author: COOKS, Judge.

text:
    Christopher AYRO v. WILLSTAFF, INC.
    No. 13-686.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 19, 2014.
    Rehearing Denied April 2, 2014.
    Christopher Ayro, Jeanerette, LA, pro se.

      Rene S. Paysse, Jr., Rachel M. Riser, Johnson, Johnson, Barrios & Yacoubian New Orleans, LA, for Defendant/Appellee Willstaff, Inc.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

|! This litigation arises out of a workers’ compensation claim filed by Christopher Ayro (Ayro) against his employer, Wills-taff, Inc. (Willstaff) on April 22, 2009. Ayro alleged he sustained a work-related injury on March 9, 2006, while employed as a laborer/helper for Willstaff at the Bayou Companies, Inc. facility in New Iberia. Specifically, Ayro asserted he injured his back when a pipe rolled off of a rack and struck him on the back.

The matter proceeded to trial on September 28, 2011, before the Office of Workers’ Compensation. The workers’ compensation judge (WCJ) found in favor of the employer and dismissed Ayro’s claim. The WCJ noted that Ayro’s treating orthopedic surgeon, Dr. Mark McDonnell, found, no future medical treatment was necessary. Ayro was discharged to full-duty work by his treating physician thus benefits were properly terminated by the employer. An appeal was initially filed by Ayro, but it was subsequently abandoned and dismissed by this court.

On November 8, 2011, Ayro filed another claim with the Office of Workers’ Compensation seeking recovery of workers’ compensation benefits in connection with the same March 9, 2006 accident. Ayro asserted the same allegations as before, seeking wage benefits and medical treatment for the injuries allegedly sustained on March 9, 2006. The WCJ, on her own motion, appointed Dr. Todd Cowen to conduct an independent medical examination (IME) to address Ayro’s medical condition. Dr. Cowen concluded Ayro required no further medical treatment as the lumbar contusion/strain should have resolved years ago. Dr. Cowen also determined Ayro was capable of returning to full-duty work.

Although the IME supported the employer’s contention that no further benefits were warranted, the employer entered into settlement negotiations with Ayro’s counsel to “resolve this matter without the necessity of further legal proceedings.” The employer agreed to settle the matter with Ayro for $8,000.00 in 12exchange for a full and final settlement of Ayro’s workers’ compensation claim, including a release of any and all potential claims for future workers’ compensation benefits and/or medical expenses. The parties executed settlement documents, including a “Joint Petition for Approval of Workers’ Compensation Settlement,” which provided:

In order to compromise and settle said disputes and avoid the uncertainties of litigation, Willstaff Company has offered to pay Christopher Ayro for his account the sum of THREE THOUSAND AND NO/100 ($3,000.00) DOLLARS on the condition that Christopher Ayro dismisses, with prejudice, his workers’ compensation suit against Willstaff Company and Broadspire and accepts the sum of THREE THOUSAND AND NO/100 ($3,000.00) DOLLARS in full and final settlement, satisfaction and compromise of any and all claims for workers’ compensation benefits, damages, liens, expenses and attorney’s fees, which Christopher Ayro now has or may hereafter acquire against Willstaff Company and/or Broadspire for any and all accident or injuries sustained by Christopher Ayro while employed by Willstaff Company prior to the date of the settlement herein, including specifically, but not exclusively, the alleged accidental injury of March 9, 2006, subject, however, to the approval of the Office of Workers’ Compensation.

In addition, an affidavit was executed by Mr. Ayro, wherein he attested the following:

[H]e is the petitioning employee in the foregoing Joint Petition for Approval of Workers’ Compensation Settlement; that he has had the Joint Petition for Approval of Workers’ Compensation Settlement read to him and fully explained by Robert M. Martina, his attorney in fact; that the allegations contained therein and made by him are true and correct; that he has discussed the Joint Petition for Approval of Workers’ Compensation Settlement fully with Robert M. Martina, his attorney; and that he fully understands it and has entered into this compromise settlement freely and voluntarily and with full knowledge of its contents and meaning; and that he wishes to waive any rights he may have with respect to a six (6) month waiting requirement under R.S. 23:1271.

In connection with the Joint Petition for Approval of Workers’ Compensation Settlement, Ayro executed a “Receipt and Release” agreement. That agreement contained a stipulated damages provision whereby Aryo agreed that he would not initiate or file any suit against Willstaff or Broadspire in connection with the accident in question and that he would pay Willstaff and | .¡Broadspire $5,000.00 in damages should he initiate or file any such suit. Ayro executed an affidavit attesting “that he has read the above and foregoing Receipt and Release in its entirety; that he understands the contents thereof in full and without reservation; that he desires to sign his name thereto in return for the purposes stated therein as his own free act and deed.” Plaintiffs counsel also executed an Affidavit in connection with the settlement agreement and specifically the Receipt and Release, attesting:

[I] explained to Christopher Ayro the nature of his rights, causes of action, claims and demands as stated in the foregoing Receipt and Release, including, but not limited to those rights and causes of action, claims and demands arising under the Louisiana Workers’ compensation laws and any other laws of the State of Louisiana or any other state.

Despite the executed documents, Ayro filed another claim for compensation against Willstaff on December 24, 2012, seeking recovery of workers’ compensation benefits, disability status, and medical treatment in connection with the March 9, 2006 accident. Ayro also filed a Motion to Rescind the court-approved settlement agreement. In response, Willstaff filed an Opposition to the Motion to Rescind and a Reconventional Demand based on the stipulated damages provision contained in the Receipt and Release. Willstaff then filed a Motion for Summary Judgment seeking a dismissal of Ayro’s claims and enforcement of the stipulated damages provision the Receipt and Release agreement.

On April 16, 2013, a hearing was held on Ayro’s Motion to Rescind Settlement and Willstaff s Motion for Summary Judgment. Ayro was not represented by counsel at the hearing, appearing in proper person. The WCJ found the prior settlement was valid, noting the parties were represented by counsel at that time, and the settlement was entered into both knowingly and voluntarily. The WCJ also specifically found Ayro was competent at the time he executed the settlement documents. Accordingly, the WCJ dismissed the December 24, 2012 |4disputed claim for compensation filed by Ayro finding it was in violation of the terms of the Release and Receipt. The WCJ also ordered Ayro to pay the stipulated damages of $5,000.00 as required by the signed agreements. Ayro has filed an appeal with this court, requesting that we overturn the WCJ’s decision.

