source: Caselaw Access Project

author: GUIDRY, Justice. HUGHES, J.,

license: Public Domain

text:
    James D. “Buddy” CALDWELL, Attorney General ex rel. State of Louisiana v. JANSSEN PHARMACEUTICA, INC., et al.
    Nos. 2012-C-2447, 2012-C-2466.
    Supreme Court of Louisiana.
    Jan. 28, 2014.
    Rehearing Denied April 25, 2014.

      Pascal F. Calogero, Jr., Adams and Reese, LLP, Martin A. Stern, Jeffrey Edward Richardson, Irwin Fritchie Urquhart & Moore, LLC, James Burke Irwin, New Orleans, LA, David O’Quinn, James T. Gu-glielmo, Opelousas, LA, for Applicant (No. 2012-C-2447).
    Louisiana Department of Justice, James D. Caldwell, Attorney General, Lonnie Christopher Styron, Assistant Attorney General, Kenneth Warren DeJean, Lafayette, LA, Morrow, Morrow, Ryan & Bas-sett, Patrick Craig Morrow, Sr., James P. Ryan, Jeffrey Michael Bassett, Opelousas, LA, Salim-Beasley, LLC, Robert Lyle Sal-im, Natchitoches, LA, Bailey, Perrin, Bailey, LLP, Michael W. Perrin, Pro Hac Vice, for Respondent (No. 2012-C-2447).
    Louisiana Department of Justice, James D. Caldwell, Attorney General, Lonnie Christopher Styron, Assistant Attorney General, Kenneth Warren DeJean, Lafayette, LA, Morrow, Morrow, Ryan & Bas-sett, Patrick Craig Morrow, Sr., James P. Ryan, Jeffrey Michael Bassett, Opelousas, LA, Salim-Beasley, LLC, Robert Lyle Sal-im, Natchitoches, LA, Bailey, Perrin, Bailey, LLP, Michael W. Perrin, Pro Hac Vice, for Applicant (No. 2012-C-2466).
    Pascal F. Calogero, Jr., Adams and Reese, LLP, Martin A. Stern, Jeffrey Edward Richardson, Irwin Fritchie Urquhart & Moore, LLC, James Burke Irwin, New Orleans, LA, David O’Quinn, James T. Gu-glielmo, Opelousas, LA, for Respondent (No. 2012-C-2466).
   GUIDRY, Justice.

_JjThe Attorney General for the State of Louisiana brought an action against the defendant pharmaceutical companies alleging inter alia certain violations of the Louisiana Medical Assistance Programs Integrity Law (“MAPIL”). Following trial in September 2010, the district court entered a judgment upon the jury’s verdict in favor of the Attorney General finding the defendants’ alleged misconduct in marketing certain drugs had violated provisions of MAPIL as it read in November 2003, and awarding civil penalties of $257,679,500.00, attorney fees of $70,000,000.00, and costs in the amount of $3,000,200.00. The court of appeal affirmed the district court’s judgment. We granted the writ applications of both the Attorney General and the defendants to determine the correctness of the lower courts’ rulings. For the reasons set forth below, we find the Attorney General failed to establish sufficient facts to prove a cause of action against the defendants under MAPIL because no evidence was presented that any defendant made or attempted to make a fraudulent claim for payment against any Louisiana medical | ^assistance program within the scope of MAPIL. Accordingly, we reverse the district court’s judgment in favor of the Attorney General.

FACTS AND PROCEDURAL HISTORY

The Attorney General filed the instant suit in September 2004 against Janssen Pharmaceutica, Inc., and Johnson & Johnson (hereinafter, “defendants”), asserting various legal theories of recovery stemming from the allegedly improper marketing of a particular drug, Risperdal, manufactured by the defendants. By the time of trial, however, the Attorney General had narrowed his cause of action to alleged violations of La.Rev.Stat. 46:438.3, a subsection of MAPIL, which prohibits health care providers and other persons from presenting, or causing to be presented, false or fraudulent claims or misrepresentations seeking payment from Louisiana medical assistance programs.

In its suit, the Attorney General alleged the defendants “knowingly misrepresent[ed]” that Risperdal was “safer and/or more effective” than other antipsychotics. Further, the Attorney General alleged: that the defendants’ marketing misrepresentations affected the decisions of prescribing physicians, who relied upon the misleading information disseminated by the defendants; that the defendants knew that many of the prescriptions written for Risperdal would be paid for by Louisiana’s Medicaid program; that the State would not have purchased, or reimbursed for, Risperdal had it known of the defendants’ misrepresentations; and that the State had suffered actual damages “in excess of one thousand dollars” related to misrepresentations made by the defendants in the marketing of Risperdal.

IsRisperdal was introduced in 1994 as a second-generation or atypical anti-psyehotic, and is considered to be highly beneficial in permitting schizophrenia patients consigned to institutional care to return to living more productive lives. The defendants do not dispute that Risperdal, like other atypical antipsychotics, has the potential for serious side effects, but such side effects, including new onset diabetes, are generally fewer and milder, and more treatable, than first generation antipsy-chotics. In May 2000, the Federal Food and Drug Administration (“FDA”) asked all manufacturers of atypical antipsychot-ics to conduct a comprehensive data review for a possible association between such drugs and new onset diabetes. The defendants responded in August 2000 with fifteen volumes of data arising out of 66 clinical trials involving more than 11,000 Risperdal patients. The defendants maintained that the clinical trials, supported by epidemiologic review and patient monitoring, showed a low incidence of diabetes and related conditions in patients taking Risperdal. The FDA took no action on the defendants’ submission until September 2003, some three years later.

The Attorney General’s case begins with the FDA’s action in September of 2003, when the FDA notified all manufacturers of atypical antipsychotics, not only the defendants, that new class warnings would be required to be included on the drug labeling to advise health care providers and the public of the increased risk of hyperglycemia and diabetes-related adverse events associated with this class of drugs. The defendants, believing a uniform class warning to be unjustified, thereafter corresponded with the FDA to attempt a negotiation of certain aspects of the warning to be required for Risperdal, succeeding only in part. The warning ultimately required by the FDA and added to the Risperdal label was as follows:

14Hyperglycemia and Diabetes Melli-tus
Hyperglycemia, in some cases extreme and associated with ketoacidosis or hy-perosmolar coma or death, has been reported in patients treated with atypical antipsychotics including RISPERDAL ®. Assessment of the relationship between atypical antipsychotic use and glucose abnormalities is complicated by the possibility of an increased background risk of diabetes mellitus in patients with schizophrenia and the increasing incidence of diabetes mellitus in the general population. Given these confounders, the relationship between atypical antipsychotic use and hyperglycemia-related adverse events is not completely understood. However, epi-demiologic studies suggest an increased risk of treatment emergent hyperglycemia-related adverse events in patients treated with atypical antipsychotics. Precise risk estimates for hyperglycemia-related adverse events in patients treated with atypical antipsychotics are not available.
Patients with an established diagnosis of diabetes mellitus who are started on atypical antipsychotics should be monitored regularly for worsening of glucose control. Patients with risk factors for diabetes mellitus (e.g., obesity, family history of diabetes) who are starting treatment with atypical antipsychotics should undergo fasting blood glucose testing at the beginning of treatment and periodically during treatment. Any patient treated with atypical anti-psychotics should be monitored for symptoms of hyperglycemia including polydipsia, polyuria, polyphagia, and weakness. Patients who develop symptoms of hyperglycemia during treatment with atypical antipsychotics should undergo fasting blood glucose testing. In some cases, hyperglycemia has resolved when the atypical antipsy-chotic was discontinued; however, some patients required continuation of antidi-abetic treatment despite discontinuation of the suspect drug.

Additionally, the FDA required all atypical antipsychotic drug manufacturers to send out a letter to all health care providers nationwide (a type of correspondence referred to in the drug manufacturing industry as a “Dear Health Care Provider” letter (hereinafter, “DHCP letter”)) to advise of the label change.

|BOn November 10, 2008, the defendants sent out a DHCP letter stating the FDA had requested all manufacturers of atypical antipsychotics, including Risperdal, to include a class warning label regarding hyperglycemia and diabetes mellitus in their product labeling and to enclose updated prescribing information for Risper-dal (generically known as “risperidone”). The November 10, 2003 DHCP letter included the diabetes class warning label within the attached prescribing information, but the letter also included the following additional statements:

Hyperglycemia-related adverse events have infrequently been reported in patients receiving RISPERDAL. Although confirmatory research is still needed, a body of evidence from published peer-reviewed epidemiology research suggests that RISPERDAL is not associated with an increased risk of diabetes when compared to untreated patients or patients treated with conventional anti-psychotics. Evidence also suggests that RISPERDAL is associated with a lower risk of diabetes than some other studied atypical antipsychotics. [Footnotes omitted.]

These additional statements arguably constituted off-label statements, and they are the subject of the Attorney General’s contention that the defendants engaged in misrepresentation in an attempt to defraud Medicaid by failing to truthfully and fully disclose information required under MA-PIL.

On April 19, 2004, after a review of the defendants’ November 10, 2003 DHCP letter, the FDA’s Division of Drug Marketing, Advertising and Communications (“DDMAC”) sent a “warning” letter to the defendants, directing the defendants to deliver corrective information about Risper-dal, relating to hyperglycemia and diabetes, to the recipients of its DHCP letter. Although the defendants disagreed with the DDMAC’s instruction, maintaining that th^statements contained in the November 2003 letter were scientifically correct, the defendants complied and sent out a “correction” letter on July 21, 2004, to all health care providers nationwide. That letter bore the caption “IMPORTANT

CORRECTION OF DRUG INFORMATION,” and stated, in part, as follows:

The Food and Drug Administration’s (FDA) Division of Drug, Marketing, Advertising, and Communications (DDMAC) has asked us to contact you because Janssen Pharmaeeutica Products, L.P. recently received a Warning Letter concerning the promotion of Ris-perdal ® (risperidone). This letter provides important corrective information about Risperdal relating to hyperglycemia and Diabetes Mellitus.
The Warning Letter concludes that Janssen disseminated a Risperdal Dear Health Care Provider (DHCP) dated November 10, 2003 that omitted material information about Risperdal, minimized potentially fatal risks, and made misleading claims suggesting superior safety to other atypical antipsychotics without adequate substantiation, in violation of the Federal Food, Drug and Cosmetic Act [“FDCA”].
Specifically, the Warning Letter stated that the DHCP letter omitted important information regarding hyperglycemia and diabetes, including the potential consequences and the recommendation of regular glucose control monitoring that was added to the approved product labeling for Risperdal; minimized the potentially fatal risks of hyperglycemia-related adverse events such as ketoaci-dosis, hyperosmolar coma and death; minimized the importance of blood glucose monitoring; suggested that Risper-dal did not increase the risk of diabetes, contradicting the Warning in the revised product labeling; and made misleading claims suggesting that Risperdal has a lower risk of hyperglycemia and diabetes than other atypical antipsychotics without adequate substantiation which is inconsistent with the Prescribing Information for Risperdal.

