text:
    ON LEONG CHINESE MERCHANTS ASSOCIATION v. AKM ACQUISITIONS, L.L.C., Aaron K. Motwani, and Marcus L. Giusti.
    No. 2014-C-0533.
    Supreme Court of Louisiana.
    May 2, 2014.
   PER CURIAM.

| iWrit granted. For the following reasons we reverse the rulings of the lower courts and remand to the trial court for further proceedings. Louisiana Code of Civil Procedure article 3654 provides:

When the issue of ownership of immovable property or of a real right therein is presented in an action for a declaratory judgment, or in a concursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to the owner of the immovable property or of the real right therein is so presented, the court shall render judgment in favor of the party:
(1) Who would be entitled to the possession of the immovable property or real right therein in a possessory action, unless the adverse party proves that he has acquired ownership from a previous owner or by acquisitive prescription; or
(2) Who proves better title to the immovable property or real right therein, when neither party would be entitled to the possession of the immovable property or real right therein in a possessory action.

Louisiana Code of Civil Procedure article 3657 provides:

The plaintiff may not cumulate the peti-tory and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action. If the plaintiff brings the possessory action, and without dismissing it and prior to judgment therein institutes the petitory action, the posses-sory action is abated.
When, except as provided in Article 3661(l)-(3), the defendant in a possesso-ry action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and 1 ¿judicially confesses the possession of the plaintiff in the possessory action.
If, before executory judgment in a pos-sessory action, the defendant therein institutes a petitory action in a separate suit against the plaintiff in the possesso-ry action, the plaintiff in the petitory action judicially confesses the possession of the defendant therein.

Plaintiff in this matter has carefully not asserted title or pleaded the petitory action. Plaintiff claims possession and alleges its possession has been disturbed by the filing in the public records of an Act of Sale which it alleges should not be given legal effect. Plaintiff is entitled to have its possessory action heard on the merits.

Accordingly, the rulings of the lower courts are reversed, and the defendants’ exceptions, including that of improper cu-mulation of actions, are denied, and the matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

WEIMER, J., would grant and docket,


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Gimoh SHEARD.
    No. 2014-KK-0727.
    Supreme Court of Louisiana.
    April 8, 2014.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 500-651; to the Court of Appeal, Fourth Circuit, No. 2014-K-0248.

Stay denied; writ denied.


text:
    Donald WILLIAMS v. Judie C. TIZZARD.
    No. 2014-CP-0367.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Williams, Donald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 2011-12467; to the Court of Appeal, Fourth Circuit, No. 2013-C-1605.

Not considered, not timely filed. See Supreme Court Rule X, § 5


text:
    Lena L. BROWN, Individually and on Behalf of Joseph Brown, Jr. v. ENTERGY CORPORATION, Entergy Services, Inc., Entergy Gulf States Louisiana, L.L.C., Sharon Bettis and Glenda Deshotel.; Joseph Brown, III and Latessia Brown McClellan, each Individually and on Behalf of Joseph Brown, Jr. v. Entergy Corporation, Entergy Services, Inc., Entergy Gulf States Louisiana, L.L.C., Sharon Bettis and Glenda Deshotel.
    No. 2014-C-0429.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Old Republic Life Insurance Company; — Other; Applying For Writ of Cer-tiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, Nos. 583,987, 586,917; to the Court of Appeal, First Circuit, Nos. 2013 CA 0733, 2013 CA 0734.

Not considered. Not timely filed. See Supreme Court Rule X, § 5(a).


text:
    STATE ex rel. Terry L. CLARKSON v. STATE of Louisiana.
    No. 2013-KH-1749.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Clarkson, Terry L.;—Plaintiff; Applying for Reconsideration of this Court’s action dated February 14, 2014, 36th Judicial District Court Div. B, No. CR974-2007; to the Court of Appeal, Third Circuit, No. KW 10-22403.

Denied.


text:
    STATE ex rel. Harold J. BONNEY v. STATE of Louisiana.
    No. 2013-KH-1982.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Bonney, Harold J.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 496-311; to the Court of Appeal, Fourth Circuit, No. 2012-KA-0175.

Denied.


text:
    STATE ex rel. Henry Leo EAGLIN, Jr. v. STATE of Louisiana.
    No. 2013-KH-2000.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Eaglin Jr., Henry Leo;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. D, No. 112586; to the Court of Appeal, Third Circuit, No. KH 12-01450.

Denied.


text:
    STATE ex rel. Jimmi JONES v. STATE of Louisiana.
    No. 2013-KH-2004.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Jones, Jimmy;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 479-609.

Denied.


text:
    STATE ex rel. Tiffany WOODS v. STATE of Louisiana.
    No. 2013-KH-2008.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Woods, Tiffany;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 8, No. 254,801; to the Court of Appeal, Second Circuit, No. 48,-668-KH.

Denied.


text:
    STATE ex rel. Leonard McGEE v. STATE of Louisiana.
    No. 2013-KH-2018.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re McGee, Leonard;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 04-364; to the Court of Appeal, Fifth Circuit, No. 13-KH-531.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Jamie Dale SMITH v. STATE of Louisiana.
    No. 2013-KH-2033.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Smith, Jamie Dale;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. F, No. 01-F-0457; to the Court of Appeal, Second Circuit, No. 48,-699-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Kevin L. GOLDSTON v. STATE of Louisiana.
    No. 2013-KH-2059.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Goldston L., Kevin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 430-300; to the Court of Appeal, Fourth Circuit, No. 2013-K-1089.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. David G. BERRY v. STATE of Louisiana.
    No. 2013-KH-2060.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Berry, David G.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 246738; to the Court of Appeal, First Circuit, No. 2013-KW-0899.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Victor VERDUN, Jr. v. STATE of Louisiana.
    No. 2013-KH-2074.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Verdun Jr., Victor; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 313477; to the Court of Appeal, First Circuit, No. 2013-KW-0889.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Michael JACKSON v. STATE of Louisiana.
    No. 2013-KH-2088.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Jackson, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 428-878; to the Court of Appeal, Fourth Circuit, No. 2012-K-1644.

Denied.


text:
    STATE ex rel. Victor DURDEN. v. STATE of Louisiana.
    No. 2013-KH-2089.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Durden, Victor; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 207087; to the Court of Appeal, Second Circuit, No. 48,-638-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Faedra JAVERY v. STATE of Louisiana.
    No. 2013-KH-2090.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Javery, Faedra; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 394064; to the Court of Appeal, First Circuit, No. 2013 KW 0902.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Arthur BIAS, Jr. v. STATE of Louisiana.
    No. 2013-KH-2095.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Bias Jr., Arthur; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. A, No. 10-CR-00001; to the Court of Appeal, Third Circuit, No. KH 13-00422.

Denied.


text:
    STATE ex rel. Cody SMOOT v. STATE of Louisiana.
    No. 2013-KH-2098.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Smoot, Cody; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 11-4275; to the Court of Appeal, Fifth Circuit, No. 13-KH-580.

Denied.


text:
    STATE of Louisiana v. DeLoyd JONES.
    No. 2013-KO-2111.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Jones, DeLoyd; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 509-527; to the Court of Appeal, Fourth Circuit, No. 12-KA-0891.

Denied.


text:
    STATE ex rel. Devon JONES v. STATE of Louisiana.
    No. 2013-KH-2115.
    Supreme Court of Louisiana.
    April 11, 2014.
   . In re Jones, Devon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 493-692; to the Court .of Appeal, Fourth Circuit, No. 2013-K-0958.

Denied.


text:
    STATE ex rel. Michael BANFORD v. STATE of Louisiana.
    No. 2013-KH-2116.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Banford, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 93-6380; to the Court of Appeal, Fifth Circuit, No. 13-KH-575.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Theoshamond NORMAN v. STATE of Louisiana.
    No. 2013-KH-2129.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Norman, Theoshamond; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 98-CR-603; to the Court of Appeal, First Circuit, No. 2013 KW 0885.

Denied.


text:
    STATE of Louisiana v. D’Juanielle DIGGS.
    No. 2013-K-2428.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Diggs, D’Juanielle; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. A, No. 2008-177724; to the Court of Appeal, First Circuit, No. 2012 KA 0559.

Denied.


text:
    STATE of Louisiana v. Anthony Paul JOHNSON.
    No. 2013-KO-2451.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Johnson, Anthony Paul; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 3, No. 273,437; to the. Court of Appeal, Second Circuit, No. 48,325-KA.

Denied.


text:
    STATE of Louisiana v. Gerald SEVERIN.
    No. 2013-K-2482.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 500-908; to the Court of Appeal, Fourth Circuit, No. 2012-KA-0336.

Denied.


text:
    STATE of Louisiana v. Gregory Burnett COLLIER.
    No. 2013-KO-2554.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Collier, Gregory Burnett; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Sabine, 11th Judicial District Court Div. 0, No. 68548; to the Court of Appeal, Third Circuit, No. 13-189.

Denied.


text:
    STATE of Louisiana v. Devonte DUSSETT.
    No. 2013-K-2559.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Dussett, Devonte; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 509-563; to the Court of Appeal, Fourth Circuit, No. 2013-KA-0116.

