocopy of the affidavit of Dr. Kim, in addition to the deposition of Dr. Tanenbaum, a copy of the PDR’s instructions and warnings for FPS prep, a copy of Dr. Tanenbaum’s instructions for colonoscopy preparation with FPS- prep, and various medical records of Mrs. De-roche. The motion was orally argued before the trial court on 22 March 2013, and denied in a written judgment of 23 April 2013.

The Deroches perfected this appeal, arguing that issues of fact remain as to whether they have satisfied their burden under La. R.S. 9:2794 by demonstrating that Dr. Tanenbaum deviated from the applicable standard of care when he failed to use reasonable care and diligence in his treatment of Mrs. Deroche, and as to whether his breach caused Mrs. Deroche to sustain acute renal failure.

II.

An appellate court utilizes a de novo standard to review the granting or denial of a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 1999-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. A motion for summary judgment will be granted “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 that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B.

The burden of proof is on the movant. But if the movant will not bear the burden of proof at the trial of the matter, the movant is not required to negate all essential elements of the adverse party’s claim, but rather to point out an absence of factual support for one or more essential elements. Thereafter, if the adverse party fails to provide factual evidence to establish that he will be able to satisfy his evidentiary burden of proof at trial, no genuine issue of material fact exists, and summary judgment is properly granted. La. C.C.P. art. 966 C(2).

In a ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether a genuine issue of triable fact remains. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 03-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137.

La. R.S. 9:2794 A provides that a plaintiff in a medical malpractice action against a physician bears the burden of proving by a preponderance of the evidence: (1) the applicable standard of care expected of physicians in his medical specialty, (2) a violation of that standard of care, and (3) a causal connection between the alleged negligent treatment and the plaintiffs injuries resulting | ^therefrom. Pfiffner v. Correa, 94-0924, 94-0963, 94-0992, p. 8 (La.10/17/94), 643 So.2d 1228, 1233; Farmer v. Reyes, 95-0734, pp. 3-4 (La.App. 4th Cir.11/16/95), 665 So.2d 129, 131. All three elements must be proven in order for a plaintiff to successfully maintain a cause of action sounding in medical malpractice. Expert medical testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without guidance of expert testimony. Pfiffner, 94-0924 at pp. 9-10, 643 So.2d at 1234.

In the instant case, Dr. Tanenbaum does not dispute that Mrs. Deroche sustained acute renal failure and nephrocalci-nosis following the colonoscopy he performed. The medical records contained in the record on appeal, as well as Dr. Tanen-baum’s deposition testimony, confirm this. At issue, however, is whether, as a matter of law, in accordance with the burden of proof requirements in a medical malpractice action as set forth in La. R.S. 9:2794 and Pfiffner, the Deroches have satisfied their burden of establishing the applicable standard of care of physicians in Dr. Tanenbaum’s field of expertise when preparing patients for a colonoscopy, that Dr. Tanenbaum deviated from that standard of care, and that his deviation caused Mrs. Deroche’s acute renal failure.

The Deroches argue that Dr. Tanen-baum’s own deposition testimony raises an issue of fact as to whether he breached the standard of care of gastroenterologists. Specifically, the Deroches contend that because of Mrs. Deroche’s history of several weeks of persistent diarrhea, Dr. Tanen-baum should have ordered another blood test immediately prior to performing the colonoscopy to ensure that she was properly hydrated. According to the Deroches, pursuant to Fleet’s instructions for the FPS prep, “in patients such as Mrs. De-roche,” a baseline 113and post-treatment sodium, potassium, chloride, bicarbonate, phosphate, blood urea nitrogen, and creati-nine values should have been obtained. The plaintiffs apparently seek to have us infer a breach of the applicable standard of care from Dr. Tanenbaum’s failure to conduct an additional blood test prior to Mrs. Deroche’s colonoscopy in order to obtain her baseline electrolyte levels. The plaintiffs posit that other than Dr. Tanenbaum’s deposition testimony, no additional expert testimony is needed to support their contention that Dr. Tanenbaum’s reliance on the previous doctor’s blood work rather than performing his own constituted negligence resulting in Mrs. Deroche’s acute renal failure.