ANALYSIS

In Minor v. J & J Carpet, Inc., 10-45, pp. 2-3 (La.App. 3 Cir. 6/2/10), 40 So.3d 434, 436-37 (alteration in original), we set forth the appellate standard of review in workers’ compensation cases:

It is well settled that the standard of review applied in workers’ compensation cases is the “manifest error-clearly wrong” standard. Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.
Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander [v. Pellerin Marble & Granite, 93-1698 (La.1/14/94) ], 630 So.2d [706,] 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99)), 734 So.2d 874.

Id.

Initially, we note Ayro has represented himself throughout the pendency of this appeal. The briefs filed with this court are difficult to understand, but clearly indicate his belief that he is entitled to additional benefits under the law. The record, however, does not support Ayro’s belief.

j..¡Trial was held on September 28, 2011, before the Office of Workers’ Compensation (OWC) concerning the claims asserted in the first disputed claim for compensation filed by Ayro. That claim pertained to the alleged work-accident of March 9, 2006. At the conclusion of Ayro’s case, which included the introduction of all pertinent medical records, the WCJ granted WillstafPs Motion for Involuntary Dismissal. On July 11, 2012, this court dismissed Ayro’s appeal for failure to file a brief.

Despite the dismissal, Ayro filed a second disputed claim for compensation seeking the same relief as sought in the prior claim. In response, Willstaff filed an Exception of Lis Pendens and an Exception of Res Judicata. On her own motion, the WCJ requested an IME to address Ayro’s medical condition. The IME physician determined Ayro required no further medical treatment and was capable of returning to full-duty work. Prior to the hearing on Willstaff s exceptions, the parties negotiated a full and final compromise lump-sum settlement. Ayro was represented by counsel at this time and was informed by his counsel regarding the legal effect of the settlement.

A Petition for Approval of Workers’ Compensation Settlement was filed by the parties on September 24, 2012. Louisiana Revised Statutes 23:1272 sets forth the requirements for approval of compromise settlements in workers’ compensation cases and provides in pertinent part:

A. A lump sum or compromise settlement entered into by the parties under R.S. 23:1271 shall be presented to the workers’ compensation judge for approval through a petition signed by all parties and verified by the employee or his dependent, or by recitation of the terms of the settlement and acknowl-edgement by the parties in open court which is capable of being transcribed from the record of the proceeding.
B. When the employee or his dependent is represented by counsel, and if attached to the petition presented to the workers’ compensation judge are affidavits of the employee or his dependent and of his counsel certifying each one of the following items: (1) the attorney has explained the rights of the employee or dependent and | fithe consequences of the settlement to him; and (2) that such employee or dependent understands his rights and the consequences of entering into the settlement, then the workers’ compensation judge shall approve the settlement by order, and the order shall not thereafter be set aside or modified except for fraud or misrepresentation made by any party.

The record establishes the requirements of La.R.S. 23:1272 were met in this case. Ayro was represented by counsel, affidavits were executed certifying that Ayro was explained his rights and the consequences of the settlement to him and that he understood said rights and consequences. After reviewing the Joint Petition for Approval of Workers’ Compensation Settlement and the attached affidavits, the WCJ signed an Order approving the settlement. Therefore, pursuant to La. R.S. 23:1272(B), the Order “shall not thereafter be set aside or modified except for fraud or misrepresentation made by any party.”

We can find no evidence in the record of fraud or misrepresentation. Furthermore, no allegations of fraud or misrepresentation were made in any of Ayro’s Disputed Claims for Compensation or to the WCJ at the hearing on the Motion to Rescind. Therefore, we find no error in the WCJ’s denial of the Motion to Rescind.

The primary thrust of Ayro’s arguments to the WCJ and, on appeal, is that he was incompetent, and thus, the settlement agreement should be set aside. However, no evidence has been presented to support Ayro’s contention that the settlement should be set aside because he was incompetent. Ayro’s own testimony at the hearing on the Motion to Rescind belies his argument that he was incompetent such as to render the settlement documents signed by him invalid.

At the hearing the WCJ questioned Ayro regarding his allegations of incompetence. Ayro testified to the court he was not under the influence of drugs at that time and was represented by counsel. He testified his attorney explained to him the terms and effects of the settlement agreement. Ayro also stated he was not |7harassed into accepting the settlement, and he freely signed the paperwork. Accordingly, the WCJ determined Ayro was not incompetent and was not under any legal duress. We find nothing in the record to dispute this finding by the WCJ.

Lastly, Ayro argues the WCJ erred in concluding he breached the Receipt and Release agreement by filing another Disputed Claim for Compensation and in enforcing the stipulated damages clause in the Receipt and Release Agreement. That agreement (set forth earlier in this opinion) provided that Ayro would dismiss, with prejudice, his workers’ compensation suit against Willstaff in exchange for the settlement amount of $3,000.00. The parties agreed that “the sums agreed by this settlement agreement amount to more than Willstaff Company believes to be due to Christopher Ayro and amount to less than Christopher Ayro believes to be due to him.” The agreement is clearly a lump-sum settlement resolving “any and all” workers’ compensation claims Ayro may have against Willstaff relating to his alleged injuries of March 9, 2006.

In addition to releasing all claims for workers’ compensation benefits, the Receipt and Release contained a stipulated damages provision whereby Ayro agreed that he would pay Willstaff $5,000.00 should he initiate or file any suit against Willstaff. We find this provision is not enforceable. Nowhere in the Louisiana Workers’ Compensation Act is such a penalty or punitive damage award permitted against a workers’ compensation claimant. “When a settlement is for a lump sum to resolve all claims, a party’s right to enforce the settlement agreement is dictated by La.R.S. 23:1271 and 1272. Trahan v. Coca Cola Bottling Co. United, 04-100 (La.3/2/05), 894 So.2d 1096.” Young v. Jack In The Box, Inc. 05-1573 p. 2 (La.App. 3 Cir. 5/3/06), 929 So.2d 855, 857 (footnote omitted), writ denied, 06-1357 (La.9/22/06), 937 S0.2d 390. There are no provisions in either of these statutes which impose such a punitive award or stipulated damage against a workers’ compensation claimant. The Louisiana State Supreme Court has clearly |8held that it is only when the settlement is not a lump-sum agreement and does not release future claims do we apply the provisions of La. Civ.Code art. 3071 to such compromise agreements. Trahan, 894 So.2d 1096. When, as here, the compromise agreement is a lump sum settlement resolving any and all claims, past and future, which a workers’ compensation claimant may have, we must exclusively apply the provisions of the Louisiana Workers’ Compensation Act, as set forth in Trahan, 894 So.2d at 1104-05:

