author: HOLDRIDGE, J. WELCH, J„

text:
    Blake and Courtney FREEMAN, individually and on behalf of their minor children v. FON’S PEST MANAGEMENT, INC. and ABC Insurance Co.
    2016 CA 0208
    Court of Appeal of Louisiana, First Circuit.
    OCTOBER 02, 2017

      James C. Carver, Baton Rouge, LA, Victoria A. Guidry, Lafayette, LA, Attorneys for Plaintiffs/Appellants Blake and Courtney Freeman, and their minor children
    Kevin P. Landreneau, Johanna R. Lan-dreneau, Baton Rouge, LA, Attorneys for Defendants/Appellees Fon’s Pest Management, Inc., LIPCA, Inc., and Certain Underwriters at Lloyd’s London
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   HOLDRIDGE, J.

|2In this personal injury action, the district court granted the defendants/appel-lees Fon’s Pest Management, Inc., LIPCA, Inc., and Certain Underwriters at Lloyd’s of London motions in limine to exclude certain expert testimony based upon the failure to meet the admissibility standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and further found that, absent the excluded testimony, the defendants were entitled to summary judgment. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In January of 2001, the plaintiffs purchased a home in Houma, Louisiana that contained prior termite damage. While renovating their kitchen in July of 2010, the plaintiffs discovered additional termite damage and subsequently contacted Fon’s, a certified pest control operator, to inspect and treat their home for termites. On July 26, 2010, an employee of Fon’s spot treated the home for termites using Termidor-SC, a termiticide containing fipronil. The plaintiffs contacted Fon’s again on July 28, 2010, after finding additional termite damage to their kitchen cabinets. The Fon’s employee treated an area for termite damage by drilling holes through the concrete slab and injecting termiticide into the soil under the slab. Following the treatments by Fon’s, the plaintiffs allegedly experienced headaches, nausea, dizziness, and confusion. Blaine and Seth Freeman allegedly ^developed chronic neurological injuries. The plaintiffs moved out of the home on October 23, 2010.

On July 7, 2011, the plaintiffs filed a petition for damages against Fon’s and LIPCA, Inc. alleging that they suffered “grievious personal injury” and damages from an alleged exposure to fipronil that was contained in the termiticide that was applied in their home by Fon’s. On February 19, 2013, the plaintiffs amended their petition to name as a defendant “Certain Underwriters at Lloyd’s of London to policy # LLB-17-17-215000962-02” (collectively referred to as Fon’s).

Fon’s subsequently filed several pre-trial motions, including four at issue in this appeal. First, Fon’s filed a “Daubert Motion to Exclude And/Or Motion in Limine to Strike and Limit Testimony of Plaintiffs’ Proposed Experts ... ”, which was to exclude the plaintiffs’ three experts, Michael LeBas, an engineer, Lawrence Du-rio, an industrial hygienist, and Christina Todd, a professional counselor. Fon’s alleged that all of the experts’ opinions should be excluded because they lacked the methodology as required by Daubert, 509 U.S. at 580,113 S.Ct. at 2786.

Secondly, Fon’s filed a motion in limine to exclude any evidence of the results and contents of an LSU Agriculture Research Center and Extension Laboratory Report (LSU Ag Report) because the sampling was done by Courtney Freeman, who was not a qualified industrial hygienist. Two years after leaving the plaintiffs home, Courtney Freeman allegedly took forty scoops of dirt from under the slab of the plaintiffs’ home to be tested by the LSU AgCenter and Extension Laboratory (LSU AgCenter). Therefore, Fon’s argued that because the sampling |4was not performed by a certified industrial hygienist, the results were not scientifically reliable data and did not comply with the Daubert standard.

Fon’s then filed a “Motion to Exclude (Daubert Motion), and/or Motion in Limine ...” to limit the testimony of the plaintiffs’ three toxicologists experts, Dr. Robert Geller, Dr. Lawrence Guzzardi, and Dr. Jason Richardson. Fon’s alleged that the three toxicologist should not be permitted to. testify on medical causation of any alleged, damages or injuries to the plaintiffs because the methods the experts used in arriving at their opinions were speculative, unsupported by medical science, and were unreliable.

On May 28, 2015, Fon’s filed a motion for summary judgment alleging that there were no genuine issues of material fact and that it was entitled to summary judgment as a matter of law. In its motion for summary judgment, Fon’s asserted that because the plaintiffs did not have expert testimony in support of their claims, they could not meet their burden of proving the applicable standard of care at trial. The district court set hearings for the motions on June 22-26,2015.

The district court conducted a Daubert hearing on June- 22, 23, and 26, then rendered judgment in open court granting Fon’s: 1) motion in limine and/or Daubert motion .to strike and/or limit the. testimony of the plaintiffs’ experts 2) motion in li-mine to exclude the LSU Ag Report; and 3) motion in limine and/or RDaubert motion to exclude the testimonies of the plaintiffs’ three toxicologist experts. On June 30, 2015, the district court provided reasons for judgment.

After ruling in open court on Fon’s motions in. limine, the district court then heard arguments on Fon’s motion for summary judgment. Thereafter, on July 6, 2015, the district court signed a judgment granting Fon’s motion for summary judgment and dismissing with prejudice, the plaintiffs’ claims. The plaintiffs now appeal assigning as error:

1. The trial court erred in granting defendants’ motion for summary judgment because movers failed to meet their initial burden to show there is insufficient factual support for plaintiffs’ claims for chronic personal injury-
2. The trial court erred in granting defendants’ motion for summary judgment because issues of material fact remain in dispute, and defendants are not entitled to judgment as a matter of law.
3. ■ The trial court erred in granting defendants’ motion for summary judgment dismissing all claims by plaintiffs because two claims, acute personal injury and property damage, were not before the Court and movers failed to show there is insufficient factual support for plaintiffs’ claims for acute personal injury or property damage.
4. The trial court erred in granting defendants’ motion to exclude the testimony of plaintiffs’ experts Robert Geller, MD (medical toxicologist), Lawrence Guzzardi, MD (medical toxicologist), Jason Richardson, Ph.D. (toxicologist) and Laurence Durio (Certified Industrial Hygienist) by failing to apply properly the Daubert test based solely on evaluation of their methodologies.
I r5. The trial court erred by not applying the proper legal standard for determining reliability of data and information required for an expert opinion.
6. The trial court erred in granting defendants’ motion to limit the testimony of expert Christina Todd,- MS LPC (Licensed Professional Counselor), who counseled Seth Freeman, from giving her diagnosis of PTSD.
7. The trial court erred in granting defendants’ motion to limit the testimony of Michael LeBas, PE, who inspected the Freemans’ home, from providing personal factual testimony about his suffering from asthma-like symptoms when he entered the Free-mans’home.
8.The trial court erred in granting defendants’ motion to exclude the LSU Ag Report when it arbitrarily, disre- , garded two sworn affidavits verifying . the legitimacy.of the sample results, when movers offered no contravening affidavits and failed- to produce other evidence , at the .hearings

DISCUSSION

Motions in Limine

The plaintiffs argue in their fourth, sixth, and seventh assignments of error that the district court erred in, granting Fons’ motions in limine to limit or exclude the testimony of the plaintiffs’ experts on the grounds that they were unqualified and used improper methodologies. Specifically, the plaintiffs argue that the district court erred in limiting or excluding the testimony of Dr. Geller, Dr. Guzzardi, Dr. Richardson, Mr. Durio, Ms. Todd, and Mr. LeBas.

