source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Ouida Carolyn COODY and Orville Coody, Plaintiffs-Appellees v. Dr. J. Michael BARRAZA, Dr. Marshall Leary, Radiology Associates and St. Paul Fire & Marine Ins. Co., Defendants-Appellants.
    No. 47,732-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 6, 2013.

      Hayes, Harkey, Smith, & Caseio, LLP, Monroe, LA, by Bruce M. Mintz, Laura S. Achord, for Defendants/First Appellants, Dr. Barraza, Radiology Associates and St. Paul.
    McNew, King, Mills, Burch, & Landry, L.L.P., Monroe, LA, by Brady D. King, II, for Intervenor/Seeond Appellant, Louisiana Patients Compensation Fund.
    Moore, Thompson, & Lee, APLC, Baton Rouge, LA, by Steve C. Thompson, James Francis d’Entremont, Stephanie E. Robin, for Plaintiffs/Appellees.
    Before BROWN, CARAWAY, and DREW, JJ.
   BROWN, Chief Judge.

| ;On July 15, 2002, Carolyn Coody and her husband, Orville Coody, filed a medical malpractice action against Dr. J. Michael Barraza, Radiology Associates and St. Paul Fire and Marine Insurance Company. Thereafter, on May 29, 2003, at the age of 69 years, Carolyn Coody died of ovarian cancer. In an amended petition, Carolyn’s husband and three children, Katherine Coody Manning, David Coody and Rodger Coody, were substituted as plaintiffs. Defendants and intervenor, Louisiana Patient’s Compensation Fund, appeal from the judgment entered in accordance with the jury’s verdict finding that Dr. Barraza breached the standard of care of a diagnostic radiologist and awarding a lump sum to plaintiffs of $250,000 in damages. For the reasons stated herein, we affirm.

Facts and Procedural Background

Germane to this case, Carolyn Coody’s ovarian cancer was found in 1994 by Dr. Ralph Armstrong, an OB/GYN. Thereafter, Dr. Marshall Leary, a Monroe oncologist, along with Dr. J. Taylor Wharton, the head of the Gynecologic Oncology Department at M.D. Anderson Hospital in Houston, Texas, administered several courses of chemotherapy. In July 1995, Mrs. Coody’s cancer went into remission.

Statistically, ovarian cancer has a high risk of recurrence. Thus, Mrs. Coody was monitored on a regular basis by Dr. Leary in Monroe. He |?checked her CA-125 level, which is a tumor marker, with regular blood samples. In. March 1999, Mrs. Coody’s CA-125 level had risen and was abnormal. Dr. Leary promptly referred her for a CT scan. On April 1, 1999, Carolyn Coody underwent a CT scan of her abdomen and pelvis at North Monroe Hospital. Dr. J. Michael Barraza, a diagnostic radiologist, interpreted the study and found that the scan showed no evidence of active disease and reported no pelvic adenopathy, which is an abnormal or enlarged lymph node.

Over the next seven months, Dr. Leary continued to monitor Mrs. Coody and investigate the cause of her continually rising CA-125 level. Dr. Leary coordinated with Dr. Wharton. Dr. Leary ordered another CT scan. On November 4, 1999, the scan was performed at Glenwood Hospital and interpreted by Dr. Henry Hollen-berg, a diagnostic radiologist. Dr. Hollen-berg noted an oval soft tissue density measuring 1.5 cm x 2 cm just anterior to the right iliac artery, which he thought represented a metastatic enlarged lymph node. Dr. Hollenberg then reviewed Mrs. Coody’s April CT scan and confirmed that the soft tissue density was present on that CT scan as well. Dr. Hollenberg noted that the questionable lymph node in the April CT scan appeared slightly greater in size than on his current exam.

Dr. Leary sent the November CT scan to Dr. Wharton and obtained the first available appointment (December 17,1999) for Mrs. Coody at M.D. Anderson. It was at this visit that Mrs. Coody was first informed about the abnormal results of her November CT scan and that those abnormalities were visible on the April CT scan as well. On January 13,132000, Dr. Wharton removed the 2.5 cm x 2.5 cm cancerous lymph node, and, thereafter, Mrs. Coody began chemotherapy. She received chemotherapy from February 2000 through November 2002. Mrs. Coody died as a result of her ovarian cancer on May 29, 2003. She was survived by her husband of 47 years, Orville Coody, and her three major children, Katherine Coody Manning, David Coody, and Rodger Coody.

On November 1, 2000, the Coodys submitted their claim for malpractice to a medical review panel. The panel found that, although Dr. Barraza was aware that Mrs. Coody had previously been diagnosed with ovarian cancer, his conduct met the accepted standard of care for a radiologist. In particular, the medical review panel incorrectly stated:

We have looked at this film in great detail and we have concluded that the interpretations of the CT scans of the abdomen and the pelvis by Dr. Barraza certainly met the accepted standard of care for a radiologist. We agree with the opinion of Dr. Folse, the radiology expert offered by Dr. Barraza, that the images in # 53 and # 54 of the North Monroe Hospital film (April 1999) and images # 7 and # 35 of the Glenwood Regional Medical Center film (November 1999) show a section of small bowel (probably a non-opacified portion of bowel loop) and not an enlarged and/or cancerous lymph node.

The medical review panel issued its opinion on April 16, 2002.

On July 15, 2002, the Coodys filed the instant suit seeking damages arising from Dr. Barraza’s failure to properly interpret Mrs. Coody’s April 1999 CT scan. A jury trial on the matter was commenced on March 12, 2012. After a six-day trial, the jury found in favor of plaintiffs and awarded them lump sum damages in the amount of $250,000. Dr. Barraza, Radiology Associates, and St. Paul Fire and Marine Insurance Company |4were ordered to pay $100,000, and the Louisiana Patient’s Compensation Fund was ordered to pay the remaining $150,000.

Discussion

Breach of the Standard of Care

The claim that a defendant caused the decedent’s death is not the same as the claim that the defendant caused her a loss of a chance to survive. The two theories of injury are distinct. They entail different damage calculations. Where the evidence could support either a theory that the defendant’s conduct caused the decedent’s death (making full wrongful death damages appropriate) or a theory that the defendant’s conduct caused the decedent a loss of a chance of survival, Louisiana law is clear that only one kind of damages or the other may be awarded. A jury may find the defendant liable either for causing the patient’s wrongful death or for causing the patient’s loss of a chance to survive, but not for both. Smith v. State, 95-0038 (La.06/25/96), 676 So.2d 543.

In Lovelace v. Giddens, 31,493 (La. App.2d Cir.02/24/99), 740 So.2d 652, 658-59, twit denied, 99-2660 (La.11/24/99), 750 So.2d 987, on rehearing, this court said:

Obviously, Mrs. Lovelace had a pre-ex-isting illness not caused by Dr. Giddens; however, a physician’s failure or delay in diagnosing a serious illness could in some circumstances diminish or destroy the patient’s opportunity or chance for a cure or recovery. A wrongful death claim requires proof by a preponderance of the evidence, or more than fifty percent, that the doctor’s malpractice caused the patient’s death. Many patients, however, live when their chances were initially believed to be less than even. The harshness of this traditional standard of proof has been recognized as unfair when medical fault takes away an opportunity to survive. The doctrine of a lost chance of survival takes into account this real consequence |sof physician fault and seeks to protect the possibility for a favorable outcome, even where the patient’s chances of recovery were initially believed to be less than fifty percent.

In Smith, supra, the supreme court recognized the right to recover damages for any lost chance of survival and set forth the method of valuation. In Smith, X-rays showed a fast-acting cancer. The patient was released without being told of the findings. When the patient returned the following year, it was too late. The hospital admitted negligence but said that the patient would have died anyway. The Smith court found that a tort-caused lost chance of survival of any degree is “a distinct compensable injury ... to be distinguished from the loss of life in wrongful death cases.” Smith, 676 So.2d at 547.

In Smith, supra, the supreme court set forth the prerequisites to prove the loss of a less-than-fifty percent chance of survival. Plaintiff must show by a preponderance that: (1) the victim had a chance to survive at the time of the professional negligence; (2) the tortfeasor’s action or inaction deprived the victim of all or part of that chance; and, (3) the value of that lost chance. See also Lovelace v. Giddens, supra.

