author: CRAIN, J.

text:
    Janie JONES, individually and on behalf of her Minor Daughter, Destinee Jones v. Dr. William BLACK and Louisiana Medical Mutual Insurance Company.
    No. 2013 CA 1889.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2014.

      Donald W. Price, Paul H. Due, and Dr. Edward A. Robinson, III, Dr. Mark E. Robinson, Baton Rouge, LA, for Plaintiff/Appellant, Janie Jones, Individually and on behalf of her minor daughter, Des-tinee Jones.
    Vance A. Gibbs, Jennifer Jones Thomas, Baton Rouge, LA, for Defendants/Appel-lees, Dr. William Black and Louisiana Medical Mutual Insurance Company.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

|2In this medical malpractice proceeding, the plaintiffs appeal judgments that sustained an exception of res judicata, granted a motion in limine, and granted summary judgment in favor of the defendants. We reverse the judgment granting the exception of res judicata, affirm in part and reverse in part the judgment granting the motion in limine, reverse the summary judgment, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

This litigation began approximately twenty-four years ago when the plaintiff, Janie Jones, individually and on behalf of her minor daughter, Destinee Jones, filed a petition against Dr. William Black and his insurer, Louisiana Medical Mutual Insurance Company (LAMMICO), alleging that Dr. Black breached the standard of care during the birth and delivery of Des-tinee. More particularly, Jones alleged that Dr. Black was negligent in the use of forceps during the delivery, and as a result, Destinee suffered a permanent loss of vision in her right eye. Jones also alleged that Dr. Black failed to inform her of the material risks associated with the use of forceps during the delivery.

The matter proceeded to a jury trial beginning on January 19, 1993, where Jones presented testimony from numerous witnesses, including Dr. William J. Cameron, an obstetrician and gynecologist, and Dr. Peter R. Kastl, an ophthalmologist, in support of her claim that Dr. Black negligently used the forceps and that his negligence caused Destinee to sustain a hemorrhage behind her right eye, referred to as a “retrobulbar hemorrhage.” The defendants countered with testimony from Dr. Black and other medical experts, including an obstetrician/gynecologist and two pediatric ophthalmologists, together with the medical review panel opinion in favor of Dr. Black and other documentary evidence. At the conclusion of the trial, the jury returned a verdict finding that Dr. IsBIack’s conduct fell below the applicable standard of care and that his conduct caused Destinee to suffer a retrobulbar hemorrhage as well as abrasions and/or lacerations. The jury awarded a total of $100,000.00 in general damages and no special damages. Thereafter, the trial court entered a judgment notwithstanding the verdict that modified the damages but did not increase the total award.

On appeal, this court found that the jury verdict was tainted by the trial court’s efforts to encourage the jury to reach a verdict; and, as a result, this court conducted a de novo review of the evidence. Jones v. Black, 94-1505 (La.App. 1 Cir. 9/22/95) (unpublished opinion). Based upon that review, this court held that Jones failed to prove that negligence by Dr. Black caused Destinee’s injury. Accordingly, the judgment on the jury verdict and the judgment notwithstanding the verdict were reversed.

The supreme court granted writs and in a per curiam opinion agreed that the trial court’s action tainted the jury verdict, but the supreme court vacated the decision of this court and remanded for a new trial, stating:

After taking the unusual step of sending for and reviewing the entire record in this case, we are convinced that this case is one in which the weight of the evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues.

Jones v. Black, 95-2530 (La.6/28/96), 676 So.2d 1067 (quotation marks and citation omitted).

Several years after the remand and with a new trial date pending, the defendants filed an exception of res judicata, a motion in limine, and a motion for summary judgment. In the exception of res judicata, the defendants contended that a ruling made by the trial court during the prior trial precluded any argument, testimony, or other evidence of informed consent at the new trial. The ruling at issue was rendered at the conclusion of the evidence in the first trial, when the trial court determined that it was “not going to allow the issue of [informed] consent to [4go to the jury.” The defendants argued that this ruling became final and binding because Jones did not appeal or assign error to it in connection with the appeal of the prior judgment on the merits.

In the motion in limine, the defendants sought to exclude any testimony from Dr. Cameron, Dr. Kastl, and Dr. Frederick Gonzalez, an expert retained by Jones after the case was remanded for a new trial. According to the defendants, Dr. Cameron was not qualified to render an opinion on the standard of care or causation, and Dr. Gonzalez, an obstetrician and gynecologist, lacked the necessary expertise to render an opinion concerning the cause of the retrobulbar hemorrhage. As to Dr. Kastl, the defendants argued that his testimony was not definitive because he identified two possible causes of the retrobulbar hemorrhage: the forceps or the forces/pressures of labor. Therefore, the defendants asserted that Dr. Kastl’s testimony “does not cany the burden of proof on the issue of causation” and should be excluded. The defendants also maintained that Dr. Kastl had “no peer-reviewed medical literature or studies” to support his opinion that the forceps were a possible cause of the injury.

In anticipation of a favorable ruling on the motion in limine, the defendants filed a motion for summary judgment asserting that Jones could not establish the requisite elements of her case against Dr. Black, specifically the element of causation.

After a hearing on the exception and motions, the trial court granted the exception of res judicata and entered a judgment precluding Jones from presenting any argument, testimony, or other evidence on the issue of informed consent at the trial. The court continued consideration of the motion in limine until a subsequent hearing date and denied the motion for summary judgment. After the ensuing hearing, the trial court granted the motion in limine and entered a judgment that precluded Jones from presenting any testimony of Dr. Cameron, Dr. Gonzalez, or 15Pr. Kastl at the trial of the matter.

Thereafter, the defendants re-urged their motion for summary judgment, which the trial court granted. In accordance therewith, the trial court entered a judgment that dismissed Jones’ claims against Dr. Black and-LAMMICO with prejudice.

Jones appeals and asserts three assignments of error: (1) the trial court erred in finding that the informed consent claim is barred by reversed and vacated judgments under the doctrine of res judicata, (2) the trial court erred in excluding the testimony of the medical experts on the grounds that they were unqualified and used unscientific methods, and (3) the trial court erred in finding that there were no genuine issues of material fact that precluded summary judgment.

LAW AND ANALYSIS

A. Exception of Res Judicata

The burden of proving the facts essential to sustaining an exception of res judicata is on the party pleading the exception. Union Planters Bank v. Commercial Capital Holding Corp., 04-0871 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130. If any doubt exists as to its application, the exception of res judicata must be overruled and the second lawsuit maintained. Pieirotti v. Johnson, 11-1317 (La.App. 1 Cir. 3/19/12), 91 So.3d 1056, 1063. The concept should be rejected when doubt exists as to whether a plaintiffs substantive rights actually have been previously addressed and finally resolved. Patin v. Patín, 00-0969 (La.App. 1 Cir. 6/22/01), 808 So.2d 673, 676. The res judicata effect of a prior judgment is a question of law that is reviewed de novo. Pierrotti, 91 So.3d at 1063.

Although the law of res judicata underwent a substantial revision in 1990, the law in effect prior to that revision applies in the present matter because the petition was filed before January 1, 1991, the effective date of the act. See La. Acts 1990, No. 521, § 5. Nevertheless, under both the pre-amendment and postjamend-ment6 version of the law, an essential requirement to the application of res judica-ta is a “final judgment.” See Preis v. Standard Coffee Service Company, a Division of W.M. B. Reilly and Company, Inc., 545 So.2d 1010, 1012-13 (La.1989) (pre-amendment); La. R.S. 13:4231 (after amendment by La. Acts 1990, No. 521, § 1). A “final judgment” is one that “determines the merits in whole or in part.” La.Code Civ. Pro. art. 1841. As explained hereinafter, the absence of a final judgment in this proceeding is fatal to the defendants’ argument that the doctrine of res judicata prevents Jones from pursing her claim of lack of informed consent.

The defendants do not contend that the judgment on the jury verdict or the judgment notwithstanding the verdict are final judgments, as both of those judgments were reversed in an opinion by this court, which was later vacated by the supreme court. See Jones, 676 So.2d at 1067. The supreme court’s decision to remand the case for a new trial effectively vacated the prior judgments by the trial court, so those judgments cannot constitute final judgments. See La. R.S. 13:4231, Comment (d) (“The use of the phrase ‘final judgment’ also means that the preclusive effect of a judgment attaches once a final judgment has been signed by the trial court and would bar any action filed thereafter unless the judgment is reversed on appeal ”) (Emphasis added).

Instead, the defendants argue that Jones’ informed consent claim was “effectively dismissed” by the trial court and that Jones “abandoned” the claim because she did not assign any error to the trial court’s ruling in the original appeal pursuant to Rule 2-12.4 of the Uniform Rules of the Courts of Appeal. This contention ignores that a judgment was never entered by the trial court that dismissed Jones’ informed consent claim. Rather, the trial court ruled that the jury would not be instructed on the informed consent claim. The denial of a jury instruction is an interlocutory ruling rather than a final judgment because it does |7not determine the merits in whole or part. See La.Code Civ. Pro. art. 1841; Miller v. Upjohn Co., 461 So.2d 676, 677 (La.App. 1 Cir.1984). An interlocutory judgment cannot serve as the basis for a plea of res judicata. Saizan v. Pointe Coupee Parish School Board, 10-0757 (La.App. 1 Cir. 10/29/10), 49 So.3d 559, 563, writ denied, 10-2599 (La.1/14/11), 52 So.3d 905.