The admissibility of expert testimony is governed by Louisiana Code of Evidence article 702, which provides that if scientific, technical, or' other specialized knowledge will assist the trier’ of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, .or education,- may testify thereto in the form of an opinion or otherwise. Before an expert’s testimony is admitted, the district court is required |7to perform a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. This gatekeeping obligation applies not only to scientific testimony, but to all expert testimony. See Arceneaux v. Shaw Group., Inc., 12-0135 (La. App. 1 Cir. 9/24/12), 103 So.3d 1086, 1091, writ denied, 12-2732 (La. 3/1/13), 108 So.3d 1177.

In Daubert, 509 U.S. at 580, 113 S.Ct. at 2786, the United States Supreme Court established the standard for determining the admissibility of expert testimony. Dau-bert set forth four non-exclusive factors to guide the Court to fulfill its gatekeeping function with respect to admitting expert testimony. Those factors include:

1. whether the theory or technique has been tested;
2. whether it has been subject to peer review;
3. whether there is a known or potential rate of error; and
4. whether the methodology has gained general acceptance.

Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2786.

In Cheairs v. State ex rel. Department of Transportation and Development, 03-0680 (La. 12/3/03), 861 So.2d 536, 542, the Louisiana Supreme Court further specified the admission^ of expert testimony by adopting the following three-part inquiry for determining whether the admission of expert testimony is proper:

1. whether the expert is qualified to testily competently regarding the matters he intends to address;
2. whether .the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Dau-bert; and
3.will the testimony assist the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue?

LA district court is accorded broad discretion in determining whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert. The factual basis for an expert’s opinion determines the reliability of the testimony. See Robertson v. Doug Ashy Building Materials, Inc., 14-0141 (La. App. 1 Cir. 12/23/14), 168 So.3d 556, 567, writ denied, 15-0365 (La. 4/24/15), 169 So.3d 364; see also Jouve v. State Farm Fire and Casualty Co., 10-1522 (La. App. 4 Cir. 8/17/11), 74 So.3d 220, 225, writ denied, 11-2250 (La. 11/23/11), 76 So.3d 1157 (a trial court’s decision to qualify an expert will not be overturned absent an abuse of discretion); Everhardt v. Louisiana Department of Transportation and Development, 07-0981 (La. App. 4 Cir. 2/20/08), 978 So.2d 1036, 1048 (whether an expert meets the qualifications of an expert witness and the competency of the expert witness to testify in specialized areas is within the sound discretion of the trial court). An appellate court should not disturb a trial court’s evidentiary ruling on the admissibility of expert opinion evidence at summary judgment absent an abuse of discretion. Jones v. Black, 13-1889 (La. App. 1 Cir. 5/2/14), 145 So.3d 402, 410-11, writ denied, 14-1116 (La. 9/19/14), 148 So.3d 954.

In the instant matter, Fon’s argues that the methods the plaintiffs’ experts used in arriving at their opinions are speculative, unsupported by medical science, are based on neither scientific facts nor data, are unreliable and irrelevant, are based upon insufficient and inadmissible facts and/or data, and are based on unsupportable assumptions and speculations on causations regarding the health issues claimed to have been caused by the plaintiffs alleged fipronil exposure. In |9sum, Fon’s alleges that the plaintiffs’ experts testimonies do not meet the requirements for admissibility under La. Code of Evid. art. 702, Dau-bert, and Cheairs.

After reviewing the record, this Court finds no abuse of the district court’s discretion in ruling that the plaintiffs’ three toxicologist experts (Dr. Geller, Dr. Guzzardi, and Dr. Richardson) and Mr. Durio, the industrial hygienist, opinions and testimonies fail to satisfy the admissibility requirements of Daubert. After conducting a Daubert hearing, the district court determined that the experts testimonies should be excluded because: 1) none of the experts are experts regarding fipro-nil, the termiticide that.! allegedly caused the plaintiffs’ injuries 2) none of the experts wrote or contributed to any peer-reviewed articles concerning the effects of pesticides in humans or the effects of fi-pronil in humans 3) none of the experts attempted a dose reconstruction to determine the amount of fipronil to which the plaintiffs; either collectively or individually, were allegedly exposed 4) none of the experts had access to any biological data or air quality data that conclusively establishes that the plaintiffs were exposed to an appreciable level of fipronil; and 5) no articles or studies reviewed by the experts proves a causal connection between fipro-nil and the plaintiffs’ claims.

Moreover, the plaintiffs’ experts had conflicting testimonies. Dr. Geller suggested that the fipronil exposure was through inhalation while Mr. Durio believes that fipronil cannot be inhaled. Dr. Richardson alleges that the fipronil exposure was dermal (skin) exposure. Dr. Geller states that, while there is no data |10to support his opinion, dermal exposure would not have caused the symptoms the plaintiffs, allege, but Dr. Richardson disagrees. Additionally, the experts have conflicting testimonies on the effects of the exposure of the fipronil. Dr. Richardson suggests that fipronil caused neuropsychia-tric conditions in Blake Freeman, but admits that there is no scientific data to support his opinion. However, Dr. Guzzar-di disagrees that Blake Freeman has psychiatric conditions.

Accordingly, we hold that the district court did not abuse its discretion in finding that Dr. Geller, Dr. Guzzardi, Dr. Richardson, and Mr. Durio’s opinions and testimonies fail to satisfy the requirements of La. Code of Evid. art. 702 as interpreted in Cheairs and Daubert, as the experts1 opinions are unreliable because there is no scientific evidence to support their opinions and the probative value is substantially outweighed by the danger of unfair prejudice and misleading the jury as to their opinions’ scientific validity. See La. Code of Evid. arts. 104, 403. Therefore, the district court did not abuse its discretion in excluding the experts’ opinions and the plaintiffs' fourth assignment of error has no merit.

Furthermore, the plaintiffs offered Ms. Todd, Seth Freeman’s school counsel- or as an expert to testify regarding his alleged PTSD and learning disabilities. Ms. Todd began counseling Seth Freeman over three years after his alleged fipronil exposure occurred. As Seth Freeman’s counselor, Ms. Todd kept an ongoing report of his diagnosis while meeting with him on a regular basis. Ms. Todd’s report states that Seth Freeman has major recurrent depressive episodes, panic disorders, and PTSD affiliated with reported toxic poisoning of his family. Her report further states that Seth Freeman has a fear of losing his parents and possibly developing a brain tumor. Ms. Todd’s report also states that Seth Freeman has educational and academic problems affiliated with a toxicity case.

InFon’s alleges that Ms. Todd’s testimony and opinion should be limited or excluded because the plaintiffs offered no evidence that fipronil caused Seth Freeman’s PTSD or that fipronil causes learning disabilities. Fon’s further argues that because Seth Freeman’s treating psychiatrist, Dr. Jason Wuttke, did not diagnose Seth Freeman with PTSD, Ms. Todd’s testimony should be limited or excluded.

At the conclusion of the Daubert hearing, the district court granted Fon’s motion in limine, striking Ms. Todd’s testimony in regard to her opinion that Seth Freeman suffers from PTSD and1 that he has any conditions, learning disabilities, or psychiatric issues caused by the exposure to or the existence of fipronil in the plaintiffs’ home. After reviewing the record, this court finds that the district court did not abuse its discretion in limiting Ms. Todd’s testimony and opinion, as her report on Seth Freeman contains evidence that is unreliable and unsupported by medical evidence. See La. Code of Evid. art. 702. ;

Additionally, Ms. Todd’s testimony and opinion were stricken by the district court because its probative value is substantially outweighed by the danger of unfair prejudice to Fon’s and misleading the jury as to its scientific validity and credibility. See La. Code of Evid. arts. 104 and 403. Thus, we find that the district court did not abuse its discretion in making this ruling and the plaintiffs’ sixth assignment of error has no merit.

| ij/The plaintiffs also offered Mr. LeBas, a civil engineer, as an expert. Mr. LeBas inspected the plaintiffs’ home in May of 2012, almost two years after Fon’s treated the plaintiffs home, and determined that there was an excessive disbursement of fipronil in the home coming through the concrete slab. However, Mr. LeBas did not take any samples from the plaintiffs’ home nor did he do any type of testing. After inspecting the plaintiffs’ home, Mr. LeBas also claimed to experience symptoms of acute sinusitis and attributed those symptoms to either fungal growth and/or residual elements of the fipronil disbursement in the home. Mr. LeBas did not see a doctor after experiencing his alleged symptoms, so there is no medical diagnosis.