The manifest error standard of review applies to review of medical malpractice claims. Jackson v. Tulane Medical Center Hosp. and Clinic, 05-1594 (La.10/17/06), 942 So.2d 509. A court of appeal may not set aside a trial court’s or jury’s finding of fact in the absence of manifest error or unless clearly wrong. Hays v. Christus Schumpert Northern Louisiana d/b/a Christus Schumpert Health Sys., 46,408 (La.App.2d Cir.09/21/11), 72 So.3d 955. In order to reverse a fact finder’s determination, an appellate | r,court must review the record in its entirety and find that a reasonable factual basis does not exist for the finding and further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Benefield v. Sibley, 43,317 (La.App.2d Cir.07/09/08), 988 So.2d 279, units denied, 08-2162, 08-2210 (La.11/21/08), 996 So.2d 1107, 08-2247 (La.11/21/08), 996 So.2d 1108.

Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Hays, supra. Where there are contradictory expert opinions regarding compliance with the applicable standard of care, .the appellate court is bound to give great deference to the conclusions of the trier of fact. Id.

In order to recover damages in their medical malpractice action, plaintiffs had to establish the standard of care applicable to a diagnostic radiologist and prove, by a preponderance of the evidence, that Dr. Barraza breached that standard of care, and, further, that his breach caused Mrs. Coody a loss of a chance of a better medical outcome or longer survival. Defendants contend that the jury was manifestly erroneous in its finding that plaintiffs met their burden in proving both breach and causation.

During the trial the jury heard the testimony of five diagnostic radiologists regarding the applicable standard of care, and each gave his expert opinion as to whether Dr. Barraza breached that standard of care when he failed to identify and report the 1.5 cm x 2 cm soft tissue density on Mrs. Goody’s April 1999 CT scan. Four of the doctors, including Dr. |7Barraza, testified that there was no breach. One doctor, plaintiffs’ expert, Dr. Malcolm Friedman, testified that Dr. Bar-raza deviated from the accepted standard of care.

Dr. Friedman testified that he was contacted by plaintiffs’ counsel. Prior to receiving any information about the case, Dr. Friedman requested the attorney to send him the April CT films so that he could perform a cold read. Dr. Friedman noted the soft tissue density anterior to the right iliac artery, and called plaintiffs’ counsel to inform him of his findings. Dr. Friedman was then sent all other relevant medical records, including the November CT films.

Dr. Friedman testified that the applicable standard of care requires a radiologist to report a soft tissue density with dimensions measuring in excess of 1 cm at its short axis. Dr. Friedman stated that he measured the soft tissue density on the April CT scan at approximately 1.8 cm x 2 cm. Additionally, Dr. Friedman testified that due to Mrs. Coody’s known previous diagnosis of ovarian cancer and the fact that she was being referred for a CT scan by her oncologist, he believed that there was a heightened expectation for Dr. Bar-raza to carefully examine the CT scan to pay extra attention to areas where cancer is likely to recur, such as the lymph nodes and solid organs. Dr. Friedman concluded that Dr. Barraza breached the standard of care for a diagnostic radiologist by failing to properly interpret the April CT scan and report the presence of the soft tissue density to Dr. Leary.

|SAI1 of the other radiologists testified in support of Dr. Barraza. All except Dr. Barraza stated that the standard of care requires the reporting of a soft tissue density measuring in excess of 1 cm (Dr. Hollenberg said his usual requirement is 1.5 cm). Dr. Barraza, however, testified that there were no mandatory reporting requirements, but he usually reports anything measuring 1.5 cm. In fact, Dr. Bar-raza testified that he missed the soft tissue density at issue on his initial read, but had he seen it he would have reported it to Dr. Leary. All of the radiologists testified at the trial that a soft tissue density measuring approximately 1.5 cm x 2 cm anterior to the right iliac artery was present on the April CT scan, and that it was in fact the pelvic adenopathy that was removed by Dr. Wharton at M.D. Anderson in January 2000, which contradicts the medical review panel’s conclusion. Nonetheless, Drs. Hol-lenberg, Barraza, Folse, and Bos maintained that Dr. Barraza did not breach the accepted standard of care when he interpreted the CT scan on April 1,1999.

Regardless of the fact that more radiologists testified in support of Dr. Barraza, we do not find that the jury’s reliance on the testimony of Dr. Friedman to be manifestly erroneous. The jury, as the trier of fact, is afforded great deference when presented with contradictory expert opinions. The jury was in the better position to make credibility determinations.

Considering the size of the soft tissue density, Dr. Barraza’s knowledge of Mrs. Coody’s previous ovarian cancer diagnosis, and his failure to identify and report the pelvic adenopathy to Mrs. Coody’s treating oncologist, we find that there was a reasonable factual basis for the jury to [^determine that Dr. Barraza breached the accepted standard of care for a diagnostic radiologist.

Loss of a Chance

Defendants argue that even if Dr. Barraza breached the standard of care, the jury’s finding that the seven-month delay in diagnosis caused Mrs. Coody a loss of a chance of a better medical outcome or longer survival was manifestly erroneous. Specifically, defendants, in their appellate brief, state:

None of the testimony established that Ms. Coody’s treatment would have been any different had her recurrent ovarian cancer been diagnosed in April 1999 or that, more probably than not, she lost a chance of being in the ten percent of ovarian cancer patients who her treating physician was able to get into a second remission.

While defendants’ statement is correct, they fail to apply the correct legal principle. The law governing the loss of a chance of a better outcome does not require plaintiffs to offer proof of lost treatment options or that more probably than not Mrs. Coody would have been in the ten percent of patients with a recurrence of ovarian cancer that are able to achieve a second remission. Instead, as stated in Smith, supra, the issue in loss of a chance cases is whether the tort victim lost any chance due to a defendant’s negligence.

Dr. Wharton, who at the time of treating Mrs. Coody was chairman of the gynecologic oncology department at M.D. Anderson, testified that, based on his 38 years of experience, approximately ten percent of recurrent ovarian cancer patients are able to go into a second remission. Dr. Wharton stated that in these instances, patients had been able to live an extra five or | ,nsix years without symptoms or in need of treatment. Regarding Mrs. Goody’s chance of achieving a second remission if she had been able to begin her treatment seven months earlier, Dr. Wharton and counsel for plaintiff had this exchange:

Q: Okay. Now, if in fact — and we— you told me rather candidly earlier that if in fact Mrs. Coody had come to you, you had known in April that this mass was here and would have been able to operate on it in June, before it got larger, as it did in January, and before there was any other radiographic evidence of tumor, as there was in November, that you would probably have had a better chance of putting it in remission. True?
A: That’s true.

Although Dr. Wharton and defendants’ expert gynecologic oncologist, Dr. Destín Black, both testified that Mrs. Coody would not have been cured of her cancer regardless of when the treatments commenced, curing the disease is not a requirement. Achieving a second remission would have been a better medical outcome. It could have prolonged Mrs. Coody’s life, if only briefly, and possibly have granted her a reprieve from the chemotherapy that was causing her and her family added pain and suffering.

Based on the testimony of Dr. Wharton, we find that the jury had a reasonable factual basis to determine that Dr. Barra-za’s breach caused Mrs. Coody a loss of a chance of a better outcome or longer survival.

| ^Damages

In the determination of general damages, the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. La. C.C. art. 2824.1; Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). Reasonable persons frequently disagree about the measure of general damages; therefore, it is only when the award is beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award. Id.

In Smith, supra at 548-549, the supreme court stated:

The lost chance of survival in professional malpractice cases has a value in and of itself that is different from the value of a wrongful death or survival claim. (Footnote omitted).
... This is a valuation of the only damages at issue-the lost chance-which is based on all of the relevant evidence in the record, as is done for any other measurement of general damages. Allowing the jury to consider all the evidence, including expert medical testimony regarding the percentage chances of survival, and to value directly the lost chance is more logical than requiring the jury to calculate damages for wrongful death when the physician’s negligence was not the more probable cause of the death.

The loss of any chance of survival is a distinct injury compensable as general damages which cannot be calculated with mathematical certainty. Smith, supra. The fact finder should make a subjective determination of the value of that loss, fixing the amount of money that would adequately compensate the claimants for that particular cognizable loss. Id. The jury is allowed to consider an abundance of evidence and factors, including 112evidence of percentages of chance of survival along with evidence such as loss of support and loss of love and affection, and any other evidence bearing on the value of the lost chance. Id. The jury’s verdict of a lump sum amount of damages can be tested on appeal for support in the record by reviewing the percentage chances and the losses incurred by the tort victim and his or her heirs, and any other relevant evidence, thus providing assurance against speculative verdicts. Id.