Though conceding the importance of obtaining a baseline electrolyte level in an at-risk patient before prescribing FPS prep, Dr. Tanenbaum does not dispute that he relied on the blood work of the referring physician instead of conducting his own blood test before proceeding with Mrs. Deroche’s colonoscopy. According to Dr. Tanenbaum, the “at-risk” population associated with the FPS prep was identified to include those patients with pre-existing kidney disease, congestive heart failure, colitis, and patients that were on certain types of medications such as diuretics or ace inhibitors. Contrary to the unsubstantiated assertions by the plaintiffs that Mrs. Deroche fell into this “at-risk” category, in Dr. Tanenbaum’s medical opinion, her ongoing bowel issues did not place her “at-risk” such that additional blood work was necessary. Consequently, Dr. Tanenbaum argues that his reliance on the referring physician’s blood work was proper, and no reason existed for him to believe Mrs. Deroche was dehydrated prior to his performing the colonoscopy.

|uWe find that the Deroches have failed to present any expert medical evidence establishing the applicable standard of care in the field of gastroenterology addressing what pre-procedure evaluation is required for a colonoscopy, what laboratory work is indicated, and/or whether any contraindications for the FPS prep exists. We also find the record devoid of evidence establishing that, prior to her 2007 colo-noscopy, Dr. Tanenbaum had any reason to opine that Mrs. Deroche fell into the “at-risk” patient population for |15which the FPS prep was contraindicated. Our finding is bolstered by the uncontroverted expert medical testimony from three gas-troenterologists, establishing that no reason existed for Dr. Tanenbaum to suspect that Mrs. Deroche was dehydrated prior to the prep and that she was an appropriate candidate for the FPS prep.

Next, the plaintiffs claim that Dr. Tanenbaum breached the applicable standard of care by failing to inform Mrs. Deroche of the potential risk of nephrotox-icity and/or acute renal failure associated with taking the FPS prep. The plaintiffs present no expert medical testimony to establish this aspect of their claim. The record contains a consent form executed by Mrs. Deroche disclosing the risks associated with a colonoscopy, which included the loss of function of an organ. It is undisputed that Mrs. Deroche experienced acute renal failure, or loss of kidney function, following her colonoscopy. In Louisiana, a physician is not charged with the duty of informing a patient of any and all known risks however slight or immaterial, but rather, a physician has the duty to disclose all material risks of the proposed treatment. See Hondroulis v. Schuhmacher, 553 So.2d 398, 418-19 (La.1988). The determination of materiality is a two-step process. The first step is to define the existence and nature of the risk and the likelihood of its occurrence. Some expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging what risks exists and the likelihood of occurrence. Id. at 412. In the instant case, 11 (¡while it is not disputed that nephrotoxicity and/or acute renal failure were potential risks associated with the FPS prep and that in 2007 Dr. Tanen-baum was aware of these potential risks, the Deroches offer no expert testimony to prove these risks were “material.” Their failure to do so is fatal to their claim. Moreover, the FPS prep package insert provided by the plaintiffs identify the risk of renal failure as a “rare” risk affecting persons falling into the at-risk population {i.e., patients with previous kidney problems, heart conditions, or taking medications affecting kidney function such as drugs for hypertension or diuretics, et cet-era). Additionally, Dr. Tanenbaum testified that, in his medical opinion based upon the blood work obtained by her referring physician and his examination of Mrs. De-roche, she did not present with a medical history or have symptoms placing her into the at-risk category. The medical review panel agreed.

The second prong of the materiality test requires proof that a reasonable person in the patient’s position would have attached significance to the risk in deciding whether or not to forgo the proposed treatment. Id. at 412. While this determination of materiality does not require expert testimony, our review of the summary judgment evidence indicates that the plaintiffs cannot carry their burden. The record establishes that Mrs. Deroche used the same FPS prep without incident prior to her colonoscopy in 2004. Consequently, absent evidence to the contrary, it reasonably follows that even had Dr. Tanenbaum informed her of the potential for the rare risk of renal failure to occur she, or a reasonable person in her position, would not have withheld consent to use of the FPS prep. Accordingly, we reject the plaintiffs’ argument that Dr. Tanenbaum breached the applicable standard of |17care by failing to inform Mrs. Deroche of the rare risk of renal failure associated with use of FPS prep.

The Deroches next argue that Dr. Tanenbaum breached the standard of care by providing Mrs. Deroche outdated instructions that were contrary to Fleet’s directives and warnings regarding the taking of FPS prep. Offering no expert medical testimony, the plaintiffs refer to the PDR’s instructions and warnings for FPS prep to support their position. We note that a similar argument, i.e., that Dr. Tanenbaum improperly prescribed FPS prep to Mrs. Deroche, was previously reviewed by the medical review panel. Specifically, the expert medical opinion of the panel was that Dr. Tanenbaum’s instructions complied with the applicable standard of care: “[T]he prescribed prep was within the variations that were considered appropriate at the time of this procedure.”

