text:
    In re Kenneth F. SARAMA.
    No. 2009-B-2101.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ,This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Kenneth F. Sarama, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In June 1994, the State of New York filed a tax warrant in the amount of $4,930.42 against Michael Sullivan after he failed to file sales tax returns for his business. In the latter part of 2004, Mr. Sullivan hired respondent to resolve his tax debt. Respondent and Mr. Sullivan did not have a written attorney-client contract, but respondent told Mr. Sullivan he would charge him $150 per hour.

Between the time he retained respondent in 2004 and July 26, 2005, Mr. Sullivan sent respondent a total of $17,400, believing respondent was forwarding the bulk of the funds to the State of New York Department of Taxation and Finance (“NYDTF”) to pay his tax debt. Respondent failed to deposit the funds into his trust account, failed to provide Mr. Sullivan with periodic accountings, and failed to provide Mr. Sullivan with periodic bills for his fees. Respondent also failed to use any of the funds to pay Mr. Sullivan’s tax debt. Nonetheless, between late 2004 and May 2007, respondent falsely informed Mr. Sullivan that the funds were being used |2for that purpose. With penalties and interest accruing, Mr. Sullivan’s tax debt grew to $16,190.32 as of March 11, 2005 and $22,375.42 as of August 16,2007.

During the representation, respondent had minimal contact with the NYDTF on Mr. Sullivan’s behalf. On January 11, 2005, the NYDTF returned a power of attorney to respondent, which would authorize him to assist Mr. Sullivan, because it was partially illegible and did not contain Mr. Sullivan’s tax identification number. The NYDTF’s records have never contained a proper power of attorney to allow respondent to contact the NYDTF on Mr. Sullivan’s behalf. On March 11, 2005, respondent spoke to an employee at the NYDTF concerning both the illegible power of attorney and the general information the NYDTF could convey to him without a power of attorney. According to NYDTF’s records, respondent had no further contact with it on Mr. Sullivan’s behalf.

On March 26, 2007, Mr. Sullivan contacted the NYDTF and discovered no payments had been made on his tax debt. As such, Mr. Sullivan consulted attorney Gretchen Bjork, who sent respondent a letter dated May 16, 2007 notifying him that Mr. Sullivan had terminated his representation. The letter requested that respondent provide Mr. Sullivan with an accounting and forward Mr. Sullivan’s file to Ms. Bjork. In a response dated June 11, 2007, respondent included a brief, undetailed invoice claiming to have worked 117 hours on Mr. Sullivan’s case, earning a fee of $17,550. He also included only partial file materials.

DISCIPLINARY PROCEEDINGS

In April 2008, the ODC filed one count of formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of ^Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (fee arrangements), 1.15 (safekeeping property of clients or third persons), 1.16(d) (obligations upon termination of the representation), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Respondent answered the formal charges and denied the misconduct. This matter then proceeded to a formal hearing on the merits.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee found the following:

Both respondent and Mr. Sullivan testified that there was never a clear delineation regarding what portion of Mr. Sullivan’s funds would be used to pay the tax debt and what portion would be used to pay respondent’s fee. After sending respondent several checks totaling more than $17,000 without receiving a detailed billing statement, Mr. Sullivan contacted the NYDTF and learned it had not received any payments toward his tax debt. Respondent testified that he thought Mr. Sullivan understood the $17,400 was all for attorney’s fees. However, respondent offered no credible testimony regarding what, if any, services he performed that warranted a $17,400 fee.

Respondent misinformed Mr. Sullivan concerning the status of his tax debt matter. Respondent also falsely informed Mr. Sullivan that the funds he was paying respondent were being used to make payments on and reduce his tax debt when, in fact, this was not the case. Furthermore, respondent did not inform Mr. Sullivan that he had only minimal contact with the NYDTF. Nonetheless, in June 2007, 1 respondent provided Ms. Bjork with an invoice that claimed he worked 117 hours, earning a $17,550 fee, without any explanation or detailed billing.