The defendants alternatively contend that the principle of “issue preclusion” set forth in revised Louisiana Revised Statute 13:4231(3) is applicable and bars re-litigation of an “issue actually litigated and determined if its determination was essential to that judgment.” See also La. R.S. 13:4231, Comment (b). However, prior to the 1990 amendment to Section 4231, Louisiana did not recognize the principle of “issue preclusion,” sometimes referred to as “collateral estoppel,” in the law of res judicata. See La. R.S. 13:4231, Comment (b) (“R.S. 13:4231 also changes the law by adopting the principle of issue preclusion”) (emphasis added); Welch v. Crown Zellerbach Corporation, 359 So.2d 154, 157 (La.1978) (holding that the common law version of res judicata permitting “collateral estoppel” was not applicable in Louisiana). Accordingly, under the law applicable to this case, the doctrine of issue preclusion is not available to the defendants, and their reliance on revised Section 13:4231(3) has no merit.

In a final argument in support of the exception of res judicata, the defendants contend that under the “law of the case” doctrine, the trial court’s ruling is binding during the latter stages of the case. Under this doctrine, courts of appeal have held that they have discretion to not reconsider their own rulings of law on a subsequent appeal in the same case. Garrison v. St. Charles General Hospital, 03-0423 (La.4/25/03), 845 So.2d 1047 (per curiam). However, the doctrine does not apply in the context of a trial court ruling on interlocutory issues. Land v. Vidrine, 10-1342 (La.3/15/11), 62 So.3d 36, 42. For this reason, the trial court’s | ¡¿interlocutory ruling denying a jury instruction on informed consent is not binding on Jones in the new trial under the law of the case doctrine.

Absent a final judgment, the exception of res judicata has no basis, and the trial court erred in sustaining the exception and precluding Jones from presenting any argument, testimony, or other evidence on the issue of informed consent at the trial.

B. Motion in Limine

Jones next asserts that the trial court erred in granting the motion in limine and excluding any testimony from Dr. Cameron, Dr. Gonzalez, and Dr. Kastl on the grounds that they were unqualified and used unscientific methods.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. La.Code Evid. art. 702. In Cheairs v. State ex rel. Department of Transportation and Development, 03-0680 (La.12/3/03), 861 So.2d 536, 542, the Louisiana Supreme Court adopted the following three part inquiry For determining whether the admission of expert testimony is proper:

1. Is the expert qualified to testify competently regarding the matters he intends to address?
2. Is the methodology by which the expert reaches his conclusions sufficiently reliable as determined by the sort of inquiry mandated in Daubert ?
3. Will the testimony assist the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue?

The trial court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly correct. Breitenbach v. Stroud, 060918 (La.App. 1 Cir. 2/9/07), 959 So.2d 926, 936, As with all other admissible evidence, expert testimony is subject to being tested by vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. Breitenbach, 959 So.2d at 936.

A trial court is accorded broad discretion in determining whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert. Cheairs, 861 So.2d at 541. An appellate court should not disturb a trial court’s evidentiary ruling on the admissibility of expert opinion evidence at summary judgment absent an abuse of discretion. MSOF Corp. v. Exxon Corp., 04-0988 (La.App. 1 Cir. 12/22/05), 934 So.2d 708, 717, writ denied, 06-1669 (La.10/6/06), 938 So.2d 78.

1. William Cameron

Dr. Cameron was tendered as an expert in the area of obstetrics and gynecology. In the motion in limine, Dr. Black challenged Dr. Cameron’s qualifications as an expert as to the standard of care relating to forceps deliveries and whether Dr. Black breached the standard of care under the facts of this case. The trial court agreed and found that Dr. Cameron was not familiar with the standard of care applicable to Dr. Black.

A challenge to an expert’s qualifications falls within the first prong of the Cheairs inquiry and does not involve a Daubert analysis. See Robertson v. Doug Ashy Building Materials, Inc., 10-1552 (La.App. 1 Cir. 10/4/11), 77 So.3d 339, 355, units not considered, 11-2432, 11-2433 (La.1/13/12), 77 So.3d 973, 974, units denied, 11-2468, 11-2430 (La.1/13/12), 77 So.3d 972, 973 (“Daubert concerns admissibility of the expert’s opinion and not his qualifications as an expert in the area tendered.”)

Dr. Cameron confirmed in his deposition that he graduated from the University of Michigan Medical School and trained in obstetrics and gynecology at |10the University of Kansas. After completing his training in 1961, he obtained board certification in the field of obstetrics and gynecology. He became a full professor of obstetrics and gynecology at the University of Kansas, where he also served as vice-chairman of the department of obstetrics and gynecology for 16 years through the date of the deposition. From 1961 through 1988 Dr. Cameron delivered approximately 75 babies a year. He used forceps in approximately 50 percent of the deliveries until about 1980, when the percentage decreased to about ten percent because of the increasing popularity of “so-called natural childbirth.” He further confirmed that he authored , approximately twenty articles published in medical journals, and he had qualified as an expert in the specialty of obstetrics and gynecology numerous times without ever being rejected as an expert.

Dr. Black challenged Dr. Cameron’s qualifications as an expert in obstetrics on the basis that Dr. Cameron was no longer delivering babies at the time of his trial deposition. Dr. Black also asserted that 90% of Dr. Cameron’s practice at the time of his deposition involved gynecology and not obstetrics, and that his publications were in the field of gynecology and did not address the use of forceps in deliveries.

While this information may go to the weight of Dr. Cameron’s opinion, none of these contentions rises to the level of disqualifying him as an expert in the field of obstetrics and gynecology. Dr. Cameron confirmed that he was board certified and had approximately 30 years of experience in the field of obstetrics and gynecology. Based upon his estimated number of deliveries per year, Dr. Cameron delivered over two thousand babies from 1961 through 1988, and a substantial number of those deliveries involved the use of forceps. The record contains no reasonable basis for the trial court’s conclusion that Dr. Cameron was not familiar with the applicable standard of care for delivering a baby with the use of forceps at the time of the subject delivery in 1988. To the contrary, Dr. Cameron’s | n education, training, and experience clearly qualified him as an expert as tendered in the field of obstetrics and gynecology: See Bradbury v. Thomas, 98-1678 (La.App. 1 Cir. 9/24/99), 757 So.2d 666, 674-675 (physician who was board certified in obstetrics and had practiced for 30 years in obstetrics and gynecology was properly accepted as expert in field of obstetrics and gynecology). The trial court abused its discretion in excluding Dr. Cameron as an expert witness and precluding Jones from presenting any of his testimony.

However, as to the specific issue of causation, the trial court did not abuse its discretion to the extent the judgment prohibited any testimony from Dr. Cameron about the cause of the retrobulbar hemorrhage. Dr. Cameron repeatedly acknowledged that he was not an expert in the causes of a retrobulbar hemorrhage, as confirmed by the following excerpts from his deposition:

Q. And you are not an expert in pediatric ophthalmology, are you?
A. No.
Q. You are also not a specialist in the causes of retrobulbar hemorrhage, are you?
A. No.
Q. And that area, the cause of retro-bulbar hemorrhage, is the area of a pediatric ophthalmologist?
A. Well, ophthalmology.
Q. Retinal hemorrhages can also occur without any negligence or wrongful action by a physician; is that correct?
A. I don’t know about retinal hemorrhages ...
Q. That’s something that’s outside your expertise—
A. That’s right.
Q. If I understood your earlier testimony, you are not a specialist in the cause of retrobulbar hemorrhage; is that correct?
li?.A. Right.
Q. That determination of the cause of retrobulbar hemorrhage is within the specialties of an ophthalmologist or in this case a pediatric ophthalmologist; is that correct?
A. I would think so.
Q. You are not an expert in the cause of retrobulbar hemorrhage; is that correct?
A. That’s right.

Based upon this testimony, the trial court did not abuse its discretion to the extent it found that Dr. Cameron was not qualified to render an opinion about the cause of Destinee’s retrobulbar hemorrhage. Therefore, we affirm the trial court’s judgment insofar as it precluded any testimony from Dr. Cameron about the cause of the retrobulbar hemorrhage.

2. Dr. Frederick Gonzalez

Dr. Gonzalez graduated from Columbia University College of Physicians and Surgeons in 1976 and completed a four-year residency in obstetrics and gynecology at Downstate Medical Center in Brooklyn, New York. He is board certified in obstetrics and gynecology and is a fellow of the American College of Obstetrics and Gynecology, He also completed a three-year fellowship in maternal and fetal medicine and is board certified in that subspecialty. He has over 27 years of practice with experience and training in the use of forceps; and in 1988, around the time of the subject delivery, he was delivering about 300 babies a year. In connection with his opinions in this matter, Dr. Gonzalez reviewed documentation that included the medical records associated with the delivery of Destinee, the medical review panel decision, and the depositions of Dr. Cameron and Dr. Kastl.

Given Dr. Gonzalez’s education, training, and experience, the trial court abused its discretion in finding that Dr. Gonzalez was not qualified to testify about 113the standard of care applicable to Dr. Butler’s use of forceps in the delivery of Destinee and whether that standard of care was breached. We further find that the trial court abused its discretion in finding that Dr. Gonzalez was not qualified to testify as to whether the improper use of the forceps caused the retrobulbar hemorrhage. Dr. Gonzalez confirmed his experience and expertise in the nature of injuries caused by the improper use of forceps in the following testimony:

Q. In your experience as an OB/GYN, what are physical signs and symptoms of a forceps injury?
A. Injury — lacerations, bruising, skull fractures, hemorrhages, intercranial hemorrhages, lacerations of the ear, injury to the eye, hemorrhage into the eye. Those are all — those are some of the complications that I have seen from forceps.
Q. For all the complications that you just listed, which, if any, were present in this case?
A. The retrobulbar hemorrhage.
Q. And none of the other signs or symptoms that the forceps were—
A. There was swelling, which goes along with it, and retrobulbar hemorrhage. Yes, that’s it.
Q. As an OB/GYN, you’re not qualified to render an opinion as to an ophthalmo-logical cause of her injury?
A. No.
Q. Would you defer to ophthalmologists with regard to their opinion as the cause of the eye injury?
A. If they found something in the eye, then the answer is yes. But I’m not going to defer to them as to forceps injuries. That’s my specialty.
Q. Your specialty is treatment of eye injuries from forceps?
A. No, my specialty is knowing how to apply and deliver babies by forceps, and I’m very familiar with what the injuries are. So to have an ophthalmologist tell me that an injury to the eye was caused — unless he finds another reason, all of a sudden he tells me — if he tells me there’s something else, fine. But what’s the something else?
Q. If those physicians who did treat Destinee Jones did not find the typical signs and symptoms of a forceps injury, and determined that it was not a forceps injury, you would have to defer to their opinion, is that correct?
A. I would have to look at what they’re saying and see if it makes any sense to me. Okay? Because to sit here and, somehow or other, say that swelling over the eye and a retrobulbar hemorrhage is not consistent with a misapplication of forceps just doesn’t make any sense tome ..., To say this injury came flying out of the night from nowhere doesn’t make any sense to me. Give me a reason.