Mrs. Coody testified that once her ovarian cancer went into remission in 1995, she underwent regular blood tests to monitor her CA-125 level for the sole purpose of catching any recurrence at the earliest possible time. The reason for the early detection according to Mrs. Coody was to give her the best opportunity possible to achieve a second remission. She stated that she was very worried about her continually rising CA-125 level after her April CT scan supposedly came up clean. In December 1999, upon learning that her cancer was back and had been identifiable on the April CT scan, Mrs. Coody stated that she felt “devastated, sick, scared.” Mrs. Coody had lost faith in the doctors that she relied on for her care. Clearly, Mrs. Coody suffered a great deal of mental anguish from her hopeless condition and the knowledge that earlier detection was lost because her CT scan was not adequately read.

In addition to the mental anguish, Mrs. Coody suffered almost four years of deterioration. Three years of chemotherapy. Three years of nausea, fatigue, weakness, weight loss, hair loss, infections, bowel and kidney problems, hospitalizations, and surgeries. The testimony of the | ^Coodys— video testimony from Mrs. Coody herself and live testimony from her husband of 47 years and her three children — showed the mental anguish and emotional distress that the family also endured, as well as the love they had for one another. The Coodys testified that they were an extremely close-knit family. David, Rodger, and their respective families lived on and worked the family farm with Orville and Mrs. Coody. The Coodys assert that the battle Mrs. Coody waged in hopes of a brief period cancer-free is a testament to how much she valued her chance of achieving a second remission.

Reviewing the award of damages in the light most favorable to the plaintiffs, we do not find that the jury abused its vast discretion in awarding plaintiffs damages in the lump sum amount of $250,000.

Conclusion

For the reasons expressed above, the verdict of the jury is affirmed. Costs of this appeal are assessed to defendants.

      . Dr. Marshall Leary was also named as a defendant but was dismissed with prejudice on September 19, 2006, following a favorable ruling on his motion for summary judgment.

      . Specifically they filed the following claims: survival, wrongful death, and lost chance of survival or longer life, as well as their loss of consortium and society during the period preceding Carolyn Coody’s death.

      . Based upon this finding we pretermit discussion of defendants’ first assignment of error: "The trial court committed reversible error by incorrectly instructing the jury on damages in a lost chance of a better outcome case.”


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Tommy GOOSBY, Appellant.
    No. 47,772-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 6, 2013.

      Peggy J. Sullivan, Monroe, LA, Louisiana Appellate Project, for Appellant.
    Charles R. Scott II, District Attorney, Brian H. Barber, Jason T. Brown, Jordan B. Bird, Assistant District Attorneys, for Appellee.
    Before CARAWAY, LOLLEY and PITMAN, JJ.
   CARAWAY, J.

11Following a jury trial, Tommy Goosby was convicted of one count of possession of a firearm by a convicted felon. He was subsequently adjudicated a second felony offender and sentenced to 20 years at hard labor. Goosby appeals his conviction and sentence. We affirm.

Facts

On July 17, 2009, Tommy Goosby was charged by amended bill of information with one count of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. The charge arose out of a gunfight that occurred between Goosby and R.D., an armed juvenile, on the afternoon of April 24, 2009. R.D. and three other juveniles had come to the apartment that Goosby sometimes shared with his girlfriend to discuss a stolen bike. It is unclear whether Goosby was in the apartment at the time.

Video evidence obtained from a security camera shows that the juveniles stayed at the apartment complex only three minutes. As the group was leaving the apartment as seen on the video, Goosby charged at R.D. who was armed with a gun. While Goosby attempted to pull something from his waist, R.D. pointed a gun at him. Goosby then pulled a gun on R.D. who, along with the other boys, fled the apartment complex through a gate. After Goosby retreated out of view of the camera, shots were exchanged between the juveniles and Goosby who were approximately 80|i>yards apart. Two of the three shots fired by Goosby hit two of the juveniles, including R.D., and inflicted serious, non-life threatening, injuries.

After the incident, Goosby and his girlfriend fled the scene and traveled to a relative’s house. After witnesses implicated Goosby in the shooting, police sought him out at the relative’s home. Police were unable to locate Goosby, but he turned himself in to police at approximately 10:30 that evening. In initial statements to police, Goosby denied any involvement in the incident. Goosby was arrested and charged as noted above.

After his conviction, the state charged Goosby as a second felony offender based upon a previous 2006 conviction for illegal use of weapons. Goosby filed motions for new trial and judgment notwithstanding the verdict, based upon claims of insufficient evidence, discovery violations by the state including a failure to disclose evidence favorable to Goosby in violation of Brady v. Maryland, 873 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and denial of a fair trial. Those motions were denied. Goosby was adjudicated a second felony offender and sentenced to 20 years. He filed a timely motion for reconsideration of sentence which remains pending. This appeal ensued.

Discussion

On appeal, Goosby argues that although the state presented evidence sufficient to support a conviction for possession of a firearm by a convicted felon, it failed to prove that his possession of the gun was not justified by self-defense.

|sThe standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La. App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La.C.Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir. 1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La. App.2d Cir.2/25/09), 3 So.3d 685, unit denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When |4the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

At the time of the present offense, La. R.S. 14:95.1(A) made it illegal for a person who had previously been convicted of felony illegal use of weapons or dangerous instrumentalities to possess a firearm or carry a concealed weapon. Nevertheless, when a felon is in imminent peril of great bodily harm, or reasonably believes himself or others to be in such danger, he may take possession of a weapon for a period no longer than is necessary or apparently necessary to use it in self-defense or in defense of others. In such a situation, justification is a defense to the charge of felon in possession of a firearm. State v. Blache, 480 So.2d 304 (La.1985); State v. Goldsmith, 519 So.2d 299 (La.App. 2d Cir.1988); State v. Sanchell, 11-1672 (La.App.4th Cir.10/31/12), 103 So.3d 677. See also, State v. Dabney, 02-0934 (La.4/9/03), 842 So.2d 326. To prove this defense, the defendant must show that the threat of force by another was imminent and apparent and that he had no reasonable alternative but to possess the firearm. State v. Shed, 36,321 (La.App.2d Cir.9/18/02), 828 So.2d 124, writ denied, 02-3123 (La.12/19/03), 861 So.2d 561.

This court has held that the burden of proof of self-defense in a non-homicide case rests upon the defendant. That burden of proof is preponderance of the evidence, not beyond a reasonable doubt. State v. Cheatham, 38,413 (La.App.2d Cir.6/23/04), 877 So.2d 164, writ denied, 04-2224 (La.6/24/05), 904 So.2d 717. A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21.

Flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Garner, 45,474 (La.App.2d Cir.8/18/10), 47 So.3d 584, writ not considered, 12-0062 (La.4/20/12), 85 So.3d 1256; State v. Durden, 36,842 (La.App.2d Cir.04/09/03), 842 So.2d 1244, unit denied, 03-1350 (La.11/26/03), 860 So.2d 1131.

The evidence presented by the state included the testimony of two Shreveport police detectives. Detective Rod Johnson, a violent crimes investigator, testified that on April 24, 2009, he was dispatched to the area of 74th and Bernstein Streets in Shreveport. He arrived at the Kang’s Manor | ^Apartments, a large gated apartment complex, where he learned of a verbal altercation which had escalated into gunfire between a group of juveniles and “somebody” in the apartment complex. He acquired knowledge that R.D. and another juvenile had been shot near the intersection of Bernstein and 74th Streets, a residential area. Detective Johnson became aware that shell casings and a gun were found in the area where the juveniles had been shot.

Detective Johnson testified that he continued to the King’s Manor Apartment office where he was advised that there was gun activity that involved apartment 145. He was also informed that a video of an altercation involving the weapons was available. Detective Johnson watched the video and confirmed that weapons were involved in the altercation. Out of welfare concern, he gained access to apartment 145 and found no persons inside. Detective Johnson also made a sweep of the apartment. Upon his exit, he located a 9 mm spent shell casing directly in front of the apartment door.

Detective Johnson then interviewed witnesses, including Lisa Stewart, Goosby’s girlfriend, to learn more about the altercation. From his interviews, he discovered that juvenile subjects including R.D. came to Apartment 145 in an attempt to recover a stolen bike. He learned that Tommy Goosby, aka “Big,” stayed with Stewart in Apartment 145 and was potentially involved in the altercation.

