author: EZELL, Judge.

text:
    Justin THOMAS v. Otis Rashad DREW, M.D., et al.
    CA 17-818
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2018
    Patrick Daniel, Daniel & Associates, LLC, 2409 Commerce St., Houston, TX 77003, (713) 589-3539, COUNSEL FOR PLAINTIFF/APPELLANT: Justin Thomas
    Ryan M. Goudelocke, Durio, McGoffin, Stagg & Ackermann, P. O. Box 51308, Lafayette, LA 70505-1308, (337) 233-0300, COUNSEL FOR DEFENDANT/APPELLEE: Otis Rashad Drew, M.D.
    Richard S. Crisler, Bradley Murchison Kelly & Shea, 1100 Poydras St., # 2700, New Orleans, LA 70163-2700, (504) 596-6300, COUNSEL FOR DEFENDANT/APPELLEE: Bryan Baudoin, D.O.
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and D. Kent Savoie, Judges.
   EZELL, Judge.

Justin Thomas appeals a trial court judgment which granted summary judgment in favor of Dr. Otis Drew and dismissed him from this medical malpractice case. Mr. Thomas alleged that Dr. Drew failed to properly monitor him post-operatively, resulting in his early release and subsequent overdose causing Mr. Thomas to lapse into a coma. Mr. Thomas claims the trial court erred in finding that his expert affidavit was inadmissible and failed to create a genuine issue of material fact.

FACTS

On June 20, 2013, Dr. Drew examined Mr. Thomas. Mr. Thomas was eighteen years old at the time and complaining of repeated dislocations of his right shoulder. Dr. Drew noted that Mr. Thomas liked to work out heavily and planned on performing heavy labor. Mr. Thomas was also thinking about going into the armed services. His pain was a six out of ten. An MRI indicated an anterior, inferior, and posterior glenolabral injury. After examination, Dr. Drew recommended therapy as a first option and surgery as a second option. Mr. Thomas wanted to proceed with the surgery.

The pre-admit process was performed on June 28, 2013. It was noted that the surgery would take one to two hours, including anesthesia time and that Mr. Thomas was a smoker on rare occasions. Mr. Thomas denied any health issues. It was also noted that he had never had anesthesia.

On July 1, 2013, Mr. Thomas was admitted to Lafayette Surgicare at 7:35 a.m. for an outpatient right shoulder arthroscopy with SLAP and Bankart repair for painful rotator cuff syndrome. Surgery began at 8:49 a.m. and ended at 11:13 a.m. His parents were notified at 10:15 a.m. of the progress in surgery.

Before the procedure, Mr. Thomas was administered an interscalene nerve block of 100 mg Ropivicaine. In conjunction with the block, he was administered 2 mg of Versed, 100 mcg of Fentanyl and 100 mg of Propofol.

Medications Mr. Thomas received during surgery while under anesthesia included 2 mg of Midazolam, 100 mcg of Fentanyl, and 200 mg of Propofol. He was also dispensed 4 mg of Zofran, 4 mg of Decadron, 1000 mg of Ofirmev, and 30 mg of Toradol.

The operative report indicates that Mr. Thomas tolerated the procedure well and was taken to the recovery room in good condition. During recovery, additional medications were dispensed to Mr. Thomas.

At 11:55 a.m., Mr. Thomas was administered 25 mg of Demerol for shivering management. At 12:05 p.m., Mr. Thomas woke up in severe pain. The nurses' notes indicate that orders were taken from Dr. Baudoin regarding pain medication. At 12:05 p.m. and 12:07 p.m., Mr. Thomas was given 5 mg of Morphine. Another nerve block of 100 mg of Ropivicaine was administered. At 12:10 p.m., 12:12 p.m., 12:15 p.m., and 12:17 p.m., Mr. Thomas was given 1 mg of Dilaudid. Mr. Thomas received 2 mg of Versed at 12:20 p.m. for the second block. It was observed that he was sedated at 12:25 p.m. He then received 0.2 mg of Romazicon at 12:40 p.m. for a reversal. At 1:02 p.m., the airway was removed and it was noted that Mr. Thomas was feeling better. He was discharged at 1:50 p.m. into the care of his parents.

The anesthesia discharge notes indicate that Mr. Thomas was alert and oriented and able to sit up and stand without dizziness or significant change in vital signs. Mr. Thomas was instructed to use an EB ice machine as needed, an arm sling, and place no weight on the right arm. It was noted that Mr. Thomas was given a prescription for Hydrocodone at the doctor's office before surgery and this medication was to be used at home for pain. The notes indicate that the patient and family were unsure of the dose, but the prescription was at home once needed.

Later that evening at 7:48 p.m., an ambulance was called to the Thomas home because Mr. Thomas was unconscious. The ambulance records indicate that Mr. Thomas's mom had given one Oxycodone. He was given Narcan but did not respond. He was intubated through his nose and transferred to the emergency room. According to the petition, Mr. Thomas fell into a coma for five days following his release and lost the use of his left side. A medical review panel opinion rendered on May 26, 2016, found that "[a]ll parties involved met the standard of care."

On August 26, 2016, Mr. Thomas filed suit against Dr. Drew. He also sued the anesthesiologist, Lafayette Surgicare, Lafayette Surgery Center, and The Regions Health System of Acadiana. Mr. Thomas claims the surgery and post-surgical care required extensive anesthesia and heavy narcotic medication. He claims that he was released too early following his surgery and went into a coma for five days causing a brain injury.

Dr. Drew filed a motion for summary judgment on February 15, 2017. A hearing on the motion was held on May 15, 2017. The trial court granted Dr. Drew's motion and dismissed all of Mr. Thomas's claims against Dr. Drew. Mr. Thomas then filed the present appeal.

SUMMARY JUDGMENT

In support of his motion for summary judgment, Dr. Drew offered the medical review panel opinion which unanimously found that he met the applicable standard of care in his treatment of Mr. Thomas. Mr. Thomas opposed the motion for summary judgment with the affidavit of Dr. Albert Gros, an anesthesiologist and pain management physician, who opined that "[t]he patient was not monitored long enough prior to discharge from the Recovery Room at Lafayette Surgery Center." Dr. Drew argued that Dr. Gros is not qualified to render an opinion on whether or not Dr. Drew breached the standard of care of an orthopedic surgeon in his treatment of Mr. Thomas. In his motion for summary judgment, Dr. Drew further argued that Mr. Thomas did not offer any expert testimony that Dr. Drew's alleged breach caused or contributed to any injury damages sustained by Mr. Thomas.

Mr. Thomas first claims that Dr. Drew failed to follow the proper procedural requirements for objecting to the admissibility of Dr. Gros's expert opinion. Citing Adolph v. Lighthouse Prop. Ins. Corp. , 16-1275 (La.App. 1 Cir. 9/8/17), 227 So.3d 316, Mr. Thomas argues that the only proper procedure to challenge the qualifications of an expert affidavit filed in opposition to a motion for summary judgment is pursuant to La.Code Civ.P. art. 1425. Mr. Thomas claims that Dr. Drew was required to assert a Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), challenge or motion in limine contesting the qualifications of Dr. Gros. Mr. Thomas claims the trial court erred in failing to conduct a Daubert hearing before excluding the testimony of Dr. Gros.

Adolph , 227 So.3d 316, held that a defendant could no longer challenge the qualifications of the plaintiffs' expert by way of a motion to strike after La.Code Civ.P. art. 966(D)(2) was amended by Acts 2015, No. 422, § 1, effective January 1, 2016. Now La.Code Civ.P. art 966 (D)(2) provides that "[a]ny objection to a document shall be raised in a timely filed opposition or reply memorandum." " Louisiana Code of Civil Procedure article 1425(F) sets out in detail the procedure which should be followed in order to challenge the qualifications of an expert or the methodology used by the expert in reaching his opinion." Adolph , 227 So.3d at 320.

Dr. Drew did challenge the qualification of Dr. Gros in his reply memorandum. Therefore, he followed the proper procedure pursuant to La.Code Civ.P. art. 966(D)(2) in objecting to Dr. Gros's affidavit. We do agree with Mr. Thomas that in deciding whether to admit an expert opinion affidavit at the summary judgment stage, the Daubert standards should be considered by the trial court in determining whether the expert is qualified to render an opinion. Independent Fire Ins. Co. v. Sunbeam Corp. , 99-2181, 99-2257 (La. 2/29/00), 755 So.2d 226.

At the hearing on the motion for summary judgment, defense counsel extensively discussed the applicability of the Daubert analysis in a summary judgment proceeding. A reading of the transcript indicates that the trial court considered the qualifications of Dr. Gros regarding his ability to testify about the duty of care owed by Dr. Drew. We find that the trial court conducted a Daubert analysis regarding Dr. Gros's qualifications "as an expert witness on the issue of whether the physician departed from accepted standards of medical care." La.R.S. 9:2794(D)(1).

Mr. Thomas next argues that the fact that Dr. Gros is not an orthopedic surgeon is not dispositive of the issue of his ability to testify as an expert in this matter. He further argues that Dr. Gros's affidavit creates a genuine issue of material fact prohibiting summary judgment.

In reviewing the grant of summary judgment, an appellate court conducts a de novo review using the same standards that the trial court used in making its determination. Domingue v. Louisiana Guest House , 17-633 (La.App. 3 Cir. 12/6/17), --- So.3d ----, 2017 WL 6029301. Summary judgment is favored and "designed to secure the just, speedy, and inexpensive determination of every action." La.Code Civ.P. art. 966(A)(2). "[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

It is the mover's burden of proof. La.Code Civ.P. art. 966(D)(1). However, if the mover will not bear the burden of proof at trial, then the mover does not have to negate all essential elements of the adverse party's claim but only has to point out "the absence of factual support for one or more elements essential to the adverse party's claim." Id. The burden then shifts to the adverse party to produce factual support to establish a genuine issue of material fact that mover is not entitled to judgment. Id.

In a medical malpractice action, the plaintiff must establish:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty .
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

La.R.S. 9:2794(A) (emphasis added).

Pursuant to La.Code Civ.P. art. 967(A), "supporting and opposing affidavits of experts may set forth such experts' opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Louisiana Revised Statutes 9:2794(D)(1) sets forth the qualifications an expert must possess in order to qualify to testify about a physician's breach of the standard of care owed to the plaintiff in a medical malpractice action:

(a) He is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose.
(b) He has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim.
(c) He is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of care.
(d) He is licensed to practice medicine by the Louisiana State Board of Medical Examiners under R.S. 37:1261 et seq., is licensed to practice medicine by any other jurisdiction in the United States, or is a graduate of a medical school accredited by the American Medical Association's Liaison Committee on Medical Education or the American Osteopathic Association.