When further pressed about his opinion as to causation, Dr. Gonzales replied:

A. You had the forceps. You had an injury to the eye. That’s a recognized complication of forceps. And I have found no other explanation for this child’s injury....

Based upon his testimony, Dr. Gonzalez has the necessary training, education, and experience to render an opinion concerning whether the improper use of forceps caused the retrobulbar hemorrhage suffered by Destinee. The trial court abused its discretion in finding that Dr. Gonzalez was not qualified to testify in that regard.

The defendants also contend that the basis of Dr. Gonzalez’s causation opinion is not sufficiently reliable to satisfy the Daubert requirements. This argument involves the second of the Cheairs requirements for expert testimony, which requires that the methodology by which the expert reaches his conclusions must be sufficiently reliable as determined by the sort of inquiry mandated in Daubert. The Supreme Court in Daubert enumerated illustrative considerations to determine whether the reasoning and methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, as follows: (1) whether the expert’s theory or technique can be and has been tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) |1Bwhether there is a known or potential rate of error, and (4) whether the methodology is generally accepted in the scientific community. See Daubert, 509 U.S. at 593-594, 113 S.Ct. at 2796-2797; Devall v. Baton Rouge Fire Dept., 07-0156 (La.App. 1 Cir. 11/2/07), 979 So.2d 500, 502-503.

Daubert’s general “gatekeep-ing” obligation applies not only to testimony based on scientific knowledge, but also to testimony based on technical and other specialized knowledge. Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999). However, the test of reliability is flexible, and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Kumho Tire Company, Ltd., 526 U.S. at 141, 119 S.Ct. at 1171; Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181 (La.2/29/00), 755 So.2d 226, 234. In determining whether particular expert testimony is reliable, the trial court should consider the specific Daubert factors where they are reasonable measures of reliability. Kumho Tire Company, Ltd., 526 U.S. at 138, 119 S.Ct. at 1170. The objective of Daubert’s gatekeeping requirement is to ensure the reliability and relevancy of expert testimony by making certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes an expert’s practice in the relevant field. See Kumho Tire Company, Ltd., 526 U.S. at 152, 119 S.Ct. at 1176.

In forming his opinion, Dr. Gonzalez reviewed the medical records associated with Jones’ labor and delivery, the depositions of Dr. Cameron and Dr. Kastl, the opinion of the medical review panel, and several articles appearing in medical journals. Based upon his review of that information and his years of training, education, and experience in the use of forceps in a delivery, Dr. Gonzalez opined that the retrobulbar hemorrhage was caused by a misapplication of the forceps. Dr. Gonzalez explained that the retrobulbar hemorrhage is Inconsistent with the type of injures that he has seen result from the use of forceps, and that his opinion was further supported by the swelling identified over Destinee’s eye. Drawing on his years of training, education, and experience in the use of forceps, Dr. Gonzalez arrived at his opinion by familiarizing himself with the facts of the subject delivery and applying his personal knowledge of complications associated with the use forceps. We find nothing inherently unreliable in this methodology. To the contrary, it is typical of the evaluation process generally undertaken by a medical expert in formulating an opinion. See Robertson, 77 So.3d at 355-357 (trial court erred in striking affidavit of medical expert whose statements were based on his knowledge, experience, and training, and his review of patient’s medical records, expert reports, medical studies and literature, and depositions of the patient and his family). Accordingly, the trial court abused its discretion in finding that Dr. Gonzalez’s methodology was not sufficiently reliable under Daubert.

3. Dr. Peter Kastl

Dr. Kastl was tendered by the plaintiff as an expert in the field of ophthalmological medicine. He graduated from Tulane Medical School and completed a residency in ophthalmology, followed by a fellowship in cornea and external eye disease. He became board certified in ophthalmology in 1981 and has since been affiliated with Tulane University as a faculty member, where he is a full professor of ophthalmology. He was also the chief of ophthalmology at the Veterans Administration Hospital in New Orleans. He has previously been accepted by Louisiana courts as an expert in the field of ophthalmology and has never been rejected as unqualified. Although Dr. Kastl has not treated a child who was suspected of having sustained a birth trauma, he has treated patients with orbital hemorrhages. Based upon his review of the medical records, he believed l17that Destinee’s retrobulbar hemorrhage was caused by either the forceps or the process of labor.

The trial court found that Dr. Kastl “stated in testimony [that he] could not render an opinion on [Destinee’s] ophthalmology issue.” We find no factual support for this conclusion in the record. Dr. Kastl’s education, training, and experience qualified him to render opinions within his specialty of ophthalmology, and he did not deny his qualification to testify as to Destinee’s injury. The trial court further found that Dr. Kastl could not assist the trier of fact because he “speculated to different things” that could have caused the retrobulbar hemorrhage, which the trial court believed would “confuse the jury rather [than] assist them.” We likewise find this conclusion to be an abuse of discretion. Dr. Kastl’s testimony confirmed that the injury could have been caused by the forceps, and he explained the mechanism of the injury with a demonstration using exemplar forceps and a doll. That testimony corroborates Dr. Gonzalez’s opinion that Destinee’s injury was caused by the misuse of the forceps and supports Dr. Gonzalez’s statement that retrobulbar hemorrhage is a recognized complication of the use of forceps in a delivery. The record does not support a finding that Dr. Kastl was not qualified to render his opinion, that his opinions will confuse the jury, or that his testimony should otherwise be excluded because it “does not carry the burden of proof’ as argued by Dr. Black.

We also find no merit to Dr. Black’s contention that Dr. Kastl’s opinions should be excluded because he presented “no peer-reviewed medical literature or studies” to support his opinion that the forceps were even a possible cause of the retrobulbar injury, Dr. Kastl’s opinion was based upon his review of the medical records and his years of training, education, and experience in ophthalmology. As previously addressed, Dr. Kastl specifically described how the injury could result from trauma caused by forceps. He further noted that the bloody discharge under |18Pestinee’s eyelid was consistent with that opinion, and that the surface abrasions and lacerations around her eye were caused by the forceps. His opinion was further supported by Dr. Gonzalez’s testimony that retrobulbar hemorrhage is a recognized complication of forceps-aided deliveries. The record does not reflect anything inherently unreliable about Dr. Kastl’s review of the medical records and his reliance upon his education, training, and experience to develop an opinion as to possible causes of Destinee’s retrobulbar hemorrhage, a condition that falls within his area of medical expertise. Although the defendants complain that Dr. Kastl’s presented “no peer-reviewed medical literature or studies to support his opinion that the forceps” were a possible cause of the injury, they did not introduce any medical literature establishing that the misuse of forceps could not be a possible cause of a retrobulbar hemorrhage. See Robertson, 77 So.3d at 358-359 (noting an absence of evidence that the medical expert’s opinions on medical causation were unreliable). Accordingly, we find the trial court abused its discretion in excluding Dr. Kastl as a witness and prohibiting his testimony.

Based upon the foregoing, we affirm the trial court’s judgment granting the motion in limine only to the extent the judgment precluded testimony from Dr. Cameron as to the cause of the retrobulbar hemorrhage. We reverse the granting of the motion in limine in all other respects and specifically find that Dr. Cameron and Dr. Gonzalez are qualified to render opinions concerning the standard of care applicable to Dr. Black and whether that standard of care was breached during the delivery of Destinee. We additionally find that Dr. Gonzalez and Dr. Kastl are qualified to render opinions concerning whether Dr. Black’s use of the forceps caused the retro-bulbar hemorrhage and further find that the methodology utilized [,sby those witnesses in forming their opinions is sufficiently reliable to satisfy the Daubert standard.

C. Summary Judgment

After the trial court granted the motion in limine precluding any testimony from Drs. Gonzalez, Kastl, and Cameron, the defendants re-urged their motion for summary judgment. The motion was supported by several exhibits, including the opinion of the medical review panel and the trial court’s ruling granting the motion in limine. Jones opposed the motion with the depositions of Dr. Gonzalez, Dr. Cameron, and Dr. Kastl, and affidavits from Dr. Gonzalez, and a more recently retained expert, Dr. Henry O’Halloran, a board-certified ophthalmologist specializing in pediatric and neuro-ophthalmology. The defendants objected to the affidavit of Dr. O’Halloran and asked that it be struck because it was not submitted before the court-imposed deadline for plaintiffs completion of discovery. The trial court granted the motion to strike Dr. O’Hallo-ran’s affidavit and the re-urged motion for summary judgment and entered a judgment dismissing the plaintiffs claims against Dr. Black and LAMMICO.

| 2qA motion for summary judgment shall be granted only if “the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La Code Civ Pro. art. 966B(2). The party seeking summary judgment has the burden of proving an absence of a genuine issue of material fact. La.Code Civ. Pro. art. 966C. If the movant satisfies the initial burden, the burden shifts to the party opposing summary judgment to present factual support sufficient to show he will be able to satisfy the evidentiary burden at trial. La.Code Civ. Pro. art. 966C(2); Suire v. Lafayette City-Parish Consolidated Government, 04-1459 (La.4/12/05), 907 So.2d 37, 56. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035, unit denied, 97-1911 (La.10/31/97), 703 So.2d 29.