The medical review panel rejected the plaintiffs’ contention and, absent expert medical testimony to the contrary, so do we. We specifically hold that a manufacturer’s labeling and package insert standing alone is insufficient to establish the prevailing medical standard of care required by La. R.S. 9:2794. Similarly, we find that a physician’s medical decision to deviate from a manufacturer’s labeling also does not ipso facto establish a breach of the applicable standard of care.

The plaintiffs aver that the affidavit of Dr. Kim, a gastroenterologist, further supports a finding that, by providing Mrs. Deroche with outdated instructions for taking FPS prep, Dr. Tanenbaum breached the applicable standard of care and placed her at an unnecessary risk for her resulting renal failure. We disagree. Our 118review of Dr. Kim’s affidavit (which itself contains no opinions, but rather, authenticates an attached expert report she authored) reveals that it is silent regarding the prevailing medical standard of care for gastroenterologists and in no way supports a contention that Dr. Tanenbaum breached the applicable standard of care. Accordingly, because Dr. Kim’s affidavit does not establish the applicable standard of care at issue in this case and contains no evidence of a breach of thereof, we find it fails to defeat Dr. Tanenbaum’s motion for summary judgment.

The absence of expert medical testimony in this case to support the plaintiffs’ various theories of liability against Dr. Tanen-baum is the death knell of the Deroches’ claims against him. Reviewing the record de novo, we find the evidence adduced by the plaintiffs is insufficient to prove the applicable standard of care, its breach, or causation. Summary judgment dismissing their claims was proper.

III.

For the reasons assigned, we affirm the judgment of the trial court.

AFFIRMED.

      . MGA is the medical group with whom Dr. Tanenbaum practices medicine.

      . Fleet Phospho-Soda is manufactured and distributed by C.B. Fleet Company (“Fleet”), which is also a defendant in the instant litigation.

      . Mrs. Deroche’s complaint with the LPFC further averred that MGA breached the prevailing standard of care when one of its nurses improperly advised her to ingest a second dose of the FPS prep on the morning of the procedure, which allegedly caused her to sustain permanent kidney damage. MGA moved for summary judgment, which motion was denied. Thus, the Deroches’ allegations asserted against MGA are not currently before the court on this appeal.

      . At that time, Mrs. Deroche underwent a flexible sigmoidoscopy, a procedure used pri- or to colonoscopies, performed by Dr. Tanen-baum, which revealed a "mild inflammatory reaction of the colon.” Based upon this finding, Dr. Tanenbaum diagnosed Mrs. Deroche as suffering from irritable bowel syndrome.

      . Dr. Tanenbaum described a colonoscopy as "an evaluation of the large intestine with an endoscopic or a fiber-optic scope to aid in evaluation and treatment of the patient.”

      . The record contains a "Consent for Medical Procedure and Acknowledgement of Receipt of Information” executed by Mrs. Deroche prior to undergoing the colonoscopy.

      . Dr. Tanenbaum testified that, while he was aware of the risk of acute renal failure associated with the use of the FPS prep, he did not discuss the possibility with her because, in his medical opinion and based upon Mrs. De-roche's prior use of the same prep without incident, he believed Mrs. Deroche was not a part of the at-risk population, especially had she followed the MGA written instructions and been properly hydrated during the course of the preparation for the colonoscopy.

      . Dr. Tanenbaum explained that the protocol or written instructions for the FPS prep given to Mrs. Deroche were drafted by MGA based on recommendations from various medical sources and the PDR (Physician’s Desk Reference) regarding administering the FPS prep. Dr. Tanenbaum participated in the drafting of these instructions.

      . It is undisputed that the instructions for taking the FPS prep prepared by MGA differed from Fleet's instructions and warnings regarding the use of the FPS prep that were in effect at the time of Mrs. Deroche’s colo-noscopy. Specifically, instead of the three-hour lapse between the first and second doses espoused by Dr. Tanenbaum and MGA, Fleet recommended ten to twelve hours between doses. Dr. Tanenbaum admitted in his deposition that he was unaware of Fleet's revisions to its instructions regarding the change in the timeframe. Despite the Fleet package instructions, however, Dr. Tanenbaum was of the medical opinion that the three-hour span for taking the preparation was sufficient and appropriate.