Moreover, Mr. LeBas does not have any training or expertise in the areas of termite treatment, termites, or pesticide. labeling to be familiar with the symptoms from exposure to fipronil. The following exchange occurred during Mr. LeBas’ deposition:

Q. Do you have any training in biology?
A. No.
Q. In termites?
A. No.
Q. Termite treatment?
.A. No.
Q. Medicine?.
A. No.
Q. Termidor [the pesticide used to treat the plaintiffs’ house]? '
I is A. No.
Q. Pesticide labeling?
A. No.
Q. The identification of molds?
A. No.
⅜⅜‡
Q. Do you know the symptoms from exposure to Termidor?
A. No.

Mr: LeBas uses mere speculation in his report to make conclusions that fipronil was coming up through the floors of the plaintiffs’ home,- as he 'performed no testing on the plaintiffs’ home nor did he have any training or-expertise in the areas of termite treatment, termites, or pesticide labeling. Instead Mr. LeBas’ expert opinion is based on his speculation regarding his personal experience. In disallowing Mr. LeBas’ expert opinion, the district court determined that his testimony did not employ, “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999).

Finding that Mr. LeBas was not a medical expert, an expert in chemistry or chemical treatments for termites, the district court did not abuse its discretion in limiting his testimony to his area of expertise in engineering and striking any testimony, opinions, or conclusions of any alleged health issues' or conditions that Mr. LeBas claims to have personally experienced during and following the inspection of the plaintiffs home. To ensure reliability,- the Daubert standard requires that the expert’s opinion be grounded in methods and procedures of science, rather than just subjective belief or unsupported speculation. See 1 Arceneaux, 103 So.3d at 1093. Accordingly, the plaintiffs’ seventh assignment of error has no merit. See La. Code of Evid. arts. 104' and 403.

LSU Ag Report

The plaintiffs also assign as error the district court’s refusal to consider the LSU Ag Report as evidence, which contains an analysis of soil samples that Courtney Freeman brought to be tested by the LSU AgCenter two years after Fon’s treated the plaintiffs’ home for termites. The crux of the plaintiffs’ argument is that even though Courtney Freeman is not a qualified industrial hygienist, the data contained in the LSU Ag Report is valid and it cannot be unduly prejudicial nor can it mislead the jury.

Fon’s argues that the LSU Ag Report lacks any scientific reliability, lacks probative value, is inadmissible as scientific testing, and should be excluded as evidence under La. Code of Evid. art. 702. Fon’s further argues that Courtney Freeman has no training or education in toxicology nor does she have any specialized qualifications that qualify her to extract or perform soil sampling. Therefore, Fon’s argues that the soil samples that Courtney Freeman extracted are unscientifically reliable and inadmissible under the Daubert standard. Additionally, Fon’s argues that the district court properly excluded the LSU Ag Report pursuant to La. Code of Evid. art. 403 because the report was self-serving, unreliable, and the prejudicial effect outweighs the probative value and would mislead the jury.

Moreover, Fon’s offered Stuart Webster’s affidavit, a certified industrial hygienist, to support its position that the LSU Ag Report is unreliable. In his affidavit, Mr. Webster states that the LSU Ag Report has no reliability as a scientifically accurate measure of fipronil around the plaintiffs’ home. Mr. Webster further asserts that the LSU Ag Report has no reliability as an | ^environmental assessment for any sort of scientifically accurate measure of the amount of fipronil to which the plaintiffs may have been exposed. Mr. Webster states that the LSU Ag Report is unreliable because it: 1) does not indicate whether the analysis was performed by a certified laboratory 2) lacks details as to what methods were used to analyze the soil samples 3) lacks general quality assurance and quality control data such as percent recovery data 4) does not have a statement regarding the condition of the samples when reversed; and 5) does not have any information as to whether the soil was analyzed wet or dry.

After reviewing the record, this court has determined that the district court did not abuse its discretion in excluding the LSU Ag Report because its methodology and contents are not scientifically accurate or reliable and do not comply with the Daubert standard. This court agrees with the district court’s reasoning that “Courtney Freeman [was] ... an unqualified person to do scientific sampling ... [and] her actions were not witnessed and cannot be objectively verified, are self-serving, are not scientifically reliable, have no indicia of reliability, and any probative value is substantially outweighed by the danger of unfair prejudice to [Fon’s] and misleading the jury as to their scientific reliability and validity.” Therefore, the plaintiffs’ eighth assignment of error has no merit.

Summary Judgment

In their second assignment of error, the plaintiffs argue that the district court erred in granting Fon’s motion for summary judgment because Fon’s failed to sustain its burden of proving that summary judgment is warranted and that no genuine issues of material fact remain. The crux of Fon’s argument is that the plaintiffs failed to establish that they would be able to meet their burden of proving the essential element of their claim, that any act by Fon’s was the cause of the alleged damages.

[1fiWe review the granting or denial of a motion for summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. LUBA Casualty Insurance Co. v. Hygenic Corporation, 47,395 (La. App. 2 Cir. 9/20/12), 131 So.3d 890, 892. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, admitted for purposes of the summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2),.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to - negate all essential elements of the adverse party’s claim, - action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the nonmoving party fails to make this requisite showing, there is no genuine issue of material fact, and summary judgment should be granted. See La. C.C.P. art. 966(C)(2); Janney v. Pearce, 09-2103 (La. App. 1 Cir. 5/7/10), 40 So.3d 285, 288-289, writ denied, 10-1356 (La. 9/24/10), 45 So.3d 1078.

When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in La. C.C.P. art. 967, must' set |17forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). Mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. Richard v. Liberty Mutual Insurance Co., 13-26 (La. App. 3 Cir. 10/9/13), 123 So.3d 345, 348.

As set forth above, Fon’s filed a motion for summary judgment alleging that the plaintiffs failed to present admissible and reliable evidence and that there exists no genuine issue of material fact as to causation. In Fon’s motion for summary judgment, it claimed that “[t]he plaintiffs have failed to present admissible, competent, relevant and reliable evidence that satisfies the requirements of Daubert for reliability ... [and] because the facts are undisputed, [the] [plaintiffs have failed to meet their burden of proof[.]” In relying on the district court’s Daubert exclusions of the plaintiffs’ experts, Fon’s claims in its motion for summary judgment that there is an absence of factual support for the plaintiffs’ claim because the plaintiffs do not have any evidence or experts to prove causation.

In support of its motion for summary judgment, Fon’s offered the deposition of Dr. Russell Flenry, the Freeman’s family, physician, which provided the medical background on the plaintiffs. Dr. Flenry’s medical records on Blake Freeman reveal that Blake Freeman has a prior history of depression, headaches, lymph node swelling, and sinus infections dating back to nine years before the application of the termite treatment in the plaintiffs’ home. Dr. Flenry performed blood test on Blake Freeman in January and May of 2012 in an attempt to determine if he had any chemical exposure. Dr. Henry testified that all tests results were normal.

Additionally, Dr. Henry’s medical records of Courtney Freeman reveal that she also has a history of headaches, sinus infections, and psychiatric conditions. |lsHer medical records further reveal that she did not have any complaints related to any alleged chemical exposure: Dr. Henry also; saw Blaine Freeman in June of 2011 and March of 2012 and stated that “[he] had no suspicion” that Blaine Freeman’s symptoms were related to a fipronil exposure. Moreover, there is no evidence supporting the plaintiffs’ contention that Seth Freeman suffered from any health conditions or personal injuries allegedly caused by fipronil as there is no evidence in the record that he was exposed to fipronil.