In a medical malpractice action against a physician, the plaintiff must prove the following: (1) the standard of care applicable to the physician, (2) a violation of that standard of care by the physician, and (3) a causal connection between the physician’s alleged negligence and the claimed injuries. See La. R.S. 9:2794; Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228, 1233; Vanner v. Lakewood Quarters Retirement Community, 12-1828 (La.App. 1 Cir. 6/7/13), 120 So.3d 752, 755. Where the defendant physician practices in a particular specialty and the alleged acts of medical negligence raise issues peculiar to the particular |21medical specialty involved, the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within that specialty. La. R.S. 9:2794A(1); Vanner, 120 So.3d at 754-756.

Based upon our ruling allowing Jones to present the expert opinions of Dr. Rodriguez, Dr. Kastl, and, in part, Dr. Cameron, the evidence submitted in opposition to the motion for summary judgment was sufficient to show that Jones will be able to satisfy her evidentiary burden at trial. The affidavit and deposition of Dr. Rodriguez and the deposition of Dr. Cameron satisfy the first two elements of the plaintiffs burden of proof by setting forth proof of the applicable standard of care and Dr. Black’s breach of that standard of care in the delivery of Destinee. The third requirement, a causal connection between the physician’s alleged negligence and the claimed injuries, is satisfied by the affidavit and deposition of Dr. Rodriguez and the deposition testimony of Dr. Kastl.

Our conclusions with respect to the competency and sufficiency of Jones’ evidence, including the expert testimony of Dr. Cameron and Dr. Kastl, are wholly consistent with the supreme court’s previous decision to remand the case for a new trial, rather than decide it on de novo review, because “the weight of the evidence is so nearly equal.” Jones, 676 So.2d at 1067. The supreme court made that determination after reviewing much of the same evidence that is before this court on the motion for summary judgment, Given the evidence presented, we see no basis for dismissing Jones’ claims by summary judgment. Accordingly, the trial court erred in granting summary judgment to Dr. Black and LAMMICO.

CONCLUSION

We reverse the January 28, 2013 judgment of the trial court granting the defendants’ exception of res judicata and precluding the plaintiffs from presenting any argument, testimony, or other evidence on the issue of informed consent at the trial of this matter. We affirm, in part, the April 2, 2013 judgment granting the ^motion in limine to the extent the judgment precluded Jones from presenting testimony from Dr. William, Cameron as to the cause of Destinee’s retrobulbar hemorrhage; however, in all other respects the April 2, 2013 judgment is reversed, and the motion in limine is denied. Finally, we reverse the August 21, 2013 judgment to the extent it granted summary judgment to the defendants, and we remand for further proceedings in accordance herewith All costs of this appeal are assessed to Dr. William G. Black and Louisiana Medical Mutual Insurance Company.

JANUARY 28, 2013 JUDGMENT REVERSED; APRIL 2, 2013 JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; AUGUST 21, 2013 SUMMARY JUDGMENT REVERSED; MATTER REMANDED.

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

      . Jones contends that the motion in limine should have been denied in all respects because it was "flagrantly untimely" under Louisiana Code of Civil Procedure article 1425F, which requires that the motion be filed "not later than sixty days prior to trial.” Although Jones did not assign this as error, counsel did include this assertion in the "Issues Presented for Review” in his appellate brief, To the extent this issue was properly preserved for review on appeal, we find no merit in Jones’ argument. The record reflects that the motion in limine was filed on January 2, 2013, and that the trial was scheduled on January 28, 2013. However, the trial date was set at a status conference held on December 3, 2012, which was less than 60 days prior to trial. The scheduling order further provided that all motions and exceptions had to be filed on or before January 2, 2013, Jones did not object to that deadline, and the defendants filed their motion in compliance with the deadline. Thereafter, the trial court continued the trial to August 5, 2013, and heard the motion in limine on March 25, 2013. Under these circumstances, the trial court did not abuse its discretion in continuing the trial date and considering the merits of the motion in li-mine. See Hulbert v. National Democratic Committee, 10-0772, p. 6 (La.App. 1 Cir. 5/6/13), 2013 WL 1896945 (recognizing that a continuance rests within the sound discretion of the trial court); La.Code Civ. Pro. art. 1425F(6) ("[B]y unanimous consent of the parties, and with approval by the court, a motion under this Paragraph may be filed, heard, and ruled upon by the court at any time prior to trial.”) '

      . Jones did not appeal or assign any error to the trial court’s granting of the motion to strike the affidavit of Dr. O’Halloran because it was untimely, so any potential issues or errors related to that ruling are abandoned. See Uniform Rules — Courts of Appeal, Rules 1-3 and 2-12.4; Franklin v„ AIG Casualty Company, 13-0069 (La.App. 1 Cir. 6/7/13), 2013 WL 3475773 (unpublished opinion). Given the trial court’s broad discretion to enter and enforce pre-trial orders to control the course of the proceeding, including the identification of witnesses, we further find that the interests of justice do not clearly require review of the trial court's ruling. See La.Code Civ. Pro. art. 1551 A(8) and B; Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 00-1930 (La.App. 1 Cir. 9/28/01), 809 So.2d 1040, 1055; Uniform Rules — Courts of Appeal, Rules 1-3; Franklin, at *2, n. 3.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    Alma J. JOHNSON v. David MONTOYA, et al.
    No. 2013 CA 1951.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2014.

      John N. Samaha, Baton Rouge, Louisiana, for Plaintiff/Appellee Alma J. Johnson.
    Kevin O. Larmann, W. Evan Plauché, Metairie, Louisiana, David C. Loeb, Daniel E. Zelenka, II, New Orleans, Louisiana, for Defendant/Appellant Kramor of Plaquemine, LLC d/b/a Supreme Chevrolet Cadillac of Plaquemine.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McClendon, j.

12Pefendant appeals a trial court’s judgment seeking a reduction in the amount of general damages awarded to the plaintiff by the trial court for false imprisonment. Plaintiff has answered the appeal seeking damages for conversion. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 29, 2011, Alma Johnson purchased a 2005 Cadillac SRX from defendant/appellant, Kramor of Plaquemine, LLC, d/b/a Supreme Cadillac of Plaque-mine (“Supreme”). The salesman at Supreme who handled the transaction was David Montoya. Ms. Johnson executed sales documents, made a down payment of $500.00, was given the keys, and drove off in the vehicle,

Ms. Johnson avers that there was nothing left to be done in connection with the sale and believed the car to be hers. Supreme, on the other hand, avers that Mr. Montoya informed Ms. Johnson that as a condition of the sale, her Dodge Stratus would have to be paid off before the finance company would extend her credit on the 2005 Cadillac SRX. Supreme contends that Ms. Johnson took the Cadillac home as a “courtesy delivery,” but never fulfilled the condition of paying off her older vehicle.

A few days after the sale, Ms. Johnson returned to Supreme for her inspection sticker, which she received without incident. Two weeks later, she again returned, without incident, for repairs on a service light. Ms. Johnson also made a payment to the finance company, which she avers was the first month’s note.

In mid-March 2011, when Ms. Johnson inquired into her license plate for the car, she was told that she needed to return the Cadillac. Ms. Johnson did not return the vehicle, because she believed it was hers.

Mr. Montoya, in an attempt to get the vehicle back, contacted the police on the day in question. Ms. Johnson admits that she was contacted by the Plaquemine Police Department and was told to return the vehicle to the dealership within two hours.

| .-¡Because Ms. Johnson failed to return the vehicle, she was arrested when she returned home after work. She was taken to the Baker Police Department and placed in a holding cell. She testified that she spent about thirty minutes at the Baker Police Department until she was transferred at approximately 9:00 p.m. to the East Baton Rouge Parish Prison. She remained in the East Baton Rouge Parish Prison until noon the next day when she was picked up by an officer and was taken to the Plaquemine police station. Upon arriving at the station, she was given a court date and released. The charges against Ms. Johnson were later dropped.

On September 20, 2011, Ms. Johnson filed suit against Supreme, seeking, among other things, damages for mental anguish resulting from false imprisonment and reimbursement for the down payment and the first car note paid. Supreme answered, generally denying Ms. Johnson’s allegations.

Following trial, the trial court ruled in favor of Ms. Johnson, but took the issue of damages under advisement. Subsequently, the trial court issued written reasons for judgment, wherein it stated:

After considering the pleadings and memoranda submitted by counsel for both plaintiff and counsel for defendant, the court finds that the plaintiff was in fact falsely imprisoned because of the actions of the defendants. The court, considering the general damages awarded in Patín [v.] Duplessis Pontiac-Buick-GMC ... and Nelson [v.] City of Shreveport ... and the 3 days Alma Johnson spent in police custody, awards Alma Johnson $15,000.00 in general damages. The court also awards Alma Johnson reimbursement for the down payment and first note paid for the 2005 Cadillac in the amount of $600.00 along with costs and interest.

The trial court subsequently signed a "written judgment on July 3, 2013, awarding plaintiff a total award of $15,600.00.

Supreme has appealed, asserting that the trial court erred in awarding general damages based on three days of police custody where the undisputed fact is that Ms. Johnson was only in custody for one day. Ms. Johnson has |4answered the appeal, asserting that the trial court erred in failing to award damages for wrongful conversion of her vehicle.