Detective Johnson unsuccessfully attempted to locate Goosby at his last known residence on Fulton Street. He explained that upon his arrival, |7he saw people getting their hair cut. Almost immediately, a black male later identified as Goosby’s brother “took off’ running. Detective Johnson spoke with several of Goosby’s family members who never told him that Goosby was at the house. During the interview, Detective Johnson learned that Goosby had a relationship with R.D. and that the juvenile had visited his house.

Detective Johnson testified that Goosby later voluntarily came to the Shreveport police station wearing different clothes and a different hairstyle than earlier that day. Particularly, he pointed out how the video showed Goosby wearing braids, but that he appeared at the police station with a closely-shaven haircut. Goosby was informed of his rights. In a recorded interview, he denied his presence at the scene of the crime and indicated that he was at the Fulton Street house.

Detective Johnson testified regarding the video. He stated that the camera was positioned to “cover” the southeast gate and show who was coming in and out of the apartment complex from Bernstein Street. He stated that it was “right at that corner of what would be the apartment building 145.” Detective Johnson indicated that he was provided about an hour of tape although the incident in question occurred over a short period of time.

Through the Detective’s testimony, the state introduced the DVD into evidence and played it for the jury. Detective Johnson testified that the video depicted four juveniles walking through the gate in the direction of Apartment 145 at approximately 2:27 p.m., and then walking away back ^through the gate. He stated that one of the juveniles was identified as 13-year-old R.D. Detective Johnson testified that as the juveniles attempted to leave the complex, the video showed Goosby approaching R.D. and quickly making motions with his hand. It also showed R.D. pull out a firearm and point it in the direction of Goosby. Detective Johnson also testified that the video showed Goosby pull out a handgun and point it in the direction of R.D. before all of the juveniles ran away from Goosby. He stated that the shootout occurred a block away and is not featured on the video. He indicated that the video had not been altered in any way and was the same video that he saw in the apartment office on the day of the shooting.

Detective Johnson also testified that in his opinion, the juveniles disengaged from the conflict in moving away from Apartment 145, and that Goosby acted as the aggressor in running after them.

Detective Johnson estimated the gate to be approximately 75 yards from the intersection of Bernstein and 74th Streets. Neighborhood witnesses informed Detective Johnson that the “juveniles pulled weapons, and then the shooting just started.” Detective Johnson guessed that the juveniles would have been approximately 80 yards from Apartment 145 when the shooting started. He stated that the area was heavily populated and traveled at the time of the afternoon that the incident occurred.

| ^Detective Johnson testified that the shell casings found at the corner of Bernstein and 74th Streets were consistent with the Browning Hi-Point semi-automatic pistol recovered at the location where the juveniles were shot. One bullet hole was found in Apartment 145’s exterior “upstairs,” but no pistol was ever located.

On cross-examination, Detective Johnson conceded that the witnesses he interviewed indicated that R.D. fired first, but three shells were found in front of Apartment 145. Detective Johnson did not recall Stewart indicating that anybody had threatened her with a gun. Rather he testified that Stewart indicated that when R.D. asked her if Big was home, “another dude” (referred to as K-9) came around the front of the building and argued with the juveniles. R.D. pulled a gun on the individual who also pulled a gun.

Detective Rod Demery of the Shreveport Police Department Homicide Division testified that when he arrived at the scene the juveniles had been transported to the hospital. He recalled that one of the youths was shot in the chest and another in the back. Detective Demery testified that police found two different calibers of shells fired from two different guns at the scene. He described the weapons as a 9 mm and a .38. Detective Demery testified that Goosby’s weapon had never been recovered, although three shell casings were found in front of the apartment door.

Detective Demery testified that when Goosby turned himself into the police station on the evening of the crime, his hair was visibly shorter than | min the video and he was wearing different clothes. After being read his rights, Goosby denied being at the scene of the shooting and indicated that he was on Fulton Street at the time of the crime.

On cross-examination, Detective Demery testified that he had no information on when Goosby carrie into possession of the gun in the video.

Lisa Stewart was called by the defense to testify. She stated that on the date of the incident she resided in Apartment 145 at King’s Manor Apartments. On that date, R.D. knocked on her door while pointing a gun at her face and asked to speak to “Big,” referring to Goosby. R.D. told her that he was “trying to get something from Big,” who needed to “watch his back” because he was “going to get him.” Stewart stated that Goosby was not present at the time because he had walked to a dollar store. She closed and locked her door and called Goosby.

On cross-examination, Stewart testified that Goosby did not “actually live with” her, but would come there. She did not know where Goosby was located at the time of the shooting because she was in the apartment. After the shooting, she opened the door for Goosby who was “beating” on the door and saw 12-15 people coming toward the apartment. The two left the apartment and went “on Fulton.” She left the Fulton residence without Goosby and returned to her apartment.

Stewart testified that she gave a statement to police. In the statement, she indicated that a third armed individual, named K-9, had an altercation with R.D. after the juvenile pulled a gun on her. The individual claimed that R.D. and his friend had “jumped a couple of people” the day before. In She testified that she also told police that R.D. had pulled a gun on her, but this statement was not recorded. Stewart identified the surveillance video and the individuals it depicted including R.D. and Goosby.

Stewart testified that another video she saw at the police station showed her and K-9. She claimed that she saw three different versions of “this video.” Stewart testified that she did not keep a gun in her apartment because she was afraid of guns. Stewart also testified that Goosby did not cut his hair nor change his clothes that day.

In his testimony, Goosby confirmed that he received a phone call from Stewart alerting him of the situation with R.D. while he was at a dollar store. Goosby recalled that Stewart claimed one of the juveniles pulled a gun on her. He testified that he ran back to the apartments, and had an altercation with R.D. and his friends on the side of the apartment building. Goosby stated that one of the juveniles punched him in the face and, while wrestling, Goosby lifted up the youth’s shirt, saw a handgun, and immediately disarmed him.

Goosby testified that he placed the gun in his pants and ran toward R.D. to ask him what was going on, as the video showed. He claimed that as he walked toward R.D. he kept his hand on the gun in his pants. He did not intend to shoot R.D. Goosby testified that as he approached R.D., R.D. drew a gun on him and Goosby got scared. He was surprised R.D. pulled a gun because he “had slept in my house.” Goosby never thought that R.D. wanted to kill him. Goosby admitted that he also pulled a gun on R.D. and that the two stood face to face with weapons drawn. Goosby testified that at |T2that time, his intent was to scare R.D., not shoot him. Goosby testified that the juveniles went “halfway down Bernstein,” and started firing. He stated that he attempted to get into the apartment, but Stewart had locked the door and would not answer. He heard gunshots coming at him and he returned three shots. He had no knowledge until later that he hit any of the juveniles.

On cross-examination, Goosby denied getting a haircut that day or changing clothes. He stated that he threw the gun “down 70th Street somewhere.” Goosby admitted that he lied to police but stated that he was scared of the consequences he was facing. He denied forcing a confrontation with R.D.

With this evidence, Goosby’s sole argument is that his possession of the gun was justified by self-defense. We conclude from this record that the jury could have reasonably rejected Goosby’s self-defense claim. The video evidence unquestionably shows that while carrying a gun, Goosby pursued R.D. at a time when R.D. and the other juveniles were retreating in a non-hostile manner. From this evidence alone, the jury could have reasonably concluded that regardless of any prior altercation or threats by R.D., at the time of the juvenile’s retreat, Goosby was in no imminent peril of great bodily harm and should have disarmed himself and withdrawn from any further conflict. Moreover, the jury could further determine that it was Goosby who was the aggressor in this situation as he chased the juveniles away from the apartment and then, after a significant allowance of time for retreat, chose to return fire at them at such a great distance away.

| ^Finally, Goosby’s flight from the scene, his initial false report to the police, and his dramatic change of appearance on the day of the incident were evidence from which the jury could have inferred his guilt and rejected his credibility. When viewed in the light most favorable to the state, we find the evidence sufficient to support Goosby’s conviction of possession of a firearm by a convicted felon.

In his second assignment of error, Goos-by argues that the trial court erred in failing to exclude the video from evidence based upon Stewart’s report of a different video. Goosby claims Stewart’s testimony showed alteration of the video and his entitlement to a presumption that the missing portions of the video were detrimental to the state’s case.