We find that Fon’s established through testamentary and documentary evidence that there was an absence of factual support for an essential element of the plaintiffs’ claim ie., causation. The burden then shifted to the plaintiffs to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial. See La. C.O.P. art. 966(G)(2). The plaintiffs produced no evidence as to causation in opposition to Fon’s motion for summary judgment. All of the evidence that the plaintiffs may have-used to prove causation for either their personal injury or property damage claims were excluded by the district court in the motions in limine, which were heard on the same day as Fon’s motion for summary judgment. While the better practice would have been for the district court to hear the motions in limine first and then allow the plaintiffs an opportunity to appeal the district court’s ruling or obtain new experts prior to the hearing on the -motion for summary judgment, the parties stipulated that the hearing on the motion for summary judgment and the motions in limine would be heard on the same day.

A complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial and mandates the entry of summary judgment for the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2550, 91 L.Ed.2d 265 (1986). Because of the. district court’s ruling disallowing all of the plaintiffs’ expert witnesses, the plaintiffs have failed to produce any evidence or factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial regarding causation. Therefore, we affirm the district court’s judgment granting summary judgment in favor of Fon’s. Considering the evidence before the court, summary judgment dismissing plaintiffs claim is appropriate. See La. C.C.P. art. 966(C)(2).

DECREE

After a thorough review of the record, we affirm the granting of the motions in limine, as it pertains to -the' motion for summary judgment. We also affirm the motion for summary judgment in favor of Fon’s dismissing the claims of the plaintiffs, with prejudice. All costs of this appeal are assessed against the plaintiffs, Blake and Courtney Freeman individually and on behalf of their minor children, Blaine and Seth Freeman.

AFFIRMED.

Crain, J., concurs in result by JEW

Welch, J., Concurs in part and dissents in part, with reasons.

WELCH, J„

concurring in part and dissenting in part.

1,1 respectfully concur in part and dissent in part with the opinion in this matter. I agree with the opinion insofar as it affirms the July 6, 2015 judgment of the trial court granting the motion in limine to exclude the LSU Ag report and samples and affirms that portion of the July 17, 2015 judgment of the trial court granting the motion in limine to strike the opinion testimony of Ms. Christina Todd and limiting the testimony of Mr. Michael LeBas to his area of expertise (engineering). As to all other issues, ie., the trial court’s ruling granting the motion in limine and striking the opinion testimony of Dr. Geller, Dr. Guzzardi, Dr, Richardson, and Mr. Durio, I respectfully disagree and would reverse that portion of the July 17, 2015 judgment of the trial court. I also disagree with the opinion with regard to the summary judgment, as I would reverse the July 6, 2015 judgment of the trial court granting the defendant’s motion for summary judgment and dismissing the plaintiffs’ action against the defendants.

With respect to the trial court’s ruling that the plaintiffs’ three toxicologist experts. (Dr. Geller, Dr. Guzzardi and Dr. Richardson) and their industrial hygienist, Mr. Durio, were not admissible because their opinions and testimonies failed to satisfy the requirements of Daubert, I believe that the trial court erred as a matter of law and abused its discretion. As the opinion notes, the trial court determined that the experts’ testimonies should be excluded because: (1) none of the experts were experts regarding fipronil; (2) none of the experts wrote or contributed tó any peer-reviewed articles concerning the effects of pesticides in |2humans or the effects of fipronil in humans; (3) none of the experts attempted a dose reconstruction to determine the amount of fipronil to which the plaintiffs were allegedly exposed; (4) none of the experts had access to any biological data or air quality data that conclusively established that the plaintiffs were exposed to an appreciable level of fipronil; and (5) no articles or studies reviewed by the experts proved a causal connection between fipronil and the plaintiffs’ claims.

First and foremost, I note that at the Daubert hearing, each of the plaintiffs’ experts testified as to the methodology they employed in reaching the conclusions that the plaintiffs’ exposure to fipronil caused the symptoms complained of (and thus, their damages). Since the defendants were the movers on the motion in limine, they had the burden of proving that the opinions'of the plaintiffs’ experts were unreliable under the criteria set forth in Daubert. See. Robertson v. Doug Ashy Building Materials, Inc., 2010-1552 (La. App. 1st Cir. 10/4/11), 77 So.3d 339, 354, writs denied, 2011-2468, 20112430 (La, 1/13/12), 77 So.3d 972 and 973. However, the defendants did not present the testimony of any expert or otherwise any evidence to contradict or .to question the validity of the methodology of the plaintiffs’ experts. Thus, .the defendants failed to meet their burden of establishing that the plaintiffs’ experts’ .opinions.on causation in this case were unreliable and the reversal of the trial court’s judgment is warranted on this basis alone. See Robertson, 77 So.3d at 354,

Furthermore, with , regard to the trial court’s finding that none of the experts were experts regarding fipronil, it is well settled -that Daubert concerns the admissibility of the experts’ opinion and not his qualification as an expert in the area tendered. See MSOF Corp. v. Exxon Corp., 2004-0988 (La. App. 1st Cir. 12/22/05), 934 So.2d 708, 718, writ denied, 2006-1669 (La. 10/6/06), 938 So.2d 78; Robertson v. Doug Ashy Building Materials, Inc., 2014-0141 (La. App. 1st Cir. 12/23/14), 168 So.3d 556, 567, writ denied, 2015-0365 (La. 4/24/15), 169 So.3d 64. Therefore, the trial court erred as a matter of law in excluding the experts’ opinions under Daubert based on the experts’ qualifications. Nevertheless, with respect to each experts’ qualifications, the record establishes that each of the experts possess the knowledge, skill, experience, and education to provide them with the appropriate qualifications to render an opinion on causation as to whether the plaintiffs’ health issues were caused by their exposure to fipronil.

Insofar as the trial court determined that the experts’ opinions were not admissible because they did not attempt a dose reconstruction and did not have access to any biological or air quality data establishing that the plaintiffs’ were exposed to an appreciable level of fipronil, such information would have only been necessary if the plaintiffs were attempting to meet their burden of proving causation through a quantitative assessment of fipronil exposure. However, the plaintiffs were not required to prove the quantitative level' of exposure, ie., the exact or cumulative dose of fipronil or the concentration of fipronil to which they were exposed (visa-vis air sampling other similar means), but rather, a qualitative evaluation of the exposures to fipronil, ie., the level, frequency, nature, proximity, and duration of the exposures at issue, can sufficiently prove causation. See generally Arabie v. CITGO Petroleum Corp., 2010-2605 (La. 3/13/12), 89 So.3d 307-322; Robertson, 168 So.3d at 565-566. The testimony at the Daubert hearing reflects that the experts at issue did a qualitative assessment of the plaintiffs’ exposure (ie., they evaluated the exposures to fipronil that were clinically significant in intensity and duration) and determined that these éxpo-sures poisoned the plaintiffs. Since the plaintiffs could meet their burden of proving causation through either a quantitative or a qualitative assessment of fipronil exposure, the trial court erred in excluding the experts under Daubert for failing to perform a quantitative assessment.

|4To the extent that the trial court determined that the plaintiffs’ experts should be excluded under Daubert because none of the experts personally wrote or contributed to any peer-reviewed articles concerning the effects of pesticides in humans or the effects of fipronil in humans, I note that Daubert imposes no such requirement on experts and the record does not establish that writing an article concerning the effects of pesticides is necessary for an expert to have a reliable methodology. Rather, Daubert posits the question as to whether the methodology itself has been subjected to peer review or publication. In that regard, because the defendants failed to offer any expert evidence, the record does not reflect whether each of the plaintiffs’ experts’ methodology was or was not subjected to peer review or publication. Therefore, it was improper for the trial court to exclude their opinions on this basis. Moreover, to the extent that the trial court found the methodology of the plaintiffs’ expert unreliable because the experts did not review any articles or studies proving a causal connection between fipronil and the plaintiffs’ claims, the testimony of the experts establishes that there were no such articles or studies on which the experts could rely. Although the record does not establish that it was improper for the experts not to review any such articles or studies, to the extent that they should have reviewed such articles and studies, that factor affects only the weight to be afforded to those experts’ conclusions and may serve as a basis for attack by the defendants on cross-examination at trial, but it does not make his opinion evidence inadmissible under Daubert. See MSOF Corp., 934 So.2d at 720.