La.R.S. 9:2794(D)(1).

In Hebert v. Podiatry Insurance Co. of America , 96-567, p.10 (La.App. 3 Cir. 10/9/96), 688 So.2d 1107, 1113, writs denied , 96-2726, 96-2728 (La. 1/6/97), 685 So.2d 117 (citations omitted), this court discussed the admissibility of an expert's opinion regarding the standard of care in a medical malpractice case as follows:

Where the alleged negligent acts raise issues which are limited and peculiar to the medical specialty involved, only those who are qualified in that specialty may testify as to the applicable standards. However, "it is a specialist's knowledge of the requisite subject matter, rather than the specialty within which the specialist practices, which determines whether a specialist may testify as to the degree of care which should be exercised;" Where medical specialties overlap, a specialist in one field can testify as to the standard of care applicable to a procedure which is common to both disciplines, where there is no proof that the standard of care is different in each discipline. The party offering the expert must prove the witness' training, expertise, and skill in the procedure. The determination of an expert's qualifications to testify as to the standard of care must be made on a case-by-case basis.

See also Lejeune v. Louisiana Med. Mut. Ins. Co. , 13-845 (La.App. 3 Cir. 2/12/14), 153 So.3d 1021, writ denied , 14-519 (La. 4/25/14), 138 So.3d 646 ; Richardson v. Cotter , 51,637 (La.App. 2 Cir. 9/27/17), --- So.3d ----, 2017 WL 4273441.

In the present case, the alleged malpractice did not involve any issue peculiar to orthopedic surgery. Rather, Mr. Thomas argues that the malpractice occurred in his post-operative care and release. Therefore, we agree with Mr. Thomas that an expert in orthopedic surgery was not required. However, even if we were to find that Dr. Gros is qualified to offer an opinion as to whether Dr. Drew breached the standard of care regarding Mr. Thomas's post-operative care, we find that Dr. Gros's affidavit is insufficient to establish that Dr. Drew breached the standard of care.

Dr. Gros never states what standard of care was owed to Mr. Thomas by Dr. Drew post-operatively or that Dr. Drew breached any standard of care at all in his care of Mr. Thomas. Dr. Gros never even mentions Dr. Drew in his affidavit. He simply makes a conclusory statement about Mr. Thomas's post-operative care. Affidavits that are conclusory with no supporting underlying facts are legally insufficient to defeat a motion for summary judgment. Baez v. Hosp. Serv. Dist. No. 3 of Allen Parish , 16-951 (La.App. 3 Cir. 4/5/17), 216 So.3d 98.

We agree with the trial court's decision to grant Dr. Drew's motion for summary judgment. Dr. Drew established through the medical review panel opinion that he did not breach the standard of care owed to Mr. Thomas. Mr. Thomas failed to produce any expert testimony as to the standard of care Dr. Drew owed him post-operatively and that Dr. Drew breached that standard of care.

For these reasons, the judgment of the trial court granting Dr. Drew's motion for summary judgment and dismissing Mr. Thomas's claims against Dr. Drew is affirmed. Costs of this appeal are assessed against Justin Thomas.

AFFIRMED.

Cooks, J., concurs and assigns written reasons.

COOKS, J., concurs.

It is true Plaintiff's expert opinion was admissible, absent his specialization as an orthopedic surgeon. However, the record in this case clearly shows during the relevant period noted by Plaintiff's expert, the doctor mainly in charge of administering and supervising Thomas' recovery from the drugs listed by Plaintiff's expert, was not Dr. Drew. Dr. Baudoin was the attending anesthesiologist assigned to administer and monitor the effects of the drugs listed in the expert's report. The standard of care breached, according to the expert, was the failure to "monitor long enough prior to discharge" Thomas' tolerance and recovery from the drugs administered. The duty allegedly breached was the failure to monitor. Neither the record evidence nor the expert's opinion identified Dr. Drew as the responsible party upon whose shoulders this duty was placed.


source: Caselaw Access Project

license: Public Domain

text:
    Shirlene BRITT, et al. v. RICELAND PETROLEUM COMPANY, et al.
    17-941
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2018
   Alan David Ezkovich, Ezkovich & Co., LLC, 650 Poydras Street-Suite 1220, New Orleans, LA 70130, Telephone: (504) 593-9899, COUNSEL FOR: Defendant/Appellant-Mt. Hawley Insurance Company

Stephen Douglas Baker, Law Office of Stephen Baker, 412 West University Avenue-Suite 101, Lafayette, LA 70506, Telephone: (337) 235-8298, COUNSEL FOR: Defendant/Appellee-Riceland Petroleum Company

Sidney Wallis Degan, III, Catherine N. Thigpen, Degan, Blanchard & Nash, 400 Poydras Street, Suite 2600, New Orleans, LA 70130, Telephone: (504) 529-3333, COUNSEL FOR: Defendant/Appellee-Evanston Insurance Company

Chad Ellis Mudd, David Paul Bruchhaus, Michael Keith Prudhomme, Matthew P. Keating, Mudd & Bruchhaus, L.L.C., 410 East College Street, Lake Charles, LA 70605, Telephone: (337) 562-2327, COUNSEL FOR: Plaintiffs/Appellees-C. W. Britt, Norma Jean Broussard, Michael D Meche, Barbara Britt, Beulah Britt Meche, Shirlene Britt, Joyce Britt Doherty, and Jeffrey Meche

Eric Earl Jarrell, King, Krebs & Jurgens, PLLC, 201 St. Charles Avenue-Suite 4500, New Orleans, LA 70170, Telephone: (504) 582-3814, COUNSEL FOR: Defendant/Appellee-Conoco Phillips Company

John William Hite, III, Salley, Hite, Mercer & Resor, LLC, One Canal Place, 365 Canal Street-Suite 1710, New Orleans, LA 70130, Telephone: (504) 566-8800, COUNSEL FOR: Defendant/Appellant-United National Insurance Company

Robert Michael Kallam, Preis PLC, P. O. Drawer 94-C, Lafayette, LA 70509, Telephone: (337) 237-6062, COUNSEL FOR: Defendant/Appellee-Riceland Petroleum Company

Céleste D. Elliott, Anne E. Briard, Lugenbuhl, Wheaton, Peck, Rankin and Hubbard, 601 Poydras Street-Suite 2775, New Orleans, LA 70130, Telephone: (504) 568-1990, COUNSEL FOR: Defendants/Appellants-Northfield Insurance Company, St. Paul Fire and Marine Insurance Company, and St. Paul Surplus Lines Insurance Company

Thear J. Lemoine, Brown Sims, 1100 Poydras Street-39th Floor, New Orleans, LA 70163, Telephone: (504) 569-1007, COUNSEL FOR: Defendant/Appellee-Westchester Fire Insurance Company

Kelly B. Becker, Kathryn Z. Gonski, Liskow & Lewis, One Shell Square, 701 Poydras Street-Suite 5000, New Orleans, LA 70139-5099, Telephone: (504) 581-7979, COUNSEL FOR: Defendant/Appellee-BP America Production Company

Penny L. Malbrew, Liskow & Lewis, P.O. Box 52008, Lafayette, LA 70505-2008, Telephone: (337) 232-7424, COUNSEL

FOR: Defendant/Appellee-BP America Production Company

Jonathan B. Womack, Taylor Wellons Politz & Duhe, APLC, 1515 Poydras Street-Suite 1900, New Orleans, LA 70112, Telephone: (504) 525-9888, COUNSEL FOR: Defendant/Appellant-Commercial Union Assurance Company PLC

Ross J. Donnes, Talbot, Carmouche & Marcello, 17405 Perkins Road, Baton Rouge, LA 70810, Telephone: (225) 400-9991, COUNSEL FOR: Plaintiffs/Appellees-C. W. Britt, Barbara Britt, Norma Jean Broussard, Jeffrey Meche, Michael D Meche, Shirlene Britt, Joyce Britt Doherty, and Beulah Britt Meche

Cory T. Stuart, Larzelere Picou Wells Simpson, 3850 North Causeway Boulevard-Suite 110, Metairie, LA 70002, Telephone: (504) 834-6500, COUNSEL FOR: Defendant/Appellee-Gotham Insurance Company

Margaret V. Glass, Gieger, Laborde & Laperouse, LLC, One Shell Square, 701 Poydras Street-Suite 4800, New Orleans, LA 70139-4800, Telephone: (504) 561-0400, COUNSEL FOR: Defendant/Appellant-Lexington Insurance Company

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Elizabeth A. Pickett, Judges.

THIBODEAUX, Chief Judge.

In this legacy lawsuit governed by La.R.S. 30:29 (Act 312), several landowners (plaintiffs) sued Riceland Petroleum Company (Riceland) and BP America Production Company (BP), seeking remediation of their property contaminated by historical oil and gas operations conducted by the defendants. Riceland subsequently filed a third-party demand against several of its insurers (Certain Insurers), all of whom denied coverage. The plaintiffs eventually settled all their claims against Riceland and BP and provided notice to the Louisiana Department of Natural Resources (LDNR) and the Attorney General (AG) of the settlement, as required by La.R.S. 30:29(J)(1). Receiving no objection therefrom, the plaintiffs moved for the trial court's approval, which the court ultimately granted after a hearing. Interpreting the provisions of La.R.S. 30:29(J), we find that all of the requirements for approval of the settlement herein have been satisfied. Finding no legal error, we affirm the trial court's judgment.

I.

ISSUES

Certain Insurers ask this court to decide:

(1) whether the trial court erroneously applied the law by failing to determine whether remediation is required prior to signing the Judgment for
Approval of Settlement in this case governed by Act 312; and, (2) if remediation is necessary in this case governed by Act 312, whether the trial court erroneously signed the Judgment for Approval of Settlement without monies being deposited into the registry of the court?

II.

FACTS AND PROCEDURAL HISTORY

This matter involves property contamination caused by historic oil and gas operations conducted on or near a tract of land located in Jefferson Davis Parish. On June 25, 2014, the plaintiffs filed suit against Riceland and BP, as the current and former operators, seeking damages for and remediation of the contamination. Riceland, in turn, filed a third-party demand against Certain Insurers, seeking indemnity, contribution, payment of attorneys' fees, defense costs, and other expenses available under the applicable insurance policies issued to Riceland. Certain Insurers answered the third-party demand, denying coverage under any of the applicable policies.