Denied.


text:
    STATE of Louisiana v. Staci ALVARADO.
    No. 2013-KO-2579.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Alvarado, Staci; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 112327; to the Court of Appeal, First Circuit, No. 2013 KA 0201.

Denied.

HUGHES, J., would grant.


author: HUGHES, J.,

text:
    STATE of Louisiana v. Gerrod ALLEN.
    No. 2013-KO-2597.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Allen, Gerrod; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 510-337; to the Court of Appeal, Fourth Circuit, No. 2012-K-1757.

Denied.

HUGHES, J.,

concurs. While the prosecutor’s statements, particularly that defense counsel was a liar, may warrant review by his supervisor or disciplinary counsel, they do not lead to a reversal of the conviction in this case.


text:
    STATE of Louisiana v. Aaron D. BLACKWELL.
    No. 2013-K-2600.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Blackwell, Aaron D.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Vernon, 30th Judicial District Court Div. A, No. 83438; to the Court of Appeal, Third Circuit, No. 13-316.

Denied.

HUGHES, J.,

concurs. While relator’s arguments are valid, these matters are properly addressed by the Legislature.


text:
    Dr. Carlton L. WINBERY, Dr. Frederick L. Downing, Dr. James R. Heath, and Dr. Connie R. Douglas v. LOUISIANA COLLEGE, Leon Hyatt, Jr., Joe Aguillard, Kent Aguillard, Alan Shoemaker, Amy Russell, and Louisiana Inerrancy Fellowship.
    No. 2013-C-2844.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Aguillard, Joe; Aguillard, Kent; Hyatt Jr., Leon; Louisiana College et al.; Russell, Amy; Shoemaker, Alan; — Defendant (s); Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. C, No. 184,363; to the Court of Appeal, Third Circuit, No. 13-339.

Denied.

VICTORY, J., would grant.


text:
    Dr. Carlton L. WINBERY, Dr. Frederick L. Downing, Dr. James R. Heath, and Dr. Connie R. Douglas v. LOUISIANA COLLEGE, Leon Hyatt, Jr., Joe Aguillard, Kent Aguillard, Alan Shoemaker, Amy Russell, and Louisiana Inerrancy Fellowship.
    No. 2013-C-2859.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Douglas, Dr. Connie R.; Downing, Dr. Frederick L.; Heath, Dr. James R.; Winbery, Dr. Carlton L. et al.; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. C, No. 184,363; to the Court of Appeal, Third Circuit, No. 13-339.

Denied.


text:
    STATE ex rel. Teddy CHESTER v. STATE of Louisiana.
    No. 2013-OK-3014.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Chester, Teddy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 96-2598.

Denied.


text:
    STATE of Louisiana v. Mitchell J. JOHNSON.
    No. 2014-C-0203.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Allegheny Casualty Company; Johnson, Mitchell J.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 02-06-0092; to the Court of Appeal, First Circuit, No. 2013 CA 0546.

Denied.


text:
    GULF PRODUCTION COMPANY, INC. v. PETROLEUM ENGINEERS, INC.
    No. 2014-C-02690.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Gulf Production Company Inc.;— Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 59-781; to the Court of Appeal, Fourth Circuit, No. 2013-CA-0578.

Denied.

VICTORY, J., would grant.


text:
    FUTURE LEADERS OF AMERICA YOUTH CLUB and Deidre J. Battiste v. The ROMAN CATHOLIC CHURCH OF the ARCHDIOCESE OF NEW ORLEANS, All Saints Roman Catholic Church, Michael Saah-Buckman and Sister Mary Ellen Wheelahan.
    No. 2014-CC-0295.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re All Saints Roman Catholic Church; Roman Catholic Church of the Archdiocese of New Orleans et al.; Saah-Buckman, Michael; Wheelahan, Sister Mary Ellen;— Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2012-5867; to the Court of Appeal, Fourth Circuit, No. 2018-C-1543.

Denied.


text:
    J-W OPERATING COMPANY v. George A. OLSEN, Jr., et al.
    No. 2014-C-0313.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Olsen Jr., George A.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Desoto, 42nd Judicial District Court Div., No. 72601; to the Court of Appeal, Second Circuit, No. 48,-756-CA.

Denied.


text:
    THRIV N.P., INC. v. Seth NEHRBASS and Garvey, Smith, Nehrbass & North, LLC.
    No. 2014-CC-0314.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Garvey, Smith, Nehrbass & North LLC; Nehrbass, Seth et al.; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 694-763; to the Court of Appeal, Fifth Circuit, No. 13-C-936.

Denied.


author: SHANNON J. GREMILLION, Judge. PETERS, J.

text:
    Devra Renee STOCKMAN v. MEDICAL TECHNOLOGY, INC.
    No. 13-1221.
    Court of Appeal of Louisiana, Third Circuit.
    March 26, 2014.
    Donald J. Anzelmo, Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P., Monroe, LA, for Defendant/Appellee: Medical Technology, Inc.

      George Carnal Gaiennie, III, Chris J. Roy, Sr., Attorney at Law, Alexandria, LA, For PlaintifRAppellant: Devra Renee Stockman.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   SHANNON J. GREMILLION, Judge.

|tMs. Devra Renee Stockman appeals the judgment of the Workers’ Compensation Judge (WCJ) that dismissed her disputed claim for compensation against her employer, Medical Technology, Inc. (MTI). MTI has also appealed and argues that it should not have been assessed penalties and attorney fees for failure to authorize a cervical nerve-root block procedure. For the reasons that follow, we affirm in part and reverse in part.

FACTS

Ms. Stockman was employed by MTI on November 14, 2008, when she sustained an on-the-job injury in the course and scope of her employment as a delivery driver. Dr. Todd Drury, an Alexandria orthopedic surgeon, performed two surgeries on Ms. Stockman’s shoulders. About ten months after the accident, Ms. Stockman began to complain to Dr. Drury of neck pain. This court previously addressed Ms. Stockman’s claim and ordered MTI to authorize and pay for a cervical nerve-root block procedure recommended by Dr. Drury. Stockman v. Med. Tech., Inc., Í1-285 (La.App. 8 Cir. 12/14/11), 81 So.3d 198, writ denied, 12-145 (La.3/23/12), 85 So.3d 94. Ms. Stockman received weekly indemnity benefits from the date of the accident until October 9, 2010, when MTI quit paying. Ms. Stockman then amended her disputed claim to seek reinstatement of her indemnity benefits and related penalties and attorney fees. Because MTI had still not authorized the cervical nerve-root block, Ms. Stockman was again pursuing authorization for that course of treatment.

|2Ms. Stockman’s medical picture is complicated because she has had at least two accidents since her on-the-job accident. During the weekend of October 2, 2010, Ms. Stockman was sitting in a chair on her porch when it collapsed. She had to be taken by ambulance to a local hospital. Afterward, she reported to Dr. Drury that she was experiencing severe neck pain radiating into both arms and had to use a cane to walk. Later, on April 3, 2012, Ms. Stockman was rear-ended by a motorist on MacArthur Drive in Alexandria. After that collision, she continued to see Dr. Drury and also Dr. Troy Vaughn, an Alexandria neurosurgeon, for continued neck complaints and lumbar spine complaints as well.

After trial, the WCJ took the matter under advisement. Oral reasons for judgment were handed down in which the WCJ found that Ms. Stockman’s neck complaints were not causally related to the on-the-job accident, but ordered MTI again to authorize the cervical nerve-root block and assessed MTI with attorney fees of $4,000.00 and a penalty of $2,000.00 for failing to authorize the testing. This appeal followed. Ms. Stockman argues that the WCJ erred in not finding the cervical complaints compensable and in finding that she is not disabled. MTI answered the appeal and urges that the award of attorney fees and penalties is unwarranted.

ANALYSIS

The factual findings of the WCJ are reviewed under the manifest error standard. Johnson v. Wal-Mart Stores, Inc., 11-1158 (La.App. 3 Cir. 2/8/12), 88 So.3d 527. This requires that, for us to reverse the WCJ, we must find that a review of the entire record demonstrates that the WCJ had no reasonable basis for his factual findings. Id. We are not permitted to skim the record to pick out those |.-Items that support or contradict the WCJ, but must review it thoroughly and entirely. Id.

Dr. Drury testified that Ms. Stockman’s medical profile was “complicated.” Specifically, he testified:

[T]he situation here in general is that you have a patient who has bilateral or both shoulders hurting from initial injury, doesn’t have much neck discomfort, and then undergoes two surgeries, and over time has developed some changes in her posture and some changes in her activity level, and things that are gradually turning into what would be referred to as a chronic pain.
Many patients that present in my clinic with shoulder pain actually have a cervical or a neck problem. And neck and shoulder problems often have overlap, so it’s a very important part of the physical exam to make some effort to differentiate the source of the pain as being from the neck or from the shoulder. And at that time [November 2008], based on the exam we saw that day, I felt that her symptoms were primarily shoulder.
From a medical perspective, I don’t find her progression and her appearance and the things that she complained with to be all that unusual because we see these type of issues commonly... .1 think the length of time is unusual, but I think in light of the complaints prior to that, which are basically bilateral symptoms, vague symptoms, and symptoms that have not been particularly responsive to treatment, in light of that, I don’t think it’s unusual that eventually her neck surfaces as a potential culprit.