In addition, the opinion notes that the plaintiffs’ experts had conflicting testimonies as to whether the plaintiffs’ exposure to fipronil was dermal exposure or through inhalation, as well as the effects of exposure to fipronil, which the opinion determines further supports the trial court’s decision to exclude the'expert opinions. However, this is a factual dispute between the experts, and thus, goes to Rthe credibility of their testimony and not its admissibility or reliability. See Robertson, 168 So.3d at 577.

I recognize that in reviewing the trial court’s judgment granting the motion in limine striking the plaintiffs’ four experts on causation, it is not this Court’s role to weigh the evidence or testimony of the experts and their opinions, but rather to ensure that the trial court properly performed its gatekeeping function when it evaluated the reliability of the plaintiffs’ experts under the standards set forth in Daubert. As this court noted in Robertson, 168 So.3d at 579, “[although the trial court is afforded broad discretion in determining whether expert testimony is reliable under Daubert, that - discretion is premised upon an understanding that Daubert is intended to protect the sanctity of the fact finding process by assessing the validity of the methodology employed by an expert and not the expert’s application of that methodology or his conclusions derived from the application of that methodology. Certainly, not all experts are equal; however, issues involving the credibility of the expert, the weight to be given to the expert’s testimony, and the resolution of conflicts between expert opinions testimony are to be assessed by the trier of fact.”

In this case, based on my review of the record, it is apparent that the objections the defendants had to the causation opinions of the plaintiffs’ experts (and to'which the trial court agreed) did not relate to their methodology, but rather involved their conclusions derived from applying that methodology, and thus pertained to the experts credibility and weight of their opinions. The evidence at the hearing established the experts’ methodology and no contradictory evidence was offered to suggest that their methodology was improper to formulate an opinion on causation. Therefore, the trial court abused its discretion in granting the motion in limine, striking the opinion testimony of Dr. Geller, Dr. Guzzardi, Dr. |f,Richardson, and Mr. Durio and that portion of the July 17, 2015 judgment of the trial court should be reversed.

Lastly, with regard to the motion- for summary judgment, I note that the plaintiffs will bear the burden of proving causation at trial. The defendants will not bear the burden of proof at trial; however, as the mover on the motion for summary judgment, it had the initial burden of proof, pursuant to La. C.C.P. art. 966(C)(2) to support and point out that there was an absence of factual support for this element of the plaintiffs’ claim. As to this issue, since there is no dispute that the plaintiffs were exposed to fipronil, for the defendants to meet its initial burden on summary judgment, the defendants had to either offer evidence that the plaintiffs did not have a causation expert or offer evidence establishing that the plaintiffs’ exposures to fipronil did not cause their injuries (or were not medically significant). In the absence of such evidence, a motion for summary judgment on -the issue of - causation would be unsupported and would not shift the burden to the plaintiffs to demonstrate, at the summary judgment stage, that the plaintiffs’ exposures to fipronil caused the plaintiffs injuries (or that they were medically significant).

As the opinion notes, in support of the defendants’ motion for summary judgment, the defendants relied on their claim that the plaintiffs’ expert opinions were not reliable under Daubert, and would thus be excluded. In addition, the defendants relied on the deposition of Dr. Henry, which merely established that the plaintiffs, suffered many of the complained of symptoms prior to their fipronil exposure. In opposition to the motion for summary judgment, the plaintiffs relied on their expert opinions, maintaining that these expert opinions were sufficient to establish that they would be able to satisfy their evidentiary burden of proving that, their exposures to fipronil caused their damages.

Based on my de novo review of the record, I find that the defendants failed to meet their initial burden of pointing out that there was an absence of factual 17support for the plaintiffs’ claim that their exposure to fipronil caused their damages. The evidence offered by the defendants established .only that they had. various symptoms prior to their exposure to fipro-nil. The defendants did not offer, in support of the motion, any evidence to. show that the plaintiffs’ exposure to fipronil were not medically significant. Instead, the defendants chose to rely on the. exclusion of the opinion of the plaintiffs’ experts under Daubert. Since I believe that ruling should be reversed, and considering the lack of evidence offered by the defendants to establish that the exposures on which the plaintiffs were relying were not medically significant,, the defendants’ motion for summary judgment was unsupported and was improvidently granted.

Furthermore, even though the defendants unsupported motion for summary judgment did not shift the burden to the plaintiffs to show that there were issues of fact, ie., that the plaintiffs’ exposures to fipronil caused their damages or were medically' significant, on de novo. review, the evidence offered by the plaintiffs in opposition to the motion for summary judgment sufficiently established, that there were genuine issues of material fact as to whether the plaintiffs’ exposures to fipronil caused their complained of symptoms and damages. Accordingly, the defendants were not entitled to summary judgment and I would reverse the July 6, 2015 judgment of. the trial court that granted the defendants’ motion for summary judgment and dismissed the plaintiffs’ action against the defendants.

Thus, I respectfully concur in part and dissent in part. .

      . The house at issue was under a termite contract before the plaintiffs purchased the home wherein Fon’s annually performed a visual inspection for termites. In September of 2000, the prior owner of the home found live termites and Fon’s performed a termite treatment.

      . Fipronil is a neurotoxin that is odorless and colorless. It is a widely used termiticide that has been on the market since 1996 and has been approved by the Louisiana Structural Pest Control Commission for indoor use.

      . LIPCA, Inc. was the insurance agency that issued Fon’s insurance policy from Certain Underwriters at Lloyd’s of London and was improperly named as a party in this matter.

      . In order to obtain a pre-trial ruling as to the admissibility of an expert witness, the party must file a motion in accordance with La. C.C.P. art. 1425. Fon's complied with the requirements of La. C.C.P. art. 1425(F).

      . Upon a timely filed and sufficiently alleged motion for a Daubert hearing, the court shall hold a contradictory hearing. La. C.C.P. art. 1425(F)(2). At the hearing, the court shall consider the qualifications and methodologies, of the proposed witness based upon the provisions of Articles 104(A) and 702 through 705 of the Louisiana Code of Evidence. See Daubert, 509 U.S. at 579, 113 S.Ct. at 2786; Boudreaux v. Bollinger Shipyard, 15-1345 (La. App. 4 Cir. 6/22/16), 197 So.3d 761, 770.

      . .The district court held that Mr. LeBas was allowed to testify; however; his testimony was limited in his area of expertise in engineering and he was not allowed to give any opinion bn his alleged health issues or conditions after his inspection of the plaintiffs' home. The district court also limited Ms. Todd's testimony in that she was not allowed to testify regarding her opinion that • Seth Freeman's alleged post traumatic stress disorder (PTSD) and learning disorders were caused by a fipronil exposure.