The July 21, 2004 correction letter further stated that hyperglycemia and diabetes warnings had been added to the product labeling in November 2003; the entire text of that FDA-required warning (set forth above) was also quoted in the correction letter. The FDA’s DDMAC closed the matter in October 2004 without taking any further action.

The matter went to trial on the issue of whether the defendants had any liability, under MAPIL, arising out of their dissemination of the off-label statements contained in the November 10, 2003 DHCP letter to Louisiana health 17care providers. The district court, interpreting MAPIL and its application to the Attorney General’s allegations, found that “if [the Attorney General and the State] prove false, misleading, misrepresentative, deceitful, intent to defraud type statements, attempts to defraud type statements, that in and of itself is the causation [ ] needed” for the defendants to be liable for civil penalties. Following trial held in September and October of 2010, the jury via interrogatories found the following: the defendants “knowingly presented or caused to be presented a false or fraudulent claim in violation of [MAPIL];” the defendants “knowingly engaged in misrepresentation to obtain, or attempt to obtain, payment from the Medical Assistance Program Funds in violation of [MAPIL]”; the defendants “conspired to defraud, or attempted to defraud, the Medical Assistance [Program Funds] through misrepresentation or by obtaining or attempting to obtain, payment for a false or fraudulent claim in violation of [MAPIL].” Finding the State was entitled to recover civil penalties, the jury found 35,146 violations of MAPIL (this number consisted of the 7,604 copies of the November 10, 2003 DHCP letter mailed to Louisiana health care providers, and 27,542 sales calls made by sales representatives on Louisiana doctors during the ensuing nine-month period; the Attorney General had contended that each letter and sales call was a separate violation of MAPIL). Without finding any evidence of actual damages sustained by the State, the jury assessed a civil penalty of $7,250.00 per violation. The jury apportioned 90% liability to Janssen Pharmaceutica and 10% to Johnson & Johnson.

The district court on March 9, 2011 signed a judgment in favor of the Attorney General and against the defendants in the following amounts: $257,679,500.00, with legal interest from the date of the jury’s October 14, 2010 verdict; $70,000,000.00 in attorney fees; $3,000,200.00 in costs and expenses; and | slegal interest on the attorney fees and costs from the date of the district court’s February 11, 2011 oral reasons and rendition of judgment on those issues.

Both the Attorney General and the defendants appealed the district court’s judgment to the court of appeal, which affirmed the judgment in its entirety. See Caldwell ex rel. State v. Janssen Pharmaceutical, Inc., 2011-1184 (La.App. 3 Cir. 8/31/12), 100 So.3d 865. Thereafter, on the application of both the Attorney General and the defendants, this court granted writs to determine the correctness of the lower courts’ rulings. See Caldwell ex rel. State v. Janssen Pharmaceutical, Inc., 2012-2447, 2012-2466 (La.1/18/13), 107 So.3d 620.

LAW and ANALYSIS

The defendants maintain the district court erred in entering judgment against them because the trial record is insufficient to establish a violation of MAPIL. Their argument, raised in a motion for summary judgment and at trial, centers on their position that Subsections A, B, and C of La.Rev.Stat. 46:438.3 do not apply to the improper marketing or labeling conduct challenged by the Attorney General, because there is no evidence the defendants presented or caused to be presented any false claim or misrepresentation for payment out of medical assistance program funds. The Attorney General contends this interpretation ignores the broad purpose of MAPIL, which is to protect the fiscal and programmatic integrity of the medical assistance programs from health care providers and other persons who engage in fraud, misrepresentation, abuse or other ill practices to obtain payments to which these health care providers and other persons are not entitled. | nThe Attorney General contends the defendants, based on their misrepresentations, fraudulently received payments, or attempted to seek payment for a claim.

Thus, the issue presented is twofold: the interpretation and applicability of MAPIL and La.Rev.Stat. 46:438.3. Accordingly, the interpretative aspect of this case presents us with a question of law, which is reviewed by this court under a de novo standard of review. First Nat. Bank, USA v. DDS Const., LLC, 11-1418, p. 11 (La.1/24/12), 91 So.3d 944, 952; Broussard v. Hilcorp Energy Co., 09-0449, p. 3 (La.10/20/09), 24 So.3d 813, 815-816; Louisiana Municipal Ass’n v. State, 04-0227, p. 35 (La.1/19/05), 893 So.2d 809, 836. We need not give deference to the legal conclusions made by the courts below, because this court is the ultimate arbiter of the meaning of the laws of this state. Id.; Broussard, 09-0449, p. 3, 24 So.3d at 816; Cleco Evangeline, LLC v. Louisiana Tax Com’n, 01-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353.

| inThe method for judicially interpreting statutory law, and determining whether it applies to a specific set of facts, is well-settled in our jurisprudence. The essential question in all cases of statutory interpretation is legislative intent and the ascertainment of the reason or reasons that prompted the legislature to enact the law. Pumphrey v. City of New Orleans, 05-979 (La.4/4/06), 925 So.2d 1202, 1210; In re Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128. The rules of statutory construction are designed to ascertain and enforce the intent of the legislature. McLane Southern, Inc. v. Bridges, 11-1141 (La.1/24/12), 84 So.8d 479, 483; Stogner v. Stogner, 98-3044, p. 5 (La.7/7/99), 739 So.2d 762, 766. Legislation is the solemn expression of legislative will, and therefore, interpretation of a law involves primarily a search for the legislature’s intent. La.Rev.Stat. § 1:4 (2004); La. Civ.Code art. 2 (2004); Lockett v. State, Dept, of Transp. and Development, 03-1767, p. 3 (La.2/25/04), 869 So.2d 87, 90.

It is a fundamental principle of statutory interpretation that “[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature.” La. Civ.Code art. 9 (2004); McLane Southern, Inc., pp. 5-6, 84 So.3d at 483; Conerly v. State, 97-0871, p. 3-4 (La.7/8/98), 714 So.2d 709, 710-11. When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the words of law must be given their generally prevailing meaning. La. Civ.Code arts. 10 and 11 (2004); Lock-ett, 03-1767 at p. 4, 869 So.2d at 91; Ruiz v. Oniate, 97-2412, p. 4 (La.5/19/98), 713 So.2d 442, 444. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole, and laws on the same subject matter must be interpreted in reference to each other. LajRev.Stat.n § 1:3 (2004); La. Civ.Code. arts. 12 and 13; Lockett, OS-1767 at p. 4,869 So.2d at 91.

The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and placing a construction on the provision in question that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting it. Boyter, 99-0761 at p. 9, 756 So.2d at 1129; Stogner, 98-3044 at p. 5, 739 So.2d at 766. The statute must, therefore, be applied and interpreted in a manner that is consistent with logic and the presumed fair purpose and intention of the legislature in passing it. McLane Southern, Inc., pp. 5-6, 84 So.3d at 483; Boyter, 99-0761 at p. 9, 756 So.2d at 1129. This is because the rules of statutory construction require that the general intent and purpose of the legislature in enacting the law must, if possible, be given effect. McLane Southern, Inc., pp. 5-6, 84 So.3d at 483; Backhus v. Transit Cas. Co., 549 So.2d 283, 289 (La.1989). Courts should give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided. McLane Southern, Inc., pp. 5-6, 84 So.3d at 483; Boyter, 99-0761 at p. 9, 756 So.2d at 1129. It is likewise presumed that the intention of the legislative branch is to achieve a consistent body of law. Id.; Stogner, 98-3044 at p. 5, 739 So.2d at 766.

In Pumphrey, we explained that “[i]t is a fundamental principle in the construction of statutes that the meaning of a word or phrase may be ascertained by the meaning of other words or phrases with which it is associated.” 05-0979, p. 14, 925 So.2d at 1211. “[G]eneral words are not to be construed in their widest extent, but are to be held as applying only to such classes of things of the same general kind as those specifically mentioned.” Id. (citing Continental Group, Inc. v. Allison, 404 So.2d 428, 431 n. 4 (La.1981)).

|12We necessarily start with the language of the statutes under review. M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La.7/1/08), 998 So.2d 16, 27. At all pertinent times, La.Rev.Stat. 46:438.3 provided as follows:

A. No person shall knowingly present or cause to be presented a false or fraudulent claim.
B. No person shall knowingly engage in misrepresentation to obtain, or attempt to obtain, payment from medical assistance programs funds.
C. No person shall conspire to defraud, or attempt to defraud, the medical assistance programs through misrepresentation or by obtaining, or attempting to obtain, payment for a false or fraudulent claim.

The purpose of these provisions and MAPIL, enacted in 1997 by Act No. 1373, § 1, could not be more clearly stated by the legislature in La.Rev.Stat. 46:437.2(A): “to combat and prevent fraud and abuse committed by some health care providers participating in the medical assistance programs and by other persons and to negate the adverse effects such activities have on fiscal and programmatic integrity.” The legislature further stated its intention to designate the Department of Health and Hospitals, the attorney general, and private citizens as agents of the state “to pursue civil monetary penalties, liquidated damages, or other remedies to protect the fiscal and programmatic integrity of the medical assistance programs from health care providers and other persons who engage in fraud, misrepresentation, abuse, or other ill practices, as set forth in this Part, to obtain payments to which these health care providers or persons are not entitled.” The Attorney General does not argue that the defendants are health care providers within the meaning of the statutes, but instead focuses on the inclusion of “other 11spersons” who engage in fraud or misrepresentations against the medical assistance programs.