After nearly three years of litigation, the plaintiffs, BP, and Riceland (settling parties) reached a compromise to resolve all of the plaintiffs' claims against BP and Riceland. As part of the settlement agreement, BP and Riceland agreed to remediate the property in accordance with state regulatory standards. In addition, Riceland assigned to the plaintiffs its rights, causes of action, claims, or abilities to recover against Certain Insurers under any applicable insurance contracts, while reserving its rights to recover against Certain Insurers for unpaid attorneys' fees, expert fees, and expenses incurred prior to the effective date of the settlement.

On April 28, 2017, the settling parties provided notice and a redacted copy of the settlement agreement to the LDNR and the AG, pursuant to the express requirements of La.R.S. 30:29(J). Thereafter, the LDNR issued a letter to the trial court on May 15, 2017, indicating that it had no objection to the settlement. The plaintiffs then moved for court approval of the settlement, which the trial court initially granted on May 25, 2017.

Subsequently, Certain Insurers requested a conference with the trial court, claiming that the court's approval of the settlement failed to comply with La.R.S. 30:29(J) because the trial court failed to: (1) hold a contradictory hearing; (2) determine if remediation was required; and if so, (3) order the deposit of funds into the court registry. On June 1, 2017, the trial court held a telephone conference with the parties and agreed, at Certain Insurers' request, to hold a contradictory hearing on June 9, 2017. Prior to that hearing, Certain Insurers filed a "response" to the plaintiffs' motion for approval of the settlement agreement and, in the alternative, a motion for new trial and/or for reconsideration.

From the outset, Certain Insurers always maintained that they did not object to the terms of the settlement. Rather, their sole argument was that La.R.S. 30:29(J) required that, prior to approval of any settlement agreement, the trial court had to determine whether remediation of the property was necessary and, if so, whether BP and Riceland were required to deposit any amount of the settlement funds into the registry of the court.

Rejecting the insurers' interpretation of La.R.S. 30:29(J), the trial court approved the settlement, finding the settling parties had complied with the requirements of La.R.S. 30:29(J). Finding no just reason for delay, the trial court designated the judgment as final pursuant to La.Code Civ.P. art. 1915(B). Certain Insurers now appeal the judgment of approval but raise no objections to the proposed settlement per se.

III.

STANDARD OF REVIEW

An appellate court reviews the approval of a settlement agreement pursuant to an abuse of discretion standard. Opelousas Gen. Hosp. Auth. v. Fairpay Sols., Inc. , 13-17 (La.App. 3 Cir. 7/3/13), 118 So.3d 1269. A trial court's interpretation of a statute, as a question of law, however, is reviewed under the de novo standard of review. Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc. , 06-582 (La. 11/29/06), 943 So.2d 1037.

IV.

LAW AND DISCUSSION

The primary issue before this court is one of statutory interpretation. Specifically, we are called upon to interpret the provisions of La.R.S. 30:29(J)(1) to determine whether its requirements for approval of settlements in legacy lawsuits have been satisfied in this case.

In applying the general rules of statutory construction, we are mindful of the following axioms:

The function of statutory interpretation and the construction given to legislative acts rests with the judicial branch of the government.
Theriot v. Midland Risk Ins. Co. , 95-2895 (La. 5/20/97), 694 So.2d 184, 186. The rules of statutory construction are designed to ascertain and enforce the intent of the Legislature. Succession of Boyter , 99-0761 (La. 1/7/00), 756 So.2d 1122, 1128 ; State v. Piazza , 596 So.2d 817, 819 (La.1992). Legislation is the solemn expression of legislative will and, thus, the interpretation of legislation is primarily the search for the legislative intent. Boyter , 756 So.2d at 1128 ; Cat's Meow, Inc. v. City of New Orleans through Dep't of Fin., 98-0601 (La. 10/20/98), 720 So.2d 1186, 1198. We have often noted the paramount consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the Legislature to enact the law. State v. Johnson , 03-2993 (La. 10/19/04), 884 So.2d 568, 575 ; Theriot , 694 So.2d at 186.
The starting point in the interpretation of any statute is the language of the statute itself. Johnson , 884 So.2d at 575 ; Theriot , 694 So.2d at 186. "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." La. Civ.Code. art. 9 ; Johnson , 884 So.2d at 575. However, "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." La. Civ.Code art. 10 ; Fontenot v. Reddell Vidrine Water Dist. , 02-0439 (La. 1/14/03), 836 So.2d 14, 20. Moreover, "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." La. Civ.Code art. 12.

M.J. Farms, Ltd. v. Exxon Mobil Corp. , 07-2371, pp. 12-13 (La. 7/1/08), 998 So.2d 16, 26-27. Courts are further required to construe words and phrases "according to the common and approved usage of the language" with the additional directive that the "word 'shall' is mandatory and the word 'may' is permissive." La.R.S. 1:3.

As the starting point in our interpretation, we turn now to the language of La.R.S. 30:29(J)(1), which provides, with emphasis supplied by this court:

In the event that any settlement is reached in a case subject to the provisions of this Section, the settlement shall be subject to approval by the court. The department
and the attorney general shall be given notice once the parties have reached a settlement in principle. The department shall then have no less than thirty days to review that settlement and comment to the court before the court certifies the settlement. If after a contradictory hearing the court requires remediation, the court shall not certify or approve any settlement until an amount of money sufficient to fund such remediation is deposited into the registry of the court. No funding of a settlement shall occur until the requirements of this Section have been satisfied. However, the court shall have the discretion to waive the requirements of this Section if the settlement reached is for a minimal amount and is not dispositive of the entire litigation.

A plain reading of these provisions reveals three requirements "shall " be applicable to all settlements in cases governed by Act 312: (1) the settlement "shall be subject" to the trial court's approval (first sentence), but before which; (2) notice of the settlement "shall be given" to the LDNR and the AG (second sentence); and, (3) the LDNR and the AG "shall then have" thirty days to review the settlement and provide any comment to the trial court (third sentence). Through the use of the term "shall," the legislature explicitly renders these three requirements mandatory for all settlements and further prohibits the funding of any settlement until these requirements "have been satisfied" (fifth sentence).

Contrary to the position of Certain Insurers, however, the remaining mandatory provisions of the statute only come into play when certain circumstances are met, such as when (1) a contradictory hearing is held and the court requires remediation (fourth sentence), or (2) the settlement amount is de minimis and the settlement does not dispose of the entire matter (final sentence). In both of these sentences, the use of the conjunction "if" serves as an introduction to a conditional clause.

Under the fourth sentence, "the court shall not certify or approve any settlement" until sufficient funds for remediation are deposited, but this is only "[i ]f after a contradictory hearing the court requires remediation." What is generally understood through the use of the adjective "contradictory" is the existence of opposing or inconsistent views. In this case, it is on the need for or extent of remediation. If there is no opposition to or concern for the settlement raised by either the state actors or another party with a vested interest, then there would be no corresponding need for a contradictory hearing and determination by the court on the issue of remediation and the cost thereof. It logically follows, therefore, that the need for a hearing is triggered by and conditioned upon an objection to the remediation proposed by the settling parties. In the absence of such an objection, settling parties need only provide the required notice to the LDNR and the AG and allow for the time mandated for review, after which time the settlement is ripe for the court's approval.

Nevertheless, the final sentence of the statute states that the court "shall have the discretion," in any given settlement, to waive the mandatory requirements in their entirety. But again the exercise of this discretion is conditioned upon a finding that the settlement amount is minimal and the settlement "is not dispositive of the entire litigation."

Under this plain reading of the statutory provisions, we find that La.R.S. 30:29(J)(1) does not, as Certain Insurers advance, require: (1) a contradictory hearing; (2) a finding concerning remediation; and, (3) a deposit of necessary funds for court approval in all settlements under Act 312. We further find that to read those requirements into the statute would, in effect, expand its provisions beyond the explicit intent of the legislature, which both contemplated and sought to encourage court-approved settlements in these legacy lawsuits.

With this understanding of the statutory requirements, we turn now to the issue of whether the trial court legally erred in approving the settlement. Pursuant to La.R.S. 30:29(J)(1), the settling parties herein had to and did seek court approval after first providing the LDNR and the AG with notice and allowing thirty days for their review and comments on the proposed settlement. Because no one raised any objection to the settlement, all the mandatory requirements for approval were satisfied, and the trial court acted well within its authority to approve the settlement at that time.

Notably, no contradictory hearing was necessary for the determination of whether remediation was, in fact, required in the absence of the triggering condition, i.e., an objection by the LDNR, the AG, or another interested party. Even so, the trial court, clearly in an abundance of caution, conducted a hearing, at Certain Insurers' request, during which no evidence was introduced concerning the need for or extent of remediation. At this time, no one has ever contested or opposed the settlement or the remediation it proposes. Moreover, the settlement explicitly recognizes the need for remediation, and BP and Riceland expressly agree to remediate the property in accordance with state regulatory standards. The public purpose behind the enactment of Act 312 is to ensure

the natural resources and the environment of the state, including ground water, are to be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people and further mandates that the legislature enact laws to implement this policy. It is the duty of the legislature to set forth procedures to ensure that damage to the environment is remediated to a standard that protects the public interest.

La.R.S. 30:29(A). To the extent that BP and Riceland agreed to remediate the property in accordance with the state regulatory standards, the remediation proposed by the settlement fully complies with the public policy of this state on this very issue. This begs the question of what further remediation could have been necessitated or required by the trial court.

Regardless, given that the settling parties provided the required notice to the LDNR and AG and waited the necessary time for the LDNR and AG to comment before seeking approval by the trial court, we find the trial court's approval of the settlement was legally sound and affirm its judgment accordingly.

V.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

Costs of this appeal are assessed to the Third-Party Defendants/Appellants.

AFFIRMED.

      The plaintiffs are Shirlene Britt, Barbara Britt, C. W. Britt, Norma Jean Broussard, Joyce Britt Doherty, Michael D. Meche, Beulah Britt Meche, Jeffrey Meche, Linda F. Smith, Marjorie Britt Morvant, Kelly Britt Layman, William John Britt, Terri S. Britt, Kyle Reed, Barbara S. Morgan, Helen Morgan Shipman, John M. Suggs, Dwight J. Hollier, Mary R. Hollier, Matthew E. Miller, Douglas E. Miller, and MPIC, L.L.C.