On these grounds, Goosby requested that the video be excluded from evidence. The court overruled the objection after rejecting Stewart’s testimony on grounds of credibility. The defense objected to the ruling.

The theory of spoliation of evidence refers to an intentional destruction of evidence for the purpose of depriving the opposing parties of its use. State v. Bobo, 46,225 (La.App.2d Cir.6/8/11), 77 So.3d 1, unit denied, 11-1524 (La.12/16/11), 76 So.3d 1202. Spoliation creates a presumption that the evidence was destroyed because it would have been detrimental to one’s case. Id. The presumption of spoliation is not applicable when failure to produce the evidence is adequately explained. It is generally utilized in civil litigation. In criminal cases, an appellant is not deprived of his due process rights based on the state’s failure to preserve potentially exculpatory evidentiary material unless bad faith is | ^demonstrated. State v. Harris, 01-2730 (La.1/19/05), 892 So.2d 1238, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005). See also Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). To receive the adverse inference, two conditions are required, destruction of evidence and bad faith. United States v. Wise, 221 F.3d 140 (5th Cir.2000).

The rejection of Stewart’s testimony by the court was reasonable considering that the fixed nature of the surveillance camera refuted Stewart’s claim that other events near her apartment were in fact contained on the same video. Likewise, the inconsistencies in Stewart’s explanations of the events cast doubt on her overall credibility. Other than Stewart’s testimony, there is no evidence that video material was destroyed. Her testimony is at odds with Detective Johnson’s report of his discovery of the video in his investigation. Ultimately, the jury heard evidence that R.D. threatened Stewart with a gun as well as her belief that the video had been altered. Thus, the jury was able to consider and weigh the evidence. Goos-by’s complaint is without merit.

In his third assignment of error Goosby argues that the trial court erred in failing to grant his motion for new trial on the grounds of the state’s failure to disclose crime lab test results relating to a gun box found in Stewart’s apartment which was evidence favorable to the defense.

On December 6, 2010, Goosby filed a motion to suppress a gun box which was discovered by Detective Johnson upon his sweep of Apartment 145 on the day of the crime. After a hearing in which only Detective]^ Johnson testified, the trial court denied the motion to suppress. This court affirmed that ruling.

Goosby also filed a pretrial motion in limine urging that the court prohibit the state from introducing into evidence or referring to the gun box found in Stewart’s home. The court denied this motion as well after determining that the issue of Goosby’s connection with the gun box was a matter of weight for the jury.

Detective Johnson testified at trial that during his sweep of Apartment 145 he noted an “item.” At this time, the defense objected to Detective Johnson’s testimony and the jury was excused from the courtroom. Defense counsel explained that he would object to any mention of a gun box which was discovered in the search since no proper foundation was laid for the reference. The court agreed and instructed the state to lay a proper foundation as follows:

THE COURT: Well, I’m going to make it clear to you for the third time, and that is that you must connect a box with some weapon used in this offense. And, in fact, in colloquy you’ve told me you have crime lab test results that connect it with this particular gun.
STATE: Correct, Your honor.
THE COURT: Now, I have looked through this discovery because Mr. Gilliam then said you didn’t share those results with him. And what I find in discovery is two requests for any results of any examination or tests.
STATE: I don’t have a report by the crime lab or anybody at the crime lab on this.
THE COURT: Then why did you tell me that you did?
STATE: I said I had information that there was an analysis done. I don’t have a written report. I have nothing in the file.
THE COURT: Let me tell you something. You can’t hide evidence by not putting it in writing, because the Code says they are entitled to 11(ithe results of any examination or test or report. Now, are you trying to play hide the ball, or do you not really have a report?
STATE: I don’t have a report.

After further discussions between the prosecutor and the court, the judge sustained the defense objection. The court specifically refused to allow the state to utilize Detective Johnson’s testimony to establish a foundation for admission of the gun box into evidence. The court also did not allow the state to call a crime lab employee to testify regarding test results on the shell casings found at the scene because no report had been provided to the defense.

Subsequently, the state introduced as evidence the police interviews of Goosby and other witnesses which contained references to the gun box. No objection to the evidence was made by the defense.

After trial, Goosby filed a motion for new trial including a claim that the state failed to disclose the “negative results of crime lab tests” discussed above, in violation of Brady v. Maryland, supra. At the hearing on the motion, the defense called crime lab employee, Carla White, to testify. White testified that she performed firearms analysis on the bullets and gun recovered from the crime scene. In her report, she determined that two of the cartridges found at the scene were fired from the 9 mm Browning pistol found near the juveniles. Three others were fired from another pistol, but were not linked to a particular gun.

White testified that on April 29, 2009, Detective Johnson called her and requested additional analysis of the three unmatched cartridges to 117determine if they had been fired from a 9 mm Ruger pistol, because the state had recovered a Ruger pistol box. She made notes memorializing the conversation in the case record.

Because no gun was recovered from the scene, White was only able to compare database photos of 9 mm Ruger test fired cartridges with those recovered at the scene. On May 4, 2009, White “gave verbal results to Detective Rod Johnson,” indicating that the three fired 9 mm cartridge cases “were consistent” with being fired from a 9 mm Ruger pistol. Ultimately she concluded that “without having a Ruger to compare it to, I cannot say that it was or was not fired from a particular gun.” She explained that the cartridges could have been fired from another weapon. White testified that she never matched the gun box to any shell casings she analyzed.

White explained that she made no written record of this finding which was normal practice if the pistol was not recovered, although she again noted her conversation with Detective Johnson in her case record.

After hearing the testimony and arguments of counsel, the trial court denied the motion for new trial relating to this evidence as follows:

The Court is unable to grant a new trial. The problem is the evidence, I think, viewed in a large sense that was excluded because of the laying of the foundation was actually harmful and not helpful to your client. And so that was excluded. We didn’t let the box in. So I don’t know how your client was prejudiced by your not being able ... to know. But I don’t know how your client was prejudiced on that because the result would have been, as she testified, that it was consistent with a Ruger, although she couldn’t match it to a particular weapon without the weapon. So I think it would have been more to your disadvantage so it’s hard to see how something beneficial was kept from the jury.

1 isThe decision on a motion for a new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Cox, 10-2072 (La.11/19/10), 48 So.3d 275.

Suppression by the prosecution of evidence favorable to an accused upon his request for such evidence, violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, supra; State v. Barker, 628 So.2d 168 (La. App. 2d Cir.1993), writ denied, 93-3194 (La.3/25/94), 635 So.2d 236. The term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence. There are three components of a true Brady claim: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and, (3) prejudice must have ensued. State v. Garrick, 03-0137 (La.4/14/04), 870 So.2d 990. A discovery violation involving the state’s failure to disclose exculpatory evidence does not require reversal as a matter of the due process clause unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different result. Id.

The trial court’s ruling was correct. White’s testimony that the bullets found at the scene were consistent with a Ruger is not exculpatory evidence. Had that evidence been introduced linking the three shell casings to the type of gun associated with the gun box in Stewart’s apartment, it [19would have indicated that Goosby deliberately armed himself in Stewart’s apartment. Thus, no Brady violation occurred.

Next, Goosby argues that his sentence of 20 years at hard labor is excessive. He claims the trial court improperly rejected the mitigating factors that he acted upon strong provocation of the threat of the juveniles. On December 16, 2011, Goosby filed a motion for reconsideration of sentence, which has not yet been heard or ruled upon.

Prior to sentencing Goosby, the court reviewed the possible mitigating and aggravating circumstances of the case and concluded that no mitigating circumstances existed. The court considered the fact that a gun fight took place at a housing project to be an aggravating factor as an extreme disregard for public safety. The court also considered as aggravating circumstances, Goosby’s use of a dangerous weapon and his history of illegal use of weapons. Finally, the court noted its consideration of Goosby as a dangerous person. Thereafter, the court sentenced Goosby as noted above.

In 2009, La. R.S. art. 14:95.1 provided, in pertinent part:

Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.

|2nFor his second felony conviction under La. R.S. 15:529.1(A)(l)(a), Goosby faced maximum sentencing exposure of 30 years.

A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A trial court has broad discretion in sentencing offenders. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La. App.2d Cir.11/3/10), 55 So.3d 90.

A trial court has wide discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of discretion, a sentence will not be set aside as excessive. Id.