A claim is defined as including “any request or demand ... made against medical assistance programs for payment.” La.Rev.Stat. 46:437.3(6). A payment is defined as “the payment to a health care provider from medical assistance funds pursuant to a claim, or the attempt to seek payment for a claim.” La.Rev.Stat. 46:437.3(18). “Medical assistance programs” refers to Medicaid, Title XIX of the Social Security Act, “and other programs operated by and funded in the department which provide payment to health care providers.” La.Rev.Stat. 46:487.3(14). The record does not establish that the defendants ever made any request or demand for payment to a health care provider from medical assistance funds. Accordingly, we turn to the specific language of each provision of La.Rev.Stat. 46:438.8 to determine whether the defendants’ actions fall within the scope of the prohibited conduct.

La.Rev.Stat. 46:438.3(A)

La.Rev.Stat. 46:438.3(A) provides: “No person shall present or cause to be presented a false or fraudulent claim.” As noted above, there is no evidence the defendants ever presented a claim for payment from medical assistance funds. Accordingly, the Attorney General focuses on the language “or cause[s] to be presented a false or fraudulent claim.” The Attorney General contends the defendants’ conduct, in which they misrepresented the potential for known side effects from the use of Risperdal, caused a false or fraudulent claim to be presented for payment. The legislature has defined a “false or fraudulent claim” as follows: |14“A ‘false or fraudulent claim’ means a claim which the health care provider or his billing agent submits knowing the claim to be false, fictitious, untrue, or misleading in regard to any material information.” La. Rev.Stat. 46:437.3(8)(emphasis supplied). Thus, to be liable under this provision, the person liable under this provision must cause a health care provider or his billing agent to make a request or demand for payment from medical assistance program funds that the health care provider or his billing agent knows to be false, fictitious, untrue, or misleading. “Knowing” or “knowingly” means that “the person has actual knowledge of the information or acts in deliberate ignorance or reckless disregard of the truth or falsity of the information.” La.Rev.Stat. 46:437.3(12). Even if the defendants misrepresented the efficacy or safety of their product to Louisiana doctors, there is simply no evidence in this record, and moreover no allegation, that this misrepresentation in fact caused any health care provider or his billing agent to knowingly present a claim for payment that is false, fictitious, untrue, or misleading in regard to any material information.

The flawed interpretation of this provision advanced by the Attorney General is evidenced by examining the improper conduct that would have had to have been proven at trial. To be liable under this provision, the Attorney General would have had to show that a Louisiana doctor who prescribed Risperdal for his patient, or a health care provider who dispensed the drug to the patient, knew that the defendants had made misleading statements about their product, but nonetheless prescribed or dispensed the drug to the patient knowing that there may be drugs that are equally safe, and less expensive, or safer than Risperdal, and notwithstanding that knowledge, prescribed or dispensed Risperdal. Of course, the doctor or health care provider could have still medically determined that Risperdal is the more appropriate drug for a particular patient, despite the misleading 11fistatements of the defendants, in which case there could be no legitimate basis for alleging the doctor knowingly presented a false claim for payment. The doctor or health care provider would have had to have knowingly committed malpractice, prescribing or dispensing Risperdal despite knowing there were better, cheaper, or safer, more efficacious drugs available, for the defendants to be liable under this provision. Certainly the record contains no evidence that any doctor or health care provider knowingly committed malpractice based on the defendants’ improper marketing statements, and then submitted a claim for payment from medical assistance program funds.

The Attorney General places much emphasis on the second sentence in the definition of “false or fraudulent claim,” in which the legislature adds that a “[f]alse or fraudulent claim shall include a claim which is part of a pattern of incorrect submissions in regard to material information or which is otherwise part of a pattern in violation of applicable federal or state law or rule.” The Attorney General argues the defendants’ marketing statements constituted a pattern in violation of FDA rules. Again, even if this were so, and we assume for the sake of argument that the defendants’ conduct did initially run afoul of FDA DDMAC instructions, the clear wording of the statute is that the “claim,” i.e., the “request or demand ... made against medical assistance program funds for payment,” La.Rev.Stat. 437.3(6), must be shown to be part of a pattern of incorrect submissions in regard to material information or is part of a pattern of such claims in violation of federal law or rule. The Attorney General suggests the defendants’ labeling misstatements were “a pattern in violation of federal or state law or rule,” and that the claims for payment were “part” of that pattern. But such an interpretation is overly expansive, and loses sight of the original provision that requires that, to be liable under MAPIL, the person must have knowingly caused a health care 1 ^provider or its billing agent to present a claim for payment' the health care provider or its billing agent knew to be false or misleading. See La. Rev. Stats. 46:438.3(A) and 46:437.3(8). There is no evidence in this • record that the defendants’ improper marketing statements caused any health care provider or his billing agent to submit a claim for payment the provider or his agent knew was false or misleading or that violated a federal or state law or rule. Accordingly, we find that La.Rev.Stat. 46:438.3(A) does not apply to the defendants’ improper marketing statements.

La.Rev.Stat. 46:438.3(B)

La.Rev.Stat. 46:438.3(B) provides as follows: “No person shall knowingly engage in misrepresentation to obtain, or attempt to obtain, payment from medical assistance programs.” “Payment” is defined as “the payment to a health care provider from medical assistance program funds pursuant to a claim, or the attempt to seek payment for a claim.” La.Rev. Stat. 46:437.3(18). “Misrepresentation” is defined in MAPIL as “the knowing failure to truthfully or fully disclose any and all information required, or the concealment of any and all information required on a claim or a provider agreement or the making of a false or misleading statement to the department relative to the medical assistance programs.” La.Rev.Stat. 46:437.3(15). “Obtain” is not defined in MAPIL, but its common definition is “to gain or attain usually by planned action or effort.” Merriam-Webster.com. Merriam-Webster, n.d. Web. 14 Jan. 2014. <http:// www.merriam-webster.com/dictionary/ obtain>. Top of Form Although the Attorney General asserts the defendants engaged in “misrepresentation” in an attempt to obtain payment, and that they eventually received Medicaid funds as a result of the purchases of their product Risperdal by pharmacies and health care providers, there was no showing that the defendants attempted to obtain payment to a health care provider directly from medical assistance program funds pursuant to a claim. As the trial court itself |17found, there was no showing on the record that the defendants themselves at any time made or attempted to make a request or demand for payment from medical assistance program funds.

Further, we decline to read the definition of “misrepresentation” as proposed by the Attorney General. The Attorney General asserts that a “misrepresentation” may occur in four ways: (1) the knowing failure to truthfully or fully disclose any and all information required; (2) the concealment of any and all information required on a claim; (3) the concealment of any and all information required on a provider agreement; or (4) the making of a false or misleading statement to the department relative to the medical assistance programs. The Attorney General argues that the provision at issue is “the knowing failure to truthfully or fully disclose any and all information required,” without regard to whether or not the person deals directly with the Department of Health and Hospitals. The Attorney General argues that under La.Rev.Stat. 46:438.3(B), only “non-disclosures” by a person who knowingly obtains or attempts to obtain payment from medical assistance program funds are prohibited.

Aside from the fact there is no showing the defendants knowingly attempted to obtain payment from the medical assistance programs pursuant to a claim, as discussed above, the Attorney General’s proposed construction of the definition of “misrepresentation” is inconsistent with the purpose of MAPIL and could lead to absurd consequences. Although there is a disjunctive comma after “information required,” divorcing the clause “the knowing failure to truthfully or fully disclose any and all information required” from “on a claim or a provider agreement” renders the “information required” vastly broad in scope. The Attorney General does not specify who would determine what information is required, or when that information is required, or by whom it should be disclosed, but instead suggests the | ^“information required” in this case was the proper labeling instructions requested of the drug manufacturers by the FDA DDMAC. However, if that were the case, then nothing in the statute as construed by the Attorney General would limit the “information required” to information necessarily related to a claim for payment from the medical assistance program funds as administered by the Department of Health and Hospitals. Such a result would lead to absurd consequences, in that potentially any information required by any federal or state agency or source, which is not fully disclosed by any person who ultimately receives Medicaid funds, directly or indirectly, could, if not truthfully or fully disclosed, subject that person to civil penalties under MAPIL.

The clear intent of the legislature in enacting MAPIL is set forth in La. Rev Stat. 46:437.2(B), that is, “to protect the fiscal and programmatic integrity of the medical assistance programs from health care providers and other persons who engage in fraud, misrepresentation, abuse, or other ill practices ... to obtain payments to which these health care providers or persons are not entitled.” Reading the definition of “misrepresentation” in pari materia with this stated intent, as well as other portions of MAPIL, we determine that a “misrepresentation” under La.Rev. Stat. 46:437.3(15) is (1) the knowing failure to truthfully or fully disclose any information required on a claim or provider agreement; (2) the concealment of any and all information required on a claim or provider agreement; or (3) the making of a false or misleading statement to the department relative to the medical assistance programs. Disclose means to make something known. “Disclose.” Merriann-tyVeb-ster.com.19 Merriam-Webster, n.d. Web. 14 Jan. 2014. <http://www.merriam-webster. com/dictionary/disclose >. To conceal means to prevent disclosure or to place out of sight. “Conceal.” Merriawr-Web-ster.com. Merriam-Webster, n.d. Web. 14 Jan. 2014. <http://www.merriam-webster. com/dictionary/conceal >. The failure to disclose information is not necessarily the same act as the concealment of information, such as the destruction thereof, nor need it envision the same actor. Accordingly, our reading of La. Rev Stat. 46:437.3(15) logically places the obligation of truthful and full disclosure on the health care provider or any person seeking to obtain payment through a claim made against medical assistance program funds or entering into a provider agreement. It similarly prohibits the concealment by any person or health care provider of any and all information that may be required on a claim for payment or on a provider agreement.

In this case, there was no showing the defendants either failed to disclose or concealed information required on a claim for payment made against the medical assistance program funds. See La. Rev. Stats. 46:437.3(15) and (6). Further, there was no showing that the off-label statements, even if misleading, were made to the Department of Health and Hospitals relative to the medical assistance programs in an attempt to obtain payment on a claim made against the medical assistance programs. See La. Rev. Stats. 46:438.3(B) and 46:437.3(15). Accordingly, we find La. Rev.Stat. 46:438.3(B) also does not apply to the defendants’ improper marketing statements.