      . We note that the district court combined the judgment and reasons for judgment in the same document in granting Fon’s motion in limine to exclude the testimony and evidence of the plaintiffs’ three toxicologists. The Code of Civil Procedure does not require an interlocutory judgment, such as a motion in li-mine, to be reduced to writing and provides that the rendition of an interlocutory judgment in open court constitutes notice to all parties. La. C.C.P, art. 1914; White v. Claire's Boutique, Inc., 05-653 (La. App. 5 Cir. 2/27/06), 924 So.2d 1078, 1080.

      . Under La. C.C.P. art. 1425(F), the district court is required to give its reasons for accepting or rejecting expert testimony. The ruling on admissibility of the expert evidence is subject to appellate review, as provided by law. La. C.C.P. aft, 1425(F)(5).

      . Normally, the district court would not have a hearing on a motion for summaty judgment on the same day as ruling on motions in limine; however, in this case, the parties stipulated to have both hearings on the same date. ' ■

      . This court finds that the district court properly applied the Daubert standard in admitting expert testimony. Therefore, the plaintiffs’ fifth assignment of error has no merit.

      . See Daubert, 509 U.S. at 579, 113 S.Ct. at 2786.

      . Although an interlocutory judgment is generally not appealable, an appellate court may consider the correctness of an interlocutory judgment in connection with the appeal of a final judgment. Babineaux v. University Medical Center, 15-292 (La. App. 3 Cir. 11/4/15), 177 So.3d 1120, 1123.

      . Dr. Geller solely relied on the LSU Ag Report in providing scientifically reliable evidence to establish the degree of the plaintiffs’ fipronil exposure in the plaintiffs' home, which was properly excluded by the district court.

      . After inspecting the plaintiffs’' home in 2013, Mr. Durio reported through'visual and photographic evidence tháf an excessive amount of fipronil was injected by Fon’s and a significant amount of the chemical came out of the floor in the plaintiffs’ home. Despite his report; Mr. Durio never completed an environmental assessment of the plaintiffs' home.

      . Ms. Todd did not testify at the Daubert hearing nor did the plaintiffs provide deposition testimony or an affidavit from her to satisfy the requirements of La. C.C.P. art. 1425.

      . This court notes that Ms. Todd’s report should also be excluded from evidence under La. C.C.P. art. .1425, as her report is an unverified document that is not certified or attached to an affidavit. See Fin & Feather, LLC v. Plaquemines Parish Government, 16-0256 (La. App. 4 Cir. 9/28/16), 202 So.3d 1028, 1032. Because the plaintiffs timely objected to the admissibility of Ms. Todd’s report, under Daubert, this court finds that her report should be stricken. It is well settled under Louisiana law that an objection to the admissibility of evidence is not preserved for appellate review unless a contemporaneous objection to the evidence is entered on the record at the trial or hearing. La. Code of Evid. art. 103; Brown v. Schwegmann, 05-0830 (La. App. 4 Cir. 4/25/07), 958 So.2d 721, 724, writ denied, 07-1094 (La. 9/21/07), 964 So.2d 333.

      .Mr, LeBas did not testify at the Daubert hearing; however, his deposition testimony complies with La. C.C.P. art. 1425.

      . The symptoms include sinus congestions, sore throat, and itchy-watery eyes.

      . Louisiana Code of Civil Procedure article 966 was recently amended by 2015 La. Acts 422, § 1; however, the new version of article 966 does not apply to this case as the amendment did not become effective until January 1, 2016, Accordingly, we apply the prior version of Article 966 to the instant matter. See Acts 2015, No. 422, §§ 2 and 3.

      . A ruling allowing or disallowing an expert opinion may be appealed under La. C.C.P. art. 1425(F)(5).


source: Caselaw Access Project

author: HIGGINBOTHAM, J. HOLDRIDGE, J.,

license: Public Domain

text:
    STATE of Louisiana v. Troy Michael JACKSON, Jr.
    NO. 2016 KA 1565
    Court of Appeal of Louisiana, First Circuit.
    OCTOBER 12, 2017

      Bertha M. Hillman, Louisiana Appellate Project, Covington, LA, Attorney for Defendant-Appellant, Troy Michael Jackson, Jr.
    Joseph L. Waltz, Jr., District Attorney, Ellen Daigle Doskey, Assistant District Attorney, Houma, LA, Attorneys for Ap-pellee, State of Louisiana
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

I ¡¿Defendant, Troy Michael Jackson, Jr., was charged by amended grand jury indictment with first degree murder, a violation of La. R.S. 14:30(A)(1) (count one); obstruction of justice by tampering with evidence, a violation of La. R.S. 14:130.1(A)(1) (count two); and possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count three). He pled not guilty. After a jury trial, defendant was found guilty as charged on all counts. Thereafter, the trial court denied defendant’s post-trial motions for new trial and post-verdict judgment of acquittal. On count one, the trial court sentenced defendant to life imprisonment at hard labor,, without the benefit of párole, probation, or suspension of sentence. On count two, the trial court sentenced defendant to five years at hard labor. On count three, the trial court sentenced defendant to twenty-five years at hard labor, without the benefit of parole, probation, or suspension of sentence. The trial court ordered all three sentences to run concurrently. Defendant filed a motion for reconsideration of his sentences, which the trial court denied. Defendant now appeals, alleging one assignment of error. •

FACTS

On the evening of February 23, 2013, Sergio Castellanos (the victim) went with his friends to a bar in Houma. While out at the bar, Castellanos met Ciegie Cheramie, who had gone to the bar with defendant and his girlfriend, Brandy Perdue. According to trial testimony, Cheramie, Perdue, and defendant went to the bar that | snight for Cheramie to meet someone and convince them to give her money or for Cher-amie to meet someone to have sex with her for money. Ultimately, Castellanos left the bar with Cheramie, Perdue, and defendant.

After leaving the bar, Cheramie drove Castellanos, Perdue, and defendant to at least one gas station and then around the Houma area. Castellanos was seated in the truck’s passenger’s seat, while defendant and Perdue sat in the truck’s back seat. At some point as they drove, defendant pulled a gun and shot Castellanos three times, resulting in his death. The following morning, defendant directed Cheramie to call her brother, tell him she had shot someone, and ask for his help in disposing of the body. Cheramie’s brother called the police after Cheramie came to his house and he observed something slumped in the passenger’s seat of her vehicle. After visiting her brother, Cheramie dumped Castel-lanos’s body in a grassy area on the side' of Bayou Salle Road. Defendant took some clothing from the victim and the occupants of the truck, and he disposed of it in a waterway near Mechanicville.

Defendant did not testify at trial, but the state intróduced a recorded interview that he gave to the police. In this statement, defendant admitted to shooting Cas-tellanos, but stated that he did so in order to protect Cheramie and Perdue. The state also introduced evidence of defendant’s' September 7, 2005 felony conviction for molestation of a juvenile,

BATSON CHALLENGE

In his sole assignment of error, defendant argues that the state improperly exercised peremptory challenges against two prospective jurors on the basis of race.

In Batson v. Kentucky, 476 U.S. 79, 93-98, 106 S.Ct. 1712, 1721-1724, 90 L.Ed. 2d 69 (1986), the United States Supreme Court adopted a three-step analysis to determine whether the constitutional rights of a defendant or prospective jurors have been infringed by impermissible discriminatory practices. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the |4burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must, determine whether the defendant has carried his burden of proving purposeful discrimination. State v. Handon, 2006-0131 (La. App. 1st Cir. 12/28/06), 952 So.2d 53, 56. See also Foster v. Chatman, — U.S.—, 136 S.Ct. 1737, 1747, 195 L.Ed. 2d 1 (2016).