Considering the serious nature of the present offense which exhibited Goosby’s careless disregard for human life as well as his criminal history which included abuse of weapons, we cannot find the imposed sentence to be constitutionally excessive. Goosby faced 30 years’ sentencing exposure for this crime. Thus, the imposed sentence afforded him leniency in punishment and is not excessive. Moreover, the trial court’s rejection of Goosby’s provocation by the juveniles is supported by the record. Accordingly, this assignment lacks merit.

Im Goosby also assigns as error the lack of advisement of his right to remain silent at his arraignment on the habitual offender charge. He asserts that a review of his multiple proceedings reflect that he was not advised of his right to remain silent, but concedes that he did, in fact, exercise this right and did not testify at these proceedings. Goosby admits that this fact alone provides no adverse effects to his substantial rights requiring reversal. However, he contends that “in cumulation with the multitude of other errors in this case that this error indicates prejudice.”

The failure to inform a defendant of his rights during the habitual offender proceedings is error patent. Nevertheless, under certain circumstances the error may be harmless. State v. Delaney, 42,990 (La.App.2d Cir.2/13/08), 975 So.2d 789; State v. Mason, 37,486 (La.App.2d Cir.12/10/03), 862 So.2d 1077.

La. R.S. 15:529.1(D)(l)(a) requires that the defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the State must prove its case. Implicit in this requirement is the additional requirement that the defendant be advised of his constitutional right to remain silent. State v. Robinson, 46,091 (La.App.2d Cir.4/20/11), 63 So.3d 1113, writs denied, 11-0901 (La.11/23/11), 76 So.3d 1148, 11-1016 (La.11/23/11), 76 So.3d 1149; State v. Delaney, supra.

Generally, the failure of the trial court to advise the defendant of his right to a hearing and his right to remain silent is not considered reversible error where the defendant’s habitual offender status is established by ^competent evidence offered by the State at a hearing rather than by admission of the defendant. However, when the guilt of the defendant is proven by his own stipulation or admission to the habitual offender bill of information, without having been informed of his right to a hearing or his right to remain silent by either the trial court or his attorney, there is reversible error. State v. Robinson, supra; State v. Delaney, supra.

In this case, Goosby received a full hearing prior to his multiple offender adjudication. Therein, the state presented competent evidence to prove his guilt. Considering these facts as well as Goosby’s concession in his brief, no reversible error occurred. This argument has no merit.

Error Patent

Upon our error patent review of the record, two errors patent were noted. At sentencing the trial court did not fully advise Goosby of the time period within which to apply for post conviction relief and failed to impose the sentence without benefit of probation, parole, or suspension of sentence.

By this opinion we now advise Goosby that no application for post conviction relief shall be considered if filed more than two years after the judgments of conviction and sentences have been final. State v. Johnson, 47,024 (La.App.2d Cir.4/11/12), 91 So.3d 1213; State v. Nelson, 46,915 (La.App.2d Cir.2/29/12), 86 So.3d 747.

In addition, the sentence should have been imposed without the benefit of parole, probation, or suspension of sentence. See La. R.S. 14:95.1. However, there is no need to remand for correction of the sentencing error. When a district court fails to order service of sentence ^without benefits in a case in which a determinate time period to be so served is mandated by the statute of conviction, the sentence will automatically be served without benefits for the required time period. La. R.S. 15:301.1(A); State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State v. Braziel 42,668 (La.App.2d Cir.10/24/07), 968 So.2d 853.

Decree

For the foregoing reasons, Goosby’s conviction and sentence are affirmed.

AFFIRMED.

      . Goosby was originally charged with one count of attempted first degree murder. At trial, regarding the amended charge, Goosby stipulated that he had been convicted of simple robbery on October 10, 2001, within 10 years of the present offense.

      . An independent review of the video specifically shows one of the youths walk back through the mechanical gate heading out of the complex. Another youth, riding a bike, follows him slowly. Then, as a youth wearing a red shirt (identified as R.D.) walks toward the gate, an adult male (identified as Goosby) trails closely behind and attempts to pull something from his shirt. R.D. quickly pulls a gun and points it at Goosby, while moving backwards towards the gate. Goosby points a firearm at R.D., and for a few seconds they both stand in a braced position aimed to shoot each other. R.D. and the other youths turn and run south, while Goosby backs up out of the video’s range.

      . In Stewart's recorded statement which was played for the jury, she stated that R.D. pulled the trigger of the gun but the gun misfired.

      . In a separate assigned error, Goosby seeks remand of this case for a ruling on his motion to reconsider sentence which has not been addressed by the trial court. This court may review Goosby's sentence for constitutional excessiveness in spite of the pending motion. Upon the trial court's later ruling upon such motion, Goosby may seek appellate review of that decision. State v. Wortham, 47,431 (La. App.2d Cir. 11/14/12), 107 So.3d 132; State v. Jackson, 46,963 (La.App.2d Cir.2/29/12), 87 So.2d 174; State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297.


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

text:
    Raleigh LANDRY and Clailee Aucoin Landry v. AVONDALE INDUSTRIES, INC., et al.
    No. 2012-CA-0950.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 6, 2013.
    Gerolyn P. Roussel, Jonathan B. Clement, Perry J. Roussel, Jr., Lauren R. Clement, Benjamin P. Dinehart, Roussel & Clement, LaPlace, LA, for Plaintiffs/Ap-pellees.
    Michael R. Barnes, Jude and Jude, PLLC, Hattiesurg, MS, Douglas G. Wah (Pro Hac Vice), Foley & Mansfield, Oakland, CA, for Defendant/Appellant, Steel Grip, Inc.
    Iain Kennedy, Shook, Hardy & Bacon LLP, Miami, FL, Amicus Curiae in Support of Defendant/Appellant, Steel Grip, Inc.
    Kenan S. Rand, Jr., Attie B. Carville, Scott H. Mason, Lauren B. Dietzen, Rudolph C. Boeneke, Lacey E. Sarver, Plauche Maselli Parkerson LLP, New Orleans, LA, Michael A. Pollard (Pro Hac Vice), Erin McCloskey Maus (Pro Hac Vice), Baker & Mckenzie LLP, Chicago, IL, for Defendant/Appellant, John Crane Inc.

      (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART, Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

hThe defendants, Steel Grip, Inc. (“Steel Grip”) and John Crane, Inc. (“John Crane”), seek reversal of the trial court’s judgment granting the plaintiffs/ appellees’ motions for summary judgment. For the reasons that follow and based upon our de novo review, we affirm the trial court’s judgment that determined that (1) Raleigh Landry (“Raleigh”) was diagnosed with mesothelioma, (2) asbestos was the cause of the mesothelioma, and (3) mesothelioma was the cause of Raleigh’s death; but reverse the trial court’s judgment that determined that (1) Raleigh was exposed to John Crane’s and Steel Grip’s asbestos-containing products, (2) John Crane’s and Steel Grip’s products were a substantial contributing cause of Raleigh’s development of mesothelioma, and (3) John Crane and Steel Grip are liable under Louisiana law.

In March 2002, Raleigh Landry (“Raleigh”) and his wife, Clailee Aucoin Landry (“Clailee”), filed suit to recover damages arising from Raleigh’s mesothelioma. They alleged that during his working career Raleigh was exposed to asbestos from the use of asbestos-containing products manufactured and sold by defendants, Steel Grip, John Crane (formerly, Crane Packing Co.), and others. Upon Raleigh’s death on 21 November 2002, the lawsuit was amended to assert | {¡survival and wrongful death claims on behalf of Clailee and the Landry’s two children.

Raleigh began his career as a pipefitter in 1959 and continued working until 2001. Raleigh testified that, while he was a pipe-fitter, he was exposed to asbestos while working for J. Ray McDermott, Inc. and Avondale Industries, Inc. Raleigh testified that he used Garlock and John Crane gaskets on a daily basis and that he would “use steel brushes to clean the pipe.” When asked about removing a gasket, Raleigh stated that “you got to undo the pipe, and then you take a scraper and you scrape the old gaskets off, then you take a buffing wheel or a steel brush and clean the facing real well, then you put your new one [gasket] back on.” Raleigh explained that “the dust would be flying just every-wheres [sic]” during the process of installing new gaskets in the pipelines.

Raleigh also testified that he used asbestos gloves made by Steel Grip, Gard-Line, and Olympic and that the gloves would create dust. Specifically, he stated that “after you get through a job, you clap your hands together or either try to take the dust off on the pipe you was [sic] working out of and they would fly just everywhere, you know.”