La.Rev.Stat. 46:438.3(0

Lastly we turn to La.Rev.Stat. 46:438.3(C), which provides as follows: “No person shall conspire to defraud, or attempt to defraud, the medical assistance programs through misrepresentation or by obtaining or attempting to obtain, payment for a false or fraudulent claim.” The defendants assert Paragraph (C) of La.Rev. Stat. 46:438.3 is a conspiracy statute, given that La.Rev.Stat. 46:438.3 itself was based on the federal False Claims Act, 31 U.S.C. § 3729(a)(l)(1986)j22(“FCA”). The defendants contend MAPIL Paragraph (A), as part of an expanding circle of violators, is directed to persons who present or cause the presentment of a false or fraudulent claim; Paragraph (B) is directed to persons who use false statements to obtain payment pursuant to a claim; and Paragraph (C) is directed to persons who conspire with others to use false statements to obtain payment pursuant to a claim. The Attorney General counters that there is a disjunctive comma between “conspire to defraud” and “or attempt to defraud,” such that there is no conspiracy element of the attempt to defraud medical assistance programs through misrepresentation. We need not decide whether there can be a conspiracy to attempt to defraud, as we find the evidence does not support a finding that the defendants violated Paragraph (C) by attempting to defraud the medical assistance programs through misrepresentation.

MAPIL was enacted with the express purpose of combatting fraud and abuse of the medical assistance programs through the use of punitive measures against any person or health care provider who seeks to obtain payment to which that person or health care provider is not entitled. La. Rev.Stat. 46:437.2(B). As outlined above, a “misrepresentation” under La.Rev.Stat. 46:437.3(15) is (1) the knowing failure to truthfully or fully disclose any information required on a claim or provider agreement; (2) the concealment of any and all information required on a claim or provider agreement; or (3) the making of a false or misleading statement to the department relative to the medical assistance programs. Even if the defendants were attempting to gain a competitive edge over other manufacturers of atypical anti-psychotics through the use of misleading off-label statements minimizing the potential risks of side effects from the use of their product,_J_2¡Risperdal, there has been no showing the defendants failed to truthfully or fully disclose or concealed any information required on a claim for payment made against the medical assistance programs, or that these statements were made to the department relative to the medical assistance programs. Further even if the defendants’ conduct was intended to influence the prescribing decisions of doctors treating schizophrenia patients, there has been no causal connection between this conduct and any false or fraudulent claim for payment to a health care provider or other person. The purpose of MAPIL is to prevent false or fraudulent claims from being presented to and paid by the medical assistance programs. Thus, there must be a causal link between the misleading marketing statement and a false or fraudulent claim for payment to a health care provider or other person to establish liability under MAPIL. Accordingly, we find La. Rev.Stat. 46:438.3(0 also does not apply to the defendants’ improper marketing statements.

CONCLUSION

For the reasons set forth above, we find the Attorney General failed to prove the defendant drug manufacturers, by misrepresenting through off-label statements the potential for the risk of side effects from the use of Risperdal, violated provisions of the Louisiana Medical Assistance Programs Integrity Law, La.Rev.Stat. 46:438.3. Having determined the legislature’s intended scope of MAPIL, we find the Attorney General failed to establish sufficient facts to prove a cause of action against the defendants under MAPIL. There was insufficient evidence adduced that any defendant engaged in fraud, misrepresentation, abuse or other ill practices seeking to obtain, pursuant to a claim made against the medical assistance program funds, payments to health care providers or other persons to which the health care providers or other persons were not entitled. Because we find the Attorney General failed to prove a violation of MA-PIL, we pretermit discussion of lathe remaining evidentiary and penalty issues. We hereby reverse the district court’s judgment in favor of the Attorney General, and render judgment in favor of the defendants.

DECREE

REVERSED.

JOHNSON, Chief Justice, dissents for reasons assigned by Justice HUGHES.

KNOLL, Justice, dissents for the reasons assigned by Justice HUGHES.

HUGHES, Justice, dissents with reasons.

HUGHES, J.,

dissenting.

1 tWith respect, the majority opinion conflates the subparts of the definition of “misrepresentation” to include the requirement of a “claim” not provided by the statute.

While acknowledging that LSA-R.S. 46:438.3(C) proscribes an attempt to defraud the medical assistance programs through misrepresentation, the majority cites LSA-R.S. 46:437.3(15) defining misrepresentation as three subparts: “(1) the knowing failure to truthfully or fully disclose any information required on a claim or provider agreement; (2) the concealment of any and all information required on a claim or provider agreement; or (3) the making of a false or misleading statement to the department relative to the medical assistance programs.” Opinion at page 20 (emphasis added).

However, the definition of misrepresentation actually provides:

“Misrepresentation” means the knowing failure to truthfully or fully disclose any and all information required, or the concealment of any and all information required on a claim or a provider agreement or the |2making of a false or misleading statement to the department relative to the medical assistance programs. [Emphasis added.]

Thus the majority erroneously writes in the requirement of “a claim or provider agreement” to the “failure to truthfully or fully disclose” subpart of the definition. But the disjunctive “or” cannot be ignored; the requirements of the second subpart cannot leap across the “or” to be grafted onto the first. When the majority states that “there has been no showing the defendants failed to truthfully or fully disclose or concealed any information required on a claim for payment made against medical assistance programs, or that these statements were made to the department relative to the medical assistance programs” (opinion at page 21), all three subparts of the definition are conflated to impose upon the plaintiff a burden the legislature did not.

The three subparts of the definition of misrepresentation separated by the conjunctive “or” each stand alone in accordance with the accepted legislative interpretation. To conflate the provisions of one subpart to reach a desired result with another subpart is unsupportable.

The majority further attempts to insert a non-existent “claim” requirement into LSA-R.S. 46:438.3(C) by reference to the “purpose” of the law. The majority writes: “The purpose of MAPIL is to prevent false or fraudulent claims from being presented to and paid by the medical assistance programs. Thus, there must be a causal link between the misleading marketing statement and a false or fraudulent claim for payment to a health care provider or other person to establish liability under MAPIL.” Opinion at page 21 (emphasis added).

|sThis desired result of the majority is likewise unsupported by the actual words of the law.

Louisiana Revised Statute 46:437.2 provides:

A. This Part is enacted to combat and prevent fraud and abuse committed by some health care providers participating in the medical assistance programs and by other persons and to negate the adverse effects such activities have on fiscal and programmatic integrity-
B. The legislature intends the secretary of the Department of Health and Hospitals, the attorney general, and private citizens of Louisiana to be agents of this state with the ability, authority, and resources to pursue civil monetary penalties, liquidated damages, or other remedies to protect the fiscal and programmatic integrity of the medical assistance programs from health care providers and other persons who engage in fraud, misrepresentation, abuse, or other ill practices, as set forth in this Part, to obtain payments to which these health care providers or persons are not entitled.

This broad statement of intent and purpose is much more consistent with the findings of the jury and the court of appeal that by violating federal labeling laws the defendants violated LSA-R.S. 46:438.3 than with the attempt by the majority to limit its application by writing into the law requirements the legislature did not.

In any event, “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” LSA-C.C. art. 9.

One cannot seriously argue that an anti fraud and abuse statute that penalizes one who violates federal drug labeling laws to the detriment of the citizens of Louisiana presents an absurd consequence.

It is the duty of the legislature, not judges, to make the law. Judges may not like the law, they may even consider it unwise, but they have a duty to apply the law as written. Judicial re-writing of the law to achieve a desired result and overturn a jury verdict is inimical to our system of separated powers.

      . Over the course of the litigation, Janssen Pharmaceutica, Inc., was succeeded by Jans-sen, L.P., and then, at the time of trial, by Ortho-McNeil-Janssen Pharmaceuticals, Inc., the entity appearing before this court along with Johnson & Johnson.

      . The defendants believed the warning did not adequately differentiate between Risperdal and its main competitor, Zyprexa, especially with regard to the risk of weight gain and diabetes. Consequently, the defendants asked the FDA to omit the following statements from the proposed warning to be added to the product labeling: (1) that hyperglycemia was "in some cases extreme and associated with ketoacidosis or hyperosmolar coma or death”; (2) that "epidemiological studies suggest an increased risk of treatment emergent hyperglycemia-related adverse events in patients treated with the atypical antipsychotics studied;” (3) that ”[p]recise risk estimates for hyperglycemia-related adverse events in patients treated with atypical antipsychotics are not available”; (4) that "[t]he available data are insufficient to provide reliable estimates of differences in hyperglycemia related adverse event risk among the marketed atypical antipsychotics”; and (5) that patients who are "starting treatment” with atypical antipsy-chotics should "undergo blood glucose testing at baseline.” The requests to omit the first three of these statements were denied, but the FDA agreed to omit the fourth statement and to change "baseline” in the fifth statement to "at the beginning of treatment."

      . The defendants' November 10, 2003 DHCP letter was actually mailed out several weeks prior to the FDA’s request for a DHCP; the defendants asked that the FDA consider this DHCP letter as having satisfied the FDA request. The defendants point out that they heard nothing from the FDA until April 19, 2004.

      . Although the title of the Third Circuit opinion styled the name of one of the defendants as "Janssen Pharmaceutical, Inc.,” we note that the Attorney General’s petition in the district court, as well as the defendant’s answer, the district court’s title of the case, and the evidence submitted in the district court, all reflect the defendant's correct name was "Janssen Pharmaceutica, Inc." Though the discrepancy was carried forward in this court’s actions, granting writ applications of the parties, the error has been corrected in the title of this opinion.