      Certain Insurers are St. Paul Fire and Marine Insurance Company, St. Paul Surplus Lines Insurance Company, Northfield Insurance Company, Lexington Insurance Company, United National Insurance Company, Mt. Hawley Insurance Company, and Commercial Union Assurance Company PLC.

      Certain Insurers also raise an issue as to the trial court's suggestion, made during the hearing, that these insurers may not have standing to raise the Act 312 requirements. We note with significance, however, that the trial court made no such finding and nothing to that effect is included in the judgment on appeal. Therefore, we pretermit any discussion of this issue, which is not dispositive of the matter before us.


text:
    Shawn M. CUPIT, Individually and O/B/O James D. CUPIT (Deceased) v. TWIN CITY FIRE INSURANCE CO., et al.
    17-918
    Court of Appeal of Louisiana, Third Circuit.
    March 14, 2018
   James Huey Gibson, Charles Martin Kreamer, Sr., Allen & Gooch, P. O. Drawer 81129, Lafayette, LA 70598-1129, Telephone: (337) 291-1300, COUNSEL FOR: Defendants/Appellees-Roger G. Burgess and Baggett, McCall, Burgess, Watson & Gaughan, LLC

W. Evan Plauche', Michael Leon Cohen, Hailey, McNamara, Hall, Larmann & Papale, L.L.P., One Galleria Boulevard-Suite 1400, Metairie, LA 70011-8288, Telephone: (504) 836-6500, COUNSEL FOR: Defendant/Appellee-Joseph B. Moffett

Seth Andrew Schmeeckle, Shaundra Schudmak, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, Pan-American Life Center, 601 Poydras Street, Suite 2775, New Orleans, LA 70130, Telephone: (504) 568-1990, COUNSEL FOR: Defendant/Appellee-Twin City Fire Insurance Company

Scott Webre, Webre & Associates, 2901 Johnston Street-Suite 307, Lafayette, LA 70503, Telephone: (337) 237-5051, COUNSEL FOR: Plaintiff/Appellant-Shawn M. Cupit, Individually and o/b/o James Cupit (Deceased)

Michael G. Johnston, II, 2901 Johnston Street-Suite 307, Lafayette, LA 70503, Telephone: (337) 237-5051, COUNSEL FOR: Plaintiff/Appellant-Shawn M. Cupit, Individually and o/b/o James Cupit (Deceased)

Jacques F. Bezou, Jr., The Bezou Law Firm, 534 E. Boston Street, Covington, LA 70433, Telephone: (985) 892-2111, COUNSEL FOR: Plaintiff/Appellant-Shawn M. Cupit, Individually and o/b/o James Cupit (Deceased)

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Elizabeth A. Pickett, Judges.

THIBODEAUX, Chief Judge.

In this legal malpractice case, the plaintiff, Shawn M. Cupit, appeals the trial court's granting of summary judgment in favor of the defendants, Roger G. Burgess and Baggett, McCall, Burgess, Watson & Gaughan, LLC (Baggett McCall), Joseph B. Moffett, and his insurer, Twin City Fire Insurance Company. After a de novo review, finding no genuine issue of material fact and no error in the trial court's judgment, we affirm the judgment in all respects.

I.

ISSUES

We must decide whether the trial court erred in granting the defendants' motion for summary judgment.

II.

FACTS AND PROCEDURAL HISTORY

Shawn Cupit retained Joseph Moffett of Mississippi to represent him and his father in wrongful death and survival actions following the death of Shawn's mother, Martha Cupit. Ms. Cupit was a 50-year-old patient at Professional Rehabilitation Hospital, LLC (PRH) in Concordia Parish for wound care of a burned foot that had become gangrenous. She suffered from many physical health problems and was on medication for schizophrenia. During the night, Ms. Cupit climbed out of a window in the rehab facility and was struck and killed by a drunk driver operating a vehicle on the highway.

Mr. Moffett associated Roger Burgess and Baggett McCall as local counsel for the Louisiana claims. Suit was filed against the driver who struck and killed Ms. Cupit, his insurer, and PRH. The claim against PRH was based upon a negligent failure to observe the patient and to provide a safe environment. PRH was dismissed without prejudice to allow completion of a Medical Review Panel.

Mr. Burgess submitted a request for a Medical Review Panel pursuant to the Medical Malpractice Act. The Medical Review Panel rendered a decision on December 17, 2009, finding that the evidence did "not support the conclusion that the defendant, Professional Rehabilitation Hospital, failed to comply with the appropriate standard of care as charged in the complaint." The Panel's written reasons provided:

It is common practice to admit patients to a medical facility who have known psychiatric problems and who are on psychiatric medications, unless there are specific indicators to the contrary, which we did not find in this case. The records, including the notes of the nurses, therapists, and physicians, did not indicate any reasons for psychiatric hospitalization of this patient. The patient was on psychiatric medications, including Cogentin, however the dosage of Cogentin was only .25mg daily. Additionally, this drug has a very short half-life, which would not require any increased monitoring of the patient. The records further indicate that the patient was being adequately observed, and due to her history, there was not sufficient reason to fit her with an Ambu alarm.

The Medical Review Panel members were Dr. Gerald Mouton, a family medicine practitioner; Dr. Gerry Hebert, an internal medicine practitioner; and Dr. Kashinath Yadalam, a psychiatric medicine practitioner.

Burgess and Baggett McCall next obtained the expert opinion of Dr. Richard W. Williams, a forensic specialist in psychiatric and addiction medicine in Shreveport, Louisiana. Dr. Williams authored an opinion letter after studying all of the claims, reports, and medical records from three separate hospitals, one of which was in Mississippi. He concluded that there was no medical malpractice on the part of PRH.

Dr. Williams's letter stated that he had reviewed Mr. Cupit's petitions for damages, as well as Mr. Burgess's letter stating those claims; that he had reviewed the entire medical records of PRH, including history and physical, progress notes, consults and nursing notes, medical records of two previous hospitals, and the crash reports. Dr. Williams's letter of September 10, 2010, then stated as follows:

It is clear from the record that Ms. Martha Cupit was suffering from peripheral vascular disease with gangrene to her right foot, and had been admitted to Natchez Regional Medical Center for stabilization and then long-term stabilization care at [PRH], attempting to minimalize any amputation that was needed. She was not admitted for any psychiatric illness, and it was well-documented that she had a long history of Schizophrenia.
It is clear throughout the record that Ms. Cupit was not floridly psychotic, and she was maintained on all of the antipsychotic medications, antidepressants, and other medications which were prescribed prior to her admission to [PRH]. It is clear in the record that, when Ms. Cupit's husband indicated his opinion that she had some increase in psychotic thinking, it was reported to her physician and this immediately resulted in a consult for psychiatric opinion and care. In addition, Ms. Cupit had seen a psychiatric nurse practitioner in the past, and this also was ordered and carried out. The medications that Ms. Cupit were prescribed were appropriate for her condition. Specifically, the dose of Cogentin was a very small dose, and a fraction of the typical amount of Cogentin prescribed for the EPS symptoms secondary to antipsychotic medication. There was no evidence that she was a danger to herself or others, and there was no evidence that she was an elopement risk.
In summary, it is my opinion that the care offered by [PRH] was appropriate and seemed to be adequate in nature, and there seems to be no deviation of the standard of care in any regard. The care at [PRH] did not lead to the death of Ms. Cupit. It is very unfortunate that this tragic accident did occur, however, this seems to be totally a reflection of the negligent driving on the part of the plaintiff, Eric L. Guillot, who received a DWI at the time.

The written opinion of Dr. Williams was facilitated through medical malpractice attorneys, John Hammons and Cornell Flournoy, whose investigation led them to suggest dismissal based upon insufficient evidence to support a claim for medical malpractice. Ultimately, the suit was dismissed for abandonment.

Shawn Cupit filed a legal malpractice suit against the defendants. Burgess and Baggett McCall filed a motion for summary judgment, which was subsequently joined by Joseph Moffett and his insurer, Twin City Fire Insurance. The basis of the summary judgment motion was that Mr. Cupit could not prove that he would have succeeded in the underlying medical malpractice claim. Attached to the motion for summary judgment was Mr. Cupit's legal malpractice petition, his discovery responses indicating that he had retained no medical expert to establish the standard of care in the underlying medical negligence case, the Medical Review Panel Opinion, the opinion of Dr. Williams, the affidavit of counsel authenticating Dr. Williams's opinion, and the 2016 obituary of Dr. Williams.

Mr. Cupit filed an opposition to the motion for summary judgment, asserting that the medical negligence was so obvious that no expert testimony was required. Notwithstanding, Mr. Cupit attached the affidavit of a nurse-practitioner, Ms. Sonya Pittman, purporting to establish genuine issues of material fact regarding a breach of the standard of care by PRH for its failure to install a bed/chair alarm in Ms. Cupit's room.

Baggett McCall filed a reply memorandum objecting to Ms. Pittman's affidavit, as did Twin City Fire Insurance. The day before the hearing, Mr. Cupit sought to supplement his opposition and filed a second affidavit by Ms. Pittman. At the hearing, the trial court rejected Mr. Cupit's supplemental filing and second affidavit as untimely and heard substantial arguments by the parties on the original affidavit and its effect on the motion for summary judgment. The trial court found that the Pittman affidavit was deficient because it did not address causation and because Ms. Pittman was not qualified to render an expert opinion on the issues in the case. Thereafter, the trial court granted the defendants' motion for summary judgment. Mr. Cupit filed this appeal.

III.

STANDARD OF REVIEW

The grant or denial of a motion for summary judgment is reviewed de novo, "using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law." Samaha v. Rau , 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83 (citations omitted); La.Code Civ.P. art. 966.

IV.

LAW AND DISCUSSION

Shawn Cupit contends that the trial court erred in granting summary judgment to the defendant attorneys because the court (1) relied on unverified, unsworn documents; (2) excluded expert testimony as unqualified without a contradictory hearing; (3) found that the nurse-practitioner's affidavit did not create a genuine issue of material fact; (4) required the plaintiff to provide expert medical testimony; and (5) failed to shift the burden pursuant to Jenkins v. St. Paul Fire & Marine Ins. Co. , 422 So.2d 1109 (La.1982).