Respondent testified that he did not place any of the funds Mr. Sullivan paid him into his trust account. Respondent further testified that he never provided Mr. Sullivan with a detailed accounting of the work he had done to earn the fees.

Ms. Bjork sent a written request for Mr. Sullivan’s file to respondent on May 16, 2007. Respondent forwarded Mr. Sullivan’s file to Ms. Bjork on June 11, 2007. This time frame was not unreasonable.

Based on these facts, the committee determined that respondent violated Rules 1.3, 1.4, 1.5, and 8.4(c) of the Rules of Professional Conduct. The committee did not address Rule 1.15 and found no violation of Rule 1.16(d).

The committee determined that respondent violated duties owed to his client and the legal profession. He acted knowingly and caused potential injury to his client. Citing numerous standards from the ABA’s Standards for Imposing Lawyer Sanctions, the committee indicated that suspension or disbarment may be appropriate.

The committee found the following aggravating factors present: prior disciplinary offenses, a dishonest or selfish motive, vulnerability of the victim, and substantial experience in the practice of law (admitted 1982). The committee did not indicate whether any mitigating factors were present.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for two years. The committee further recommended that respondent refund the entire amount Mr. Sullivan paid him, plus legal interest from July 2005.

|,-,The ODC filed an objection to the hearing committee’s report, objecting only to the committee’s failure to find a violation of Rule 1.16(d) of the Rules of Professional Conduct, as respondent’s failure to refund the unearned fee to Mr. Sullivan constitutes a violation of this rule.

Disciplinary Board Recommendation

After review, the disciplinary board found that the hearing committee’s factual findings do not appear to be manifestly erroneous. The board determined that respondent violated Rule 1.3 of the Rules of Professional Conduct by failing to conduct any meaningful work on Mr. Sullivan’s tax matter, which remains unresolved, despite collecting $17,400 in legal fees. The board further found that, although respondent may have communicated with Mr. Sullivan on a regular basis, he misinformed Mr. Sullivan of the actual status of his case and the actual use of the funds Mr. Sullivan was paying him, in violation of Rules 1.4 and 8.4(c). Respondent received an exorbitant fee, which he admitted to the committee may have been unreasonable. Therefore, the board found that respondent violated Rule 1.5. Furthermore, despite the fact that a large portion of the funds paid by Mr. Sullivan represent unearned fees, respondent maintains that he earned the entire fee and refuses to refund any money to Mr. Sullivan, in violation of Rule 1.16(d). The board also found that respondent’s failure to refund the unearned fee amounts to conversion, in violation of Rule 1.15.

The board determined that respondent knowingly, if not intentionally, violated duties owed to his client and the legal profession. Respondent caused serious actual harm to Mr. Sullivan by charging and collecting a substantial fee while performing only minimal work. Furthermore, the board determined that the harm is ongoing, as | ^respondent has refused to refund any money to Mr. Sullivan, whose tax debt remains unsatisfied.

Based on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is disbarment. In further support of disbarment as the baseline sanction, the board explained:

Respondent knowingly and repeatedly deceived his client regarding the work he was doing and the status of his case. Respondent’s repeated misrepresentations to his client were done with the goal of rationalizing the exorbitant fee he had charged and collected. This conduct amounts to conversion by deceit. As a result of the Respondent’s actions, Mr. Sullivan is still liable for the original tax debt, which could have been satisfied by the money he paid to Respondent.

In aggravation, the board found prior disciplinary offenses, a dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and indifference to making restitution. The board determined that no mitigating factors are present.

In determining an appropriate sanction, the board cited In re: Decker, 05-1550 (La.12/16/05), 916 So.2d 1023, wherein this court disbarred an attorney who collected a $5,500 fee but failed to perform any work on a succession matter. The attorney also failed to refund the unearned fee, despite the client’s request, and had a prior disciplinary history involving similar misconduct.