DISCUSSION

A factual finding by the trial court cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Stobart v. State through Dept, of Transp. and Development, 617 So.2d 880, 882 (La.1993). Although appellate courts must accord great weight to the factual findings of the trial court, these same courts have a duty to determine if the fact finder was justified in its conclusions. Mart v. Hill, 505 So.2d 1120,1127 (La.1987).

Moreover, the trier of fact has much discretion in the assessment of damages. LSA-C.C. art. 2324.1. A reviewing court should not set aside an award of general damages unless an analysis of the facts and circumstances reveals an abuse of the fact finder’s discretion in setting the award. Smith v. Roussel, 00-1028 (La.App. 1 Cir. 6/22/01), 809 So.2d 159, 167. The discretion vested in the trier of fact is great, and even vast, so that an appellate court should rarely disturb an award of general damages. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury, to the particular plaintiff, under the particular circumstances, that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert, denied,, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). However, when the fact finder abuses its discretion by rendering an excessive or inadequate quantum decision, the appellate court merely raises the fact finder’s inadequate award to the lowest reasonable amount or reduces the fact finder’s excessive award to the highest reasonable amount. Andrus v. State Farm Mutual Auto. Ins. Co., 95-0801 (La.3/22/96), 670 So.2d 1206,1211.

The trial court, in its reasons for judgment, noted that Ms. Johnson was in police custody for three days. In making the general damage award, Supreme notes that the trial court referenced Patin v. Duplessis Pontiac-Buick-GMC Trucks, Inc., 632 So.2d 790 (La.App. 1 Cir.1993), writ denied, 94-1004 (La]6/17/94),s 638 So.2d 1096, wherein a panel of this court found that the trial court’s general damage award of $15,000.00 to a plaintiff who was incarcerated for six hours was a “clear abuse of its vast discretion ... [and] shocks our conscience.” Patin, 632 So.2d at 793. This court found that $4,500.00 was the highest amount that could be awarded for the six-hour incarceration and resulting mental anguish. Id.

Supreme contends that Ms. Johnson was in police custody only one day. In light of Patin, Supreme contends that the general damage award of $15,000.00 was an abuse of discretion. Supreme concludes that this court should lower the general damage award to the highest point that was reasonably within the discretion afforded the trial court, which it asserts is $5,000.00 for one day in jail.

Appellate courts review judgments, not written reasons for judgment. Wooley v. Lucksinger, 09-0571 (La.4/1/11), 61 So.3d 507, 572; see also LSA-C.C.P. art. 1918. The reasons, whether oral or written, form no part of the judgment, serving only as an explication of the trial court’s determinations. Wooley, 61 So.3d at 572. Therefore, we review under an abuse of discretion standard.

At trial, Ms. Johnson testified that four to five police unite were sent to her home at the time she was arrested. Ms. Johnson informed the arresting officers that she was concerned with finding someone to take care of her mother, who was blind and staying with her. Unlike Patin, which we note was decided nearly twenty years ago, Ms. Johnson was in police custody for approximately sixteen hours over the course of two days. She was forced to spend the night in parish prison/and was released following her transfer to Plaque-mine the next day. | (Although Ms. Johnson learned that her court date for the criminal trial had been dismissed, she came to court on the scheduled date “because I was so frightened that if I didn’t come ... I was afraid that if I didn’t come I would be picked up again under false arrest.” At trial, Ms. Johnson was upset and crying when she had to testify about these events.

Considering the foregoing, we cannot conclude that the trial court abused its discretion in awarding $15,000.00 in general damages. Cf. Brown v. City of Monroe, 48,764 (La.App. 2 Cir. 2/26/14), 2014 WL 737894, 135 So.3d 792 wherein the second circuit awarded $20,000.00 in general damages to a plaintiff who was arrested at work in front of her coworkers, booked, and incarcerated for one hour.

In answer to the appeal, Ms. Johnson urges that the trial court failed to address her claim for conversion. Ms. Johnson asserts that the appropriate damage for wrongful conversion is presumed to be the value of the property wrongfully appropriated, plus interest. As such, Ms. Johnson concludes that the trial court erred in failing to award damages for conversion of the vehicle.

We note that Ms. Johnson’s petition does not make a claim for conversion. Moreover, we have found nothing in the record wherein Ms. Johnson raised this issue. As a general rule, appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. Stewart v. Livingston Parish Sch. Bd., 07-1881 (La.App. 1 Cir. 5/2/08), 991 So.2d 469, 474. See also Uniform Rules-Courts of Appeal, Rule 1-3. Accordingly, this issue is not properly before us on review.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s July 3, 2013 judgment. Costs of this appeal are assessed to appellant, Kramor of Plaquemine, LLC, d/b/a Supreme Cadillac of Plaquemine.

AFFIRMED.

      . Ms. Johnson also named Mr. Montoya as a defendant, but he was later dismissed by agreement of the parties.

      . The trial court also cited Nelson v. City of Shreveport, 40,494 (La.App. 2 Cir. 1/27/06), 921 So.2d 1111, writ denied, 06-0453 (La.5/5/06), 927 So.2d 313, and writ denied, 06-0600 (La.5/5/06), 927 So.2d 317, wherein the appellate court affirmed a $15,000.00 general damage award for a battery, false arrest, and false imprisonment. In that case, although the imprisonment was brief, the plaintiff was struck multiple times with a weapon, handcuffed with force, and a pain compliance technique utilized on him (twisting plaintiffs fingers and hand while handcuffed). Plaintiff also sought treatment by a chiropractor for injuries related to the incident. Moreover, the incident caused plaintiff, a retired police officer, embarrassment in the law enforcement community. Nelson, 921 So.2d at 1118-19.


author: PETTIGREW, J.

text:
    Jose A. GARAY-LARA, Juan C. Cubas-Zaldiva and Marco Antonio Enamorado v. CORNERSTONE NATIONAL INSURANCE COMPANY.
    No. 2013 CA 2016.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2014.
    Ivan A. Orihuela, Ryan A. Creel, Ken-ner, LA, for Plaintiffs-Appellants, Jose A. Garay-Lara, Juan C. Cubas-Zaldiva and Marco Antonio Enamorado.
    Amanda H. Aucoin, R. Todd Musgrave, New Orleans, LA, for Defendant-Appellee, Cornerstone National Insurance Company.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   PETTIGREW, J.

|2The salient issue in this appeal is whether the trial court erred in finding that plaintiff Jose A. Garay-Lara’s selection to reject uninsured motorist coverage in his automobile insurance policy was valid, thus supporting the grant of summary judgment in favor of the defendant insurance company. After a thorough and de novo review of the record, we find no error and affirm.

BACKGROUND FACTS AND PROCEDURAL HISTORY

On April 26, 2011, plaintiff, Jose A. Ga-ray-Lara, was operating a 2001 Toyota Tundra truck, travelling westbound on La. Hwy. 427 (aka Perkins Road), in Ascension Parish. His vehicle was struck by a 2008 Volkswagen Beetle, owned by Shelia White Gautreau, and operated by Tammy Denise Dean. It is alleged that the collision caused property damage to the Tundra truck, and personal injuries to Mr. Garay-Lara and his passengers Juan C. Cubas-Zaldiva and Marco Antonio Enamorado. Plaintiffs allege that Ms. Dean was at fault in causing the accident, and Ms. Gautreau and Ms. Dean were uninsured and/or underinsured for the collision and the resulting damages.

On April 24, 2012, plaintiffs filed a petition for damages, naming as defendant Mr. Garay-Lara’s automobile liability insurer, Cornerstone National Insurance Company (Cornerstone), alleging it provided him with a policy that included uninsured motorist coverage at the time of the accident. Cornerstone filed a motion for summary judgment asserting that Mr. Garay-Lara completed a valid UM bodily injury rejection form, and consequently, the policy issued to him did not provide UM coverage for the damages sought. The initial summary judgment motion was denied by judgment dated July 30, 2012. However, Cornerstone subsequently filed a second motion for summary judgment, on the same basis, together with competent supporting evidence. By judgment dated March 6, 2013, the motion for summary judgment was granted and plaintiffs’ claims were ^dismissed with prejudice. This appeal by the plaintiffs followed, asserting the trial court erred in granting summary judgment because the evidence presented established that Mr. Garay-Lara’s selection to decline UM coverage in the policy issued to him was not “meaningful” and therefore, invalid.

ARGUMENTS AND EVIDENCE PRESENTED IN SUPPORT OF AND IN OPPOSITION TO SUMMARY JUDGMENT

Cornerstone submitted into evidence the automobile liability policy issued to Mr. Garay-Lara effective on the date of the accident. This application reflects that in the UM coverage section, the initials of Mr. Gai’ay-Lara, “JAGL,” appear on the line evidencing an intent to reject such coverage. (The lines preceding the rejection, applicable to selecting UM coverage in varying amounts, are typed in “NA.”)

Cornerstone also submitted a sworn affidavit by the operational manager of Classic Insurance Agency (Classic), Jessica Murillo, attesting that Mr. Garay-Lara had also been issued a prior Cornerstone insurance policy, in 2008, in which he also selected to reject UM coverage. Also (apparently, in response to Mr. Garay-Lara’s assertions that he is a Spanish-speaking Hispanic, and because of that fact, he does not speak, write, or read English fluently and did not fully understand the policy or what he was signing), Ms. Murillo’s affidavit attests that all agents and employees of Classic are bilingual, being fluent in both Spanish and English. She additionally attested that it is the policy of Classic to have all agents and employees speak to their clients in the language in which the client is most fluent. She further attested that it is Classic’s policy to discuss coverage with their clients prior to the client completing an insurance application; the agent, based on the client’s verbal selection, would then fill out the application and obtain the appropriate signatures from the client. She attested that Mr. Garay-Lara’s prior policy had lapsed for nonpayment, and when he came into the office to complete a restart application, Classic proceeded according to those long-standing policies. She further attested that Mr. Garay-Lara, again, declined UM coverage, and the application was completed and signed accordingly.