Summary Judgment Procedure

"The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends." La.Code Civ.P. art. 966(A)(2). "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3). "The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." La.Code Civ.P. art. 966(A)(4). "A motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313 not less than sixty-five days prior to the trial."

La.Code Civ.P. art. 966(B)(1). "Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion." La.Code Civ.P. art. 966(B)(2). "In all cases, the court shall state on the record or in writing the reasons for granting or denying the motion. If an appealable judgment is rendered, a party may request written reasons for judgment as provided in Article 1917." La.Code Civ.P. art. 966(C)(4).

"The burden of proof rests with the mover." La.Code Civ.P. art. 966(D)(1). However, if the mover will not bear the burden of proof at trial, the mover is not required to negate all elements of the adverse party's claim, action, or defense; he is only required to show the absence of factual support for one essential element of the adverse party's claim. Id. The burden then shifts to the adverse party to produce facts sufficient to establish a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

Unsworn Medical Opinion Letter

Mr. Cupit's opposition to the defendants' motion for summary judgment asserted that Dr. Williams's opinion letter regarding the medical malpractice claim did not meet the requirements of La.Code Civ.P. art. 966(A)(4) because it was an unsworn or unverified document and that it was hearsay.

As stated by Mr. Cupit in his opposition, La.Code Civ.P. art. 966(A)(4) states: "The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." Mr. Cupit's opposition then quoted language from a first circuit case as follows:

Louisiana Code of Civil Procedure articles 966 and 967 do not permit a party to utilize unsworn and unverified documents as summary judgment evidence. Thus, a document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit , has no evidentiary value on a motion for summary judgment. Therefore, in meeting the burden of proof, unsworn or unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform such documents into competent summary judgment evidence.

Bunge North America, Inc. v. Bd. of Com. & Ind. and La. Dept. of Eco. Dev. , 07-1746, p. 24 (La.App. 1 Cir. 5/2/08), 991 So.2d 511, 527, writ denied , 08-1594 (La. 11/21/08), 996 So.2d 1106.

In Bunge , the documents referred to by the court were discovery responses of the opponent's internal documents attached to the motion for summary judgment with no affidavit or verification of any kind.

Conversely, here, the expert opinion letter of Dr. Williams was attached to the affidavit of attorney Roger Burgess. In his affidavit, Mr. Burgess stated that the statements in the affidavit were within his personal knowledge and were true and correct. Mr. Burgess's affidavit then verified that the opinion of Dr. Williams was obtained by him through attorneys John Hammons and Cornell Flournoy. He further attested that Dr. Williams's opinion letter was forwarded to him by Mr. Hammons and that the transmittal letter of Mr. Hammons, dated October 5, 2010, and the expert opinion letter of Dr. Williams, dated September 10, 2010, were true and correct copies from Mr. Burgess's client file maintained in his office for Mr. Cupit. Mr. Burgess further attested to the fact that Dr. Richard W. Williams had passed away in 2016. Accordingly, Dr. Williams's expert opinion letter was not unverified and unsworn in violation of La.Code Civ.P. art. 966(A)(4) as asserted by Mr. Cupit.

Likewise, Mr. Cupit's argument that the opinion letter is hearsay also fails where the opinion letter falls under the hearsay exception of La.Code Evid. art. 804(B)(6). More specifically, Dr. Williams was unavailable, having passed away the year before the motion for summary judgment was filed. Dr. Williams's expert opinion was trustworthy where it had been rendered in 2010, five years before the legal malpractice claim was filed in 2015. Further, Mr. Burgess attached the transmittal letter of the firm specializing in medical malpractice through which he obtained Dr. Williams's opinion. Thus, the defendants investigated numerous additional avenues, all of which resulted in essentially the same conclusion as that reported in the Medical Review Panel Opinion, i.e., no evidence of medical malpractice. Finally, the defendants provided the court and Mr. Cupit notice that it intended to use the opinion letter of Dr. Williams by attaching it, along with the transmittal letter and the affidavit to the motion for summary judgment on May 8, 2017, over two months before the hearing on July 20, 2017. Accordingly, this assignment of error has no merit.

Contradictory Hearing & Qualifications of Nurse Practitioner

Mr. Cupit contends that the trial court erred in failing to hold a contradictory hearing on the affidavit of the nurse practitioner, Sonya Pittman, and in finding that she was not qualified to render opinions in this case. We disagree. Mr. Cupit filed two affidavits signed by Ms. Pittman, a June 30, 2017 affidavit which was attached to Mr. Cupit's opposition to the defendants' motion for summary judgment, and a July 18, 2017 affidavit attached to Mr. Cupit's supplemental opposition. The second affidavit was filed the day before the hearing and was properly excluded as untimely. La.Code Civ.P. art. 966(B)(1)-(2). As to the failure to hold a separate contradictory hearing on the qualifications of Ms. Pittman to render an expert opinion in this case, the record reveals that Mr. Cupit did not raise the issue in the trial court; thus, we are precluded from considering it on appeal. See Boudreaux v. State, Dep't of Transp. & Dev. , 01-1329 (La. 2/26/02), 815 So.2d 7.

Moreover, the opinion cited by Mr. Cupit, Adolph v. Lighthouse Property Insurance Corp. , 16-1275 (La.App. 1 Cir. 9/8/17), 227 So.3d 316, is not authoritative herein. Summary judgment procedure, which has the purpose of just and speedy determinations of actions, does not require a Daubert hearing pursuant to La.Code Civ.P. art. 1425, for trial purposes, to determine the admissibility of an expert's opinion contained in an affidavit filed in connection with a motion for summary judgment. This was articulated in Judge Crain's concurrence in Adolph . Under La.Code Civ.P. art. 966(D)(2) :

The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.

Here, Baggett McCall filed a timely reply memorandum on July 13, 2017, objecting to Ms. Pittman's first affidavit based upon the content of the affidavit and her lack of qualifications to render an expert opinion on the underlying medical malpractice case. Contrary to Mr. Cupit's assertion, the trial court considered Ms. Pittman's first affidavit but ultimately found her qualifications insufficient on a substantive basis.

Pursuant to La.Code Evid. art. 702 :

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the facts of the case.

Here, the record reveals that Ms. Pittman specialized in gerontology and psychiatric mental health. She worked at an outpatient facility, the Homeless Primary Care Clinic, a part of the Southeast Louisiana Veteran's Health Care System in New Orleans. Ms. Pittman's affidavit did not indicate that she had any training, education, or experience in a long-term, acute-care rehabilitation facility such as PRH. Nor did it indicate that she had familiarity with, or had used, bed/chair alarms in her practice, or that she even knew what type of bed/chair alarms were used by PRH in 2007. Further, Ms. Pittman's affidavit stated that she did not review the internal policies and procedures in place at PRH. The trial court did not err in finding that Ms. Pittman does not qualify as an expert on causation in this case under La.Code Evid. art. 702. For all of the foregoing reasons, this assignment of error has no merit.

The Affidavit & Issues of Fact Regarding Causation

Mr. Cupit contends that the trial court erred in failing to find that the affidavit of Ms. Pittman created genuine issues of material fact. Again, we must disagree. In a medical malpractice case against a hospital, the plaintiff must prove that the hospital had a duty to protect the patient against the risk involved. Smith v. State, through Dep't of Health & Human Res. Admin. , 523 So.2d 815 (La.1988). Ms. Pittman's opinion was that Ms. Cupit was at a high risk for falls , and the standard of care required PRH to use a bed/chair alarm to prevent Ms. Cupit from falling. However, Ms. Cupit did not fall and injure herself. She climbed out of a window and was struck by a vehicle on the highway. The Medical Review Panel opined that no psychiatric hospitalization, increased monitoring, or alarm was indicated. In fact, the medical records of Ms. Cupit indicated that she was alert and cooperative. Moreover, Ms. Pittman's affidavit did not address causation.

Where the affidavit failed to supply sufficient facts to support the conclusions therein, it was speculative. "Mere speculation will not defeat a motion for summary judgment, and conclusory allegations, improbable inferences, and unsupported speculation are insufficient to support a finding that a genuine issue of material fact exists." Kinch v. Our Lady of Lourdes Reg'l Med. Ctr. , 15-603, pp. 7-8 (La.App. 3 Cir. 12/9/15), 181 So.3d 900, 906. Additionally, Ms. Pittman's affidavit failed to affirmatively show that Ms. Pittman was competent to testify to the matters stated, as required by La.Code Civ.P. art. 967(A). Therefore, the trial court did not err in finding that the affidavit was insufficient to defeat summary judgment. This assignment of error has no merit.

Requirement for Expert Testimony

Mr. Cupit contends that the trial court erred in requiring expert testimony in the underlying medical malpractice case because the negligence was obvious. We disagree.

To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence:(1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Pfiffner v. Correa , 1994-0924, 1994-0963, 1994-0992 (La. 10/17/94), 643 So.2d 1228.

Samaha v. Rau , 977 So.2d at 883-84.

The Pfiffner court provided examples of situations in which expert testimony is not necessary.

Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body, from which a lay person can infer negligence. See Hastings v. Baton Rouge Gen. Hosp. , 498 So.2d 713, 719 (La.1986).

Pfiffner , 643 So.2d at 1233-34.

This is not such a case. The Pfiffner court further noted that there are "cases in which there are obvious unnecessary delays in treatment which constitute medical malpractice and where causation is evident." Id. at 1234. This is not such a case. Such a case did occur in Browning v. West Calcasieu Cameron Hospital , 03-332 (La.App. 3 Cir. 11/12/03), 865 So.2d 795, writ denied , 03-3354 (La. 2/13/04), 867 So.2d 691, which was cited by Mr. Cupit at the hearing on the motion for summary judgment.

In Browning , emergency medical technicians (EMTs) were called to examine Mrs. Browning, who, over several hours had experienced pain in her left arm, difficulty breathing, dizziness, and vomiting. After obtaining her medical history, the EMTs suggested that she probably suffered a heat-related injury and asked permission to transport her to the hospital. Mrs. Browning refused transport. Shortly thereafter, Mrs. Browning began shaking and gasping for breath. The EMTs were called back, and she was transported to St. Patrick Hospital, where she died within six hours from a heart attack. There were conflicts in the testimony of the family and the EMTs regarding whether protocols were followed in getting Mrs. Browning's signed refusal for transport on the first run. And, there was a disputed assertion by Mr. Browning that one of the EMTs admitted that they had "messed up" by not transporting Mrs. Browning to the hospital on the first run. Id. at 807. Thus, the EMTs' motion for summary judgment was denied.