This testimony does not exclude the possibility in Dr. Drury’s mind that Ms. Stock-man’s neck complaints were related to her shoulder injury. Indeed, they lend credence to the notion that her neck pain is a consequence of her continued shoulder problems. However, Dr. Drury also testified:

Q So it could be her neck symptoms could actually be unrelated to her work-related accident?
A That’s possible, yes.
|4Q It’s just as likely as if they were? A I would say that’s correct.
Q Okay, but none of those things were occurring within the first ten months?
A Well, that’s debatable. All of those things could have been occurring during the first ten months. That might be the reason that she’s not getting better. That’s the dilemma here, and that’s what you guys are going to have to settle.... because I don’t think I’m going to be able to clarify that for you.

The problem with eliciting an opinion from Dr. Drury is that he cannot take advantage of the results of the cervical nerve-root block he ordered. Without the cervical nerve-root block results, neither Dr. Drury nor the parties nor the WCJ had the benefit of a complete and accurate assessment of Ms. Stockman’s health. We reverse the trial court on the issue of causation and remand for proceedings consistent with this opinion.

The issue of the cervical nerve-root block raises another problem with the WCJ’s ruling. Dr. Drury unequivocally testified that Ms. Stockman was referred for the cervical nerve-root block, and that a miscommunication between his office and that of Central Louisiana Imaging Center resulted in the wrong test being conducted. The WCJ awarded Ms. Stockman penalties and attorney fees for MTI’s refusal to authorize the test. MTI argues that the award should be reversed. We disagree. Ms. Stockman initiated her disputed claim for compensation because MTI refused to authorize the test in the first place.

Ms. Stockman also complains that the WCJ manifestly erred in finding that she is not disabled. Again, review of such a finding is governed by the manifest error rule. Id. Ms. Stockman underwent an exhaustive functional capacity | ^evaluation in Alexandria, which was administered by Mr. Bruce Odell, a licensed occupational therapist. Mr. Odell concluded that Ms. Stockman is capable of competitive employment. Further, Dr. Drury agreed with Ms. Stockman’s vocational counselor that she could do work at Murphy Oil that was available, and Ms. Stockman testified that she did not apply for it, not because she was not capable of performing the work, but because she knew that she would not enjoy it. The problem arises, though, that if the cervical nerve-root block demonstrates a causal connection between Ms. Stockman’s shoulder injury and her neck pain, and if additional treatment is necessary that renders her unable to work, she will be permanently deprived of a remedy if the WCJ’s ruling stands. Accordingly, we reverse the WCJ’s ruling pending the results of the diagnostic testing.

For the foregoing reasons we (1) affirm the penalty/attorney fee award for failure to comply with the WCJ order requiring authorization of the diagnostic test; (2) reverse the WCJ judgment terminating benefits and enter a judgment rejecting the request that they be reinstated at this time; (3) remand for the cervical nerve-root block ordered by the WCJ; and (4) defer a ruling on the cost issue.

AFFIRMED IN PART AND REVERSED IN PART.

PETERS, Judge, agrees and assigns additional reasons.

PETERS, J.

assigns additional reasons.

hi agree with the opinion rendered in this matter, but write additional reasons for the singular purpose of expanding on the factual aspects of the litigation as set forth in the opinion rendered. To that end, some of the facts set forth in the primary opinion may be repeated herein.

Soon after Ms. Stockman sustained her initial injury, she underwent two separate shoulder surgeries performed by Dr. Dru-ry, and MTI does not dispute that her workplace injury caused the shoulder injuries. While she did not complain of cervical problems to Dr. Drury for ten months after the accident and after her two surgeries had basically resolved themselves, Dr. Drury suggested that he did not find her subsequent complaints to be unusual. In fact, the very purpose of the nerve-root-blockage procedure was to try to determine if there was a connection between the cervical complaints and the original injury.

The only issue before the WCJ on July 22, 2010, was whether the diagnostic test recommended by Dr. Drury should be authorized. However, the WCJ did not limit its opinion to that issue. Instead, the WCJ ordered that MTI authorize the nerve-root-bloekage procedure and, at the same time, made a factual finding that lathe shoulder and cervical complaints were not related. This court considered these inconsistent findings and, in doing so, affirmed the authorization of the nerve-root-blockage procedure and reversed the causation finding. Stockman v. Med. Tech., Inc., 11-285 (La.App. 3 Cir. 12/14/11), 81 So.3d 198, writ denied, 12-145 (La.3/23/12), 85 So.3d 94. On the latter issue, this court found that the WCJ had ruled on an issue not properly before it. Id. Additionally, this court went further and awarded Ms. Stockman $2,000.00 in statutory penalties for MTI’s failure to authorize the diagnostic testing. Id.

MTI claims that even before our decision was handed down, it authorized the nerve-root-blockage procedure and that this resulted in the September 10, 2010 epidural injection. However, in its reasons for judgment arising from the April 25, 2013 hearing giving rise to this appeal, the WCJ concluded that the record contained no evidence that the authorization occurred. Additionally, with regard to MTI’s argument that the epidural injection took the place of the nerve-root-blockage procedure, Dr. Drury testified that while both procedures might “treat” the same condition, the epidural injection was not the “diagnostic” test he requested.

Additionally, MTI asserts that even if Dr. Drury performed the wrong procedure, it is relieved of its responsibility under the judgment arising from the July 22, 2010 hearing because Dr. Drury has not pressed for the nerve-root-blockage procedure. In making this argument, MTI ignores the fact that Ms. Stockman has continued to press for the procedure. As I understand Dr. Drury’s testimony, he basically gave up trying and simply described matters as how they were at the time of his testimony and not how they might have been had the diagnostic procedure been performed.

RMTI also notes in argument to this court that Ms. Stockman sustained four accidents subsequent to the work injury, and two of those accidents are mentioned in this court’s opinion. The first accident occurred in June of 2010, when Ms. Stock-man fell out of a boat. The next is the October 2, 2010 chair incident referenced in this court’s opinion, and MTI suggests that a third occurred in March of 2012, when Ms. Stockman fell up a flight of stairs. The fourth accident is the April 3, 2012 accident referenced in this court’s opinion. While these may ultimately play a part in the long-range physical condition of Ms. Stockman, it is significant to note that the first accident occurred nine months after her initial cervical complaints and the request for the nerve-root-blockage procedure, and the last accident occurred five months after this court’s first opinion.

MTI terminated Ms. Stockman’s benefits nine days after the September 30, 2010 epidural procedure and even before the WCJ signed the November 10, 2010 judgment arising from the July 22, 2010 hearing. Despite, the release of this court’s opinion reversing the WCJ’s causation decision, it never reinstated the benefits.

In addition to the continuing issue of the authorization of the nerve-root-blockage procedure and potential penalties associated therewith, the WCJ was faced with two separate claims relative to the compensation benefits. Mr. Stockman sought a judgment reinstating the compensation benefits, and MTI sought a judgment terminating those benefits. The WCJ chose to terminate the benefits while still requiring MTI’s adherence to its original order concerning the nerve-root-blockage procedure.

In his June 27, 2018 oral reasons for judgment, the WCJ found that Ms. Stock-man’s cervical complaints were not supported by the medical evidence given 14Pr. Drury’s testimony that her complaints could just have easily been caused by degeneration. This was clear error given the fact that Dr. Drury answered the question still without the benefit of the diagnostic test he had requested years before.

Specifically, the WCJ couched the weekly benefit issue as to whether Ms. Stock-man was “still entitled to disability benefits[J” Clearly that question could not be answered without the results of the diagnostic test ordered by Dr. Drury. The proper question to be answered, and the primary opinion answered this question in the negative, is whether at this time Ms. Stockman is entitled to a reinstatement of benefits. While her current physical condition finds her capable of engaging in gainful employment, she may well be entitled to some benefits depending on the results of the still incomplete medical picture. The current disposition of this matter addresses all of the issues in full.

      . Dr. Drury testified that Ms. Stockman had undergone a cervical epidural injection on September 30, 2010. He distinguished this from the nerve-root block, and testified that the epidural injection was probably performed rather than the nerve-root block due to miscommunication between his office and the operating facility.


author: MOORE, J.

text:
    John BLAIR, Et Ux, Plaintiff-Appellees v. BAD BOY INC. and Downtown Tire and Accessories, LLC, Defendant-Appellants.
    No. 48,953-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      Hammonds, Sills, Adkins & Guice, LLP By Elmer G. Noah, II, Monroe, for Appellant, Bad Boy, Inc.
    Kenneth R. Antee, Jr., for Downtown Tire and Accessories.
    Pharis Law Offices, Alexandria, By Fred A. Pharis, for Appellees.
    Before MOORE, LOLLEY and PITMAN, JJ.
   MOORE, J.

hThe plaintiffs filed a redhibition suit in the Shreveport City Court against the seller and the manufacturer of an all-terrain vehicle. After trial, the court rendered judgment for the plaintiffs against the seller and the manufacturer, rescinding the sale and ordering return of the purchase price. Additionally, the manufacturer was ordered to pay nonpecuniary damages, the plaintiffs’ attorney fees and the seller’s attorney fees incurred in defense of the suit. From this judgment, the manufacturer appealed. Both the plaintiffs and the seller answered the appeal requesting additional attorney fees to defend the judgment.