This court has previously refused to apply the provisions of La. C.C. art. 3071 to eases involving lump sum settlements or compromises of workers’ compensation claims. See, e.g., Colbert v. Louisiana State Univ. Dental Sch, 446 So.2d 1204 (La.1984); Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980); Puchner v. Employers’ Liab. Assur. Corp., 198 La. 921, 5 So.2d 288 (1941) (on rehearing). These cases, however, involved lump sum settlements or compromises of workers’ compensation claims that fit squarely under the provisions of the Workers’ Compensation Act (as they existed at the time) governing such settlement or compromises. Additionally, the more general provisions of Article 3071 were in conflict with the specific procedures required for lump sum settlements of compromises of workers’ compensation claims. Finally, the agreements sought to be enforced would have released the employer from all liability under the Workers’ Compensation Act, thereby providing the injured worker with no further periodic payments.

This court reiterated this holding in Tyson v. Thompson Home Health, 10-1040 (La.App. 3 Cir. 3/16/11), 59 So.3d 509, writ denied 11-0760 (La.10/25/11), 79 So.3d 246. In Tyson, we addressed the claimant’s entitlement to statutory attorney fees and penalties for the employer’s failure to timely pay after the compromise agreement was reached. We applied the provisions of the Workers’ Compensation Act to resolve the dispute, holding that “[w]hen a settlement constitutes a final, non-appeal-able judgment, whether the claimant is entitled to penalties and attorney fees is governed by La.R.S. 23:1201(G).” Tyson, 59 So.3d at 512, citing Young. In Sanders v. Harrisonburg Nursing Home, 95-114, p. 4 (La.App. 3 Cir. 5/31/95), 657 So.2d 394, 396, writ denied, 95-1629 (La.10/6/95), 661 So.2d 469, we clearly stated, “Because the Workers’ Compensation Act |9provides for compromise settlements, these specific provisions are controlling.” In Sanders, we relied on our holding in Ryder v. Industrial Construction Co., 616 So.2d 857, 859 (La.App. 3 Cir.), writ denied, 619 So.2d 1068, (La.1993) wherein we refused to apply the Louisiana Civil Code articles regarding compromise agreements to a lump sum workers’ compensation compromise agreement, holding:

Appellants first assert that the hearing officer erred in failing to recognize that the compromise agreement is controlled by La.C.C. art. 1767, et. seq., regarding conditional obligations. However, we find that, as the Workers’ Compensation Act specifically provides for compromise settlements, these specific provisions are controlling. See Watkins v. May Brothers, Inc., 147 So.2d 763 (La.App. 3 Cir.1962), (the general principles of transaction and compromise must yield to the special laws in the Workers’ Compensation Act).

Accordingly, that portion of the compromise agreement imposing a $5,000.00 penalty on Ayro is not enforceable. No such penalty is provided by the Workers’ Compensation Act.

DECREE

For the reasons stated, we reverse the WCJ’s ruling ordering Ayro to pay Wills-taff the sum of $5,000.00. In all other respects we affirm the WCJ’s ruling. All costs of this appeal are assessed fifty-percent against Willstaff and fifty-percent against Ayro.

AFFIRMED IN PART; REVERSED IN PART.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Darnell CARTER, et al. v. STEAK HOUSE STEAKS, INC., et al.
    Nos. 13-799, 13-918.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 19, 2014.

      Stephen N. Elliott, Carl J. Giffrn, Jr., Howard B. Kaplan, Bernard, Cassisa, Elliott & Davis, Metairie, LA, for Defendants/Appellees, Steak House Steaks, Inc.
    George B. Hall, Jr., Katie Whitman Myers, Phelps Dunbar, L.L.P., New Orleans, LA, for Defendant/Appellee, Catlin Specialty Insurance Company.
    Richard E. King, Jennifer L. Simmons, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendants/Appellees, Louisiana Capital Foods, LLC CampNations Steak House Steaks, Inc. James Nations, Jr.
    Lamarre T. Elder, Michael J. Harris, Law Offices of Pius A. Obioha & Associates, New Orleans, LA, for Plaintiffs/Appellants, Darnell Carter Michelle Carter.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

hln this consolidated matter, the plaintiffs, Darnell and Michelle Carter, the natural parents of Kyris Carter, deceased, appeal the trial court’s grant of summary judgment in favor of the defendants, CampNations, LLC and Louisiana Capital Foods, LLC (the event organizer and landowner defendants), and James Nations, Jr., Steak House Steaks, Inc., and Caitlin Specialty Insurance Company (Steak House defendants). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Kyris Carter was an employee of Steak House Steaks, Inc. Shortly after leaving his employment with Steak House Steaks, Kyris, who was twenty-four years old, attended a company gathering on October 3, 2010, with his best friend, Wisdom Adike-ma. The party was located at the company’s vacation rental on False River in Pointe Coupee Parish. Steak House Steaks decided to have the party to reward its employees for meeting certain goals. The property was owned by CampNations, LLC, and the event was organized by Louisiana Capital Foods, LLC. James Nations, Jr. owns CampNations, LLC. Tragically, Kyris drowned in False River after jumping off the second story of a pier. His parents thereafter filed a lawsuit for damages.

All defendants filed motions for summary judgment, which the trial court granted. The trial court found that there was no genuine issue of material fact that Kyris jumped off of a pier located at a neighboring property rather than any |2property owned by defendants. The Carters filed a motion for new trial which was denied. The Carters now appeal.