On the defendants' application for a supervisory writ, we found that the Brownings had "produced solid evidence to support their claim that [the EMTs] did not follow the hospital's protocols for obtaining and documenting a patient's written refusal on the first ambulance run," even without expert testimony. Id. at 802. However, the protocols and the refusal form were specific and applicable to the exact situation for transport and refusal that occurred in Browning. Conversely here, Ms. Pittman's affidavit discusses protocols for a risk of falling that was not applicable in this case. As to causation in Browning , that was evident as well, where one EMT admitted that "in hindsight," he thought Mrs. Browning could have been having a heart attack when they were there the first time, and both EMTs recognized that if they had taken Mrs. Browning to the hospital on the first run, she would have been placed on a cardiac monitor that could have detected a heart condition immediately. Id. at 806.

Conversely, here, this is not such a case wherein there is an obvious delay showing negligence and causation. This assignment of error has no merit.

Burden of Proof

To establish a claim for legal malpractice, a plaintiff must prove: 1) the existence of an attorney-client relationship; 2) negligent representation by the attorney; and 3) loss caused by that negligence. A plaintiff can have no greater rights against attorneys for the negligent handling of a claim than are available in the underlying claim.

Costello v. Hardy , 03-1146, pp. 9-10 (La. 1/21/04), 864 So.2d 129, 138 (citations omitted).

We do not make a finding on the second element above, because the defendants have successfully proved that Mr. Cupit did not sustain a loss, under the third element above, by any negligence of the attorneys to prevent abandonment. That is, the defendants have shown that, under the third element, Mr. Cupit would not have succeeded in the underlying medical malpractice action where he presented no competent expert testimony to prove that PRH caused Ms. Cupit's death by a drunk driver on the highway.

Mr. Cupit argues, again for the first time on appeal, that the trial court erred in not shifting the burden of proof in the legal malpractice case under Jenkins v. St. Paul Fire & Marine Ins. Co. , 422 So.2d 1109 (La.1982). In Jenkins , the supreme court modified the former evidentiary burden of proof in legal malpractice cases which had required the plaintiff to not only prove his former attorney's negligence but also to prove that the underlying claim would have been successful but for the attorney's negligence. Id. The limited modification in Jenkins shifted the burden of proof regarding the success or failure of the underlying claim to the defendant attorney. Id.

Here, the defendants correctly point out that they proved the shifted burden in any event. We agree. This assignment of error also has no merit.

V.

CONCLUSION

Based upon the foregoing, the judgment of the trial court, granting summary judgment to the defendants, Roger G. Burgess, Baggett, McCall, Burgess, Watson & Gaughan, LLC, Joseph B. Moffett, and Twin City Fire Insurance Company, is affirmed.

Costs of this appeal are assessed to the plaintiff, Shawn M. Cupit.

AFFIRMED.

      The claims of Mr. James Cupit were subsequently dismissed from the suit.

      (2) Any opposition to the motion and all documents in support of the opposition shall be filed and served ... not less than fifteen days prior to the hearing on the motion.
      (3) Any reply memorandum shall be filed and served ... not less than five days prior to the hearing on the motion. No additional documents may be filed with the reply memorandum.
      La.Code Civ.P. art. 966(B).


author: COOKS, Judge.

text:
    Tyffany VERMAELEN v. Harry VERMAELEN, Jr.
    17-665
    Court of Appeal of Louisiana, Third Circuit.
    March 14, 2018
    Gregory N. Wampler, Law Offices of Gregory N. Wampler, 607 Main Street, Pineville, LA 71360, (318) 473-4220, COUNSEL FOR DEFENDANT/APPELLANT: Harry L. Vermaelen, Jr.
    Bradford H. Felder, G. Andrew Veazey, Veazey, Felder & Renegar, L.L.C., 2 Flagg Place, Lafayette, LA 70508, (337) 234-5350, COUNSEL FOR PLAINTIFF/APPELLEE: Tyffany Vermaelen
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and D. Kent Savoie, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Tyffany McKay Vermaelen and Harry Vermaelen, Jr. were married on August 13, 2011. They resided in Alexandria, Louisiana during the marriage. No children were born of the marriage. They separated on September 19, 2015. Tyffany filed for divorce on October 5, 2015.

After separating, Tyffany moved to Lafayette, Louisiana and became employed as a nurse. Harry remained in Alexandria. On July 14, 2016, the trial court awarded Tyffany interim spousal support in the amount of $1,000.00 per month. On August 4, 2016, Harry filed a Rule to Determine Pre-Separation Fault and Right to Final Spousal Support. On October 24, 2016, Tyffany filed a Rule for Contempt, Sanctions and Attorneys' Fees, To Make Arrearages Executory, and for Order Compelling Immediate Return of Wedding and Engagement Rings.

The parties entered into a Stipulated Judgment on December 7, 2016, which held Harry in contempt of court for his willful violation for nonpayment of interim spousal support. Harry was allowed to avoid the thirty days imprisonment by tendering the support payment due to Tyffany.

On January 19, 2017, Tyffany filed a final Rule for Contempt, to Deem Tyffany McKay Vermaelen Free from Fault, and for Attorneys' Fees. Those matters came before the court on January 26, 2017. After a hearing on the matter, the trial court issued written reasons for judgment on March 2, 2017, finding Tyffany to be free from fault under Louisiana law. The trial court also found Tyffany proved she was entitled to permanent spousal support and Harry was able to pay said support. The trial court determined Tyffany was entitled to $350.00 per month in permanent spousal support. A judgment in accordance with the written reasons was signed by the trial court on May 15, 2017.

Harry has timely appealed the trial court's judgment, asserting the trial court erred in finding that Tyffany "was free from fault in accord within that meaning of that term at Louisiana law," and in finding that Tyffany "was in need of support and that [Harry] is able to pay." Tyffany answered the appeal and asserts the trial court erred in not awarding $1,000.00 per month in permanent spousal support.

ANALYSIS

Louisiana Civil Code Article 112 provides that the court may award final periodic support to a spouse who has not been at fault and is in need of support.

I. Fault Determination.

In his first assignment of error, Harry contends the trial court erred in finding Tyffany was free from fault in the dissolution of the marriage. In seeking final periodic support, Tyffany bore the burden of proving that she was free from fault in the dissolution of the marriage. Terry v. Terry , 06-1406 (La.App. 3 Cir. 3/28/07), 954 So.2d 790. "It is well settled that a trial court's factual findings regarding fault in the area of domestic relations are given great deference on review. If the trial court's findings are reasonable, i.e. not manifestly erroneous or clearly wrong, then they will not be disturbed." Id. at 793 (citing Coleman v. Coleman , 541 So.2d 1003 (La.App. 3 Cir.1989) ).

For a spouse to be free from fault, that spouse must not have had any misconduct of a serious nature that is an independent, contributory or proximate cause of the failure of the marriage. Kendrick v. Kendrick , 236 La. 34, 106 So.2d 707 (1958).

"Such acts are synonymous with the fault grounds that previously entitled a spouse to a separation or divorce, i.e., adultery, conviction of a felony, habitual intemperance or excesses, cruel treatment or outrages, public defamation, abandonment, an attempt on the other's life, status as a fugitive, and intentional non-support." Mayes v. Mayes , 98-2228, p. 3 (La.App. 1 Cir. 11/5/99), 743 So.2d 1257, 1259-60.

Harry argues, as he did below, that Tyffany was guilty of abandonment of the marriage by leaving the matrimonial domicile. We find this argument lacks merit. "Abandonment can serve as grounds for fault only if one of the parties withdrew from the matrimonial domicile without lawful cause and constantly refused to return." Ashworth v. Ashworth , 11-1270, p. 3 (La.App. 3 Cir. 3/7/12), 86 So.3d 134, 137. It is undisputed that Tyffany was the one to leave the couple's domicile in September 2015. Therefore, the first criterion for abandonment is present.

However, under the second criterion, if she had justification or lawful cause to leave, Tyffany is without fault for abandonment. Tyffany testified Harry demanded a divorce from her and she "begged and pleaded" to no avail to get Harry to change his mind. She also testified a counseling session was set up, but cancelled because Harry told her "nothing is going to change." Thus, Tyffany had lawful cause to leave the matrimonial dwelling because Harry owned the marital home as his separate property and told her explicitly he wanted her to leave and he wanted a divorce.

Moreover, there was no evidence that Harry made any request for Tyffany to return to the matrimonial domicile. We find the trial court did not manifestly err in finding Harry failed to establish the elements for abandonment.

Harry also alleges Tyffany was at fault for refusing his reasonable requests for sex. In brief, Harry cites a snippet of Tyffany's testimony, wherein she acknowledges on occasion denying request for sex, to support his assertion. However, Tyffany's full testimony does not support Harry's contention that she refused his reasonable requests for sex:

Q. Were there any reasonable requests for sex that you denied?
A. I'm sure there were. I mean, I don't know a number but I'm sure every time you're asked it doesn't happen. But on most occasions, yes.
Q. Most occasions you agreed?
A. Agreed. Yes, sir.

Likewise, Harry's own testimony belies his assertion that Tyffany refused his repeated requests for sex:

Q. You heard her testify that she thought any reasonable request for sex was granted. Did you ask for sexual intercourse or intimacy that was refused?
A. If it was, I don't really recall it. I don't really remember having any type of a conflict or issues with our sex life.
Q. And to your knowledge, in fact, you didn't have really a problem for that, is that right?
A. No, sir. Not really. I mean, you know, sometimes she'd want to go to sleep, and sometimes I'd want to go to sleep.

We find no merit to Harry's contention that Tyffany was at fault in the dissolution of the marriage because she refused repeated requests for sex.

Harry also accused Tyffany of engaging in certain financial acts that were not authorized, or done without the knowledge of Harry. For a portion of the marriage, Tyffany worked at Harry's company, Southern Shooters, and conducted managerial roles such as purchasing and selling items through the company's PayPal account. The trial court heard conflicting testimony from the parties, and determined no legal fault arose from these allegations. Specifically, the trial court found "Harry's own testimony reflects these [alleged] instances were not known until after the filing for divorce and 'digging around.' " Thus, the trial court concluded these allegations were not an "independent or proximate cause for the failure of the marriage."

After a thorough review of the record, we find the trial court did not manifestly err in concluding Tyffany was free from legal fault in the dissolution of the marriage.