For the following reasons, we reverse the judgment in part, deleting the award of nonpecuniary damages; in all other respects, we affirm.

Facts

On or about February 16, 2011, John and Amanda Blair purchased a new, 2011 model, multi-terrain vehicle (“MTV”) from Downtown Tire and Accessories, LLC (“Downtown Tire”), for $8,739.97. An MTV is distinguished from a traditional ATV (all-terrain vehicle) by virtue of its bench seat capable of seating two adults side by side. This feature was important to the Blairs, who were avid hunters belonging to two hunting leases in Louisiana and Texas. The couple planned to use the vehicle primarily on the leases for hunting and recreation, and they envisioned using the vehicle to teach their young son (approximately eight months old at the time) about the outdoors.

The MTV purchased by the Blairs was manufactured by Bad Boy, Inc. (“Bad Boy”), located in Batesville, Arkansas, a company started in the late 1990s and noted for manufacturing “zero-turn radius” lawnmowers. The vehicle was shipped to Downtown Tire for delivery to the Blairs, but 12apparently never made it off the delivery truck due to a problem with the shifting mechanism.

The parties stipulated at the beginning of trial that the first MTV sold to the Blairs had a shifting problem, and the Blairs never took possession of the vehicle. As a result, a second, new 2011 MTV was sent to replace the first one and was shipped approximately two or three months later.

The parties also stipulated that the Blairs took possession of the second 2011 MTV, but this unit had problems with shifting and the brakes, the latter grabbing and not releasing. It was also discovered that a cotter pin on the right front wheel was missing. The cotter pin secured a nut holding the wheel assembly in place. Due to these problems, the Blairs requested a refund of the purchase price directly from Bad Boy. However, their request was refused, and subsequently, Bad Boy replaced the 2011 MTV with a new 2012 MTV model in which the cable linkage connecting gear shift to the transmission was redesigned and replaced with a steel rod linkage.

Although Bad Boy agreed to the factual stipulations regarding the defects in the first two 2011 MTVs, it objected to their relevance regarding the plaintiffs’ redhibition claim, which it contended involved only the 2012 MTV that was exchanged for the second 2011 MTV.

The 2012 MTV also exhibited problems and malfunctions, including difficulties in shifting. Blair complained that the MTV popped out of gear when he would try to shift into the low-gear range, which is used to traverse difficult terrain, to climb hills, or to carry a load. He returned the MTV to Downtown Tire to repair the problem. Downtown Tire’s mechanic, Randy Anthony, a/k/a “Turbo,” adjusted the linkage on the newly designed ^transmission by turning a nut designed for that purpose. The next day, Blair and Turbo test drove the MTV while John Blair’s friend Greg Hurst and Downtown Tire’s owner, Gayle Dixon, observed. During the test at Twelve Mile Bayou, the MTV popped out of gear twice, requiring Turbo to make additional adjustments to the linkage. The next day, Blair took the MTV to his deer lease in Texas. Although he was able to operate the MTV on Friday afternoon when he arrived at the camp, he testified that he had to use excessive force to shift into low range. The next morning, on the way to Blair’s deer stand, the MTV suddenly stopped running “as though a plug had been pulled.” It had to be towed back to camp.

Blair returned the MTV to Downtown Tire, where it was discovered that a 5 amp fuse, instead of a 30 amp fuse, had been mistakenly installed in the MTV, causing it to blow. The proper fuse was installed and the ignition started. According to Downtown Tire, Blair made no complaints about the shifting mechanism. Also, a malfunctioning temperature gauge indicated that the MTV was overheating, when, in fact, it was not. Blair left the MTV at Downtown Tire.

After consulting an attorney, Blair picked up the MTV, brought it home and parked it. He did not use the MTV again. According to the plaintiffs, Blair contacted Doug Brasell, Bad Boy’s sales representative, to report his dissatisfaction with the MTV. Blair again requested return of the purchase price. Brasell’s boss, Ryland Kieffer, plant manager of Bad Boy, refused to refund the purchase price and this suit ensued.

Trial was held on May 28, 2018. The court requested briefs at the conclusion of trial and the matter was taken under advisement. 14 Subsequently, the court rendered judgment in favor of the Blairs with a written ruling stating its findings and reasons for judgment.

The court found that the plaintiffs had proven their redhibition claim based upon evidence to support findings that the 2012 MTV was defective due to two minor defects and the unresolved problems with the shifting mechanism, apparently referring to the shifting problems also present in the two 2011 models. It concluded that the shifting mechanism was an essential function for the operation of the MTV, and these defects rendered the MTV unfit for its intended use. The court ordered Bad Boy and Downtown Tire to return the purchase price of $8,739.97 plus $393.13 for upgraded tires, and ordered Bad Boy to pay $6,500.00 to the Blairs for attorney fees and $3,000.00 in nonpecuniary damages. It also rendered judgment on Downtown Tire’s third party demand for expenses in defending the suit, casting Bad Boy in judgment for $4,000.00 in attorney fees.

Bad Boy filed this appeal. Both the Blairs and Downtown Tire answered the appeal requesting additional attorney fees to defend the judgment.

Discussion

Redhibition Claim

Bad Boy assigns four errors in the trial court’s judgment, contending that the plaintiffs were not entitled to a rescission of the sale and return of the entire purchase price because the 2012 MTV possessed only minor problems that were fixed, that the award of nonpecuniary damages was inappropriate, and that the attorney fee awards to the Blairs and to Downtown Tire are excessive.

|sBy its first assignment, Bad Boy alleges that the trial court committed manifest error by rescinding the sale of the 2012 MTV rather than ordering a reduction of the purchase price. It contends that there were only three minor problems Blair experienced with the 2012 MTV, and all three problems were easily addressed and repaired — namely, adjustment of the linkage in the shifting mechanism, replacement of an ignition fuse and replacement of a temperature gauge.

A seller warrants the buyer against redhibitory defects, or vices, in the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale. La. C.C. art. 2520; Stuck v. Long, 40,034 (La.App. 2 Cir. 8/17/05), 909 So.2d 686, writ denied, 2005-2367 (La.3/17/06), 925 So.2d 546. Multiple defects can collectively form the basis of a redhibitory action even though many of the defects are minor or have been repaired. Id.; Berney v. Rountree Olds-Cadillac Co., 33,388 (La.App. 2 Cir. 6/21/00), 763 So.2d 799. A defect is redhi-bitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. Thus, in an action for rescission because of a redhibitory defect, the court may limit the remedy of the buyer to a reduction of the price. La. C.C. art. 2541; Berney v. Rountree Olds-Cadillac Co., supra.

A buyer may bring an action against all sellers in the chain of sales back to the primary manufacturer to rescind the sale for breach of an implied | (¡warranty. Rey v. Cuccia, 298 So.2d 840, 845 (La. 1974). In a suit for redhibition, the plaintiff must prove: 1) the seller sold the thing to him and it is either absolutely useless for its intended purpose or its use is so inconvenient or imperfect that, judged by the reasonable person standard, had he known of the defect, he would never have purchased it; 2) the thing contained a nonapparent defect at the time of sale; and 3) the seller was given an opportunity to repair the defect. Vincent v. Hyundai Corp., 633 So.2d 240, 243 (La.App. 1 Cir. 1993), writ denied, 93-3118 (La.2/11/94), 634 So.2d 832.

Generally, the amount of damages a plaintiff can recover because of a redhibi-tory defect depends upon the type of seller involved. A good faith seller, namely, one who knew not of the vices in the thing he sold, is required to repair, remedy, or correct the vices or defects in the property that he sold. La. C.C. art. 2531. If he is unable to do so, he must restore the purchase price with interest and reimburse the reasonable expenses occasioned by the sale and those expenses incurred for the preservation of the property. La. C.C. art. 2531.

The seller who knows the vice of the thing that he sells and omits to declare it is answerable to the buyer in damages. In addition to restitution of the purchase price and repayment of expenses, including reasonable attorney fees, the bad faith seller is answerable for other damages. La. C.C. art. 2545. Under the proper circumstances, those damages can include nonpecuniary damages for mental anguish, aggravation, and inconvenience. Landaiche v. Supreme Chevrolet, Inc., 602 So.2d 1127, 1132 (La.App. 1 |7Cir.l992).

A manufacturer is conclusively presumed to have knowledge of defects in the object it manufactures. Young v. Ford Motor Co., 595 So.2d 1123, 1126 (La.1992). Thus, because of this presumption of knowledge, the manufacturer “is deemed to be in bad faith in selling a defective product” and is liable to the buyer for all damages recoverable under Art. 2545. Cox v. Lanier Business Prods., Inc., 423 So.2d 690, 693 (La.App. 1 Cir.1982), writ denied, 429 So.2d 129 (La.1983). The existence of a redhibitory defect is a question of fact and should not be disturbed in the absence of manifest error.