ISSUES

In docket number 13-918, defendants assign as error:

1.The Trial Court erred in granting Defendant’s Motion for Summary Judgment despite the following documented material issues of fact inherent in the Affidavits and other evidence presented by Plaintiffs and Defendant:
a. Whether or not Kyris Carter entered False River and drowned from the property located at 9353 Island Rd, Ventress, LA, as referenced in the Pointe Coupee Sher-riff s Office’s Investigative Report;
b. Whether there was an unreasonable risk of injury;
c. Whether or not Kyris Carter voluntarily jumped into False River, leading to his drowning death;
d. Whether or not any witness, as referenced in Defendant’s Memorandum in Support of Motion for Summary Judgment, saw Kyris Carter “voluntarily jump into the subject water from an adjacent, neighboring property”,
e. Whether or not Wisdom Adikema, as referenced as a witness in Defendants’ Exhibit C, affidavit of Gerald Major, gave conflicting statements to Mr. Major (Defendants’ insurance claims adjuster), Officer Clyde McCoy (Plaintiffs’ independent investigator), Darnell and Michelle Carter (parents of the decedent), and Officer Torrick Friels (Point Coupee Sheriffs Officer who responded to the scene of the drowning incident);
f.Whether or not the nonexistence of lifeguards, lifejackets, inádequa-cy of signage, and lack of other life saving, preventative mechanisms, rendered defendants’ property defective; and
⅛ Whether or not adequate life saving, preventative measures were taken by the organizers of this company gathering given the fact that alcohol was to be served to attendees at a night-time gathering adjacent to False River.
2. The trial court failed to apply any scrutiny to the affidavit and summaries of recorded statements provide[d] by the Defendants in support of their motions for summary judgment.
3. The trial court erred in relying on the affidavit of a third person who had no direct knowledge of the drowning incident.

DISCUSSION

An appellate court reviews a grant of summary judgment de novo,, applying the same standards as would a trial court. Schroeder v. Bd. of Supervisors, of La. State Univ., 591 So.2d 342 (La.1991). Summary judgment is governed by La. Code Civ.P. arts. 966 and 967. Article 966(c)(2), as amended by Act 483 of 1997, provides that while the burden of proving entitlement to summary judgment rests with the mover, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burdén on the motion does not require him to negate all essential facts of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.

The Carters asserted a negligence theory under La.Civ.Code art. 2317.1, which states:

|4The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

The determination of whether a person has custody or garde of a thing such that he will be liable for any damages it may cause is a factual determination. Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La.5/22/09), 16 So.3d 1065. Plaintiffs argue that there is a genuine issue of fact as to whether Kyris jumped off a neighboring pier and that even if he did, defendants were still liable because there was an “implied and explicit invitation from the enterprise’s employees to use the [neighbor’s] pier for jumping into the river.”

Plaintiffs argue that the trial court failed to scrutinize the affidavits and recorded testimony because the witnesses’ summarized statements only mentioned the neighboring pier a month after the accident occurred.

Plaintiffs further argue that the trial court failed to question the veracity of the statements made by the witnesses because the coroner’s report found no alcohol in Kyris’s body, whereas the witnesses all testified that he had a small amount of alcohol at the party. Further, plaintiffs argue that the insurance adjustor’s affidavit should be afforded little weight because it was based on second-hand knowledge. Finally, plaintiffs argue that the trial court failed to consider the fact that there were competing affidavits.

Four eyewitnesses to the accident stated that Kyris jumped off the neighboring second-story pier and accidentally drowned. The neighbor’s property was separated from the CampNations address by a fence, but three party attendees, | sAdikema, Kyr-is, and Ronald Houston, walked around it at the end of the yard where the fence meets the river. All of the witnesses said that Kyris was alone on the second story of the pier immediately prior to jumping and that several rescue attempts were made, but Kyris resisted assistance because he was panicked.

The evidence submitted in support of the motion for summary judgment included:

The affidavit of Gerald Major, the insurance adjuster who investigated the accident, who determined that Kyris voluntarily jumped from the neighboring pier based on recorded statements he obtained from Adikema, Houston, Robert Wright, and Nora Bridges, who were all witnesses to the accident. Major had been an insur-anee adjuster for nearly twenty-five years at the time he questioned the witnesses,

Major’s recorded statement summaries were attached as exhibits. They all note the location of the accident as “9353 Island Road, Ventress, LA,” the location of CampNations, LLC.

Bridges’ statement revealed that she •witnessed the accident. She said that she was standing at the end of the CampNa-tions’ pier (that was a few feet off of'the water) and that Adikema jumped off the second story of .the neighboring pier, almost drowning, but was pulled out of the water by Houston who was waiting in a jet ski with a life preserver. She said that before anyone could tell Kyris not to, he jumped off of the second story of the pier. Houston attempted to rescue him but Kyr-is was fighting him off because he was panicked.

Houston’s statement indicated that he had jumped off of the second story of the neighbor’s pier. He was waiting in the water with a jet ski and life preserver when Adikema jumped. He had to pull Adikema out of the water. Kyris then | ^jumped, and Houston tried to rescue him, but Kyris was panicking and kept pulling him under the water. Houston feared he would drown also because Kyris would not let go of him, and he finally had to push him off so that he could get out of the water.

Adikema’s recorded statement indicated that he and Kyris were best friends and had known each other since they were twelve years old. Adikema stated that he and Kyris jumped from the second story of the neighbor’s pier. He said that although he was initially scared to jump off of the pier, five or six people had already jumped, so he changed his mind. Adikema jumped off of the second story of the neighbor’s pier immediately prior to Kyr-is’s jump off of the pier. Adikema admittedly could not swim very well and was rescued by Houston, who also attempted to rescue Kyris.

He knew he could not swim well and “almost drowned,” but he remembered to remain calm while Houston rescued him. Adikema said that he got out of the water and was going in to change his clothes when Kyris jumped. He said Kyris panicked and was “fighting and kicking the whole way” while Houston attempted to rescue him. Adikema said that Kyris could not swim at all but that he could swim a little bit.

Wright’s recorded statement indicated that he did not see Kyris jump, but he witnessed the struggle in the river when Houston attempted to rescue Kyris. He said that prior to the accident they were talking about jumping off of the neighbor’s two-story pier. Wright was nervous about the jump because Kyris did not seem comfortable so he manned a jet ski in the river in case help was needed.

James Palmer, another party attendee, stated that he saw Kyris, Houston, and Adikema walk onto the neighboring property and go up to the second story of the 17pier, although he was inside at the Camp-Nation’s address when Kyris actually jumped. He did see Houston jump. Palmer felt that Houston was pressuring Adikema and Kyris to jump.

The Pointe Coupee Parish Coroner’s Office issued a certificate of death that described how the accident occurred as an “accidental drowning.” The narrative of events by the coroner’s office also corroborate the witnesses’ statements. The Pointe Coupee Parish Sheriffs Office report of witness statements taken the night of the accident are the same as the witnesses’ statements to Major. The sheriffs office concluded that all the witnesses’ statements gave the same version of events leading up to the drowning; that no foul play was indicated; and that the drowning was ruled accidental. Also, the written statements made to the sheriffs office by the four eyewitnesses convey the same series of events.