      . Whether MAPIL applies to the conduct alleged was raised initially in the defendants’ motion for summary judgment. In denying the motion, the district court relied on State of West Virginia ex rel. Darrell V. McGraw, Jr., Attorney General v. Johnson & Johnson et al., Civil Action No. 04-C-156, Circuit Court of Brook County, West Virginia, in which that court, interpreting West Virginia’s consumer protection law, found that, for the purposes of determining an appropriate civil penalty, as a matter of law, whenever false or misleading promotional materials that concern health are delivered to the public, or its healthcare providers, such promotional materials in and of themselves cause harm and injury. The district court here then reasoned that "proof of delivery to the public or to healthcare providers of false or misleading promotional materials concerning Risperdal may be used by the plaintiff in an attempt to establish a MAPIL claim.” Not-only did the district court’s interpretation not comport with traditional civilian statutory analysis, but the West Virginia circuit court relied on by the district court was itself reversed by a superior court. See State ex rel. McGraw v. Johnson & Johnson, 226 W.Va. 677, 704 S.E.2d 677 (2010).
      The issue was raised again prior to trial. The district court believed the Attorney General’s theory pf the case "is to attempt to show that none of those prescriptions, or many of them, should not or may not have been written because the doctors weren’t given full information. That’s their theory. I don't know whether it’s right or not.” The district court, after reviewing the language of the statutes and its prior ruling on the motion for summary judgment, found that "if [the Attorney General and the State] prove false, misleading, misrepresentative, deceitful, in-
        teat to defraud type statements, attempts to defraud type statements, that in and of itself is the causation they need to get to their penalty statute.” On appeal, rather than properly reviewing the question of law de novo, see Red Stick Studio v. State ex rel. Dept, of Econ. Dev., 10-0193 (La. 1/19/11), 56 So.3d 181, 187, the court of appeal found the district court’s interpretation reasonable and not an abuse of the district court's discretion.

      . La.Rev.Stat. 46:438.3 was amended in 2007, by Act No. 14, § 1, and again in 2009, by Act No. 426, § 1.

      . La.Rev.Stat. 46:437.3(10) defines a "health care provider” as "any person furnishing or claiming to furnish a-good, service or supply under the medical assistance programs, any other person defined as a health care provider by federal or state law or by rule, and a provider-in-fact.” The record establishes the defendants did not furnish Risperdal directly to patients or to the medical assistance programs.

      . Provider agreements and the requirements therefore are set forth in La. Rev. Stats. 46:437.11 and 46:437.12.

      . “The civil False Claims Act imposes liability on any person who knowingly submits, or causes the submission of, a false or fraudulent claim for money to the government.” See 31 U.S.C. § 3729; United States v. Southland Mgmt. Corp. (Southland I), 288 F.3d 665, 674 (5th Cir.2002), vacated on reh’g en banc on other grounds, 326 F.3d 669 (5th Cir.2003).

      . Louisiana Revised Statute 1:9 provides: Unless it is otherwise clearly indicated by the context, whenever the term "or” is used in the Revised Statutes, it is used in the disjunctive and does not mean "and/or”.

      . The jury determined that the defendants violated all three sections (Paragraphs (A), (B), and (Q) of LSA-R.S. 46:438.3.


author: PER CURIAM. KNOLL, J.,

text:
    In re Seth CORTIGENE and Newton B. Schwartz, Sr.
    Nos. 2013-B-2022, 2013-B-2172.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
    Rehearing Denied May 2, 2014.

      Office of Disciplinary Counsel, Charles Bennett Plattsmier, Chief Disciplinary Counsel, G. Fred Ours, Michael Patrick Wilson, Deputy Disciplinary Counsels, for Applicant (No. 2013-B-2022).
    Newton B. Schwartz, Sr., Pro Se, The Cortigene Law Firm, Seth Cortigene, for Respondent (No. 2013-B-2022).
    Newton B. Schwartz, Sr., Pro Se, The Cortigene Law Firm, Seth Cortigene, for Applicant (No. 2013-B-2172).
    Office of Disciplinary Counsel, Charles Bennett Plattsmier, Chief Disciplinary Counsel, G. Fred Ours, Michael Patrick Wilson, Deputy Disciplinary Counsels, for Respondent (No. 2013-B-2172).
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 These consolidated disciplinary proceedings arise from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondents, Seth Corti-gene and Newton B. Schwartz, Sr. Mr. Cortigene is an attorney licensed to practice law in the States of Texas and Louisiana, but currently ineligible to practice in Louisiana due to his failure to comply with his professional obligations. Mr. Schwartz is licensed to practice law only in Texas and Pennsylvania; however, the ODC asserts jurisdiction over him in this matter pursuant to Supreme Court Rule XIX, § 6(A) and Rule 8.5 of the Rules of Professional Conduct, which together extend this court’s disciplinary authority to lawyers who provide or offer to provide legal services in Louisiana.

| ¡/UNDERLYING FACTS AND PROCEDURAL HISTORY

The facts of this case are rather complex, but for purposes of 'this opinion, it is only necessary to observe that respondents represented Jay Watts in connection with litigation over a work-related diving accident. Mr. Watts’ employer filed suit in the United States District Court for the Eastern District of Louisiana. The undisputed facts reveal that Mr. Schwartz attended and participated in the deposition of Mr. Watts taken in New Orleans, although he was not licensed or admitted to practice pro hac vice in Louisiana at any time during the litigation. Moreover, as the litigation progressed, Mr. Schwartz knew that he was listed on the federal court’s docket as an attorney of record, yet he still did not seek pro hac vice admission or even notify the federal court that he was not admitted as counsel of record.

The ODC subsequently charged Mr. Schwartz with several violations of the Rules of Professional Conduct, including the unauthorized practice of law. Mr. Schwartz answered the formal charges and asserted that Louisiana has no jurisdiction over him because he has not been licensed or admitted to practice pro hac vice in Louisiana at any time pertinent hereto, and he did not provide or offer to provide any legal services in this state. Mr. Schwartz also contended that formal charges cannot be filed against him in Louisiana arising out of the Watts case because he was acquitted by a jury of similar charges of misconduct in a Texas disciplinary proceeding premised upon alleged violations of the Texas Disciplinary Rules of Professional Conduct, and that judgment should be given full faith and credit in Louisiana.

| oThe ODC charged Mr. Cortigene with facilitating Mr. Schwartz’s misconduct and failing to report it to disciplinary authorities. Mr. Cortigene answered the formal charges and admitted that he was co-eoun-sel in the Watts case and handled certain aspects of the litigation; however, he denied any violation of the Rules of Professional Conduct.

The matter proceeded to a hearing. The hearing committee recommended that Mr. Cortigene be disbarred, and that Mr. Schwartz be publicly reprimanded for his misconduct and enjoined from the practice of law in this state.

The disciplinary board largely adopted the committee’s findings and recommendations. With regard to Mr. Cortigene, the board recommended he be disbarred. This recommendation was lodged in this court under docket number 13-B-2022. Neither Mr. Cortigene nor the ODC has objected to the board’s recommendation of disbarment.

As to Mr. Schwartz, the board agreed that disbarment would be the appropriate sanction for his misconduct; however, because he is not a member of the Louisiana bar, the board ordered that Mr. Schwartz be publicly reprimanded and permanently enjoined from the practice of law in this state. Mr. Schwartz filed an appeal of the board’s ruling objecting to the exercise of any jurisdiction over him in this matter. In response to Mr. Schwartz’s appeal, the board lodged the record of the matter in this court’s docket number 13-B-2172. The ODC has likewise objected, asserting that the board erred in concluding that Mr. Schwartz cannot be disbarred in Louisiana.

On September 13, 2013, we ordered that 13-B-2172 and 13-B-2022 be consolidated for purposes of briefing and argument, and that the consolidated matters be scheduled on the next available docket for oral argument.

1 ¿DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150. In this matter, given that there are two respondents charged with separate misconduct, we will address each in turn.

Mr. Schwartz

At the outset, we note the ODC has charged Mr. Schwartz with multiple violations of the Rules of Professional Conduct stemming from his representation of Mr. Watts. The most serious of these charges relates to the allegation that Mr. Schwartz engaged in the unauthorized practice of law in Louisiana. Because the magnitude of an unauthorized practice of law finding would eclipse any lesser misconduct, our focus will be on this charge.

The hearing committee made a finding of fact that Mr. Schwartz engaged in the practice of law in this state by appearing at and participating in a deposition. The record supports this finding. In particular, the record shows that Mr. Schwartz participated in the deposition of Mr. Watts taken in New Orleans by another party. Mr. Schwartz admitted that he advised Mr. Watts “once or twice” to either answer or not answer a particular question, although he stated that Mr. Cortigene “predominantly did the questioning and the objecting.” Our jurisprudence establishes that participation in out-of-court proceedings such as depositions and 15sworn state-merits constitutes the practice of law. See In re: Jackson, 02-8062 (La.4/9/03), 848 So.2d 1079; In re: Williams, 02-2698 (La.4/9/03), 842 So.2d 353. Additionally, we find the record establishes that Mr. Schwartz knew he was listed on the federal court’s docket as an attorney of record in the Watts case, yet he still did not seek pro hac vice admission or even notify the federal court that he was not admitted as counsel of record.

Finding clear and convincing evidence that Mr. Schwartz engaged in the unauthorized practice of law, we now turn to consideration of an appropriate sanction for this misconduct. We have' consistently found the unauthorized practice of law to be very serious misconduct. In re: Lindsay, 07-1813 (La.3/7/08), 976 So.2d 1261; In re: Patrick, 07-1222 (La.12/14/07); 970 So.2d 964; In re: Jefferson, 04-0239 (La.6/18/04), 878 So.2d 503; In re: Callahan, 02-2960 (La.5/20/03), 846 So.2d 728. Our legislature has made it a felony to engage in such conduct. La. R.S. 37:213. Likewise, we have listed the unauthorized practice of law by a suspended or disbarred attorney as a possible ground for permanent disbarment under the Guidelines Depicting Conduct Which Might Warrant Permanent Disbarment contained in Supreme Court Rule XIX, Appendix E.

Nonetheless, we have observed that “not all instances of the unauthorized practice of law warrant the most severe sanction.” Jackson, 02-3062 at p. 5, 843 So.2d at 1083. Rather, in cases of the unauthorized practice of law, our jurisprudence has reserved the most severe sanctions for those attorneys who have “manifested a conscious intent to flout the authority of this court by practicing after being prohibited from doing so.” Jackson, 02-3062 at p. 5, 843 So.2d at 1082. In |ficases where the unauthorized practice of law is a product of negligence rather than intent, we typically impose lesser sanctions than disbarment. See e.g., In re: Ellis, 99-2483 (La.9/15/99), 742 So.2d 869 (imposing a ninety-day suspension on a previously suspended attorney who failed to remove the “attorney at law” designation from his office).