      . Whether Mrs. Deroche actually made the call to MGA and eventually spoke with a MGA nurse remains a fact in contention. But this unresolved factual issue is not relevant to the issues regarding the alleged negligence or malpractice of Dr. Tanenbaum. MGA’s motion for summary judgment, which is not before this court on appeal, was denied on this basis.

      . Mrs. Deroche's biopsy report later revealed a diagnosis of "collagenous colitis,” which Dr. Tanenbaum explained is a microscopic colitis that cannot be detected with visualization of the colon, but only by biopsy.

      . In her deposition, Mrs. Deroche testified that following the procedure, she specifically recalls being told to drink plenty of fluids that evening.

      . Nephrocalcinosis is a condition in which calcium levels in the kidneys are increased.

      . Also in January 2008, after filing their complaint with the LPCF, the Deroches filed a product liability action against Fleet in federal court alleging that the FPS prep was unreasonably dangerous and caused Mrs. Deroches’ acute kidney failure. In January 2009, Fleet filed a motion for summary judgment, seeking dismissal of the Deroches' claims on the basis that they failed to present any medical expert testimony to prove them. On 18 February 2009, the Deroches moved to voluntarily dismiss their claims against Fleet without prejudice.

      . The complaint also alleged that MGA breached the applicable standard of care resulting in Mrs. Deroche’s acute renal failure and nephrocalcinosis.

      . The medical review panel consisted of Drs. James Smith, John Harrington, and Sean Connolly.

      . A nephrologist is a medical doctor who specializes in kidney care and diseases.

      . Mrs. Deroche testified that because of her nausea, she was unable to drink the requisite eight ounces of fluid following the first dose of the FPS prep.

      . Notably, Dr. Kim was retained by Fleet as its expert in the earlier federal product liability action to discuss Fleet’s compliance with FDA regulations and the safety of its product, and whether Fleet properly informed the medical community of the risks and benefits of their product and its subsequent labeling changes.

      . Dr. Tanenbaum testified in his deposition as follows:
      Q. Would it be fair to say [sic] you, based on your experience of doing these colonos-copies and instructing people to take these difference types of bowel preps, you knew that before 2007, specifically that you don’t want to give this product Fleet Phospho-Soda to somebody that’s dehydrated?
      A. Yes.
      Q. If you had information that the patient was possibly dehydrated, that would be the appropriate protocol to do before giving them this Fleet product, do a baseline blood test on them?
      A. Yes.
      Q. Did you do a baseline blood test on Ms. Deroche before giving her this product Fleet Phospho-Soda?
      A. Yes.
      Q. You did?

        A. The doctor that saw the patient before I did did a baseline.
      Q. I saw that in the medical records. If you can find that in the records for me, do you know the date that was given?
      A. January 22, 2007.
      Q. The actual colonoscopy was on February 7, 2007, correct?
      A. Yes.
      Q. So we’re taking approximately, what, two weeks?
      A. Yes.
      Q. Can someone get dehydrated within a two-week period?
      A. If you’re asking me if the patient had a change in her symptoms, which she had for three weeks prior to seeing me and her blood work did not show dehydration, the patient at the time of the procedure did not notify me of any changes of those symptoms, the answer is that the baseline on 1/22 would suffice.
      Q. So diagnostically we don’t know if she was dehydrated or not back in February 7, 2007?
      A. A blood test was performed on the 22nd of 2007 after the patient had been having several weeks of diarrhea documenting whether the patient would have been having any dehydration from her symptoms which had not changed and the patient did not let me know that at the time of her colonoscopy.

      . In Louisiana, an executed consent form presents a presumption of informed consent, which may be rebutted by proving the following: (1) a material risk exists which the physician has a duty to disclose; (2) the physician failed to information the patient about a material risk; (3) the material risk was realized; and, (4) a causal connection exists between the failure to inform the patient of the risk and realization of the risk. See Hondroulis v. Schuhmacher, 553 So.2d 398, 405 (La.1988); In re Medical Review Panel of Morris, 1999-0657, p. 5 (La.App. 4 Cir. 12/5/01), 802 So.2d 999, 1002.

      . The instructions Dr. Tanenbaum provided to Mrs. Deroche directed her to take the second dose of the FPS prep three hours after ingesting the first dose. Fleet's instructions recommend 10 to 12 hours between doses.