In opposition to the motions for summary judgment, plaintiffs provided the affidavit of Clyde McCoy, whom plaintiffs employed to investigate the accident. McCoy concluded that it was unusual that Kyris would jump off the pier knowing that he could not swim and that he was pressured to do so by his friends. He determined that the event was the result of a dare and that it occurred at “9353 Island Road, Ventress, LA, at a property owned and operated by Mr. and Mrs. James Nations[.]”

Affidavits of Michelle and Darnell Carter stated that authorities confirmed that the drowning took place at “9353 Island Rd.” An affidavit of Darnell Carter stated that Adikema told him, “He [Kyris] didn’t jump.” He said that he was never informed that Kyris had jumped from the second story of the neighbor’s pier.

The various reports of the accident and ensuing investigation list the address of the accident where the party was held, i.e., the CampNations property. This fact | sis insufficient to controvert that Kyris jumped from the second story of the neighbor’s pier. The police and emergency responders arrived at the CampNation’s address because that is where the 911 call was made and where all of the witnesses were located. The listing of the CampNation’s address on the various reports does not negate all of the evidence that Kyris jumped off of the second-story of the neighbor’s pier. As a preliminary matter, the plaintiffs offered no evidence to controvert the fact that Steak House Steaks and Nations did not own the 9353 Island Road Property. Thus, regardless of the location of the pier from which Kyris jumped, Steak House Steaks and Nations owned neither and undoubtedly could not be attributed any premise liability fault.

Additionally, there is no genuine issue of fact that Kyris jumped off of the neighboring two-story pier. Every witness stated that Kyris jumped off the second story of the neighbor’s pier. Plaintiffs produced no evidence to the contrary. Further, plaintiffs would be unable to prove that CampNations had custody or garde of its neighbor’s pier. Even if we assumed that the accident occurred on the property of one of the defendants, there simply was no duty by the defendants to prevent a twenty-four year old man who knows that he cannot swim from voluntarily jumping off a second-story pier. Further, plaintiffs could not suggest that a duty arose due to the serving of alcohol at the party as they admit that no alcohol was found in Kyris’ system.

Plaintiffs try desperately to point out inconsistencies in witness statements, but there are none of significance. Whether Kyris had ingested a small amount of alcohol is immaterial. The Coroner’s lab report found no alcohol in Kyris’ system. Plaintiffs argue that the accident occurred at 9353 Island Road and claim that all of the witnesses who testified that it occurred at the neighbor’s pier were incorrect. | gPlaintiffs further insinuate that a conspiracy amongst the witnesses occurred because one of them purposely or accidentally pushed Kyris into the water. There simply is no evidence to support these baseless accusations. Kyris accidentally drowned after voluntarily jumping off the second story of the neighbor’s pier. While extremely tragic, plaintiffs will be unable to prove that this unfortunate accident was the fault of any of the defendants.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of the defendants in 13-799, James Nations, Jr., Steak House Steaks, Inc., and Caitlin Specialty Insurance Company, and 13-918, Camp-Nations, LLC, and Louisiana Capital Foods, LLC, is affirmed. All costs of this appeal are assessed against the plaintiffs/appellants, Darnell and Michelle Carter.

AFFIRMED.

      . James Nations, Jr., is the owner of Steak House Steaks, Inc., which is insured by a policy issued by Caitlin Specialty Insurance Inc. They are the defendants in the consolidated matter. See 13-799 (La.App. 3 Cir. -), 153 So.3d 1162.

      . The CampNations address is 9353 Island Road; the neighboring property address is 9351 Island Road. The owners of the neighboring property, known only in the record as Mia and Stuart, were not home at the time of this accident.

      . In 13-799, the assignments of error are identical except that number two is omitted.


author: AMY, Judge.

text:
    Rebecca VALLERY, et al. v. M. Lawrence DRERUP, et al.
    No. 13-1369.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Rehearing Denied May 7, 2014.

      Gordon E. Rountree, Rountree, Cox, Guin & Achee, Shreveport, LA, for Plaintiff/Appellant, Rebecca Vallery.
    Madeline Lee, Bolen, Parker, Brenner, Lee & Engelsman, Alexandria, LA, for Plaintiff/Appellant, Rebecca Vallery.
    Eugene J. Sues, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendants/Appellees, Louisiana Medical Mutual Insurance Company M. Lawrence Drerup.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

|, The plaintiff alleged that the defendant neurosurgeon breached the applicable standard of care by failing to identify and report a fractured bone graft and incomplete fusion following a cervical fusion surgery. The plaintiff asserted that the defendant further breached the standard of care by failing to inform her that smoking cigarettes prior to and after the surgery could hinder the progress of the fusion. After a Medical Review Panel found in favor of the defendant, the plaintiff proceeded to a bench trial. The trial court found in favor of the defendant. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

Rebecca Vallery began treatment with the defendant neurosurgeon, Dr. M. Lawrence Drerup, in May 2005 due to ongoing complaints of neck and arm pain. Dr. Drerup’s diagnosis of Ms. Vallery’s condition included cervical radiculopathy, steno-sis, and disc herniation at the C6-C7 level and disc protrusion at the C4-C5 level. After conservative therapies did not provide Ms. Vallery with relief, Dr. Drerup performed an anterior cervical diskectomy and fusion of the C5-C6 and C6-C7 levels, with anterior cervical fixation in July 2005. Ms. Vallery explained that, although she was provided with initial relief following the surgery, the pain retúrned as her activity increased. ■

As Ms. Vallery’s complaints of pain continued, she underwent a myelogram and post-myelographic CT scan, which revealed post-operative changes associated with the fusion surgery, and a central, disc protrusion at the C4-C5 level that appeared larger than on the prior test. Thereafter, in November 2005, Dr. Drerup 12performed surgery that involved the removal of the prior cervical plate, a cervical discectomy/fusion at the C4-C5 level and scar resection, and anterior cervical fixation, expanding the level of fixation to C4-C7. Ms. Vallery explained that she again had an initial easing of her symptoms, but that the pain returned following increased activity.

In the following months, Dr. Drerup prescribed treatment at a physical therapy clinic, which eventually involved physical exercises. However, Ms. Vallery experienced pain in performing those exercises and, additionally, continued to experience pain in the performance of her work duties as a hair stylist and salon owner. By December 2005 — January 2006, and upon review of x-rays which were reported to evidence stable bony alignment and hardware alignment, Dr. Drerup determined that the plaintiffs pain stemmed from posterior cervical myofascial syndrome.