In the instant case, it cannot be said that Mr. Schwartz manifested a conscious intent to flout the authority of this court by practicing after being prohibited from doing so, as he was never admitted to the bar of this state, nor has he ever been the subject of any disciplinary orders from this court. Indeed, Mr. Schwartz could have acted as counsel in the Watts matter if he had simply filed a motion for pro hac vice admission with the federal district court, as he had done in prior cases. Therefore, to the extent he has not violated any direct orders from this court, we do not find Mr. Schwartz’s conduct warrants the highest level of discipline.

However, the record establishes Mr. Schwartz’s conduct was not purely negligent, as in those cases imposing the lowest range of discipline. Mr. Schwartz’s testimony reveals he was aware of his obligation to seek pro hac vice admission and consciously chose not to do so. Although he did not violate any specific court orders, he manifested a lack of candor toward the federal district court.

Under such circumstances, we find Mr. Schwartz’s conduct, while not warranting disbarment, still calls for a substantial suspension. Accordingly, we conclude the appropriate sanction for such misconduct would be a three-year suspension.

Having determined discipline is appropriate under these facts, we now turn to the res nova issue presented by this case — namely, whether this court may impose discipline on an attorney not admitted to the bar of this state. Supreme [7Court Rule XIX, § 10(A) sets forth the list of available sanctions. The board concluded the majority of these sanctions impact the attorney’s license and are therefore inapplicable to an attorney not admitted in this state. Rather, the board reasoned the only sanction applicable to a non-Louisiana attorney would be a public reprimand.

We disagree. While Supreme Court Rule XIX, § 10(A) lists the sanctions we typically impose in disciplinary cases, it was not intended to represent an exclusive list, nor does it represent a limitation on our plenary authority to regulate the practice of law. In Succession of Wallace, 574 So.2d 348 (La.1991), we stated:

This court has exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship. LSBA v. Edwins, 540 So.2d 294 (La.1989); Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 109, 115 (La.1979); LSBA v. Connolly, 201 La. 342, 9 So.2d 582 (1942); Ex Parte Steckler, 179 La. 410, 154 So. 41 (1934); Meunier v. Bemich, 170 So. 567 (La.App.1936). The sources of this power are this court’s inherent judicial power emanating from the constitutional separation of powers, La. Const.1974, Art. II; Saucier v. Hayes Dairy Products, Inc., supra; Ex Parte Steckler, supra; Meunier v. Bemich, supra, the traditional inherent and essential function of attorneys as officers of the courts, Ex Parte Steckler, supra; Meu-nier v. Bemich, supra; and this court’s exclusive original jurisdiction of attorney disciplinary proceedings. La. Const. 1974, Art. V, § 5(B); Saucier v. Hayes Dairy Products, Inc., supra.

In the exercise of this plenary power to define and regulate the practice of law, we have the right to fashion and impose any sanction which we find is necessary and appropriate to regulate the practice of law and protect the citizens of |sthis state. This power is broad enough to encompass persons not admitted to the bar who attempt to practice law in this state. See In re: Jordan, 12-0551 (La.4/9/12), 85 So.3d 683 (permanently enjoining a bar applicant from seeking admission in this state based on a finding that she repeatedly engaged in the unauthorized practice of law). Applying the reasoning of Jordan, we find that in the exercise of our plenary authority, we may enjoin a non-Louisiana lawyer from seeking the benefits of a full or limited admission to practice in this state.

Accordingly, we hereby adjudge Mr. Schwartz guilty of conduct which would warrant a three-year suspension from the practice of law if he was a member of our bar. Recognizing that he is not a member of the bar, we order that Mr. Schwartz shall be enjoined for a period of three years from the date of this order from seeking full admission to the Louisiana bar or seeking admission to practice in Louisiana on any temporary or limited basis, including, but not limited to, seeking pro hae vice admission before a Louisiana court pursuant to Supreme Court Rule XVII, § 13 or seeking limited admission as an in-house counsel pursuant to Supreme Court Rule XVII, § 14. We will further direct the ODC to report our judgment to all jurisdictions in which Mr. Schwartz is currently admitted.

Mr. Cortigene

The ODC charged Mr. Cortigene with facilitating Mr. Schwartz’s misconduct and failing to report it to disciplinary authorities. The hearing committee and disciplinary board both recommended Mr. Corti-gene be disbarred. He has not objected to that recommendation in this court.

Our review indicates the findings and recommendations of the hearing committee and disciplinary board are supported by the record. Considering the presence of aggravating factors, particularly Mr. Corti-gene’s prior disciplinary 1arecord, we will adopt the disciplinary board’s recommendation and order that Mr. Cortigene be disbarred.

DECREE

Upon review of the findings and recommendation of the hearing committee, the findings, recommendation, and ruling of the disciplinary board, and considering the record, briefs, and oral argument, the court hereby renders the following orders of discipline:

It is ordered that Seth Cortigene, Louisiana Bar Roll number 19528, be and he hereby is disbarred. Mr. Cortigene’s name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked.

It is further ordered that Newton B. Schwartz, Sr. shall be enjoined for a period of three years from seeking admission to the Louisiana bar or seeking admission to practice in Louisiana on a temporary or limited basis, including, but not limited to, seeking pro hac vice admission before a Louisiana court pursuant to Supreme Court Rule XVII, § 13 or seeking limited admission as an in-house counsel pursuant to Supreme Court Rule XVII, § 14. The Office of Disciplinary Counsel is directed to report this judgment to all jurisdictions in which Mr. Schwartz is currently admitted.

All costs and expenses in the matter are assessed against respondents in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

KNOLL, J., dissents in part with reasons.

KNOLL, J.,

dissenting.

hi agree with the majority that clear and convincing evidence clearly shows Mr. Schwartz not only knowingly engaged in the unauthorized practice of law in Louisiana, but also acted with deceit. In my view, this intentional and indefensible conduct merits the harshest of sanctions, thus I disagree with the sanction imposed by the majority.

As the majority astutely noted, we have consistently found the unauthorized practice of law very serious, felonious misconduct and even grounds for permanent disbarment. In re: Lindsay, 07-1813 (La.3/7/08), 976 So.2d 1261; In re: Patrick, 07-1222 (La.12/14/07); 970 So.2d 964; In re: Jefferson, 04-0239 (La.6/18/04), 878 So.2d 503; In re: Callahan, 02-2960 (La.5/20/03), 846 So.2d 728; La.Rev.Stat. § 37:213; see also Guidelines Depicting Conduct Which Might Warrant Permanent Disbarment contained in Supreme Court Rule XIX, Appendix E. While we have never addressed the question of the appropriate sanction for a non-admitted lawyer who engages in the unauthorized practice of law, I, unlike the majority, find guidance in our recent decision of In re: Jordan, 12-0551 (La.4/9/12), 85 So.3d 688. In that case, the petitioner previously sought admission to the bar and was denied. Thereafter, while working as a paralegal, petitioner engaged in the unauthorized practice of law. Considering these facts, we permanently enjoined petitioner from seeking admission to the bar:

^Standing alone, the unauthorized practice of law conclusively demonstrates that petitioner lacks the moral fitness to be admitted to the bar. The improper fee-sharing and the conduct arising out of the incident in law school simply serve to underscore the conclusion that petitioner possesses serious and fundamental character flaws.
Given the egregious nature of petitioner’s wrongdoing, as well as her pattern of conduct occurring over many years, we can conceive of no circumstance under which we would ever grant her admission to the practice of law in this state. Accordingly, we will deny her application for admission. Furthermore, no applications for admission will be accepted from petitioner in the future.

Jordan, 12-0551 at pp. 4-5, 85 So.3d at 685-86 (emphasis added; footnote omitted.)

Like Mr. Schwartz, the petitioner in Jordan was not a member of the Louisiana bar. Nonetheless, we sanctioned her by prohibiting her from seeking admission to the bar in the future. Following this reasoning, I And the appropriate sanction in the instant case is to adjudge Mr. Schwartz guilty of conduct warranting permanent disbarment. Though I acknowledge we cannot disbar an attorney who is not a member of the Louisiana bar, I believe we must take steps to protect the citizens of this state from any future misconduct by Mr. Schwartz. Accordingly, I would order Mr. Schwartz be permanently enjoined from seeking admission to the Louisiana bar or seeking admission to practice in Louisiana on any temporary or limited basis, including, but not limited to, seeking pro hac vice admission before a Louisiana court pursuant to Supreme Court Rule XV II, § 13 or seeking limited admission as an in-house counsel pursuant to Supreme Court Rule XVII, § 14. Additionally, I would order the ODC to give notice of this judgment to the disciplinary authorities of any state in which Mr. Schwartz is admitted to practice. For these reasons, I respectfully dissent.

      .’ Mr. Cortigene has been ineligible to practice law in Louisiana since September 9, 2009 for failure to pay his bar dues and the disciplinary assessment. He is also ineligible for failure to file a trust account registration statement and for failure to comply with the mandatory continuing legal education requirements.
      In 2011, we considered a reciprocal discipline proceeding against Mr. Cortigene arising out of the same client matter as is at issue here. For Mr. Cortigene’s failure to abide by his client's decision whether to accept a settlement offer and failure to communicate with his client, we imposed a fully deferred three-year suspension, based upon the discipline imposed against Mr. Cortigene in a default proceeding in Texas. In re: Cortigene, 11-1564 (La. 10/14/11), 72 So.3d 828.

      . Pursuant to the Texas Rules of Disciplinary Procedure, a lawyer against whom formal charges of misconduct have been filed may elect to have the formal charges heard in a district court of proper venue, with or without a jury, or by a grievance committee evidentia-ry panel. Mr. Schwartz elected a jury trial in the Texas disciplinary proceeding against him for providing improper financial assistance to Mr. Watts and improperly soliciting his professional employment, and the jury unanimously found no professional misconduct on the part of Mr. Schwartz.