Of the three problems with the replacement MTV, the most significant issue related to the shifting mechanism, which Bad Boy contends the company addressed in the 2012 model by replacing the cable linkage with a steel rod linkage. It argues that Mr. Blair’s complaints about the vehicle popping out of gear were addressed by the adjustments made by Turbo at Downtown Tire. Both Turbo, the mechanic, and Gayle Dixon, the owner of Downtown Tire, testified that the adjustments fixed the shifting problem. When the plaintiff returned the MTV to Downtown Tire a second time because it suddenly stopped running, the problem was due to a 5 amp fuse installed rather than a 30 amp fuse. Mr. Blair did not complain about any difficulty in shifting at that time. Regarding the defective temperature gauge, the issue was simply a matter of a faulty gauge that was replaced.

Bad Boy contends that these three problems with the 2012 MTV do not support a rescission of the sale with return of the entire purchase price. Because these minor problems were addressed at no expense to the Blairs, it |Rargues that the trial court should have ordered simply a reduction in the purchase price not exceeding $1,500. It also claims the trial court abused its discretion because it failed to find that the defects in the 2012 MTV did not render it so useless that the Blairs would not have purchased it had it known of them.

Initially, we address the linchpin to Bad Boy’s first assignment, namely, its implied contention that the plaintiffs’ red-hibitory action seeking rescission and any evidence of defects in the MTV purchased should relate only to the 2012 MTV, inasmuch as the two prior 2011 models were replaced with the 2012 model. Implicit in this argument is an unstated claim that the parties reached a novation, by virtue of Bad Boy replacing the 2011 model with a 2012 model, such that any action for rescission of the sale does not pertain to the previous 2011 MTVs, and any evidence regarding their defects is irrelevant. See e.g., La. C.C. arts. 3080 and 3081. Thus, according to Bad Boy, the only issues involved in this action are the three minor defects with the 2012 model.

This position was rejected in Palmer v. Anchor Marine, Inc., 331 So.2d 114 (La.App. 1 Cir. 4/12/76), where the plaintiffs filed a suit against the seller and manufacturer for rescission of the sale of an ATV. The plaintiff encountered several problems with the first ATV he received from the seller and agreed to accept a replacement vehicle. Subsequently, he encountered several problems with the second ATV. The trial court found that the plaintiff would not have purchased the ATV had he known of the multitude of troubles he encountered and rendered judgment for the plaintiff.

On appeal, the defendant argued that when the plaintiff accepted the Rsecond ATV in replacement for the first, a novation occurred, and any question of redhibition as to the first ATV was not before the court. It argued that the only question was whether redhibition was possible as to the second ATV. The court rejected the novation argument, stating, “Otherwise, it would be very easy for dealers to trade off or exchange a new vehicle, just as defective as the first, for the first vehicle, and thus escape liability.” Id. at 117. The court also observed that a novation must be established by positive proof. See La. C.C. art. 1880. (“The intent to extinguish the original obligation must be clear and unequivocal. Novation may not be presumed.”)

In this instance, even the testimony of the defense at trial indicates that Blair did not want the 2012 MTV as a replacement for the defective 2011 model. He requested a return of the purchase price from the company representative and plant manager. Kieffer, the plant manager of Bad Boy, testified that he refused to return the purchase price. He acknowledged that Blair accepted the 2012 MTV but was not happy about it.

We conclude that the trial court was not precluded from considering the issues with the two 2011 vehicles shipped to the plaintiffs in reaching its factual conclusions and rendering judgment. It is not clear from the written reasons how much weight the court gave to the stipulated facts that the two MTVs had defective shifting mechanisms. We note, however, that although the trial court mentioned the prior issues Blair experienced with the 2011 MTV in its written reasons, it focused primarily on the three issues that arose with respect to the 2012 model. It found that the issues regarding the fuse and gauge were easily resolved; however, when combined with the 110unresolved problems with the shifting mechanism in the newly upgraded and redesigned 2012 model, the vehicle was unfit for its intended use and thus redhibi-tory. It specifically noted that multiple defects can collectively form the basis of a redhibitory action even though many of the defects are minor or have been repaired. Young v. Ford Motor Co., supra.

As previously noted, the problems with shifting in the first two MTVs were stipulated to by the parties. It is clear from the record that the shifting problem was of such magnitude that Bad Boy redesigned the shifting mechanism and stipulated as to its defect in the two 2011 MTVs. With respect to the 2012 model, John Blair testified that he received it shortly before October 2, 2011. He immediately began using it, and he had trouble shifting into low gear and reverse. When he made adjustments per the recommendations of Randy Anthony, he experienced the converse problem of not being able to shift into high gear. Greg Hurst, a friend and hunting partner, testified that he saw Blair having difficulty keeping the MTV in low gear needed to climb a hill. Additionally, the temperature gauge on the MTV falsely indicated that the engine was running hot and had to be replaced.

Blair returned the vehicle to Downtown Tire where the mechanic, Turbo, made adjustments. The two took the vehicle out for a test drive at Twelve Mile Bayou, where the MTV popped out of gear. Turbo adjusted it. They rode around a little more and it popped out of gear again when they were in the low gear range. Blair left the machine with Downtown Tire to fix the problem. He picked it up the next day to bring with him to his hunting lease in Texas. He drove the vehicle some that afternoon when heJjj arrived at the lease. The next morning, while Blair was on the way to his deer stand, the MTV suddenly stopped running and had to be towed back to camp. He returned the MTV to Downtown Tire where it was determined that a fuse of incorrect amperage had been installed in the MTV and had blown. Although he did not report any problems about shifting this time, Blair testified at trial that while the MTV would shift into low gear and reverse, it still had to be forced into gear with abnormal difficulty.

¡Blair testified that he suffered mental anguish over the inconvenience and trouble he had with the MTV, including ribbing from co-employees. He said he would not have purchased any of the three MTVs had he known of their defects.

The trial court specifically found that the evidence did not support Turbo’s testimony that the problem with shifting, i.e., the MTV popping out of gear when in the low range, was fixed by adjusting the linkage. It also noted that Kieffer testified that a user should not have to force the shifter into- the low range gear to use it. Although Bad Boy notes that Blair no longer complained about the shifting mechanism when he returned the MTV regarding the ignition fuse problem, the trial court found more credible Blair’s testimony that the problem was not resolved. Where a fact finder’s conclusion is based on its decision to credit the testimony of one of two or more witnesses, that determination can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Pope v. Prunty, 37,395 (La.App. 2 Cir. 8/20/03), 852 So.2d 1213, writ denied, 2003-2496 (La.11/26/03), 860 So.2d 1137.

We conclude that the trial court did not manifestly err in concluding 112that the 2012 MTV presented problems with the shifting mechanism and other minor problems that rendered the vehicle unfit for its intended purpose. It is particularly noteworthy that Blair was never able to use the MTV without experiencing some problem that required that he return it to the seller. Therefore, the trial court did not manifestly err by granting a rescission of the sale under the circumstances of this case and ordering a return of the entire purchase price. The previous problems with the two 2011 MTVs, both primarily related to shifting, coupled with the continued problem with shifting in the 2012 model, rendered the MTV unfit for its intended purpose. This assignment of error is without merit.

Nonpecuniary Damages

By its second assignment of error, Bad Boy contends that the award of non-pecuniary damages in this case was inappropriate and the trial court abused its discretion in making the award. We agree.

The trial court awarded the plaintiffs $3,000 in nonpecuniary damages on the basis of the plaintiffs’ testimony that they purchased the MTV for use on their hunting leases and for riding around the neighborhood and as a result of the defective MTVs, the Blairs were deprived of using the vehicle for hunting and their enjoyment of the outdoors on their two deer leases as well as riding around the neighborhood. They also planned to use the MTV when teaching their son about the outdoors and hunting. Additionally, they suffered embarrassment, mental stress, and great inconvenience over the purchase.

La. C.C. art. 1998 provides:

Damages for nonpecuniary loss may be recovered when |isthe contract, because of its nature, is intended to gratify a nonpecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.
Regardless of the nature of the contract, these damages may be recovered also when the obligor intended, through his failure, to aggrieve the feelings of the obligee.

In Jones v. Winnebago Indus., Inc., 47,137 (La.App. 2 Cir. 5/16/12), 92 So.3d 1113, after reviewing the Revision Comments to Art. 1998 and the Supreme Court’s interpretation of Art. 1998 in Young v. Ford Motor Co., supra, we concluded that the legislature chose to preserve the substance of source Art. 1934(3) as interpreted in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), thereby permitting recovery of nonpecuniary damages in situations where nonpecuniary interests constitute at least one of the significant interests that the obligee intended to gratify. The latter might be classified as a hybrid, or mixed, situation where obligees who enter the contract to gratify both pecuniary and nonpecuniary interests are permitted the recovery of nonpecuniary damages.