By March 2006, Ms. Vallery’s complaints had not resolved and involved pain in the cervical trapezius area. Dr. Drerup’s notes reveal that, upon review of a cervical myelogram and post-myelographic CT, there was no evidence of significant patho-logic changes to account for Ms. Vallery’s ongoing symptoms. He discussed her condition with Dr. Gerald Leglue, Ms. Val-lery’s physical medicine physician who she had been treating with since 2004.

Ms. Vallery explained that, during that time period, Dr. Leglue referred her to Dr. Anil Nanda, also a neurosurgeon, for a second opinion. Upon review of Ms. Val-lery’s prior x-rays, Dr. Nanda determined that the films revealed no clear evidence of fusion and that the films also revealed a fractured bone graft. Dr. Nanda explained that this type of finding is often seen in smokers and, in his opinion, the risk of non-fusion could be as much as two to three times higher for ^smokers. He advised Ms. Vallery at that time that, if she chose the further surgical option that he was able to provide, he would require her to cease smoking before the procedure and that she would have to refrain from smoking. Ms. Vallery explained that she was able to ultimately stop smoking in order to proceed with the surgery.

In December 2006, Dr. Nanda performed this third fusion surgery, again at the C4-C5, C5-C6, and C6-C7 levels. Dr. Nanda explained that it was performed without complication. While Ms. Vallery alleged that she had lessened symptoms following this final fusion, she continued treating with physical medicine physicians for pain. Additionally, she underwent a breast reduction surgery due to neck and shoulder pain.

Ms. Vallery requested review by a Medical Review Panel, alleging that Dr. Drerup breached the standard of care in a number of respects, including the failure to detect the fractured bone graft and what she alleged was an incomplete fusion. The Medical Review Panel found that the evidence did not support the conclusion that he failed to comply with the appropriate standard of care as alleged.

Ms. Vallery subsequently filed this matter against Dr. Drerup and Louisiana Medical Mutual Insurance Company, as Dr. Drerup’s insurer. At trial, Ms. Val-lery again asserted that Dr. Drerup breached the applicable standard of care in | ¿failing to detect and report the fractured bone graft and incomplete fusion. Ms. Vallery also asserted that Dr. Drerup breached the standard of care in failing to advise her to stop smoking prior to and after her surgeries in order to assist the fusion process. This substandard care, Ms. Vallery alleged, caused both general damages and those associated with loss of income and increased medical expenses. Following a bench trial, the trial court rendered judgment in favor of Dr. Drerup. Written reasons for ruling reveal its determination that “Dr. Drerup treated Ms. Vallery appropriately and within the standard of care at all times.”

Ms. Vallery appeals, asserting that the trial court erred in: 1) not finding a breach of the standard of care in failing to recognize the fractured bone graft and incomplete fusion; 2) finding that the plaintiffs post-surgical pain was attributable to myofascial pain rather than due to the fractured bone graft and incomplete fusion; 3) not addressing her claim that she had a right to know of the fractured bone graft and incomplete fusion; 4) refusing to allow her to call the defendant radiologists in rebuttal or to allow the introduction of their depositions into evidence; 5) admitting the Medical Review Panel Opinion in light of what she contends was a violation of La.R.S. 40:1299.47(E); and 6) in determining that Dr. Drerup had, in fact, informed her to stop smoking before the surgery.

Discussion

Burden of Proof

Louisiana Revised Statutes 9:2794 sets forth the burden of proof for medical malpractice actions, stating, in part, that:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., ... the plaintiff shall have the burden of proving:
| fi(l) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(8) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

“Appellate review of a trial court’s findings in a medical malpractice action is limited.” Johnson v. Morehouse Gen. Hosp., 10-0387, p. 11 (La.5/10/11), 63 So.3d 87, 96. In particular, the appellate court may not disturb factual findings absent manifest error or unless they are clearly wrong. Id. In conducting its review, the appellate court considers the record as a whole in determining whether there was a reasonable factual basis for the trial court’s finding and whether the finding was clearly wrong. Id. In the event there are two permissible views of the evidence, the fact finder’s choice between the two cannot be manifestly erroneous or clear error. Id. “However, if a witness’s story is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based on a credibility determination.” Id. at 96. We turn to consideration of Ms. Vallery’s assignments.

Standard of Care and Causation

The trial court’s findings of fact reveal its determination that the plaintiff failed to establish that Dr. Drerup breached the standard of care in not detecting the 1 fifractured bone graft or in not diagnosing a failed fusion. Rather, the trial court found that the fusion process was a continuing one and that a complete fusion was not required under the standard of care. Additionally, the trial court credited Dr. Drerup’s position that Ms. Vallery’s continued complaints were myofascial in nature. The trial court noted that other physicians testified as to the myofascial origin of her pain as well. Within her assignments, Ms. Vallery argues that the trial court erred in failing to find that Dr. Drerup breached the standard of care by failing to detect the fractured bone graft and in not determining that the she had suffered from an incomplete fusion. She further challenges the trial court’s acceptance of the defense theory that her pain resulted from a myofascial condition.

With regard to the detection of the fractured bone graft, it is unquestioned that Dr. Drerup did not identify Ms. Vallery’s fractured bone graft occurring at the C4-C5 level after the second surgery. Ms. Vallery contends that the fracture should have been apparent to him in a series of x-rays taken after the second surgery. Ms. Vallery points out in her brief that Dr. Nanda identified the fracture on his initial visit with Ms. Vallery.

On this point, the trial court determined that:

Dr. Rand Voorhies and Dr. Marcos Ramos testified unequivocally that Dr. Drerup did not breach the standard of care in any respect in this case. The [Medical Review Panel], after reviewing all the records and films, also found no breach of the standard of care. Dr. Drerup missed the fractured bone graft; however, Dr. Voorhies and Dr. Ramos both testified they probably would have missed it also if in Dr. Drerup’s shoes, and they testified Dr. Drerup did not breach the standard of care in missing the fractured graft. The fractured graft can be seen in retrospect, and Dr. Drer-up would have advised Ms. Vallery of the facture had he known. Regardless, Dr. Voorhies and Dr. Ramos agreed with Dr. Drerup that the facture was inconsequential. It did not cause any neurological condition requiring surgei’y. Both Dr. Voorhies and Dr. Ramos testified they would not |7have treated this patient any differently and felt Dr. Drerup’s treatment was appropriate in all respects. Dr. Anil Nanda also testified that he advised Ms. Vallery that she could “do nothing”. The fractured bone graft would not have significantly changed her treatment plan because there was never any instability or neurological compromise.