II. Spousal Support.

At the hearing to determine final periodic spousal support, the parties stipulated that the financial condition of the parties had not changed since the prior hearing on interim spousal support. At the interim hearing, the trial court found Tyffany was in need of support and Harry was able to pay. The parties stipulated at the final support hearing as follows:

MR. FELDER [counsel for Tyffany]: Your Honor, I guess we'll start with our stipulation. The parties have agreed to stipulate that the financial condition of the part[ies] is the ability to pay and the need that were established at the hearing in May in this matter have not substantially changed. And therefore, with regard to spousal support, the issues that we're going to be addressing today are fault.
MR. WAMPLER [counsel for Harry]: That's correct, Judge.
MR. FELDER: That's one issue.
MR. WAMPLER: Right. Yes, sir.
THE COURT: So in regards to that, whatever the numbers were at the time of the last hearing are going to be the numbers today?
MR. WAMPLER: Correct.
MR. FELDER: Yes, Your Honor.
THE COURT: And so today's purposes are we're going to litigate the issue of fault only in regards to spousal support?
MR. WAMPLER: Correct.
MR. FELDER: Right.

Therefore, any argument by Harry that the trial court erred in finding Tyffany was in need and Harry had the ability to pay is rendered moot by the stipulation between the parties at the start of the final support hearing.

Tyffany answered Harry's appeal, and asserts the trial court manifestly erred in setting the final spousal support at $350.00 per month rather than the $1,000.00 per month awarded for interim spousal support. Noting the parties agreed the financial situations of the parties had not changed since the award of interim spousal support, Tyffany maintains the trial court erred in reducing the amount.

An award of final spousal support is reviewed for an abuse of discretion. Bhati v. Bhati , 09-1030 (La.App. 3 Cir. 3/10/10), 32 So.3d 1107. Louisiana Civil Code Article 112 requires that, in awarding final spousal support, "[t]he court shall consider all relevant factors ... including[:]"

(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties, including any interim allowance or final child support obligation.
(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party's earning capacity.
(5) The time necessary for the claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.

Additionally, La.Civ.Code art. 112 requires that the award of final spousal support "shall not exceed one-third of the obligor's net income."

This court in Miller v. Miller , 13-1043, pp. 11-12 (La.App. 3 Cir. 4/2/14), 161 So.3d 690, 698, writ denied , 14-1607 (La. 10/31/14), 152 So.3d 154, further stated:

An award for final spousal support must be "based on the needs of that party and the ability of the other party to pay." La.Civ.Code art. 112. Article 112 mandates that courts "shall consider all relevant factors" and enumerates more than eleven factors courts "may" consider in establishing an award. In view of the purpose of final spousal support and the factors that may be considered in awarding such support, we cannot say that a party's needs for purposes of final spousal support cannot be influenced by or be relative to the way he or she lived during the marriage. In fact, Article 112 appears to contemplate this as it requires consideration of the parties' "needs" and "ability to pay" and also includes "the income and means of the
parties" as factors courts may consider when awarding final spousal support. Consideration of these factors does not equate with finding that a party entitled to a final spousal support award is entitled to an award that would allow her to maintain the lifestyle she enjoyed while married.

Additionally, this court in Launey v. Launey , 98-849, p. 3 (La.App. 3 Cir. 12/9/98), 722 So.2d 406, 408, stated:

The spouse who demonstrates a need for permanent alimony is only entitled to an amount sufficient to provide for his or her maintenance. Ward v. Ward , 339 So.2d 839 (La.1976). "Maintenance includes food, clothing, shelter, reasonable and necessary transportation expenses, utility expenses, medical and drug expenses, household expenses, professional dues, home and health insurance policies, telephone expenses, personal items, and income tax liability generated by the alimony payments." Widman v. Widman , 93-613 (La.App. 3 Cir. 2/2/94), 631 So.2d 689, 691citing Vernotzy v. Vernotzy , 591 So.2d 1293 (La.App. 3 Cir.1991).

According to Tyffany's testimony and her affidavit of income and expenses introduced at trial, her financial need was approximately $5,423.00 per month. At the hearing on interim spousal support, the trial court limited the award to $1,000.00 per month. Tyffany argues the trial court presumably limited the amount awarded based on Harry's ability to pay. With the parties stipulating that Harry's ability to pay and Tyffany's need for support had not changed since the prior hearing, Tyffany maintains it was manifestly erroneous for final spousal support to be reduced from $1,000.00 per month to $350.00 per month.

The law is clear that there are different calculations used in determining support due at the interim support stage and the final support stage. "Final periodic support is awarded to a former spouse in need and is limited to an amount sufficient for maintenance as opposed to a continuation of an accustomed style of living." Dufresne v. Dufresne , 10-963, p. 20 (La.App. 5 Cir. 5/10/11), 65 So.3d 749, 762, (quoting Dufresne v. Dufresne , 08-215, 08-216, p. 15 (La.App. 5 Cir. 9/16/08), 992 So.2d 579, 589 ). The need for interim spousal support is determined by establishing a spouse "lacks sufficient income or the ability to earn a sufficient income 'to sustain the style or standard of living that [s]he enjoyed while [s]he resided with the other spouse.' " January v. January , 94-882, 94-883, p. 3 (La.App. 3 Cir. 2/1/95), 649 So.2d 1133, 1136.

If a support award is "within legal limits and based on facts supported by the record, we will not alter the amount of the award in the absence of an abuse of the trial judge's great discretion to set such awards." Miller , 161 So.3d at 697 (quoting Baggett v. Baggett , 96-453, p. 4 (La.App. 3 Cir. 4/23/97), 693 So.2d 264, 266-67 ). After carefully examining the record, we find the trial court did not abuse its great discretion in awarding $350.00 per month in final spousal support to Tyffany.

DECREE

For the foregoing reasons, the judgment appealed from is affirmed in all respects. Costs of this appeal are assessed to appellant, Harry Varmaelen, Jr.

AFFIRMED.


author: Judge Rosemary Ledet

text:
    Brenda GAINES v. Laura WILSON, State Farm Mutual Automobile Insurance Company and Esurance Insurance Company
    NO. 2017-CA-0895
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 21, 2018
    Betty F. Mullin, Michael L. Mullin, LAW OFFICE OF MICHAEL L. MULLIN, 401 Whitney Avenue, Suite 205, Gretna, LA 70056, COUNSEL FOR PLAINTIFF/APPELLANT
    James E. Brouillette, 3330 Lake Villa Drive, Suite 202, Metairie, LA 70002, James A. Stapp, LAW OFFICES OF HAROLD G. TOSCANO, 3900 N. Causeway Boulevard, Lakeway 1-Suite 405, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Rosemary Ledet

This is a tort case arising out of an automobile accident. The trial court found the plaintiff, Brenda Gaines, solely at fault in causing the accident due to her failure to yield. Ms. Gaines appeals, contending that the trial court erred in failing to find the defendant, Laura Wilson, solely at fault due to her improperly changing lanes. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of a two-vehicle accident that occurred on November 5, 2014, at approximately 5:30 p.m., in the vicinity of the eastbound I-10 exit ramp onto Chef Menteur Highway ("Chef Menteur") in New Orleans, Louisiana. Claiming personal injuries and property damage to the rental car that she was driving, Ms. Gaines sued, among others, the driver of the other vehicle, Ms. Wilson. In her petition, Ms. Gaines averred that the accident occurred as follows:

• [Ms. Gaines] was driving a [rented] 2015 Kia Soul automobile in an eastbound direction, in the right lane of travel of Chef Menteur Highway, near the intersection of Reynes Street in New Orleans.
• Suddenly and without warning, while driving a 1994 Mazda Protege automobile, Laura Wilson executed a U-turn from westbound Chef Menteur Highway at Reynes Street, crossed over the left and center eastbound lanes, and crossed into the far right eastbound lane occupied by plaintiff, resulting in a collision with plaintiffs vehicle ...

A one-day bench trial was held in this matter. From the trial testimony and evidence, it is clear that Chef Menteur is a major highway with three lanes in each direction-eastbound and westbound-separated by a median with turning lanes. It is also clear that the I-10 exit ramp merges into the right eastbound lane of Chef Menteur. Approaching that merger, the right eastbound lane is bordered on the left by a solid white line. The right eastbound lane, however, was not a protected lane dedicated to traffic merging from I-10 onto Chef Menteur.

At trial, the two drivers were the principal witnesses. The drivers shared some similarities: both were in their seventies; both were en route to their homes, which were located nearby, when the accident occurred; and both were familiar with the area where the accident occurred. Both drivers testified that the accident occurred in the right eastbound lane of Chef Menteur. Each driver's version of the accident, however, was different.

According to Ms. Gaines, when the accident occurred, she had exited the I-10 exit ramp to Chef Menteur and had fully cleared the exit ramp. Ms. Gaines did not recall whether there was a yield sign at the end of the I-10 exit ramp, and she believed that she had no duty to yield to traffic in the right eastbound lane of Chef Menteur. Nonetheless, she testified, before merging into that lane, she looked and observed no traffic in that lane. She indicated that it was still daylight when the accident occurred and that there was no impediment blocking her view of eastbound traffic. When asked whether she knew where Ms. Wilson came from, Ms. Gaines testified that, "[w]hen I saw Laura Wilson and her car, it was into my car." Ms. Gaines further testified that after the accident, Ms. Wilson's car was located in the right eastbound lane. Ms. Gaines described the damage to Ms. Wilson's vehicle as being on the passenger side front and back door, and the damage to her rental vehicle as being on the front driver's corner bumper and fender by the headlight.

According to Ms. Wilson, she was returning home from picking up food at Lucky Jean Seafood ("Lucky"), when the accident occurred. When she left Lucky, which was on the westbound side of Chef Menteur, she made a U-turn to return home. After she made the U-turn, she pulled into the right eastbound lane of Chef Menteur-the lane closest to the I-10 exit ramp. She lived on the right side of Chef Menteur; she intended to remain in the right lane until she made a right turn to go home. Ms. Wilson testified that she remained in the right lane from the time she made a U-turn until the time of the impact. According to Ms. Wilson, Ms. Gaines "hit me from the right as I passed, because I already passed her." Ms. Wilson testified that there was a big yield sign facing motorists coming off the I-10 exit ramp.