A “nonpecuniary loss” means damage of a moral nature which does not effect a “material” loss or tangible part of a person’s patrimony. See Saul Litvinoff, “Moral Damages,” 38 La. L.Rev. 1 (1977). The gratification of a nonpecuniary interest means one intended to satisfy an interest of a spiritual order, such as a contract to create a work of art, or a contract to conduct scientific research, or a contract involving matters of sentimental value. In such a case, upon the obligor’s failure to perform, the obligee may recover the damages he has sustained of a nonpecuniary— or “moral” — nature. See Litvinoff, supra. Thus, if a horse is bought for the purpose of 114showing it at an exhibition, the purchaser is entitled to recover for his disappointment and inconvenience if the contract is rescinded because of a redhibitory vice. See Smith v. Andrepont, 378 So.2d 479 (La.App. 1 Cir.1979), writ denied, 380 So.2d 102 (La.1980).

Under La. C.C. art. 1998, if it is established that the obligee intended to gratify a significant nonpecuniary interest, and the nature of the contract supports this, and the obligor either knew or should have known that failure to perform would cause nonpecuniary loss to the obligee, then the requirements for recovery of non-pecuniary damages are satisfied. Young, supra; Davis v. Sweeney, 44,997 (La.App. 2 Cir. 3/03/10), 31 So.3d 1184; Stonecipher v. Mitchell, 26,575 (La.App. 2 Cir. 5/10/95), 655 So.2d 1381. Whether the gratification of some nonpecuniary interest is a principal object of a contract is a question of fact. Id.

In Young, supra, the court illustrated, by way of example, the distinction between pecuniary and nonpecuniary interests:

Although the purchase of a new truck or car may be prompted by both the pecuniary interest of securing transportation and the nonpecuniary interest relating to enjoyment, taste, and personal preference of owning and driving the chosen vehicle, the nature of the contract is primarily pecuniary (unless other factors evidence a different conclusion). Contrast the contract of purchase made in a standard new car sale with a contract for purchase of an antique car that, while it might be driven on the streets, represents the obligee’s desire to own, and perhaps to show, a distinctive, unique automobile. Or contrast the traditional new car purchase contract with a contract for purchase of a specifically-designed, custom-built vehicle.

Id., 595 So.2d at 1133.

In Young, supra, the court found that neither the nature of the contract, i.e. the purchase of a new pickup truck, nor the facts and [ 1scircumstances surrounding the formation of the contract, demonstrated that Young purchased the new pickup truck from Bordelon Motors for a significant nonpecuniary purpose. Although Young testified that he wanted a larger cab area so that he could lie down on trips if his back started to bother him, that desire seemed more incidental in nature than that which would constitute a significant nonpecuniary interest in purchasing the truck. The rest of his testimony concerned the need to use the truck in his service station business to haul tires or to transport customers while their cars were being fixed. Even his plans for recreational use of the vehicle (i.e., fishing trips) constituted the pecuniary interest of requiring suitable transportation to haul his fishing boat.

In Jones, supra, a panel from this court concluded that the trial court was not manifestly erroneous in its determination that an award of nonpecuniary damages was not appropriate where the plaintiffs purchased a defective Winnebago. The Winnebago that the plaintiffs purchased from the dealer was neither custom-built nor specifically designed. While plaintiffs did have a valid nonpecuniary interest, i.e., to spend quality time with their children (and family and friends) traveling, camping and enjoying outdoor activities, the court noted that most if not all purchasers of RVs have the same or similar interests. “This does not change the fact that the primary purpose of the purchase of a recreational vehicle is transportation/recreational travel.” Id. at 1122.

Based on our review of this jurisprudence regarding nonpecuniary damages in redhibition actions involving motor vehicles and recreational h ¿vehicles, we conclude that nonpecuniary damages are not appropriate in this case because, notwithstanding their recreational use of the MTV in hunting, camping and enjoying the outdoors, “the primary purpose of a recreational vehicle is transportation/recreational travel.” Jones, supra, 92 So.3d 1113, 1122; see also, Palmer v. Anchor Marine, Inc., supra (in an action for rescission of the sale of an ATV, the trial court did not err in denying the plaintiff damages for inconvenience, embarrassment and humiliation).

ATVs, including the multi-terrain vehicle purchased by the Blairs in this case, are commonly used by hunters for expediency in getting to and from hunting sites in which distance or terrain make walking to the hunting sites impractical. The Blairs testified that the primary purpose of their purchase of the MTV was to use it for hunting and enjoyment of the outdoors. Thus, although hunting itself is a nonpecu-niary enjoyment, the primary purpose in purchasing this type of vehicle is transportation, whether it be to get to or from a hunting site, or simply to travel around in the outdoors. For this reason, an award of nonpecuniary damages is not warranted.

Accordingly, we reverse that part of the judgment.

Attorney Fees

By its final two assignments of error, Bad Boy contends that the trial court abused its discretion in the attorney fee awards to the Blairs and Downtown Tire. The trial court awarded the plaintiffs $6,500 in attorney fees and Downtown Tire $4,000 in attorney fees. Bad Boy argues that the fees awarded are unreasonable under the 10 factors set out by the Supreme Court in State v. Williamson, 597 So.2d 439 (La.1992). These factors 117include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorney; (7) the number of appearances made; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge. Bad Boy suggests that the attorney fee award to the plaintiffs should not have exceeded $3,500, and the award to Downtown Tire should be reduced to $8,000.

After review of this record and considering the factors enumerated above, we find no abuse of discretion that would require a reduction of the awards for attorney fees to the plaintiffs and Downtown Tire. Although Bad Boy has listed the factors a trial court should consider, it has not shown how or where these factors were not taken into account by the trial court such that the amounts constituted an abuse of its discretion.

We conclude that the attorney fee awards in this case are fairly substantial, given the relatively straightforward facts and legal issues involved in the litigation. Nevertheless, they are not unreasonable, and we find no abuse of discretion. This assignment is without merit.

Finally, both the plaintiffs and Downtown Tire have answered the appeal requesting additional attorney fees. Given the considerable amount awarded by the trial court, we decline to award additional attorney fees to defend the judgment on appeal.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court in favor of the plaintiffs and against Downtown Tire and Bad Boy, Inc., | ^rescinding the sale of the MTV and ordering a return of the purchase price and the cost associated with the purchase of upgraded tires, and we affirm the judgment against Bad Boy, Inc., awarding attorney fees to the plaintiffs and Downtown Tire. We reverse and amend the judgment against Bad Boy, Inc., dismissing the award of nonpecuniary damages to the plaintiffs. Appellate costs are assessed one-half to the plaintiffs and one-half to Bad Boy, Inc.

REVERSED AND AMENDED IN PART; AS AMENDED, AFFIRMED.


author: PITMAN, J.

text:
    William McDOUGALD, Joey McDonald & Tracy McDonald, Plaintiffs-Appellants v. ST. FRANCIS NORTH HOSPITAL, INC., Dr. Mack Temple Douglas, Dr. Ronald Koepke & Louisiana Medical Mutual Insurance Company, Defendants-Appellees.
    No. 48,955-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      Travis Holley & Associates By Travis M. Holley, Bastrop, for Appellants.
    Hudson, Potts & Bernstein, Monroe, By Gordon L. James, Donald H. Zeigler, III, for Appellees.
    Before MOORE, LOLLEY & PITMAN, JJ.
   PITMAN, J.

[, This is a medical malpractice/wrongful death action brought by Plaintiffs William McDougald, Joey McDonald and Tracy McDonald, the husband and two adult sons, respectively, of Darlene McDougald (who died of a heart attack after she temporarily discontinued taking her prescribed blood thinner, Plavix, and aspirin, for a seven-day period prior to arthroscopic surgery on her knee) against Defendants St. Francis North Hospital, Inc., Dr. Mack Temple Douglas (the emergency room physician), Dr. Ronald Koepke (Ms. McDougald’s cardiologist) and Louisiana Medical Mutual Insurance Company (Dr. Koepke’s insurer).' Plaintiffs alleged malpractice based on Dr. Koepke’s failure to notify Ms. McDougald of the dangers of stopping her medication and his failure to obtain Ms. McDougald’s informed consent to cease taking the medication. The trial court determined the Louisiana Uniform Consent Law (“LUCL”), La. R.S. 40:1299.40, did not apply; therefore, no jury instruction regarding informed consent was given. A jury returned a verdict in favor of Dr. Koepke and Louisiana Medical Mutual Insurance Company and against Plaintiffs. The trial court signed a judgment in accordance with the jury’s verdict. Plaintiffs now appeal. For the following reasons, the judgment of the trial court is affirmed.

FACTS

Ms. Darlene McDougald was a 58-year-old woman with a history of heart disease who smoked cigarettes. Dr. Ronald Koepke became her cardiologist in May 2003. He prescribed daily anticoagulant medications, [ ?Plavix and aspirin, as well as other medications, for her coronary artery disease. Over the following years, Ms. McDougald had to undergo the placement of stents in her heart as her disease advanced. These surgeries are performed by an interventional cardiologist. Her last stent surgery was performed in May 2007 by Dr. Greg Sampognaro.

Ms. McDougald also had recurring knee problems that became so severe and so affected her quality of life that she first considered knee surgery in 2008, but then decided against it. In 2009, she decided to proceed to have the knee surgery. Dr. Myron Bailey, an orthopaedic surgeon, sought medical clearance from Dr. Koepke before proceeding with arthroscopic surgery on Ms. McDougald’s knee.