We find no manifest error on this point. Rather, the trial court’s findings are supported by the record. At trial, Dr. Drerup was able to identify the fractured bone graft from the films presented. When asked why he was not able to identify the fracture at the time he was treating Ms. Vallery, Dr. Drerup suggested that the bone grafts used for such procedures contain holes and that the fracture may not have been identified due to this feature. Dr. Rand Voorhies, Dr. Drerup’s expert in the field of neurosurgery, confirmed Dr. Drerup’s testimony, explaining that holes contained in the grafts used can appear to be a crack. Dr. Voorhies further stated that he would not describe the failure to detect the fracture as a breach of standard of care because it is not “a clinically significant finding!.]” He noted that, although radiologists are to point out abnormalities in their report, the radiologists reviewing the images at issue herein did not reference a fracture. Additionally, Dr. Marcos Ramos, a neurologist and member of the Medical Review Panel, testified that there was no breach in not recognizing the frae-tured bone graft. Accordingly, and notwithstanding the question of whether any causation of damages was associated with the fracture as commented upon by the trial court, we find that the record supports its conclusion regarding identification of the fractured bone graft.

Neither do we find that the evidence dictated a determination that Dr. Drerup breached the standard of care in not diagnosing a non-fusion as Dr. Nanda did. Dr. Voorhies explained that fusion occurs as a process and that the associated timeline varies individually. He testified that the degree of fusion is a matter of | ^interpretation and that, based upon the films presented, he did not find that Dr. Drerup should have acted differently. Similarly, the Medical Review Panel rejected Ms. Vallery’s contention that she had suffered a non-fusion, stating:

The panelists do not feel that the patient’s persistent symptoms would relate to the alleged non-fusion, and further, the patient was not experiencing any evidence of instability. The films at issue herein demonstrate that these levels were progressing toward fusion; accordingly, there should not have been any attempt to re-fuse those levels. The bone graft may have fractured during surgery, but without evidence of instability, there is no basis to remove or replace the bone graft with the same or different type of graft, given the use of the plate and screws, and the apparent stability of the levels. The record does not reflect that Dr. Drerup misinterpreted any radiology films, and the claimant’s allegation that there was at no time any fusion at any level is incorrect.... Notably, the records reflect that, despite the re-fusion surgery by Dr. Nanda, the patient continued to experience problems intermittently.

In light of this evidence regarding the process of fusion, the record supports the trial court’s rejection of Ms. Vallery’s argument in this regard.

Rather than being attributable to a non-fusion, Dr. Drerup determined that Ms. Vallery’s ongoing pain complaints were of a myofascial nature, and not related to a failure to fuse. The trial court accepted Dr. Drerup’s diagnosis, explaining that:

Dr. Voorhies, Dr. Ramos, Dr. Nanda, Dr. Leglue and Dr. Michael Dole all agreed with Dr. Drerup’s diagnosis of myofascial pain. Dr. Voorhies, Dr. Ramos and Dr. Drerup explained at trial that none of Ms. Vallery’s complaints were consistent with a neurological condition. Her complaints were inconsistent and jumped from place to place which does hot indicate a neurological problem. The breast reduction surgery and clinical findings and complaints after Dr. Nanda’s surgery clearly show she had no neurological problems caused by any action or inaction by Dr. Drerup. These complaints and findings confirm a musculoligamentous problem, such as myofascial syndrome or fibromyalgia and negate any neurosurgical problem following Dr. Drerup’s surgery. Further, the film show [sic] no clinically significant neurological impingement on the spinal canal and the construct remained in perfect position.

|9On this point, Dr. Leglue, Ms. Vallery’s initial physical pain physician, explained that, in visits subsequent to the surgery performed by Dr. Nanda, Ms. Vallery continued to complain of pain. Dr. Leglue acknowledged that his notes from those visits, as late as 2008, revealed a diagnosis of myofascial pain. Dr. Michael William Dole, a physical medicine- physician who treated Ms. Vallery upon a referral from Dr. Leglue, also opined that Ms. Vallery’s complaints were myofascial in nature. Additionally, Dr. Nanda explained in deposition as follows when questioned regarding Dr. Drerup’s myofascial pain diagnosis:

Q. The [Medical Review] Panel noted that based on their review of all the records in this case that the symptoms — they did not feel the symptoms were related to the alleged nonfusion and the patient was not experiencing any evidence of any instability. As far as her symptoms, Dr. Drerup felt that they were, I think he said, myofascial in nature based on the description clinically [sic] to him. Would that be a reasonable diagnosis for a neurosurgeon to make based upon that clinical picture?

A. Completely reasonable.

Finally, defense counsel asked Dr. Voor-hies at trial whether Ms. Vallery’s continued need for narcotic medication in order to control pain even after surgery confirmed the myofascial pain diagnosis, Dr. Voorhies responded: “Yes, [] my understanding of myofascial is that, we don’t know where the pain’s coming from, and that would be my impression as well.” In light of this testimony, we find no error in the trial court’s rejection of Ms. Vallery’s contention that a failed fusion was the cause of her complaints of pain.

Further, and on this basis, we find no merit in Ms. Vallery’s third assignment of error wherein she contends that the trial court “committed legal error in failing to address [her] claim that she had a right to know her true and actual condition, i.e., that she had a fractured bone graft and incomplete fusion from C4-¡C7.”10 Importantly, this argument presumes that Ms. Vallery did, in fact, have an incomplete fusion. As discussed with regard to causation, however, the record does not dictate such a clear diagnosis as to the progression of the fusion. Additionally, we have above concluded that the record supports the determination that Dr. Drerup did not breach the standard of care in his interpretation of the radiology films. Thus, it cannot be said that Dr. Drerup should have informed Ms. Vallery of a condition that he was unaware of or that did not exist.

These assignments lack merit.

Information Regarding Smoking

Ms. Vallery alleged at trial that Dr. Drerup did not inform her prior to the two surgeries that he performed for her that smoking could inhibit the smoking process. She contended that she would have stopped smoking had she been aware that she was increasing her risk of a non-fusion. While Dr. Drerup acknowledged that his records did not reflect that he provided this information to Ms. Vallery, he testified that he had advised Ms. Vallery of this several times before both surgeries. He further testified that Ms. Vallery informed him that she would not stop smoking.