^Cornerstone also submitted into evidence Jessica Murillo’s deposition, which was consistent with the attestations made in the aforementioned affidavit. In addition, Ms. Murillo testified in her deposition that the company is a “Hispanic” establishment and that 90 percent of their clientele are Hispanic and speak Spanish, so the agents and employees at Classic are speaking Spanish on a daily basis. She reiterated that it is standard protocol that all agents explain the policies and coverage available, including UM coverage in Spanish; they read the actual policies to their Hispanic clients in Spanish, and then fill out the applications with their clients’ verbal responses. (The deposition entered into evidence contains the discussion, with Spanish translation provided, that is customarily had with clients explaining the different types of coverage available, including UM coverage and the options for selection available to the clients, including the costs associated with the clients’ choices.) The deposition testimony also confirmed that once a client verbally makes his selections, the form is printed out, noting those selections, and presented to the client to initial according to his selections. In Mr, Garay-Lara’s case, once coverage was discussed and he verbally made his selection to reject UM coverage, the application form was printed out, noting the date (December 9, 2010) and “NA” for the UM coverage selections, with a blank for his initials, and another blank for his signature. The actual application submitted into evidence is consistent with the deposition testimony, reflecting Mr. Garay-Lara’s initials on the line rejecting UM coverage and his signature next to the printed date.

In opposition to the motion for summary judgment, the plaintiffs submitted the sworn affidavit of Mr. Garay-Lara. In that affidavit, he attested that he is of Hispanic descent, that his first language is Spanish, and that he does not speak, read, or write English fluently. He also stated that all the documents presented to him for signing by the agent at the time he obtained his policy with Cornerstone were written in the English | ¿language. Additionally, he attested that he could not fully read or fully understand all the documents presented to him, and that he did not fully understand that he was waiving or rejecting UM coverage. Further, he attested that he does not fully understand the function of UM coverage, and that the detail of the documents he was signing were not explained to him in either Spanish or English, and that he did not fully understand the documents he was signing or the nature of those documents. He stated that he did not elect where to initial and/or sign the documents, but was directed by the agent where to do so. Notably, however, he did not deny the attestations made by the affidavit or the deposition testimony of Ms. Murillo to the effect that all communications with the agent at the time that he went to obtain the restart of his policy were in Spanish and that all agents read the actual policies to Hispanic clients in Spanish. Nor did he explain the reasons why he did not understand the nature or the contents of the documents he initialed and allowed to be signed. We also note that despite his assertions that he did not understand the nature or the contents of the documents he was signing, he did not assert that at any time prior to initialing or allowing his signature on the documents, that he asked any further questions or explained to anyone that he did not understand what he was signing. Additionally, we note that he did not refuse to initial the documents and did not allege that he did so under any type of force or other duress. Finally, nowhere in Mr. Ga-ray-Lara’s affidavit does he state that he desired to purchase UM coverage and/or that he was denied or prohibited from making that choice in any way.

APPLICABLE LAW/ANALYSIS

In Duncan v. USAA Insurance Company, 2006-363 (La.11/29/06), 950 So.2d 544, 551, the Louisiana Supreme Court laid out the requirements necessary for a valid UM rejection form, involving six tasks:

(1) Initialing the selection or rejection of coverage chosen;
(2) If limits lower than the policy limits are chosen (available in options 2 and 4) then filling in the amount of coverage selected for each person and each accident;
(3) Printing the name of the name insured or legal representative;
(4) Signing the name of the named insured or legal representative;
fc(5) Filling in the policy number; and
(6) Filling in the date.

Our de novo review of the record before us reveals that the form completed by Mr. Garay-Lara satisfies all six of those necessary requirements. The form includes his initials rejecting UM coverage (which he does not deny doing); his signature (electronic, as required by Cornerstone) confirming that rejection; the date (December 9, 2010) the form and the rejection were completed; the Cornerstone policy number (CLA01502586); and the insurer’s designation, Cornerstone National Insurance Company. As such, the completed form creates a rebuttable presumption that the insured knowingly rejected coverage. See La. R.S. 22:1295.

Mr. Garay-Lara has not overcome that presumption. We reject his reliance on his first language being Spanish as a valid reason for his initialing and selection to reject coverage to be rendered invalid. The agent communicated with him in Spanish, and the evidence established that all the details of the available coverage were explained to him in his native language. Notwithstanding his assertions that he did not understand the document because it was written in English, the record is devoid of any evidence that Mr. Garay-Lara desired or intended to purchase UM coverage, and was unable to do so for any reason. Indeed, the record reveals that all prior policies obtained by him did not provide UM coverage because he had always rejected that coverage in the past. Moreover, even in opposition to the summary judgment motion herein, Mr. Garay-Lara does not ever assert that he desired UM coverage. The record also reveals that Mr. Garay-Lara, despite having ample opportunity to do so, did not ever state that he did not understand anything about the policy or the coverage available or that he did not understand what he was initialing on the form. Additionally, the deposition testimony and the affidavit submitted by the defendant reveals that the other blanks on the form were marked “NA” only after Mr. Garay-Lara indicated that he desired to reject UM coverage, rendering meritless his contention that he was unable to make a meaningful selection on the form because only one blank was left open. Finally, the jurisprudence does not |7support his contention that the fact that his name and the date were typed on the form in any way invalidated his selection thereon. See Harper v. Direct General Insurance Company, 2008-2874 (La.2/13/09), 2 So.3d 418, 420, holding that a typed name and date are insufficient to invalidate an otherwise valid rejection.

In this matter, the plaintiffs’ reliance on the fact that Mr. Garay-Lara’s primary language is Spanish and because of that, he did not fully understand what he was doing is simply untenable, given that the agent communicated with him entirely in Spanish, obtained his choice and desire to reject UM coverage in Spanish, and then directed him on the form written in the English language, where his selection was located and his initials were required. At no time, during the Spanish conversation, did Mr. Garay-Lara indicate that he desired to purchase UM coverage, or did he state that he did not understand the explanation he was given regarding the availability of that coverage. All evidence indicates that he willingly and knowingly rejected UM coverage, and the application form on which he made that selection is valid in accordance with Saw. Moreover, as a matter of law, Mr. Garay-Lara is presumed to know and understand what he is signing or initialing. See Coleman v. Jim Walter Homes, Inc., 2008-1221 (La.3/17/09), 6 So.3d 179, 183.

CONCLUSION

For the foregoing reasons, there are no genuine issues of material fact. The rejection form initialed by and containing Mr. Garay-Lara’s signature is valid, and the trial court did not err in granting the defendant, Cornerstone’s, motion for summary judgment. Accordingly, that judgment is affirmed. Costs of this appeal are assessed to the plaintiffs/appellants.

AFFIRMED.

      . It is alleged that Ms. Dean disregarded a stop sign on Magnolia Estate Drive and proceeded into the path of Mr. Garay-Lara’s truck on La. Hwy. 427, causing the vehicles to collide.

      . For purposes of the summary judgment at issue herein, the defendant insurer denies, but does not dispute plaintiffs' allegations as to Ms. Dean's fault or the uninsured/underin-sured status of both Ms. Dean and Ms. Gau-treau.

      . Ms. Murillo explained that Mr. Garay-Lara initialed the form, selecting to reject UM coverage, but the electronic signature in the computer system (from Mr. Garay-Lara's prior application) was used and transferred to his restart application as required by Cornerstone; however, it was placed on the new application in accordance with his verbal selection to reject UM coverage made at the time of the restart application.


author: WELCH, J.

text:
    James A. WAYNE, Sr. v. CAPITAL AREA LEGAL SERVICES CORPORATION.
    Nos. 2013 CA 2036, 2013 CA 2037, 2013 CA 2038.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2014.

      E. Wade Shows, Caroline T. Bond, Baton Rouge, LA, for Appellant Plaintiff-James A. Wayne, Sr.
    Martin E. Golden, Baton Rouge, LA, Attorney for Appellee Defendant-Capital Area Legal Services Corporation.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   WELCH, J.

^Plaintiff, James A. Wayne, Sr., appeals a summary judgment rendered in favor of defendant, Capital Area Legal Services Corporation (CALSC), finding that CALSC is not a public body subject to Louisiana’s Open Meeting Law. We affirm.

BACKGROUND

The background of this case has been set forth by this court in Wayne v. Capital Area Legal Services Corporation, 2011-1988 (La.App. 1st Cir.9/26/12), 108 So.3d 103, writ denied, 2012-2343 (La.4/5/13), 110 So.3d 1072 (Wayne I). In 2007, CALSC and Mr. Wayne entered into a contract pursuant to which Mr. Wayne was to serve as CALSC’s executive director for five years. Prior to the expiration of that term, CALSC’s Board of Directors (Board) voted to terminate Mr. Wayne from his position. Mr. Wayne filed a lawsuit against CALSC in which he alleged that his termination was void because CALSC violated the Open Meetings Law in numerous respects. The Board later held another hearing at which time it voted to ratify Mr. Wayne’s termination. That action spurred a second lawsuit by Mr. Wayne against CALSC in which he alleged that the second termination hearing was also replete with procedural irregularities in violation of the Open Meetings Law.

Mr. Wayne’s lawsuits were consolidated in the trial court. CALSC filed a motion for summary judgment in which it asserted, among other things, that it is not a public body subject to the Open Meetings Law. The trial court agreed, and granted summary judgment in favor of CALSC on that issue and on the alternative grounds that CALSC did not violate the Open Meetings Law and that federal law | ^preempted Louisiana law. The court signed a judgment dismissing Mr. Wayne’s claims with prejudice on July 13, 2011.