Raleigh’s co-worker, John Grisaffe (“Grisaffe”), testified that he started working with Raleigh in 1982 at the Exxon Chemical plant in Baton Rouge, Louisiana. He stated that he was a pipefitter and that his first job entailed working with Raleigh to remove tons of pipe insulation. When asked what the work entailed, Grisaffe testified as follows:

Pumps, pipes, flanges, changing out piping in the racks, cutting fireboxes, where you have to get wrapped up in this stuff, where the stuff — so the particles don’t fly out from the welder. When you run out there with a grinder, you’re grinding on pipe, grinding on flanges to [sget a gasket off, everything is high-pressure in the cat-cracker, and it runs about 3000 psi, and the gaskets are so stuck on there that we had to use chisels sometimes, grinders with buffing wheels to get them off.... And then installed new gaskets. Every other job you ask me about will be the same as that answer, I can tell you that.

He explained that the gaskets Raleigh and he worked with were John Crane gaskets and that they contained asbestos.

Grisaffe also testified that he and Raleigh used Steel Grip asbestos gloves and that they were exposed to dust from these gloves:

Q. You also talked about gloves. Did you also use mitts?
A. Yes, and the regular gloves.
Q. Mitts and regular gloves?
A. Yes.
Q. Did you use asbestos gloves at a period of time?
A. Yes, I would say asbestos gloves.
* * *
Q. Did some of the gloves ever have a tag right on the inside of the wrist?
A. Yes.
Q. And did that tag on some of the gloves say Steel Grip?
THE WITNESS: That is the only kind of gloves they had, that I can remember.
Q. Mr. Landry wore the Steel Grip gloves?
THE WITNESS: Yes. We were both doing the same thing.
Q. Of course, when you’d wear the gloves, you would hit them together to—
LA. Oh, yes. You would have to get some of the dust off, you know. You have to wipe your face after.
Q. You would hit them on your clothes?
A. Yes, or the piping on the side of you. The dust is flying everywhere.

On 13 March 2012, the plaintiffs filed a motion for summary judgment alleging that Raleigh had mesothelioma, asbestos was the cause of Raleigh’s mesothelioma, and mesothelioma was the cause of Raleigh’s death. Attached to this motion for summary judgment were the following exhibits: the death certificate of Raleigh; the depositions of Dr. Samuel P. Hammar; Dr. Georgia Reine; Dr. Alvaro Hunt; Dr. Victor Roggli; Frank Parker, III; Dr. James Millette; Thomas A. McGurk; and the affidavit of Dr. Samuel P. Hammar.

On that same date, the plaintiffs also filed a motion for summary judgment alleging that Raleigh was exposed to Steel Grip’s asbestos-containing products, that the exposure was a significant contributing factor in the development of Raleigh’s mesothelioma and death, and that Steel Grip is liable under Louisiana law for Raleigh’s illness and death. Attached to this motion for summary judgment as exhibits were the depositions of Raleigh (25 June and 24 and 26 July 2002); Grisaffe; Frank Parker, III; Dr. James Millette; Dr. Victor Roggli; Thomas A. McGurk; Dr. Samuel P. Hammar; and the affidavit of Dr. Samuel P. Hammar.

The plaintiffs also filed a motion for summary judgment alleging that Raleigh was exposed to John Crane’s asbestos-containing products, that this exposure was a significant contributing factor in the development of Raleigh’s mesothelioma and death, and that John Crane is liable under Louisiana law. Attached to this motion for summary judgment were following as exhibits: the depositions of Raleigh (25 June and 24 and 26 July 2002); Grisaffe; Frank Parker, LIII; Dr. Victor Roggli; George McKillop; Dr. Samuel P. Hammar; the affidavits of Dr. James Millette and Dr. Samuel P. Hammar; the report entitled “Releasability of Asbestos Fibers From Asbestos-Containing Gaskets;” the study of “Environmental Household Exposures to Asbestos and Occurrence of Pleural Mesothelioma;” the article entitled “News & Trends: The second Age of Asbestos”; and the report from the “Helsinki Criteria”, 01/20 -22/1997.

On 22 March 2012, the defendants filed three oppositions with exhibits, which included: the depositions of Raleigh, Gri-saffe, George McKillop, Glen Paul Landry, Dr. James Crapo, Dr. William E. Longo, Dr. Samuel P. Hammar, Dr. Victor Roggli; the affidavit of Dr. Michael Matteson; the OSHA Standard For Exposure to Asbestos Dust, Causation Label Exemption, Federal Register Vol. 37; and various reports on the issue of asbestos and human health. The defendants opposed plaintiffs’ motions for summary judgment essentially arguing that genuine issue of material facts exist, and that such evidence should be evaluated by a trier of fact to determine whether (a) mesothelioma was the cause of Raleigh’s death, (b) Raleigh was exposed to John Crane’s and Steel Grip’s asbestos-containing products, (c) John Crane and Steel Grip’s products had a substantial contributing factor to Raleigh’s development of mesothelioma, and (d) John Crane and Steel Grip should be liable under Louisiana law.

After a hearing on 30 March 2012, the trial court granted the plaintiffs’ motions. Specifically, the trial court found that there was no question of fact that: (1) Raleigh had mesothelioma; (2) asbestos was the cause of Raleigh’s | ^mesothelioma; (3) mesothelioma was the cause of Raleigh’s death; (4) Raleigh was exposed to Steel Grip’s and John Crane’s asbestos-containing products; (5) Raleigh’s exposure to Steel Grip’s and John Crane’s asbestos-containing products was a significant factor in his mesothelioma and death; and (6) Steel Grip and John Crane are liable under Louisiana law. The defendants do not dispute the fact that Raleigh was diagnosed with mesothelioma, and that asbestos was the cause of the meso-thelioma. Although John Crane does not appeal the trial court’s finding that meso-thelioma was the cause of Raleigh’s death, Steel Grip does appeal this finding arguing that an issue of fact exists regarding whether mesothelioma was the sole cause of Raleigh’s death.

John Crane and Steel Grip argue on appeal that the trial court erred in granting the summary judgments finding that Raleigh was exposed to its asbestos-containing products (the John Crane gaskets and the Steel Grip gloves) and that its asbestos-containing products were a significant factor contributing to Raleigh’s meso-thelioma and death.

It is scientifically proven, and legislatively recognized, that a causal relationship exists between asbestos exposure and the occurrence of mesothelioma. In Hennegan v. Cooper/T. Smith Stevedoring Co., 02-0282 (La.App. 4 Cir 12/30/02), 837 So.2d 96, this court acknowledged that brief exposures to asbestos may cause mesothelio-ma in persons decades later and that every non-trivial exposure to asbestos contributes to and constitutes a cause of mesothe-lioma. This theory, has been embraced in the Supreme Court’s decision in Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La.5/22/09), 16 So.3d 1065. Moreover, as the Court said:

|7... Louisiana courts have employed a “substantial factor” test to determine whether exposure to a particular asbestos-containing product was a cause-in-fact of a plaintiffs asbestos-related disease. Thus, in an asbestos case, “the claimant must show ... he had significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury.” Mesothelioma can develop after fairly short exposures to asbestos. Simply because a plaintiff suffered asbestos exposure while working only a short period for an employer and he had longer exposure working for others, it cannot be said the relatively short asbestos exposure was not a substantial factor in causing his mesothelioma. However, notwithstanding the difficulty of proof involved, a plaintiffs burden of proof against multiple defendants in a long-latency case, such as a tort claim for mesothelioma, is not relaxed or reduced because of the degree of that might ensue in proving the contribution of each defendant’s product to the plaintiffs injury. [Emphasis added; internal citations omitted.]

Rando, pp. 35-36,16 So.3d at 1091.

Steel Grip argues on appeal that the trial court erred in granting summary judgment in favor of the plaintiffs because there are genuine issues of fact regarding whether the sole cause of Raleigh’s death was mesothelioma, whether Raleigh was exposed to Steel Grip’s asbestos containing products, whether the alleged exposure was a significant contributing factor to Raleigh’s development of mesothelioma, and whether the trial court erred in interjecting its personal work experience as a shipyard employee rather than relying on the evidence. Steel Grip also argues that the trial court erred in finding Raleigh’s meso-thelioma was the cause of his death. Steel Grip agrees Raleigh had mesothelioma and that his mesothelioma was caused by exposure to asbestos; however, it wishes to preserve for the jury whether mesothelio-ma was the sole cause of Raleigh’s death since he also suffered from cancer of the kidney and pancreas, emphysema, congestive heart failure, and diabetes.

| ^According to Raleigh’s death certificate, he died from “malignant mesothelio-ma.” Not only do plaintiffs’ experts testify that mesothelioma was the cause of Raleigh’s death, but defendants’ own expert, Dr. Victor Roggli, testified as such. Based on the testimony of experts on both sides, we find no genuine issue of fact as to the cause of Raleigh’s death; thus, we affirm the summary judgment finding that meso-thelioma was the cause of Raleigh’s death.