The trial court rejected Ms. Vallery’s contention in this regard, finding that:

Lastly, advising a patient to stop smoking prior to surgery is not required by the standard of care as testified by Dr. Voorhies, Dr. Ramos and Dr. Nan-da. Notwithstanding, despite the inconsistent testimony, the evidence shows Dr. Drerup and his office did, in fact, advise Ms. Vallery to stop smoking on multiple occasions. The Court did not believe Ms. Vallery and her husband on this issue. Dr. W. Robert Hudgins offered his expert opinion that the smoking advice was the standard of care. The Court found the other medical experts more credible.

On appeal, Ms. Vallery challenges this finding and suggests that Dr. Drerup’s records, which do not reflect advice as to smoking, should be considered ¡, ¡inherently reliable and supportive of her testimony that she was not instructed to stop smoking. Notwithstanding the above-findings regarding the progression of the fusion while under Dr. Drerup’s care and causation, we observe that the trial court’s ruling in this case is essentially a credibility determination. In addition to favoring Dr. Drerup’s version of events, the trial court specifically rejected Ms. Vallery’s testimony and that of her husband. We do not re-evaluate that testimony on appellate review. Additionally, the trial court correctly observed that expert testimony was introduced indicating that the applicable standard of care does not require advising a patient to stop smoking prior to this type of surgery.

This assignment lacks merit.

Rebuttal — Depositions

Initially, Ms. Vallery named, three radiologists as defendants in this matter, alleging in her petition that the radiologists “fell below the standard of care of radiology in misinterpreting radiology and/or not reporting the fractured bone graft.” However, those radiologists were dismissed by summary judgment and neither party called the radiologists as witnesses. At the close of Dr. Drerup’s case, Ms. Vallery sought to introduce the depositions of the three radiologists in rebuttal. Particularly, Ms. Vallery contended that defense questioning of various physician experts touched upon whether the radiologists reported the fractured bone graft. As established above, the radiologists did not reference the fracture in the x-ray reports. Ms. Vallery argued to the court that the depositions were necessary in order for the radiologists to explain why the fracture was not reported.

The trial court excluded the depositions in rebuttal, finding the depositions to be hearsay. Further, the trial court denied the request to hold the case open so that the radiologists’ testimony could be presented, noting the reporting of the | |2fractured graft was an issue throughout the trial and the radiologists could have been called as witnesses in Ms. Vallery’s case-in-chief. Instead, the trial court allowed Ms. Vallery to proffer the depositions for review on appeal. On appeal, Ms. Vallery contends that the trial court denied her right to present a rebuttal argument by this ruling.

Pursuant to La.Code Evid. art. 611(E), a plaintiff in a civil case has the right to rebut evidence adduced by their opponents. However, rebuttal evidence must be confined to new matters raised by the defense. Bickham v. Riverwood Intern. Corp., 42,122 (La.App. 2 Cir. 10/8/07), 966 So.2d 820. “The trial court has great discretion in controlling the conduct of the trial and the presentation of evidence, including the power to admit or refuse to admit rebuttal evidence.” Id. at 824. See also La.Code Evid. art. 611(A). In this case, the trial court correctly recognized that Dr. Drerup’s identification of the fractured bone graft was at issue throughout these proceedings. Further, it was clear that he reviewed the x-rays in light of accompanying reports that did not specifically reference the alleged anomalies suggested by Ms. Vallery. Therefore, we find no abuse of discretion in the trial court’s determination that the radiologists’ explanations regarding their report, apparently contained within the proffered depositions, was not targeted toward new evidence developed strictly during Dr. Drerup’s defense. Accordingly, we find no abuse of discretion in the trial court’s ruling.

This assignment of error lacks merit.

Medical Review Panel Opinion

In her final assignment of error, Ms. Vallery questions the introduction of the Medical Review Panel Opinion, which was rendered upon the panel’s meeting via telephone conference. In pre-trial proceedings, Ms. Vallery objected to the | ^introduction of the opinion, suggesting that it violated La.R.S. 40:1299.47(E), which provides for the Medical Review Panel’s consideration as follows:

E. Either party, after submission of all evidence and upon ten days notice to the other side, shall have the right to convene the panel at a time and place agreeable to the members of the panel. Either party may question the panel concerning any matters relevant to issues to be decided by the panel before the issuance of their report. The chairman of the panel shall preside at all meetings. Meetings shall be informal.

Ms. Vallery contended that, because the Medical Review Panel rendered its decision following teleconference rather than following an “in-person” meeting, it did not satisfy the statutory requirement. Further, she suggested that, because the matter before the Medical Review Panel was radiology intensive, a conference call approach was inappropriate and that, by convening the panel through a call, the chairman exceeded the authority granted by the statute. The trial court rejected this argument, noting that the parties would be able to cross examine the panel members at trial as to whether the decision was rendered upon consideration of all of the evidence.

We find no error in the trial court’s ruling. Notably, La.R.S. 40:1299.47 provides only that either party may “convene” the panel. The statute does not define either “convene” or “meetings.” Neither is there a distinction between such a meeting by teleconference or by an in-person gathering. Additionally, La.R.S. 40:1299.47(H) provides, in part, that: “Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law[.]” Given the positive statement of admissibility of the Medical Review Panel opinion, and the general reference only to the “convening” of the Medical Review Panel, we find no error in 114the trial court’s ruling that the Panel’s meeting by teleconference did not exceed the authority of La.R.S. 40:1299.47(H).

This assignment of error lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assessed to the plaintiff-appellant, Rebecca Vallery.

AFFIRMED.

      . The transcript in this matter indicates that, at the time of trial, Ms. Vallery, was using her maiden name of “Lalonde,” following her divorce. We use Ms. Vallery’s married name, however, to be consistent with the case caption, record, judgment, and appellate briefs.

      . The Medical Review Panel addressed Ms. Vallery’s complaints against other physicians as well. As with Dr. Drerup, the Medical Review Panel found that evidence did not support Ms. Vallery’s claim.

      . Although Ms. Vallery’s husband at the time joined Ms. Vallery as a plaintiff in the petition, the couple divorced prior to trial, and, as recognized in the transcript, Mr. Vallery transferred his interest in the suit to Ms. Val-lery during the couple’s property settlement. We also note that she is listed as the sole appellant in the motion and order of appeal. Therefore, we refer to Ms. Vallery as the singular plaintiff.
      The petition also listed three radiologists as defendants. Those defendants, and LAMMI-CO, in its capacity as their insurer, were dismissed by summary judgment prior to trial.