After the request for surgical clearance was made to Dr. Koepke by Dr. Bailey, Nurse Marlene Gibson, Dr. Koepke’s head registered nurse, called Dr. Carter Cox, Ms. McDougald’s primary care physician (and the doctor who referred her to Dr. Koepke), to inquire whether Ms. MeDoug-ald was having any heart-related issues. She was informed by Dr. Cox that Ms. McDougald had not experienced any cardiac issues during the prior year. Nurse Gibson then called Ms. McDougald directly to confirm that | .¡report and also discussed with her temporarily discontinuing the Plavix and aspirin.

Ms. McDougald told Nurse Gibson she was not experiencing any angina. Nurse Gibson stated that Ms. McDougald was very familiar with her medical condition and could discern between heart-related pain and other types of pain. She also stated that Ms. McDougald was knowledgeable of the purpose of Plavix. Nurse Gibson informed Ms. McDougald that it was standard procedure for a patient to discontinue the use of Plavix and aspirin anticoagulants for seven to ten days prior to surgery, in order to reduce the risk of excessive bleeding during the surgical procedure.

Nurse Gibson stated that she remembered telling Ms. McDougald that the research conducted on discontinuing Plavix was not applicable to time periods beyond one year post-stent placement. She stated that the research indicated that patients should stay on Plavix for one year until the stent was endothelialized (meaning en-dothelial tissue was formed), which reduced risks. She went on to state that there is no research upon which to base an opinion for patients who were more than one year post-stent placement. Ms. McDougald’s last stent placement surgery had been performed more than a year prior to the conversation. Nurse Gibson stamped Dr. Koepke’s signature on the clearance for the knee surgery to be performed on Ms. McDougald.

On June 26, 2009, Ms. McDougald filled out some forms in Dr. Bailey’s office in preparation for surgery. On one form, there were boxes to check if she had experienced any symptoms of certain conditions, one of those being angina. She did not mark that particular box, indicating |4that she was not experiencing chest pain.

In preparation for her knee surgery, Ms. McDougald discontinued taking the Plavix and aspirin on or about July 6, 2009. One week later, the day before her scheduled knee surgery, she developed severe chest pain and went to the emergency room of St. Francis Medical Center in Monroe, Louisiana. She suffered a myocardial infarction and died less than two hours after admission.

Ms. McDougald’s husband and two adult sons filed a medical malpractice claim with the Louisiana Division of Administration, alleging that Dr. Koepke committed medical malpractice by failing to inform Ms. McDougald of the risks associated with the cessation of Plavix and aspirin, including the possibility of death. Plaintiffs alleged that Dr. Koepke had a duty to inform Ms. McDougald of these risks pursuant to the LUCL, specifically La. R.S. 40:1299.40. Plaintiffs alleged that Dr. Koepke never spoke to Ms. McDougald in 2009 and contended that, absent informed consent of a known risk of a procedure that results in harm to a patient, a prima facie case of breach of standard of care was established.

The medical review panel found that Dr. Koepke’s order to discontinue Plavix was an appropriate order since the duration of time that Ms. McDougald had been taking Plavix following the last stent placement exceeded the accepted practice guidelines for Plavix therapy of 12 months hpost-surgery. The panel further found that the standard of care did not require the doctor to discuss discontinuance of the Plavix with Ms. McDougald and that the risk of her having a stent thrombosis due to the discontinuation of the Plavix was so minimal that it was not a material risk worthy of disclosure by Dr. Koepke.

Plaintiffs sued Dr. Koepke, among others, alleging he had violated the statute requiring informed consent by failing to disclose the risks and hazards in the form required by the statute. They also alleged that Dr. Koepke had failed to disclose reasonable therapeutic alternatives (one in particular which is known as “bridging”) and failed to allow Ms. McDougald the opportunity to ask him any questions about the contemplated medical procedure, risks or alternatives. Further, they alleged Dr. Koepke failed to obtain an acknowledgment in writing, as required by the statute, that he answered such questions. Additionally, Plaintiffs alleged that Dr. Koepke’s recommendation that the Plavix and aspirin be abruptly discontinued was substandard and negligent.

On the day before trial was to begin, argument was heard concerning whether the LUCL was applicable to this case. The trial court ruled that it did not apply.

At trial, Dr. Koepke’s attorney immediately objected to Plaintiffs’ opening statement alluding to the provisions of the LUCL and the elements necessary to prove informed consent. The trial court reiterated its decision | fithat La. R.S. 40:1299.39.5 did not apply to the facts of the case.

Despite this ruling, there was much testimony regarding informed consent, the content of the conversation between Ms. McDougald and Nurse Gibson and the procedures exercised by other physicians regarding surgical clearance of patients. Plaintiffs’ expert witness, Dr. Ralph Laz-zara, a cardiologist, clarified via discovery deposition that he was addressing the discontinuance of Plavix, not the process of clearing a patient for surgery or informed consent. Despite that caveat, Dr. Lazzara testified that, in his practice, he did not get written consent when advising a patient to stop taking Plavix, but merely obtained verbal consent after explaining the reasons for his advice.

Dr. David Elizardi, a cardiologist and expert witness for the defense, testified that he does not meet with patients personally to explain the risks associated with temporarily stopping Plavix or aspirin. Further, he stated that the risks of stopping the medicine for a short period of time were minuscule — specifically, there was only a 0.2 percent chance of a blockage occurring when Plavix and/or aspirin were stopped after one year following stent placement. Dr. Elizardi also stated that he had no problem with the method in which Ms. McDougald was cleared for surgery.

Dr. Robert Martin, an interventional cardiologist who sat on the medical review panel, testified in his deposition that his method of clearing patients for surgery was similar to the method used by Dr. Koepke. He also 1testified that the steps taken by Dr. Koepke were appropriate under the circumstances of this case. Dr. Martin stated that the accepted practice guideline for Plavix therapy was 12 months post-stent surgery and that the risk of Ms. McDougald having a stent thrombosis due to the discontinuation of Plavix at that time was less than one-half percent. Also in regard to the risk, Dr. Martin stated that “two years out from someone’s last procedure is too minute to discuss.”

All of the cardiologists, including Dr. Koepke, stated that many factors are considered in clearing a person for surgery, such as the patient experiencing chest pain or not having completed the 12 months’ post-stent surgery period. The presence of any other such factors would require further investigation and the possible denial of surgery. Several of the physicians testified that they did not consider Ms. McDougald to be a high-risk patient, given her stated condition at the time she requested surgical clearance.

Testimony from these physicians was that they used the same procedures and corroborated Dr. Koepke’s method for surgical clearance of a patient, i.e., having his nurse examine the patient’s chart, contacting any past consulting physicians and talking directly to the patient concerning his/her status. They further testified that, absent any factors indicating further investigation, they did not require the patient to come to their office for an examination prior to the discontinuance of the drugs and that the literature indicated that taking the drugs for one year post-stent surgery was adequate to protect the patient.

|sThe issue of informed consent arose again when jury instructions were addressed by the trial court despite its former ruling that the LUCL did not apply in this case. Plaintiffs requested a special jury instruction that this wrongful death and survival action arose from a breach of the standard of care and involved the doctrine of informed consent. Plaintiffs suggested that the statute be cited along with general principles of the application of the disclosure.

Dr. Koepke objected to the special jury instruction and contended that informed consent was not required when temporarily' stopping routine medications such as Plavix and aspirin for purposes of surgery. He argued that physicians are not required to comply with the informed consent law when undertaking such routine actions, particularly when they are in accord with medical literature. He also argued that the temporary cessation of a prescription prior to surgery is not a “medical procedure” within the context of the LUCL. Dr. Koepke argued that, even if the law should be found to apply to such routine steps taken on a daily basis, a physician is required to disclose only a material risk, and Plaintiffs bore the burden of proof on material risk.

The trial court' determined that there would be no jury instruction relative to informed consent. Plaintiffs’ attorney objected to this ruling.' The case went to the jury without a jury instruction regarding informed consent and with only the general instruction regarding Plaintiffs burden of proof that the physician either lacked the degree of knowledge or skill or failed to use reasonable care and diligence along with his best judgment in the application of that skill. The jury’s verdict form did not contain any |9questions relative to informed consent.

The jury returned the verdict on a form that asked the following question:

1) Do you find, by a preponderance of the evidence, that Dr. Koepke lacked the degree of knowledge or skill possessed by physicians licensed to practice or actively practicing in the same medical speciality as the Defendant, or that he failed to use his best judgment or the degree of care ordinarily exercised in the application of that skill?

The jury answered “No,” and the form was signed by the foreperson and dated July 18, 2013. Plaintiffs appealed.

DISCUSSION

Plaintiffs argue that the trial court erred in finding the LUCL inapplicable to the facts of this case and in refusing to include a jury instruction on the lack of informed consent.

La. R.S. 40:1299.40(A), now La. R.S. 40:1299.39.5, stated, in pertinent part, as follows:

A. Notwithstanding any other law to the contrary, written consent to medical treatment means the voluntary permission of a patient, through signature, marking, or affirmative action through electronic means pursuant to R.S. 40:1299.40.1, to any medical or surgical procedure or course of procedures which sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring sears associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is evidenced by a signature, marking, or affirmative action through electronic means, by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent, by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.