Mr. Wayne appealed the ruling to this court. This court held that the trial court erred in granting the motion for summary judgment on the issue of CALSC’s status as a public body for the purpose of the Open Meetings Law. In addressing the issue of CALSC’s status, this court identified four factors that have been considered by courts in determining whether an entity is a public body for the purpose of the Open Meetings Law: (1) whether the entity performs a government function or performs a function, which, by law, is entrusted to other public bodies; (2) whether the entity is funded by public money; (3) whether the entity exercises policy-making, advisory, and administrative functions; and (4) whether there is a connexity between the functions of the entity and the functions of a particular public body identified as such in the statutory definition of “public body” contained in the Open Meetings Law (the connexity element). Examining all of these factors in light of the evidence on the motion for summary judgment, this court found the evidence insufficient to establish, as a matter of law, that CALSC is not a public body for the purposes of the Open Meetings Law. In so doing, this court observed that there was insufficient evidence on the motion to resolve issues of material fact regarding the connexity element that had been recognized by the Louisiana Supreme Court in Spain v. Louisiana, High School Athletic Association, 398 So.2d 1386 (La.1981). This court remanded the matter to the trial court to conduct an evidentiary hearing on the issue of whether CALSC is a public body for the purpose of the Open Meetings Law. Wayne I, 108 So.3d at 116.

^Shortly after this court handed down its decision in Wayne I, the supreme court reversed its decision in Spain, concluding that its reliance on the connexity element in finding the Louisiana High School Athletics Association (LHSAA) to be a public body subject to the Open Meetings Law was flawed. Louisiana High School Athletics Association, Inc. v. State, 2012-1471 (La.1/29/13); 107 So.3d 583, 606-607 (sometimes referred to as the LHSAA decision). Soon thereafter, in the instant case, the supreme court denied CALSC’s application for writs challenging this court’s decision in Wayne I, observing that the matter had been remanded for an evi-dentiary hearing and that the trial court could consider all bases for summary judgment in light of the LHSAA decision. Wayne, 2012-2343 (La.4/5/13), 110 So.3d 1072.

On remand, the trial court held an evi-dentiary hearing on the issue of CALSC’s status as a public body, during which Mr. Wayne introduced the entire record including all evidence, testimony, and affidavits that were previously entered into in connection with the original motion for summary judgment. The parties also entered a joint stipulation in which they stipulated to the following facts for the purpose of the evidentiary hearing:

1) CALSC was incorporated in 1958 by the Baton Rouge Bar Association as the Legal Ad Society of Baton Rouge;
2) CALSC is a private, non-profit corporation;
3) CALSC has never been sponsored by any governmental resolution, nor designated as an agency by any political subdivision, but the Legislature has expressly authorized public funding for legal aid societies such as CALSC;
4) CALSC’s operations are funded by a combination of public and private funds, though the largest source of its funding are grants awarded by the Legal Services Corporation, a nonprofit corporation created by Congress;
5) In its last full fiscal year, CALSC’s total funding was in the amount of $2.6 million, $1.6 million of which was received from the Legal Services Corporation grant. CALSC also received $333,000 from the State of Louisiana’s Elderly Protective Services program pursuant to a contract to provide legal services to qualified elderly persons. $75,000 was received from the Attorney General’s office, and additional smaller amounts were received from various parish and municipal governmental bodies in | sCALSC’s twelve parish service area. Finally, CALSC received $444,423 from the Louisiana Bar Foundation’s IOLTA and Children In Need of Care programs.
6) CALSC’s Board of Directors consists of thirty directors, seventeen of whom are attorneys, ten of whom are representatives of the clients served by CALSC, and three of whom are At-Large directors. All of CALSC’s directors volunteer and receive no income.
7) CALSC provides free legal services to low-income residents within a twelve-parish area;
8) Legal matters handled by CALSC include family, juvenile, consumer, housing, health law, public benefits, and immigration;
9) CALSC’s priorities include: preserving the home and home life of clients; maintaining or increasing the economic stability of its clients; protecting children and families; providing access to health care; protecting civil rights; providing its clients with access to the courts; assisting client groups working on significant legal problems; addressing issues affecting access to shelter, subsistence income, personal, or safety; advising, providing brief services and referrals; providing assistance with self-help representation; providing education and outreach to the community; training and educating staff, the private bar, and other service providers.

The parties jointly introduced three other exhibits, including the description of the executor director’s job, CALSC’s by-laws, and CALSC’s employee handbook.

Additionally at the hearing, Mr. Wayne testified regarding the services CALSC provided during his tenure and how the entity was funded. According to Mr. Wayne, CALSC’s role is to provide free civil legal services to poor persons in a 12-parish area, it provides a service not available to them by other means, and it benefits society by providing for the orderly process of solving disputes. He stated that when he was CALSC’s executive director, there were 169,000 eligible clients. Mr. Wayne described meetings he had with state and local officials in which he sought to obtain funding for the entity. He estimated that during his tenure, 11-12% of CALSC’s funding came from private entities such as Entergy and the remainder came from public money. However, on cross-examination, Mr. Wayne admitted that he did not count the $450,000.00 per year contribution provided by the Louisiana State Bar Association through its IOLTA program as private funding.

| (¡After examining the evidence in light of the LHSAA decision, the trial court found there was little distinction between the LHSAA and CALSC. The trial court observed that “[y]ou could almost take CALSC and put it on that Supreme Court opinion, because the factors, when they look at them, are almost identical.” The trial court granted summary judgment in favor of CALSC, ruling that it is not a public body subject to the Open Meetings Law. The court signed a judgment so decreeing, reissued its previous judgment granting CALSC’s motion for summary judgment in all other respects as to the Open Meeting Law claims, and dismissed those claims with prejudice. The trial court designated the judgment as a final judgment pursuant to La. C.C.P. art. 1915B for oral reasons assigned.

As instructed by the supreme court, this court will analyze the issue of whether CALSC is a public body for the purpose of the Open Meetings Law under the dictates of the LHSAA decision. In LHSAA, the LHSAA filed a motion for summary judgment in which it sought a declaration, among other things, that La. R.S. 24:518, which gives the legislative auditor the power to audit and review the financial records of all “quasi public agencies or bodies,” did not apply to it. The term “quasi public agency or body” is defined in that statute to include any organization subject to the Open Meetings Law. La. R.S. 24:51SA(l)(b)(v). The Legislative Auditor argued that the LHSAA is a quasi public entity because it is subject to the Open Meetings Law and because some of its membership dues come from public high schools. The trial court denied LHSAA’s motion for summary judgment, primarily because the supreme court had held in Spain that the LHSAA is a public body for the purpose of the Open Meetings Law.

|7In Spain, the supreme court ruled that the LHSAA was a public body under that portion of the Open Meetings Law which defined the term “public body” to include a “committee or subcommittee” of any of the public bodies listed in the definition. In so doing, the court focused on these factors: (1) the LHSAA performed a function, which, by law, is entrusted to various bodies established for the regulation of public education; (2) it is funded by public money earned by state schools at athletic events; (3) it had established a comprehensive set of rules and regulations governing how public schools and their students must conduct themselves regarding athletic and academic endeavors, all with the acquiescence of the legislature and the state and local school boards; (4) there was a close connexity between the regulatory functions of the LHSAA and the regulatory functions of public bodies listed in the definition of “public body” in the Open Meetings Law, as the LHSAA performed a major policy-making, advisory, and administrative function in an area within the primary control of those public bodies. Spain, 398 So.2d at 1390.

In LHSAA, the supreme court reversed Spain, finding the reasoning therein to be flawed. The court held that the connexity factor, so heavily relied on by it in the earlier Spain decision, is absent from the statutory definition of “public body” found in the Open Meetings Law, The supreme court concluded that because the appropriate starting point for statutory interpretation is the language of the statute itself, the Spain court had erred in looking beyond the plain language of the statute to find that LHSAA is a committee or subcommittee of other bodies identified in the definition of the term “public body.” The court then noted that Black’s Law Dictionary defined the term “committee” as a “subordinate group to which a deliberative assembly or other organization refers business for consideration, investigation, oversight, or action.” The court concluded that under a plain reading of the Open Meeting Law’s definition of a public body, the phrase “committee or ^subcommittee” of any of these bodies refers to a committee formed by the public body itself. However, the supreme court observed that there was no evidence to suggest that LHSAA was formed as a committee or subcommittee of any public body; there was no evidence any public body ever referred business to the LHSAA for its consideration, investigation, oversight or action; LHSAA was formed as a Louisiana nonprofit corporation; and evidence showed that LHSAA had separated itself from the public entities and thus any notion that it might be a committee or subcommittee thereof. LHSAA, 107 So.3d at 605-607.

We shall examine the issue of whether CALSC is entitled to summary judgment decreeing that it is not a public body for the purpose of the Open Meetings Law in light of the analysis required by the LHSAA decision. We begin with an examination of the statutory language. Louisiana Revised Statute 42:14 mandates that every meeting of a public body shall be open to the public unless closed pursuant to other provisions of the act. The term “public body” is defined in La. R.S. 42:13 as follows:

“Public body” means village, town, and city governing authorities; parish governing authorities, school boards and boards of levee and port commissioners; boards of publicly operated utilities; planning, zoning and airport commissions; and any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph.

Specifically, the statute defines the term “public body” to include “any other state, parish, municipal, or special district boards, commissions, or authorities, and those |;iof any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions.” Mr. Wayne contends that CALSC constitutes an “authority” and thus is a public body subject to the Open Meetings Law.