The trial court found that Ms. Gaines was solely at fault for causing the accident and rendered judgment dismissing her suit. The trial court also issued the following written reasons for judgment:

Mrs. Gaines initially testified that there was no "yield" sign directing vehicles coming off the eastbound I-10 exit ramp at Chef Mentuer Highway. After some cross examination, she expressed less certainty on this issue, saying that she did not remember.
Mrs. Wilson testified emphatically that there was a "yield" sign for vehicles coming off the ramp, "a big one." The court credits Mrs. Wilson's testimony.
Mrs. Gaines did not see Mrs. Wilson's vehicle until the impact. Had she checked the right lane of traffic just before merging onto Chef Mentuer Highway from the ramp, she would have had an opportunity to observe Mrs. Wilson's vehicle approaching. Mrs. Gaines is at fault for this accident.

This appeal followed.

DISCUSSION

As noted at the outset, Ms. Gaines' contention is that the cause of the accident was not her failure to yield, but Ms. Wilson's improper lane change. She cites as the controlling standard of care La. R.S. 32:79. Ms. Wilson counters that the trial court correctly concluded that the cause of the accident was Ms. Gaines' failure to yield. She cites as the controlling standard of care as La. R.S. 32:123(D).

Standard of review

The manifest error standard of review governs this court's review of a trial court's factual findings, including its findings of liability. Watson v. Hicks , 15-0046, 15-0047, 15-0048, pp. 6 (La. App. 4 Cir. 5/27/15), 172 So.3d 655, 663 (citing Zito v. Advanced Emergency Med. Servs., Inc. , 11-2382, pp. 4-5 (La. 5/8/12), 89 So.3d 372, 375 ). To reverse a trial court's factual finding, a reviewing court must review the record in its entirety and make the following two determinations: (i) a reasonable factual basis does not exist for the factual finding; and (ii) the record establishes the factfinder is clearly wrong or manifestly erroneous. Bonin v. Ferrellgas, Inc. , 03-3024, pp. 6-7 (La. 7/2/04), 877 So.2d 89, 95 (citing Stobart v. State through Dep't of Transp. and Dev. , 617 So.2d 880, 882 (La. 1993) ).

It is well-settled that "the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one." Stobart , 617 So.2d at 882. "[R]easonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony." Id. Nonetheless, when "documents or objective evidence so contradict the witness' story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness' story, the court of appeal may find manifest error or clear wrongness, even in a finding purportedly based upon a credibility determination." Zito , 11-2382 at p. 5, 89 So.3d at 375 (citing Stobart , supra ; Rosell v. ESCO , 549 So.2d 840 (La. 1989) ).

"[A]n appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently." Bonin , 03-3024 at p. 7, 877 So.2d at 95 (citing Ambrose v. New Orleans Police Dept. Ambulance Serv. , 93-3099 (La. 7/5/94), 639 So.2d 216, 221 ). When two permissible views of the evidence exist, "the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Bonin , supra ; Rosell , 549 So.2d at 844. Emphasizing these principles, the Louisiana Supreme Court in Menard v. Lafayette Ins. Co. , 09-1869, pp. 21-22 (La. 3/16/10), 31 So.3d 996, 1011, stated as follows:

Rarely do we find a reasonable basis does not exist in cases with opposing views. We note it is not hard to prove a reasonable basis for a finding, which makes the manifest error doctrine so very difficult to breach, and this is precisely the function of the manifest error review. A reviewing court only has the "cold record" for its consideration while the trier of fact has the "warm blood" of all the litigants before it. This is why the trier of fact's findings are accorded the great deference inherently embodied in the manifest error doctrine. So once again we say it should be a rare day finding a manifest error breach when two opposing views are presented to the trier of fact.

Id. (emphasis in original). With these principles in mind, we address the issue presented by this appeal.

Improper lane change theory

Ms. Gaines contends that no reasonable factual basis exists for the trial court's finding that her inability to testify as to the presence of a yield sign was related to the accident. She further contends that the evidence presented at trial established that the accident occurred so far east of the I-10 exit ramp that the yield sign was irrelevant. She contends that by the time the accident occurred, she had "successfully merged onto Chef Hwy without incident," and Ms. Wilson caused the accident by crossing the solid line and colliding into her vehicle. We find this argument unpersuasive.

Ms. Wilson consistently testified that she was traveling in the right eastbound lane of Chef Menteur for quite some distance before the accident. Ms. Gaines acknowledged that she never saw Ms. Wilson's vehicle until the accident occurred; thus, Ms. Gaines could not testify about which of the three lanes of eastbound Chef Menteur Ms. Wilson's vehicle was travelling in before the accident. Nor could she testify as to whether Ms. Wilson had changed lanes.

In an attempt to establish that the accident occurred so far east of the I-10 exit ramp that Ms. Wilson must have changed lanes, Ms. Gaines cites a Google Maps aerial photograph on which Ms. Wilson placed a dot depicting the location of the accident. Ms. Wilson placed the dot on the Google Maps photograph in her pre-trial deposition and confirmed at trial that this was the location of the accident. According to Ms. Gaines, Ms. Wilson's placement of the dot established that the location of the accident was considerably east of the intersection of the I-10 exit ramp and Chef Menteur. Ms. Gaines also cites Ms. Wilson's testimony that she was concerned about going into an intersection controlled by a traffic light, which was considerably east of the I-10 exit ramp. According to Ms. Gaines, the traffic light was at the intersection of Dale Street and Chef Menteur, which was located another block east of the I-10 exit ramp.

Under Ms. Gaines' version of the accident, Ms. Wilson was solely at fault because she changed lanes improperly when it was unsafe for her to do so given that Ms. Gaines had successfully merged into the eastbound right lane. The trial court rejected this version of the accident and determined that Ms. Gaines was solely at fault in failing to yield the right of way. The record supports the trial court's factual finding. Ms. Wilson's testimony that she never changed lanes provided the trial court with a reasonable basis for concluding that Ms. Gaines was solely at fault for failing to yield. Ms. Wilson never contradicted her testimony that she remained in the right eastbound lane of Chef Menteur from the time she made a U-turn until the time of the impact.

Considering the testimony and evidence in this case, we conclude that the trial court's factual finding that Mr. Gaines was solely at fault in causing the accident is supported by the record, is reasonable, and is not manifestly erroneous. This is not the rare occasion "[w]here 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, [and] the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination." Menard , 09-1869 at p. 15, 31 So.3d at 1008. To the contrary, this case involves a reasonable factual conclusion that Ms. Wilson was travelling at all pertinent times in the right eastbound lane of Chef Menteur when the vehicle she was driving was struck on the right passenger side by the rental vehicle Ms. Gaines was driving and that the sole cause of the accident was Ms. Gaines' failure to yield.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      Ms. Gaines also named as defendants Ms. Wilson's insurer, State Farm Mutual Automobile Insurance Company, and Ms. Gaines' uninsured motorist insurer, Esurance Insurance Company. For ease of discussion, we refer to Ms. Wilson as the sole defendant.

      The purpose of a solid white line is to caution drivers from changing lanes. See Brewer v. J.B. Hunt Transp., Inc. , 09-1408, p. 20, n. 17 (La. 3/16/10), 35 So.3d 230, 244 (quoting Louisiana Department of Public Safety and Corrections, Louisiana Driver's Guide Classes "D" and "E" (1/09), which states that "[s]ingle Solid White Lines indicate that movement from lane to lane is hazardous. The wider the line, the greater the hazard. You may cross a solid white line only with great care").

      The only other witness called to testify at trial was Ms. Gaines' son, Glenn Gaines. Mr. Gaines testified that his mother called him after the accident occurred to come to the scene of the accident. He was present when the investigating officer arrived. According to Mr. Gaines, Ms. Wilson made the following res gestae comment when the officer handed her a ticket: "I knew you were going to give me a ticket." He also testified that she threw the ticket to the ground. The trial court noted, for the record, that "the police officer's opinion about who was at fault for the accident is not going to weigh into my-everything is going to come from the witness stand."

      La. R.S. 32:79 provides as follows:
      Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply.
      (1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
      (2) The department may erect signs directing slow moving traffic to use a designated lane or designating those lanes to be used by traffic moving in a particular direction, and drivers of vehicles shall obey the directions of such signs.

      La. R.S. 32:123(D) provides as follows:
      The driver or operator of a vehicle approaching a yield sign shall slow down to a speed reasonable for the existing conditions, or shall stop if necessary, before entering the crosswalk on the near side of the intersection or, in the event there is no crosswalk, at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway. Having slowed or stopped in this manner, the driver shall yield the right-of-way to any pedestrian legally crossing the roadway on which he is driving, and to any vehicle in the intersection or approaching on another highway so closely as to constitute an immediate hazard.

      The manifest error standard likewise governs a trial court's findings on the allocation of fault. Watson, 15-0046, 15-0047, 15-0048 at p. 7, 172 So.3d at 663-64 (citing Beggs v. Harrah's New Orleans Casino , 14-0725, pp. 13-14 (La. App. 4 Cir. 1/21/15), 158 So.3d 917, 925 ).

      See also Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC , 14-2592, p. 9 (La. 12/8/15), 193 So.3d 1110, 1116 (citing Menard , supra ) (noting that "an appellate court on review must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently"); Purvis v. Grant Par. Sch. Bd. , 13-1424, p. 6 (La. 2/14/14, 6), 144 So.3d 922, 927 (emphasizing "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' ") (quoting Adkins v. Huckabay , 99-3605, p. 16 (La. 2/25/00), 755 So.2d 206, 215 ).

      A general explanation of Google Maps' satellite view is set forth in Wikipedia as follows:
      Google Maps' satellite view is a "top-down" or "birds eye" view; most of the high-resolution imagery of cities is aerial photography taken from aircraft flying at 800 to 1,500 feet (240 to 460 m), while most other imagery is from satellites. Much of the available satellite imagery is no more than three years old and is updated on a regular basis. Google Maps uses a close variant of the Mercator projection, and therefore cannot accurately show areas around the poles.
      Google Maps, Wikipedia, The Free Encyclopedia < http://en.wikipedia.org/wiki/Google Maps (Last visited February 22, 2108).

      See Ryans v. Empire Fire & Marine Ins. Co. , 357 So.2d 853, 856 (La. App. 4th Cir. 1978) (Gulotta, J., concurring) (noting that " '[t]he only basis upon which the bus driver could have been found negligent would be a factual finding that the bus driver, while traveling in the center lane, pulled into the right lane in front of the truck as the truck was entering the expressway. The trial judge made no such finding of fact.' ").