1 ipThat portion of the statute remains the same from the time of its redesignation in 2012. In 2009, when this cause of action arose, La. R.S. 40:1299.40(E)(7)(b) provided a paragraph upon which Plaintiffs relied to árgue that the case at bar was governed by the LUCL. That section, now omitted from the current statute, stated as follows:

If medical care is rendered or surgical procedure performed with respect to which the secretary has not made a determination regarding a duty of disclosure, the physician or other health care provider is under the general duty to disclose otherwise imposed by this Section.

Plaintiffs argue that the general duty encompassed by this provision when referring to “medical care” includes prescription of, and the discontinuation of, medication and imposes upon the physician a duty to disclose the risks associated with the procedure to the patient if the consequences include the enumerated risks set forth in part A of the statute. No authority, however, is cited for that proposition.

Plaintiffs further argue that Dr. Koepke admitted he did not personally communicate elements of informed consent to Ms. McDougald and claim that his failure to do so was a “material risk” under the law. They also argue that Dr. Koepke failed to communicate the additional risks Ms. McDougald faced as a result of a complicating medical condition (her longstanding history of coronary artery disease) and failed to communicate reasonable therapeutic alternatives, such as bridging.

Dr. Koepke argues that the evidence presented at trial addressed the issue of lack of informed consent, even though the trial court had already determined that the LUCL did not apply to the facts of this case. He also |n argues that the medical review panel unanimously found that he did not breach the standard of care in clearing Ms. McDougald for surgery (or the procedures used in that process) or in temporarily stopping her Plavix and aspirin.

Dr. Koepke further argues that the trial court’s decision to decline an informed consent jury instruction was harmless error, if it was error at all. He contends that Plaintiffs’ attorney was allowed to inject the issue of informed consent in his opening statement and in his closing argument. Dr. Koepke claims that Plaintiffs’ attorney was allowed to bootstrap the argument into the testimony at trial by repeatedly questioning witnesses about his alleged breach of the standard of care in not adequately explaining to Ms. McDougald the 0.2 percent risk of a late stent thrombosis due to the temporary suspension of the drugs, even though all the cardiologists who testified, including Plaintiffs’ own expert witness, found no such error in that regard. For these reasons, Dr. Koepke contends that the trial court did not err in finding that the LUCL requiring informed consent did not apply, in refusing to specially instruct the jury on informed consent or in failing to include the question on the special verdict form.

The application of La. R.S. 4.0:129940 to the facts of this case

The seminal case discussing the LUCL is Hondroulis v. Schuhmacher, 553 So.2d 398 (La.1988), in which the court found that, under the informed consent doctrine, where circumstances permit, the patient should be told the nature of the pertinent ailment or condition, the | ^general nature of proposed treatment or procedure and the risks involved therein, prospects of success, risks of failing to undergo any treatment or procedure at all and the risks of any alternative methods of treatment. The doctor has a duty to disclose to the patient all “material risks” of the proposed treatment. The risk is material when a reasonable person in what the doctor knows or should know to be the patient’s position would be likely to attach significance to the risk or to a cluster of risks in deciding whether to forego the proposed therapy.

The Hondroulis, supra, court also stated that, under the informed consent doctrine, the factors contributing significance to a medical risk are the incidence of injury and degree of harm threatened. If the harm threatened is great, the risk may be significant, even though the statistical possibility of its taking effect is very small; but, if the chance of harm is slight enough and the potential benefits of therapy or the detriments of the existing malady are great enough, the risk involved may not be significant, even though the harm threatened is very great.

For purposes of the informed consent doctrine, determination of materiality of the risk to a patient from the proposed treatment is a two-step process. The first step is to define the existence and nature of the risk and the likelihood of its occurrence through “some” expert testimony. The second step is for the trier of fact to decide whether the probability of that type of harm is a risk that a reasonable person in the patient’s position would consider in deciding on treatment. The objective standard of causation, between the physician’s failure to disclose material information concerning the proposed treatment and the material risk of damage to the patient, is | ^whether a reasonable patient in the plaintiffs position would have consented to the treatment or procedure had material information and the risks been disclosed. The physician is not required to disclose risks to a patient that are not reasonably foreseeable, are not material or are commonly understood, obvious or already known to the patient. Hondroulis, supra.

In Novak v. Texada, Miller, Masterson & Davis Clinic, 514 So.2d 524 (La.App. 3d Cir.1987), writ denied, 515 So.2d 807 (La.1987), the plaintiffs argued that the trial court erred in its failure to instruct the jury regarding informed consent when the patient’s petition complained that she had pain in her left arm and subsequent restricted movement of that arm after having been given a flu shot. The trial court found that the administration of a flu injection did not fall within the scope of La. R.S. 40:1299.40 and that the physician was not required to obtain the patient’s written consent before administering the injection. In that case, the defendant argued that administering a flu shot was a routine procedure that did not require a formal written consent. The appellate court agreed and affirmed the decision of the trial court, finding that, although the legislature provided no guidance for determining what constitutes a “medical procedure,” it found no abuse of discretion in the trial court’s conclusion that the statute did not extend to a routine flu injection. The court stated that courts will not impute meanings which lead to absurd results or extend statutes to situations the legislature never intended should be covered, citing Smith v. Town of Vinton, 209 La. 587, 25 So.2d 237 (La.1946). The court stated that to hold otherwise would lead to results in the day-to-day practice of medicine never intended by the legislature.

|uIn Daniels v. State, Through Dept, of Health & Human Resources, 532 So.2d 218 (La.App. 3d Cir.1988), the court, citing Novak, supra, held that the nonsurgical treatment of a closed wrist fracture was a routine medical procedure in which surgery was not involved and to which the informed consent statute did not apply. The court stated that, undoubtedly, the legislature did not intend to impose the requirements of the informed consent statute on physicians and medical personnel performing such a routine procedure.

In the case at bar, the clearance of a patient for surgery and the recommendation that the patient should cease taking Plavix and aspirin seven to ten days prior to surgery is a routine, nonsurgical decision made by the physician on a daily basis. It is not a “medical or surgical procedure” as contemplated in the LUCL to which the duty of informed consent applies. We note that, under the LUCL, a doctor is required to disclose all material risks to his patient. On this record, the jury was not plainly wrong to find that Ms. McDougald would not likely have attached significance to the minor risk of stopping Plavix and aspirin one week before knee surgery. We also note that Nurse Gibson did adequately discuss the issues with Ms. McDougald.

As a result of the above ruling, we find that the jury was not erroneously instructed as to the law and that the omission of a jury instruction relative to informed consent was not error. The jury charge adequately provided the correct principles of law as applied to the issue framed in the pleadings and the evidence, and the instructions adequately guided the jury in its deliberation. The trial court’s lack of instruction on hfiinformed consent did not mislead the jury to the extent that it was prevented from dispensing justice. We agree with the trial court finding that La. R.S. 40:1299.40 did not apply to the facts of this case and that lack of informed consent was not an issue. This assignment of error, therefore, is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in favor of Defendants, Dr. Ronald Koepke and Louisiana Medical Mutual Insurance Company, and against Plaintiffs, William McDougald, Joey McDonald and Tracy McDonald. Costs of appeal are assessed to Plaintiffs, William McDougald, Joey McDonald and Tracy McDonald.

AFFIRMED.

      . Defendants St. Francis North Hospital, Inc., and Dr. Mack Temple Douglas were dismissed from this lawsuit.

      . Dr. Koepke is an invasive cardiologist (not an interventional cardiologist), a specialty in which a physician performs certain procedures and surgeries, such as the placement of pacemakers, but does not perform stent surgery.

      . These are facts to which Nurse Gibson testified. Dr. Cox disputed this information and testified that he did not recall ever having this conversation with Nurse Gibson. There is no written confirmation in the patient’s records at either Dr. Koepke’s office or Dr. Cox’s office that this conversation between Nurse Gibson and Dr. Cox took place. Nurse Gibson testified that she believed there was a page missing from the patient’s file because it was common procedure in Dr. Koepke’s office to document telephone calls to other physicians when Dr. Koepke was asked to clear a patient for surgery. She also testified that requests for surgical clearance of Dr. Koepke's patients were made three to four times a day, and she described the office procedure for disposition of these requests. Calling other physicians to whom the patient may have complained of chest pain was part of the process each time a request for clearance for surgery was made.

      . That statute was repealed and reenacted. The comment to the statute states: Part XXII, Uniform Consent Law of Chapter 5 of Title 40 of the Louisiana Revised Statutes, consisting of R.S. 40:1299.40, was amended and reenacted by Acts 2012, No. 759, § 2, eff. June 12, 2012 to consist of R.S. 40:1299.39.5 to 40:1299.39.7 under the same Part heading. The general subject matter of Part XXII remains unchanged.

      . The parties and the trial court use both La. R.S. 40:1299.40 and La. R.S. 40:1299.39.5 interchangeably throughout the record because they are both the LUCL and relate to the issue of informed consent, although La. 40:1299.40 was in effect at the time this cause of action arose.