      . Based on this finding, we pretermit discussion of the remaining charges, including allegations Mr. Schwartz engaged in solicitation and provided improper financial assistance to a client. As a result, we need not address Mr. Schwartz’s argument that we must give full faith and credit to the Texas judgment acquitting him of similar charges in that state. Additionally, because Mr. Schwartz's unauthorized practice of law unquestionably took place in Louisiana, we need not discuss his jurisdictional objections.

      . Supreme Court Rule XIX, § 10(A) lists eight sanctions in disciplinary cases. These sanctions are: (1) disbarment; (2) suspension; (3) probation; (4) reprimand; (5) admonition; (6) restitution; (7) limitation on the nature and extent of the respondent's future practice; and (8) diversion.


author: PER CURIAM. KNOLL, J., HUGHES, J.,

text:
    Shenan Smith PURVIS v. GRANT PARISH SCHOOL BOARD and Jana Lashley.
    No. 2013-C-1424.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
    Rehearing Denied April 4, 2014.

      Hammonds, Sills, Adkins & Guice, LLP, Jon Keith Guice, Baton Rouge, LA, Linda Kay Ewbank, Neal Lane Johnson, Jr., Monroe, LA, for Applicant.
    Flournoy & Doggett, George Arthur Flournoy, Alexandria, LA, for Respondent.
   PER CURIAM.

| defendants, Grant Parish School Board and Jana Lashley, seek review of a ruling of the court of appeal amending the district court’s allocation of fault, and increasing plaintiffs damage award. For the reasons that follow, we now reverse the judgment of the court of appeal, and reinstate the district court’s judgment in its entirety.

UNDERLYING FACTS AND PROCEDURE

This case arises from a collision between an automobile and school bus which occurred in the curve of a narrow portion of J.D. Camp Road in rural Grant Parish. Plaintiff, Shenan Smith Purvis, and her passenger, Jessica Thomisee, were traveling southbound, and Jana Lashley, a school bus driver, was traveling northbound. The road had no striped centerline of demarcation. As the drivers entered the curve, the left-front portions of the two vehicles collided.

As a result of the accident, plaintiff filed the instant suit against Ms. Lashley, and her employer, Grant Parish School Board (“GPSB”). The matter proceeded to a bench trial, at which time liability and damages were bifurcated.

|gAt the conclusion of the liability portion of the trial, the district court apportioned 40% fault to plaintiff, and 60% to defendants. In its “Memorandum Ruling and Reasons for Judgment,” the district court stated, in pertinent part:

The vehicles did not strike each other head on. Likely, each was attempting to drive in their respective lanes. However, due to the nature of the road (unpaved, no middle lane [sic]) at this particular spot (a bend or curve in the road) and given the large size of the school bus compared to the smaller size of the plaintiffs car, it is most likely that while driving along the road, and especially when maneuvering the curve, the left side of the school bus was encroaching over the center of the road, and was partly in the plaintiffs lane.
Given the large size of the school bus, plaintiff may not have been able to avoid collision altogether. The court heard conflicting testimony regarding the moments before the collision. Plaintiff testified that defendant was looking down while defendant maintains that she attempted to alert the other vehicle by repeatedly honking her horn. Also noteworthy is that the plaintiffs car was not knocked completely off the roadway as a result of the impact. This lends support that the plaintiffs vehicle, while not improperly in the middle of the road so as to collide head on with defendant, may- have been hugging the center lane [sic] just enough so that the left corner of the bus snipped into the left corner of plaintiffs vehicle. It is the finding of this court that both parties were at fault in this accident.
The court apportions 60% of the fault to the defendant and 40% to the plaintiff.

In lieu of a trial on damages, the parties agreed to submit depositions and medical records. After reviewing the submissions, the district court awarded plaintiff property damages of $6,834.50, rental car expenses of $2,133.15, past medical expenses of $27,822.83, and general damages of $7,500. The court declined to make any award of future medical expenses or lost wages. It assessed costs against the parties in accordance with their respective percentages of fault.

[ ^Plaintiff appealed. A divided panel of the court of appeal' reversed the district court’s judgment in part. Purvis v. Grant Parish School Bd., 12-1325 (La.App. 3 Cir. 5/15/13), — So.3d-, 2013 WL 1975891.

The majority of the court found the district court was manifestly erroneous in determining plaintiff was 40% at fault for the accident. In support of this conclusion, the court of appeal noted the district court determined plaintiff “was not improperly in the middle of the road,” yet assessed her with fault. The court of appeal found that, with the exception of Ms. Lashle/s testimony, all other accounts have plaintiff traveling in her own lane, while Ms. Lash-ley was inattentive at the time of the accident. Accordingly, the court of appeal reversed the district court’s allocation of fault, and held defendants were 100% at fault in causing the accident.

Turning to damages, the court of appeal found the award of $7,500 in general damages to be abusively low, and found the lowest amount the district court could have reasonably awarded to be $35,000. Regarding future medical expenses, the court of appeal found plaintiff met her burden of proving by a preponderance of the evidence that more probably than not the expenses would be incurred, and plaintiff presented medical testimony that the expenses are necessary. Accordingly, the court of appeal awarded plaintiff future medical expenses of $24,006.25. Additionally, it taxed all costs to defendants.

One judge in the court of appeal dissented, and adopted the district court’s reasons for judgment as- his dissent. Another judge dissented, finding the district court’s judgment was not manifestly erroneous, and indicated he “would affirm the trial judge’s decision on all issues.”

Upon the defendants’ application, we granted certiorari to consider the correctness of this ruling. Purvis v. Grant Parish School Bd., 13-1424 (La.10/4/13), |4122 So.3d 546. The sole issue presented for our consideration is whether the court of appeal erred in reversing the district court’s allocation of fault and in increasing plaintiffs damage award.

DISCUSSION

Fault

A trial court’s findings regarding percentages of fault are factual, and will not be disturbed on appeal unless clearly wrong. Socorro v. City of New Orleans, 579 So.2d 931 (La.1991). In Stobart v. State, through DOTD, 617 So.2d 880 (La. 1993), this court set forth a two-part test for the reversal of the fact-finder’s determinations:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

This test dictates that a reviewing court must do more than simply review the record for some evidence that may controvert the trial court ruling. Rather, it requires a review of the entire record to determine whether manifest error has occurred. Thus, the issue before the court of appeal is not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. London Towne Condominium Homeowner’s Association v. London Towne Company, 06-401 (La.10/17/06), 939 So.2d 1227. Where the fact-finder’s determination is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985), this court set forth a number of factors to be considered in allocating fault pursuant to IfiLa. Civ.Code art 2323. These are 1) whether the conduct was inadvertent or involved an awareness of the danger, 2) how great a risk was created by the conduct, 3) the significance of what was sought by the conduct, 4) the capacities of the actors, and 5) any extenuating factors which might require the actor to proceed with haste, without proper thought.

In the instant case, the district court was faced with conflicting testimony concerning how the accident took place. Plaintiff testified that as she approached the curve, she saw Ms. Lashley looking down and crossing into her lane. Plaintiffs passenger likewise testified Ms. Lashley was looking down and crossed the center of the road. However, Ms. Lashley testified plaintiff “was in the middle of the road” before the accident occurred, and the point of impact was in her (Ms. Lash-ley’s) lane of travel.

A review of the district court’s reasons for judgment indicate the district court allocated a percentage of fault to plaintiff based on a finding that she breached her duty to “drive defensively from the time she witnesses negligent operation of another vehicle,” and “to slow down or otherwise avoid risk posed by a vehicle ahead.” This finding is supported by Ms. Lashley’s testimony at trial that plaintiff “came around the curve so fast in the center til it was just, I mean, by the time — she had already hit me and I applied the brakes.”

In reaching its conclusion, the district court acknowledged that plaintiffs vehicle was “not improperly in the middle of the road so as to collide head on with defendant,” and explained that given the “large size of the school bus, plaintiff may not have been able to avoid collision altogether.” Nonetheless, the district court determined plaintiffs vehicle “may have been hugging the center lane just enough so that the left corner of the bus snipped into the left corner of plaintiffs vehicle.” | fiBased on these findings, the district court concluded that plaintiff should bear some fault for the accident.

Because there was little objective evidence in this case, the district court’s findings were based in large measure on credibility determinations. In such cases, this court has emphasized the importance of deferring to the trier of fact’s findings, “as the trier of fact is not disadvantaged by the review of a cold record,” and “is in a superior position to observe the nuances of demeanor evidence not revealed in a record.” Adkins v. Huckabay, 99-3605 at p. 16 (La.2/25/00), 755 So.2d 206, 215. See also Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973) (explaining the appellate court should defer to the trial court’s factual findings based on the “trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record) ... ”).

Considering the record as a whole, we cannot say the district court’s assessment of 40% of the fault for the accident to plaintiff is manifestly erroneous. Accordingly, the court of appeal erred in disturbing the district court’s determination of fault.

Damages

It is well-settled that vast discretion is accorded to the trier of fact in fixing general damage awards. La. Civ. Code art. 2324.1; Duncan v. Kansas City Southern Railway Co., 00-0066 (La.10/30/00), 773 So.2d 670. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257,1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, the role of the appellate court in reviewing general damage |7awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn, 623 So.2d at 1260.

The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Cone v. National Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089; Reck v. Stevens, 373 So.2d 498 (La. 1979). Only after a determination that the trier of fact has abused its “much discretion” is a resort to prior awards appropriate, and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).

In the instant case, the primary dispute is over the trial court’s award of $7,500 in general damages, and failure to award any future medical expenses. In making its award, the district court acknowledged plaintiff suffered a sprained ankle as a result of the accident. However, the court noted this injury did not require the use of crutches, and was resolved by August 2005.

The court found plaintiff testified the accident caused a cap to come off her tooth. Her dentist recommended plaintiff have her cracked tooth pulled and replaced with a prosthetic implant. Although plaintiff verbally expressed a desire to have this procedure performed, the court noted she had not been to a dentist in eight years. Considering plaintiffs lack of credibility, the court determined her statement by itself was not enough to establish the probability of the treatment. Therefore, the [ scourt declined to make any award of future medical expenses for replacement of the tooth.