To establish a prima facie case, the defendant must show: (1) the defendant is a member of a cognizable group and the prosecutor exercised peremptory challenges- to remove venire members of the defendant’s race; (2) the challenge was peremptory rather than for cause; and (3) relevant circumstances sufficient to raise an inference that the prosecutor struck the venire person on account of his being a member of that cognizable group. See Batson, 476 U.S. at 96, 106 S.Ct. at 1723. Without an inference that the prospective jurors were stricken because they are members of the targeted group, the defendant is unable, to make a prima facie• ease of purposeful discrimination, and his Bat-son challenge expires at the threshold. State v. Sparks, 88-0017 (La. 5/11/11), 68 So.3d 435, 468, cert. denied sub nom., El-Mumit v. Louisiana, 566 U.S. 908, 132, S.Ct. 1794, 182 L.Ed. 2d 621 (2012).

The trial court may “effectively collapse the first two stages of the Batson procedure, whether or not the defendant established a prima facie case of purposeful discrimination, and may then perform the critical third step of weighing the defendant’s proof and. the. prosecutor’s race-neutral reasons to, determine discriminatory intent.” State v. Jacobs, 99-0991 (La. 5/15/01), 803 So.2d 933, 941, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed. 2d 707 (2002). A trial judge may take into account not - only whether a pattern of strikes against a suspect class of persons has emerged during voir dire, but also whether the opposing party’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. See State v. Duncan, 99-2615 (La. 10/16/01), 802 So.2d 533, 545, cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed. 2d 183 (2002).

l/The state, in presenting race-neutral reasons for its excusal of prospective jurors, need not present an explanation that is persuasive, or even plausible; unless a discriminatory intent is inherent in the state’s explanation after review of the entire record, the reason offered will be deemed race neutral, Handon, 952 So.2d at 58. For a Batson challenge to succeed, it is not enough that a discrimina-; tory result be evidenced; rather, that result must ultimately be traced to a prohibited discriminatory purpose. Thus, the sole focus of the Batson inquiry is upon the intent of the opposing party at the time he exercised his peremptory strikes. " See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 287. A reviewing court owes the trial court’s evaluations of discriminatory intent great deference and should not reverse them unless they are elearly erroneous. Handon, 962 So.2d at 58.

Defendant, contends that three black prospective jurors were peremptorily stricken, from the jury by the state: Alton Johnson, Jr., Bryson Scott, and Larri Harvey. Of these three prospective jurors, defendant admits that the state offered a race-neutral reason for excusing Mr. Johnson. However, he contends that the state’s proffered race-neutral reason for excluding Mr. Scott and Ms. Harvey was pretextual.

Following voir dire of the first panel of jurors, the trial court first asked for: any cause challenges. Defense counsel asked that prospective juror Gerard Ray be excused for cause based upon his friendship with police officers, and the trial court granted this cause challenge. Thereafter, the state exercised peremptory challenges against Mr. Johnson, Mr. Scott, and Ms. Harvey. After the state excused Ms. Harvey, defense counsel lodged a Batson challenge, stating that the state had stricken “all of the black potential jurors on the jury pool.” The state first responded that it was incorrect to say it had stricken all of the black prospective jurors, as Mr. Ray was also black and challenged -by the defense — over the state’s objection — for cause.

Un response to Mr. Johnson, the state said it excused him because of his prior service on a jury that had returned a not guilty verdict. Regarding Mr. Scott and Ms, Harvey, the state explained that they — as well as three other presumably non-black jurors (Ms. Pinell, Mr.- Thibo-deaux, and Ms. Lirette) — were under the age-of 35. The state expressed concerns that younger individuals might be familiar with some of the nightclubs that the people involved in the case went to, so the state was attempting to seat an older jury. The trial court denied the .'Batson challenge, noting that the state was correct regarding the ages of Mr. Scott (24) and Ms. Harvey (34). The trial court also noted that Mr. Johnson has a brother who was in prison for a drug conviction. ■

During the pendency of this appeal, this court ordered the trial court to hold a contradictory hearing to determine the age and race of each prospective juror. According to the findings set forth by the trial court, the parties stipulated to the name and age of each prospective juror. The trial court noted that there was no evidence in the record to indicate the race of the prospective jurors. However, the trial court’s findings described an affidavit submitted by defendant’s trial' counsel, who indicated that three black jurors were peremptorily stricken from the first panel by the state. The trial court also set forth trial counsel’s testimony that established the state as having accepted a black female juror on the second panel.

On appeal, defendant contends that the state’s proffered race-neutral reason for striking Mr. Scott and Ms. Harvey — their age — was unpersuasive because the state did not strike several young white jurors despite having the opportunity to do so. Defendant highlights the statements from trial counsel’s affidavit, which described that the state did not strike prospective jurors Paul W. Daugherty, a 33-year-old white male; Tabitha A. Bienvenu, a 26-year-old white female; and Brandon K. Thibodaux, a 25-year-old white male.

|7At the time defense counsel lodged the Batson challenge, one black prospective juror had been challenged for cause by defense counsel, and three black prospective jurors had been peremptorily challenged by the state. Of these three individuals excused by the state, defendant admits that Mr. Johnson’s peremptory challenge was for a race-neutral reason. He takes issue with the challenges of Mr. Scott and Ms. Harvey because the state alleged their dismissals to be due to their relative youth, but the state later accepted several young white jurors.

After reviewing the record as a whole .and considering the totality of the circumstances, we find that the state’s race-neutral explanations were reasonable, and the proffered rationales had some basis in accepted trial strategy. See Handon, 952 So.2d at 59. Defendant challenges the state’s dismissal of only two black prospective jurors. Notably, defendant himself challenged for cause a black prospective juror that the state wished to accept, and defendant does not challenge as discriminatory the dismissal of Mr. Johnson pursuant to a peremptory challenge. Defendant’s proof, then, is the dismissal of two youthful, black prospective jurors and the state’s later acceptance of three youthful, white prospective jurors. At the time of the Batson challenge, these white prospective jurors had not been accepted by the state, - and defendant did not re-urge his Batson challenge to give the trial court a chance to address these circumstances.

Under these circumstances, it is apparent that the defendant failed to preserve his Batson claim, if any, concerning these prospective jurors. See La. Code Crim. P. art. 841; State v. Williams, 524 So.2d 746 (La. 1988) (per curiam) (“[t]he Batson decision suggested that the trial judge, if the objections are well founded, can correct the error either by denying the peremptory challenge and reinstating the challenged jurors or by dismissing the ve-nire and selecting a new jury. This suggestion indicates that the ruling on the objections must be made at some time before the completion of the jury panel.)” [Footnotes omitted.]; State v. Dominguez, 2014-1 (La. App. 5th Cir. 8/28/14), 148 So.3d 648, 658, writ denied, 2014-2033 (La. 5/22/15), 170 So.3d 982 (“[t]he ruling, and thus the prerequisite Batson objection, must be made at a time when the trial court can correct any misuse of peremptory challenges. Although jurisprudence has indicated that Batson objections should at least be made ‘at some time before the completion of the jury panel,’ in order to fulfill the purpose of that principle, a defendant must make a Batson objection contemporaneously with the State’s exercise of the allegedly racially biased peremptory challenges, or at the least, reasonably soon enough thereafter that the stricken jurors have-not been dismissed from service.”). [Citations omitted.] Thus, defendant’s proof at the time of the Bat-son challenge, when weighed against the state’s race-neutral reasons, was not sufficient to prove the existence of discriminatory intent. See Green, 655 So.2d.at 290.

Moreover, a review of the entire voir dire transcript indicates that at the time the state began to accept any youthful, white prospective jurors, it had already exercised ten peremptory challenges, seven of which were apparently exercised against non-black prospective jurors. At that time, only six jurors had been seated, and the state had exercised all but two peremptory challenges. Further, defendant admits that a black juror from the second panel was seated as a juror, despite the state holding a peremptory challenge. Therefore, the transcript does not reveal any evidence that the use of peremptory strikes by the prosecutor was motivated by impermissible considerations. See Handon, 952 So.2d at 59. Accordingly, we find |ano abuse of discretion by the trial court in its denial of defendant’s Batson challenge regarding these prospective jurors.