The term “authority” is not defined in the Open Meetings Law. Black's Law Dictionary defines the term “authority” as “a governmental agency or corporation that administers a public enterprise” and uses a “transit authority” as an example in the definition. Black’s Law Dictionary 142-143 (8th ed.2004). Mr. Wayne contends that CALSC is an authority because it is a corporation that administers a “public enterprise.” He notes that while the term “public enterprise” does not have a generally accepted definition, Louisiana jurisprudence has recognized the following endeavors to be “public enterprises”: the building of railroads, the construction of levees, and the establishment of reservoirs. Mr. Wayne submits that there are common characteristics of public enterprises and that CALSC shares all of these characteristics. First, he stresses that CALSC provides legal services to those without financial means in a twelve-parish area, benefitting not just the individuals who use its services, but society as a whole, by ensuring that all persons have equal access to the legal system and legal services. Secondly, CALSC is funded by public money to promote this public good. Mr. Wayne insists that CALSC meets the third characteristic of a public enterprise because indigent legal services are most effective when provided by society, rather than by individuals. Lastly, Mr. Wayne contends that CALSC performs a function similar to the Louisiana Public Defender Board, which provides legal services to indigent criminal defendants, which he asserts is undoubtedly a public enterprise.

In LHSAA, the supreme court directed courts away from such comparisons and mandated that courts ascertain the intent of the legislature using the principles of statutory construction in determining whether a particular entity is a public body hnfor the purpose of the Open Meetings Law. Those principles are as follows: when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the legislature’s intent. La. C.C. art. 9, Lockett v. State, Department of Transportation and Development, 2008-1767 (La.2/25/04), 869 So.2d 87, 90-91. However, when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the words must be given their generally prevailing meaning. Lock-ett, 869 So.2d at 91. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole, and laws on the same subject matter must be interpreted in reference to each other. Id.

Louisiana Constitution article 6 § 19 authorizes the legislature, by general or local law, to create or authorize the creation of “special districts, boards, agencies, commissions, and authorities of every type,” and to grant the special districts, boards, agencies, commissions, and authorities so created with the rights, powers, and authorities it deems proper, including but not limited to, the power of taxation and the power to incur debt and issue bonds. (Emphasis added). This provision appears in the 1974 constitution. Thereafter, in 1979, the legislature enacted La. R.S. 42:4.2 which added the definition of the term “public body” to the Open Meetings Law and utilized the term “authorities” therein, 1979 La. Acts No. 681, § 23. This provision was redesignated in 2010 by Act No. 861, § 1 as La. R.S, 42:13.

As CALSC points out, the revised statutes are replete with instances in which the legislature has created authorities and vested these entities with broad powers to perform designated tasks. Some types of authorities created by the legislature include: (1) the Ouachita Expressway Authority and the Louisiana | ^Transportation Authority, La. R.S. 48:2134; La. R.S. 48:2074, in which the legislature vested full corporate powers to finance, regulate, and operate any limited access or transitway to be constructed within their jurisdictions; (2) the Southeast Regional Airport Authority, created by La. R.S. 2:703 as a political subdivision to assist public entities in constructing and maintaining airports and the financing of such; (3) the East Baton Rouge Redevelopment Authority, created by La. R.S. 33:4720.151 to develop programs and implement measures to eliminate the spread of slum or blighted areas and to provide for the redevelopment of such areas; (4) the South Central Louisiana Human Services Authority, created by La. R.S. 28:872 and 874 as a political subdivision to direct the operation and management of community-based programs and services relative to mental health and substance abuse in certain parishes; (5) the Coastal Port Advisory Authority, created by La. R.S. 34:3552 as an advisory authority within the Department of Transportation and Development to research and study economic development opportunities in the maritime, oil, and gas industries; (6) the Louisiana Local Government Environmental Facilities and Community Development Authority, created by La. R.S. 33:4548.4 as a political subdivision to be comprised of political subdivisions wishing to become members of the authority and vesting the authority with broad financial powers; (7) the Louisiana Energy and Power Authority, created by La. R.S. 33:4545.2 as a political subdivision with full corporate powers to provide for the generation or transmission of electric power to municipalities; and (8) Bridge and Ferry Authorities, created pursuant to the authority of La. R.S. 48:1092 and 1093 to construct or acquire toll bridges and ferries.

Considering the legislative history of La. R.S. 42:13 and employing the principles of statutory construction, we find that the legislature intended the term “authorities” to apply to entities that are created by government. We find that CALSC is not an “authority” for the purpose of the Open Meetings Law because it 112is not a creature of government. It is undisputed that CALSC is a private, non-profit corporation that was incorporated in 1958 by the Baton Rouge Bar Association. It is further undisputed that CALSC has never been sponsored by any governmental resolution, nor has it been designated as an agency by any political subdivision.

Because there is no genuine issue of material fact on the issue of CALSC’s status for the purpose of the Open Meetings Law, the trial court correctly granted summary judgment decreeing that CALSC is not a public body subject to the Open Meetings Law.

CONCLUSION

For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellant, James A. Wayne, Sr.

AFFIRMED.

      . CALSC filed a reconventional demand alleging that Mr. Wayne breached his employment contract and seeking the return of all salary and benefits paid to him. CALSC’s damage claim was severed from Mr. Wayne's claims that the Open Meetings Law had been violated for the purpose of conducting separate trials.

      . After summary judgment was signed by the trial court, a third lawsuit filed by Mr. Wayne against CALSC in the 19th Judicial District Court, in which he asserted a cause of action for wrongful termination and breach of contract, was also consolidated with these lawsuits.

      . At the hearing, the trial court stated that it was designating the judgment as a final one because it resolved all issues raised as to the alleged violation of the Open Meetings Law and because CALSC's reconventional demand had been severed. We note that it appears that Mr. Wayne’s third consolidated lawsuit in which he seeks damages for wrongful termination is still pending in the trial court. As this claim and CALSC’s breach of contract claim have no relationship to the adjudicated claims and there is no danger that the issues decided in this appeal will have to be considered a second time, we find no abuse of discretion in the trial court’s certification. See R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La.3/2/05), 894 So.2d 1113, 1122.

      . A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for the purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). Appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29.


author: McDonald, j.

text:
    Deniese DUET v. METRO PREFERRED HEALTH.
    No. 2013 CA 2042.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2014.

      Michael J. Samanie, Stephen S. Stipelco-vich, Tanner D. Magee, Houma, Louisiana, for Plaintiff/Appellant Deniese Duet.
    K. Renee Cooper Willis, Baton Rouge, Louisiana, for Defendant/Appellee Metro Preferred Health.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McDonald, j.

DThis is an appeal of a judgment from the Office of Workers’ Compensation (OWC). On November 8, 2011, Deniese Duet, a home health care nurse, filed a disputed claim for compensation against her employer, Metro Preferred Health. Ms. Duet asserted that she was en route to visit her last patient of the day when her car was rear-ended in an automobile accident on May 27, 2000. She maintained that her benefits had been terminated on September 30, 2011. Metro Preferred Health filed an answer and general denial, admitting that Ms. Duet was injured while in the course of her employment but denying that she was temporarily disabled, permanently disabled, or suffering from a loss of earning capacity. Metro Preferred Health also asserted a claim for any credits or offsets due to it.

The parties stipulated that Ms. Duet was in the course and scope of her employment when the May 27, 2000 motor vehicle accident occurred, that she was injured in the accident, that insurance coverage was provided at all times pertinent to the litigation, that Ms. Duet’s indemnity benefits were terminated on September 30, 2011, and that her average weekly wage was $480.79. The case went to trial on the issues of whether Ms. Duet was permanently and totally disabled and whether her current disability was caused by her on-the-job accident of May 27, 2000. The trial was only to determine entitlement to indemnity benefits and not to address entitlement to medical benefits.

After a trial, the OWC determined that Ms. Duet did not prove that her present medical condition regarding her neck and back were causally related to the accident of May 27, 2000; that Ms. Duet did not prove that her current disability status regarding her neck and back were related to the accident of May 27, 2000; that she did not prove that she was entitled to continued workers’ compensation indemnity benefits. Ms. Duet’s claim was dismissed with prejudice. Ms. Duet is appealing that judgment.

| sMs. Duet makes two assignments of error: 1) that the OWC failed to apply Louisiana jurisprudence that subsequent accidents that exacerbate a work-related accident are not an intervening cause and are compensable; and, 2) in ruling in favor of Metro Preferred Health, the OWC applied a “straw that broke the camel’s back” theory of causation that is not supported in Louisiana law.

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Dean v. Southmark Const, 2003-1051 (La.7/6/04), 879 So.2d 112, 117. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Stobart v. State, through Dept of Transp. and Dev., 617 So.2d 880, 882 (La.1993). If the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Albert v. Air Products and Chemicals, 2012-0773 (La.App. 1 Cir. 2/6/13), 112 So.3d 906, 908, writ denied, 2013-0744 (La.5/17/13), 118 So.3d 375.

Ms. Duet had an extensive and complicated medical history outside of the work-related automobile accident. Both before and after Ms. Duet’s automobile accident of May 27, 2000, she experienced many automobile accidents and traumas. The OWC noted that the medical records showed that Ms. Duet’s back pain increased after a 2002 automobile accident, following which Ms. Duet had a tear at the L5-S1 area. The OWC found that the 2002 automobile accident was the cause of a second lumbar surgery in 2003, after which procedure Ms. Duet stopped working. The OWC found that the May 27, 2000 motor vehicle accident did not cause Ms. Duet’s current permanent and total disability.

The OWC’s findings are reasonable in light of the record reviewed in its |4entirety, and we find no manifest error. Therefore, the judgment of the OWC is affirmed. Costs are assessed against Ms. Deniese Duet.

AFFIRMED.