The court noted evidence was submitted indicating plaintiff suffered a shoulder injury (labral tear) from the accident, which was the cause of some of the pain she experienced in her neck. However, the court also found there was evidence indicating she had a previous injury to her right shoulder. Additionally, the court cited surveillance evidence indicating plaintiff did not exhibit any limitation regarding use of her right arm. Although plaintiffs physicians recommended future treatment for the labral tear, the expert testimony in the record indicated surgical repair of the tear would be of limited benefit. The court observed that in the years since the injury, plaintiff had taken no significant steps toward having the surgery performed. Given plaintiffs lack of credibility, the court declined to accept her testimony that she desired to have the procedure performed. Therefore, the court made no award for future shoulder surgery.

The court next found the evidence indicated plaintiff suffered a strain to her lumbar spine, which aggravated a previous surgery. However, it noted she had a history of back pain and trouble prior to the accident.

Finally, the court rejected plaintiffs claim she suffered depression as a result of the accident. The court observed plaintiff visited her doctor one week prior to the accident, at which time her doctor noted she was suffering from depression, but was stable on her medication. The court found she did not visit a psychologist until over two years after the accident. It concluded that her depression pre-dated the accident, and found no evidence which would show to what extent this previously-diagnosed depression was affected by the accident.

| nBased on our review of the record, we conclude the district court’s award of damages do not represent an abuse of discretion. The evidence in the record suggests plaintiff sustained relatively minor injuries as a result of the accident. Although plaintiff testified she wanted to have future treatment for the cracked tooth and labral tear, plaintiffs failure to pursue such treatment, combined with her lack of credibility, supports the trial court’s decision not to award future medical expenses.

Costs

The district court’s allocation of costs mirrored its allocation of fault: 40% to plaintiff; 60% to defendants. The district court has broad discretion in determining and allocating court costs. Foreman v. Montgomery, 517 So.2d 1034, 1035 (La.App. 3d Cir.1987). In light of our judgment reinstating the district court’s assessment of fault, we now reinstate the district court’s award and allocation of costs.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed. The judgment of the district court is reinstated in its entirety.

JOHNSON, Chief Justice, dissents for reasons assigned by Justice KNOLL.

KNOLL, Justice, dissents and assigns reasons.

HUGHES, Justice, dissents with reasons.

KNOLL, J.,

dissenting.

| n This Court has repeatedly recognized the great deference accorded to the factual findings of the trier of fact. Yet, affording these findings deference is not equivalent to rubberstamping them. Our duty to review these findings “is riot completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court....” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Rather, our duty is to review these findings in light of the entire record to determine whether the trial court committed manifest error. See id. After reviewing the entire record in this case, including the trial judge’s grossly inconsistent Reasons for Judgment, I can only conclude, as the Court of Appeal correctly did, the trial court committed manifest error in assigning forty percent liability to the plaintiff. For this reason, I respectfully dissent from the majority’s decision reinstating the District Court’s clearly erroneous judgment of liability, and I would affirm the Court of Appeal’s judgment finding defendant one hundred percent liable for the collision.

The District Court’s assignment of liability in this case is particularly puzzling because by finding “the left side of the school bus was encroaching over the center of the road, and was partly in the plaintiff’s lane” the trial judge evidently rejected the only two pieces of evidence which could have supported a finding the plaintiff was partially at fault — that is, (1) Ms. Lashley’s testimony that | ¿plaintiff was driving in the center of the road and the impact happened in Ms. Lashley’s lane and (2) John Graves’ testimony he saw skid marks in Ms. Lashley’s imaginary lane of travel. Because the District Court’s Reasons for Judgment are so internally inconsistent, however, I will assume the court credited this testimony in arriving at its determination plaintiff was forty percent at fault.

This dissent is based on the objective record evidence. While I am not relying on the trial court’s Reasons for Judgment, I feel compelled to point out one egregious error to demonstrate the trial court’s flawed reasoning which renders its judgment unreliable. In its Reasons, the trial court cited “conflicting testimony regarding the moments before the collision.” Specifically, the trial judge recalled, “Plaintiff testified that defendant was looking down while defendant maintains that she attempted to alert the other vehicle by repeatedly honking her horn.” Plaintiff did testify Ms. Lashley was looking down immediately prior to impact. This testimony was corroborated by plaintiffs passenger, Ms. Thomisee, and by Trooper Hataway and Mr. Daniel Groom, both of whom testified they heard Ms. Lashley admit at the scene of the accident that she was looking down immediately prior to impact. Significantly, nowhere in the record before us, however, does Ms. Lashley testify she had attempted to alert the plaintiff by repeatedly honking her horn. Indeed, the trial court’s misconception is in direct conflict with Ms. Lashley’s actual testimony she did not brake until impact.

Reviewing courts may find manifest error “[wjhere documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story.” Rosell, 549 So.2d at 844. Here, both objective evidence and internal inconsistencies in Ms. Lashley’s testimony belie the trial court’s judgment of liability.

IsDuring the bench trial, the District Court admitted a number of pictures depicting the damage to plaintiffs vehicle. These pictures which show the plaintiffs vehicle only sustained damage to its left fender objectively support plaintiffs story she was attempting evasive action at the time of the accident. More importantly, the photographs contradict Ms. Lashley’s testimony plaintiff was driving in the center of the road and the impact happened in Ms. Lashley’s lane. Given the size of the bus, if the accident happened in Ms. Lash-ley’s lane, more of the front of plaintiffs car would be damaged and not just the left fender. This conclusion is supported by the opinion of the expert in accident investigation, Trooper Mike Hataway — the only expert witness to testify at the liability stage of the trial — who opined based on the debris and the skid marks he observed at the scene that the point of impact was in plaintiffs lane and plaintiff was attempting evasive action at the time of impact.

The record reveals Ms. Lashley’s testimony is also internally inconsistent and, perhaps, given in bad faith. Although Ms. Lashley admits she did not apply her brakes prior to impact, she testified plaintiff was traveling in the center of the road immediately before the collision and the point of impact was in Ms. Lashley’s lane of travel. However, she also admits the final resting place of the vehicles — including over half of her bus — was in plaintiffs lane of travel. Her further testimony the vehicles slid into the other lane following the collision because plaintiffs vehicle “was pushing against my tire” is simply implausible. Moreover, the record testimony of the plaintiff, her passenger, and two independent witnesses — all of which is consistent with Ms. Lashley’s testimony she did not apply breaks until impact — strongly suggest Ms. Lashley, an employee of co-defendant Grant Parish School Board (“GSB”), altered her story after she left the |4scene of the accident. Plaintiff testified Ms. Lashley was looking down prior to the collision. Ms. Thomisee, her passenger, corroborates this story and testified Ms. Lashley apologized to them at the scene. Trooper Hataway testified he spoke with Ms. Lashley after the accident and Ms. Lashley admitted she was looking down at her gauges immediately before impact. Mr. Daniel Groom, who was at the scene of the accident, also testified he heard Ms. Lashley say she had dropped some papers and was looking down at the time of the collision. Given this testimony and Ms. Lashley’s employment with GSB, it is highly likely Ms. Lashley felt pressured to change her story and to deny what the plaintiff and the plaintiffs passenger said she did and what two independent witnesses testified she admitted to doing at the scene of the accident — that is, looking down immediately prior to colliding with Ms. Purvis’ vehicle.

Ms. Lashley’s admission she did not brake prior to her impact with the plaintiffs vehicle contradicts Mr. Graves’ testimony he saw skid marks in Ms. Lashley’s imaginary lane of travel. Further, not only does the physical evidence Trooper Hataway observed support Ms. Lashley’s testimony that she did not brake prior to impact, but it also reveals the plaintiff did brake and attempt, to drive onto the shoulder to avoid the accident. As Trooper Hataway explained skid marks are caused by braking, as opposed to yaw marks which are “made when a vehicle swerves at a high rate of speed and the tires make marks in the roadway because they’re actually skidding rather than stopping.” While Trooper Hataway found no marks of any kind from Ms. Lashley’s bus, he found skid marks from plaintiffs vehicle in plaintiffs imaginary lane of travel indicating she tried to brake before impact and tried to drive off the roadway to avoid the collision. Mr. Daniel Groom’s testimony he observed debris in plaintiffs lane of travel also supports Trooper Hataway’s expert opinion.

1 ¡-Accordingly, I respectfully dissent and would affirm the Court of Appeal’s judgment in its entirety.

HUGHES, J.,

dissenting.

| ,With respect, the majority opinion ignores the physical evidence, the expert testimony, the eye-witness testimony, and the laws of physics.

      . A separate suit was filed by Ms. Thomisee against Ms. Lashley and the GPSB. In a third suit, the Louisiana Workers’ Compensation Corporation sought to recover benefits paid on behalf of Ms. Lashley. The suits were consolidated for discovery and trial.

      . Although the officer who investigated the accident testified the point of impact was in plaintiff's lane of travel, he admitted the narrative and diagram portions of his accident report did not match, and he was unsure which section was correct. Further, the testimony of Ms. Lashley, plaintiff, and at least one independent witness, casts doubt on the officer’s testimony that he obtained statements from both drivers after the accident.

      . The district court's reasons include the following regarding Ms. Purvis' credibility:
      On November 2, 2006, Ms. Shenan Smith Purvis pled guilty to perjury in this Honorable Court under the criminal docket number 2006-CR-671. Judicial notice of this criminal proceeding is hereby taken. C.E. art. 201(C); State v. Batiste, 687 So.2d 499, (3rd Cir. 12/11/96), writ denied 696 So.2d 1003, reconsideration denied 701 So.2d 970. This evidence places a cloud of doubt upon Ms. Purvis that permeates every action and assertion that Ms. Purvis has made with respect to her case. It is noted that Ms. Purvis has had an incentive to exaggerate or fabricate facts throughout the time period relevant to this case. This Court takes great caution when considering assertions the plaintiff has made to her physicians and in her deposition related to her injuries.

      . Although Trooper Hataway admits the diagram of the scene contained in his accident report was erroneous (the diagram shows damage to the bus' right fender, rather than its left fender), he testified this was the only error in his report. In all other respects, his report and his testimony are reliable.

      . Ultimately, Trooper Hataway issued Ms. Lashley a traffic citation for driving "left of center,” though she was never convicted of this offense.