This assignment of error is without merit.

PATENT ERROR

Initially, we note that our review for error is pursuant to La. Code Crim. P. art. 920(2), which provides that the only matters to be considered on appeal are errors designated in the assignments of error and “error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

We note that defendant moved for, and was granted, the appointment of a sanity commission. Although two doctors’ reports appear in the record, the trial court does not appear to have conducted a contradictory hearing or made a ruling on defendant’s capacity to proceed to trial.

As a general matter, La. Code Crim. P. art. 642 allows “[t]he defendant’s mental incapacity to proceed [to] be raised at any time by the defense, the district attorney, or the court.” The article additionally requires that “[w]hen the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution ... until the defendant is found to have the mental capacity to proceed.” La. Code Crim. P. art. 642, Next, La. Code Crim. P. art. 643 provides, in pertinent part, “[t]he court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed.” Last, if' a defendant’s mental incapacity has been properly raised, the proceedings can only continue after the court holds a contradictory hearing and decides the issue of the defendant’s mental capacity to proceed. See La. Code Crim. P. art. 647; State ex rel. Seals v. State, 2000-2738 (La. 10/25/02), 831 So.2d 828, 832-33.

Questions regarding a defendant’s capacity must be deemed by the court to be bona fide and in good faith before a court will consider if there are “reasonable grounds” to doubt capacity. Where there’ is a bona fide question raised regarding a | ^defendant’s capacity, the failure to observe procedures to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Seals, 831 So.2d at 833. At this point, the failure to resolve the issue of a defendant’s capacity to proceed may result in nullification of the conviction and sentence under State v. Nomey, 613 So.2d 157, 161-62 (La. 1993), or a nunc pro tunc hearing to determine’ competency retrospectively undér State v. Snyder, 98-1078 (La. 4/14/99), 750 So.2d 832. Seals, 831 So.2d at 833.

In certain instances, a nunc pro tunc hearing on the.issue of competency is appropriate “if a meaningful inquiry into the defendant’s competency” may still be had. In such cases, the trial court is again vested with the discretion of making this decision as it “is in the best position” to do so. This determination must be decided on a-case-by-case .basis, .under the guidance of Nomey, Snyder, and their progeny. The state bears the burden in the nunc pro tunc hearing to provide sufficient evidence for the court to make a rational decision. Seals, 831 So.2d at 833.

Because there is no indication in the record that the trial court held a contradictory hearing following its receipt of the physicians’ reports in the record, we conditionally affirm defendant’s convictions on counts one, two, and three and remand to the trial court for the purpose of determining whether a nunc pro tunc competency hearing may be possible. If the trial court believes that it is still possiblé to determine defendant’s competency at the time of:the trial on the charges, the trial court is directed to hold an evidentiary hearing and make a competency ruling. If defendant was competent, no new trial is required. If defendant, is found to have been incompetent at the time of trial, or if the inquiry into competency is found to be impossible, he is entitled to a new trial. Defendant’s’ right to appeal an adverse ruling is reserved. See Snyder, 750 So.2d at 855-56 & 863; State v. Mathews, 2000-2115 (La. App. 1st Cir. 9/28/01), 809 So.2d 1002, 1016, writs denied, 2001-2873 (La. 9/13/02), 824 So.2d 1191, 2001-2907 (La. 10/14/02), 827 So.2d 412.

InWe also note patent sentencing error in this case. When a convicted felon is found guilty.of possessing a firearm in violation of the provisions of La. R.S, 14:95.1, the sentence shall be imprisonment at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and a fine of not less than one thousand dollars nor more than five thousand dollars. La. R.S. 14:95.1(B). In imposing the sentence on count three, the trial court sentenced defendant to twenty-five years at hard labor without the benefit of parole, probation, or suspension of sentence and failed to impose any fine. This sentence is illegally excessive in its term and illegally lenient in its failure to include the mandatory fine. See La. R.S. 14:95.1(B), An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. Code Crim. P. art. 882(A). When the amendment of a defendant’s sentence entails .more than a ministerial correction of a sentencing error, however, the decision in State v. Williams, 2000-1725 (La. 11/28/01), 800 So.2d 790, 801-02, does not sanction sua sponte correction by the court of appeal on the defendant's appeal of his’ conviction and sentence. See State v. Haynes, 2004-1893 (La. 12/10/04), 889 So.2d 224 (per curiam). Accordingly, we vacate the sentence imposed on count three and, in the event- the defendant is found to have been competent at the time of trial, instruct the trial court to sentence him on that count in accordance with law.

CONVICTIONS ON COUNTS ONE, TWO, AND THREE CONDITIONALLY AFFIRMED; SENTENCES ON COUNTS ONE AND TWO CONDITIONALLY AFFIRMED; SENTENCE ON COUNT THREE VACATED; AND CASE REMANDED WITH INSTRUCTIONS.

HOLDRIDGE, J.,

Concurring.

[J respectfully concur. I believe it was a Batson violation for the State to challenge two black prospective jurors because of their young age and then to later accept three white jurors of the same age group. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The defendant failed to preserve his Batson challenge by failing to re-urge it when the three youthful white jurors were seated. By failing to re-urge his challenge, the defendant did not allow the trial court an opportunity to correct the error. See State v. Johnson, 50,005 (La. App. 2 . Cir. 8/12/15), 175 So.3d 442, 456, writ denied, 2015-1687 (La. 9/16/16), 206 So.3d 203.

      . Although the words "at hard labor” do.not appear in the minutes or sentencing transcript concerning count one, and the record does not contain a commitment order, we note that at the sentencing hearing the trial court explicitly stated that defendant's sentence was "in accordance with law." Furthermore, at the hearing on reconsideration of the sentence for count one, the trial court recognized that it was a "mandatory life sentence” with no discretion to deviate from the "statutory sentence.” Because the state did not seek a capital verdict, the mandatory statutory sentence on a conviction for first degree murder (count one) was “life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.” La. R.S. 14:30(C)(2). Thus, defendant’s sentence on count one is determinate from the record and the failure of the trial court to state that it was to be served "at hard labor” is harmless error. See State v. Norman, 2005-794 (La. App. 5th Cir. 3/14/06), 926 So.2d 657, 661, writ denied, 2006-1366 (La. 1/12/07), 948 So.2d 145.

      . At the time of this explanation, Ms. Lirette's name had not been called for acceptance, but she was peremptorily challenged by the state following the trial court’s denial of the Batson challenge.

      . The fact that a prosecutor excuses one person with a particular characteristic and not another similarly situated person does not in itself show that the prosecutor’s explanation was. a mere pretext for discrimination. The accepted juror may have exhibited other traits which the prosecutor could have reasonably believed would make him desirable as a juror. State v. Lee, 2010-2164 (La. App. 1st Cir. 6/10/11), 2011 WL 3427144, *6 (unpublished), writ denied, 2011-1440 (La. 12/16/11), 76 So.3d 1201; see also State v. Elie, 2005-1569 (La. 7/10/06), 936 So.2d 791, 800 ("[notwithstanding the appellate court’s observation, the fact jurors of different races share a similar characteristic is not dispositive when deciding whether an explanation has been pretextual."); State v. Drake, 2010-1518 (La. App. 1st Cir. 3/25/11), 2011 WL 1103422, *7 (unpublished), writ denied, 2011-0838 (La. 11/18/11), 75 So.3d 450 ("[e]ven assuming, arguendo, that similar responses were given by other prospective jurors, the fact that some were accepted by the State and the [African-American] prospective jurors-" in question were excused by the State does not in itself show that the explanation for excusing the other prospective jurors were a mere pretext for discrimination.”).