Steel Grip argues that there are genuine issues of material fact concerning whether Raleigh was exposed to its asbestos products. Although Steel Grip does not dispute that Raleigh testified that he used Steel Grip’s gloves and that the gloves contained asbestos, Steel Grip argues that Raleigh’s testimony is hearsay and inadmissible.

Without detailing the evidence submitted by both parties regarding whether Steel Grip gloves were or were not a substantial factor in causing Raleigh’s meso-thelioma or whether Raleigh’s testimony is hearsay and inadmissible, we find that genuine issues of material fact exist precluding the granting of summary judgment for (a) the amount of asbestos that may have been emitted from the Steel Grip gloves and (b) whether such emission was or was not a substantial factor in causing Raleigh’s mesothelioma; these are questions of fact for the trier of fact in this case. The evidence before us can be said to preponderate both for and against both the plaintiffs and Steel Grip. Read in a reasonable light, the testimony that, following working as a pipefitter with Steel Grip gloves, the gloves would be clapped together and dust would fly preponderates more to establish that the dust came from the materials that Raleigh was working with and not necessarily from the gloves themselves; although a possibility exists that some of the dust came from the asbestos in the gloves themselves. Accordingly, we reverse the trial |9court’s finding Steel Grip’s product was a significant factor in Raleigh’s mesothelioma and death and thus Steel Grip is liable under Louisiana law; the issue must be submitted to a trier of fact at trial.

On appeal, John Crane argues that the trial court erred in granting summary-judgment in favor of plaintiffs because there are genuine issues of fact regarding whether Raleigh was exposed to John Crane’s asbestos-containing products and whether the alleged exposure was a significant contributing factor to Raleigh’s development of mesothelioma.

Again, without detailing the evidence submitted by both parties regarding these issues, we find that genuine issues of material fact exist precluding the granting of summary judgment as to whether Raleigh was exposed to John Crane’s asbestos-containing products that were a significant factor in his mesothelioma and death, thus creating liability under Louisiana law. Raleigh worked at a facility where John Crane products were present; some of the products contained asbestos while others did not. The quantity of John Crane asbestos-containing products that he came into contact with is not clearly shown by the evidence before us; thus genuine issues of material fact exist. We cannot say that whatever quantity of John Crane asbestos-containing product Raleigh came into contact with was a substantial factor in his contracting mesothelioma that caused his death. We acknowledge the existence, however, of circumstantial evidence that reasonable minds might conclude preponderates to establish that Raleigh did come into contact with John Crane asbestos-containing products, but the evidence does not |intip the scales on a motion for summary judgment in favor of the plaintiffs. The issues are properly determined at a trial on the merits.

For the foregoing reasons, we affirm the trial court’s judgment determining that Raleigh was diagnosed with mesothelioma, asbestos was the cause of the mesothelio-ma, and mesothelioma was the cause of Raleigh’s death. We reverse the trial court’s judgment determining that Raleigh was exposed to John Crane’s and Steel Grip’s asbestos-containing products and that John Crane’s and Steel Grip’s products were a substantial contributing cause of Raleigh’s development of mesothelioma, thus making either or both of them liable under Louisiana law. We remand for further proceedings.

AFFIRMED IN PART; REVERSED IN PART.

BELSOME, J., concurs in part and dissents in part.

BELSOME, J.,

concurs in part and dissents in part.

hi concur in the majority’s affirmation of the trial court’s rulings as it relates to the determinations that 1) Raleigh Landry was diagnosed with mesothelioma, 2) asbestos was the cause of the mesothelioma, and 3) mesothelioma was the cause of Mr. Landry’s death.

I dissent from the reversal of the trial court’s granting of summary judgment on the issues of 1) Mr. Landry’s exposure to John Crane’s and Steel Grip’s asbestos containing products, 2) the exposure to those products being a substantial contributing cause of Mr. Landry’s mesothelioma, and 3) John Crane and Steel Grip are liable under Louisiana law.

It is uncontested that Mr. Landry began his career as a pipefitter in 1959 and continued working in that capacity until 2001. Further undisputed was his testimony that as a pipefitter he was exposed to asbestos while working for McDermott and Avon-dale. The defendants do not provide any countervailing evidence to the testimony provided by Mr. Landry and his co-worker John Grisaffe but rather attempt to point out minor insignificant inconsistencies in their statements. Simply put, Mr. Landry’s and Mr. Grisaffe’s testimony are un-contradicted.

| ¡Historically, latent disease cases in general and asbestos in particular, such as this one, the plaintiff has an extraordinary challenge of gathering evidence dating back 30 to 40 years or longer to recreate his workplace history. Typically this is accomplished through deposition testimony taken while the plaintiff and sometimes other witnesses are suffering from some form of asbestos related disease. At the time of deposition, the ill and often times aged employee, is expected to recall, by name, each and every employer, supplier, and manufacturer that he came into contact with during his employment. Even under such difficult circumstances, the plaintiffs were able to clearly establish that the defendants’ products were present in the workplace, that Mr. Landry worked with and around the products, and that the products emitted asbestos dust. The majority has even cited in its opinion, the deposition testimony of Mr. Landry and his co-worker Mr. Grisaffe that went uncontested.

This Court has consistently acknowledged that every exposure to asbestos, no matter how brief, is a contributing factor and constitutes a cause of mesothelioma. See McAskill v. American Marine Holding Co., 07-1445 (La.App. 4 Cir. 3/4/09), 9 So.3d 264; Hennegan v. Cooper/T. Smith Stevedoring Co., 02-0282 (La.App. 4 Cir. 12/30/02), 837 So.2d 96. Dr. Arnold R. Brody, an expert in the field of cell biology and asbestos related pathology, has explained the significance of each and every exposure of asbestos stating, “mesothelio-ma is a disease that begins with a single fiber acting on a single cell, and it is impossible to state which of the individual’s multiple exposures was causative of mesothelioma.” Hennigan, p. 13, 837 So.2d at 105.

Presently, under Louisiana law, the plaintiff in a multi-defendant asbestos-exposure action must establish “that the defendant’s asbestos-containing product was a substantial factor in causing his alleged disease.” McAskill, p. 6, 9 So.3d at 268; see also Vodanovich v. A.P. Green Indus., Inc., 03-1079 (La.App. 4 Cir. R3/3/04), 869 So.2d 930. This burden can be satisfied “by simply showing that he was actively working with asbestos-containing materials.” McAskill, 9 So.3d at 268. The record in this case provides ample evidence that as a pipefitter Mr. Landry would cut, brush, buff, grind, scrape and chip off John Crane’s asbestos containing gaskets out of the flange. Likewise, the testimony regarding daily use of the Steel Grip’s asbestos containing gloves also went uncontro-verted.

It is well established that when there are no genuine issues of material fact the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). A “genuine issue” has been described as a triable issue that reasonable persons could disagree. See Jones v. Estate of Santiago, 03-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006. In an attempt to create genuine issues of fact Steel Grip and John Crane have asserted unsupported allegations that have no substance. Both defendants have acknowledged that, due to self-destruction, there are no records to refute the presence of their asbestos containing products at Avondale yet they continue to contest the fact. That type of self-serving and hollow assertion cannot rise to the level of a genuine issue of material fact. It is clear that this record contains no viable evidence that establishes a genuine issue of material fact. Thus, the plaintiffs have met their burden and summary judgment was warranted by law. The majority’s attempt to establish issues of fact and speculate and fabricate an alternative theory for the dust that was being emitted from the gloves is preposterous and beyond any facts or evidence that can be adduced by this record. For these reasons I would affirm the trial court’s judgment in its entirety.

      . The judgments were certified as final and appealable pursuant to La. C.C.P. art. 1915.

      . See Rando, p. 33, 16 So.3d at 1089, citing Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 664 (La.1989) and Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 04-1058, p. 5 (La. 12/1/04), 893 So.2d 1, 4.