In light of the aggravating factors, particularly respondent’s failure to acknowledge the wrongful nature of his conduct and his failure to make restitution to Mr. Sullivan, the board recommended that respondent be disbarred. The board further recommended that respondent be ordered to pay restitution to Mr. Sullivan, plus legal interest from July 26, 2005.

| Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record of this matter supports a finding that respondent neglected Mr. Sullivan’s tax debt matter, failed to adequately communicate with Mr. Sullivan, misrepresented that he was negotiating with the NYDTF and forwarding Mr. Sullivan’s funds to pay the tax debt, charged an unreasonable fee, failed to account for or refund an unearned fee, and failed to keep Mr. Sullivan’s funds in his trust account or provide an accounting of said funds. Furthermore, by claiming Mr. Sullivan’s funds as his fee instead of using them to pay Mr. Sullivan’s tax debt, as Mr. Sullivan desired and believed would occur, respondent converted those funds to his own use. Based on these findings, respondent has violated the Rules of Professional Conduct as alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining |sa sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

We agree with the disciplinary board that respondent knowingly, if not intentionally, violated duties owed to his client and the legal profession. Likewise, we agree that he caused Mr. Sullivan substantial harm. The baseline sanction for respondent’s misconduct is disbarment. We also agree with the board’s assessment of the aggravating factors and its determination that the record supports no mitigating factors.

In claiming Mr. Sullivan’s $17,400 as his attorney’s fees, which the record indicates is unjustified, respondent has converted those funds to his own use. Respondent exacerbated this misconduct by misrepresenting to Mr. Sullivan that the funds were being used to pay his tax debt and by failing to refund any portion of the funds to Mr. Sullivan.

Under these circumstances, we find a downward deviation from the baseline sanction of disbarment is unwarranted. Accordingly, we will adopt the board’s recommendation and disbar respondent. We will further order respondent to make full restitution of the sums paid by Mr. Sullivan, plus legal interest from July 26, 2005.

|;,DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, it is ordered that Kenneth F. Sara-ma, Louisiana Bar Roll number 1583, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall make full restitution to Michael Sullivan, plus legal interest from July 26, 2005. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent claims most of Mr. Sullivan's file was destroyed by damage caused by Hurricane Katrina.

      . In 1997, this court imposed a fully deferred six-month suspension for respondent’s conversion of client funds and failure to cooper-ale with the ODC in its investigation. In re: Sarama, 97-0452 (La.6/13/97), 695 So.2d 517.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Paul TAYLOR.
    No. 2009-KK-2341.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   PER CURIAM.

Writ granted. The right of confrontation contained in the United States and the Louisiana Constitutions is not implicated in this pre-trial matter. See State v. Harris, 08-2117, p. 1 (La.12/19/08), 998 So.2d 55, 56. Moreover, the Louisiana Constitution protects the rights of victims of crime to refuse to be interviewed by the accused. La. Const, art. I, § 25. Accordingly, La. Rev.Stat. § 46:1844(0(3) provides that a defendant must show “good cause” at a contradictory hearing with the district attorney why a crime victim should be subpoenaed to testify at any pre-trial hearing.

On the showing made, the defendant has failed to establish a substantial likelihood of misidentification as a result of the identification procedures used that would justify the production of the victims/witnesses at the preliminary hearing. See State v. Harris, 08-2117, p. 2, 998 So.2d at 56. Contrary to the defendant’s assertions, the testimony of the police officers as to the identification procedures used and the descriptions given by the victims/witnesses is generally admissible at a preliminary hearing to determine the admissibility of an out-of-court identification. La.Code Evid. arts. 104(A) and 1101(C)(1); State v. Shirley, 08-2106, pp. 5-7 (La.5/5/09), 10 So.3d 224, 228-29. Consequently, the ruling of the district court ordexdng the victims/witnesses to testify at the motion to suppress hearing in this matter is reversed. The case is remanded to the district court for further proceedings.


text:
    In re John F. CRAWFORD, II.
    No. 2006-OB-0844.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   ORDER

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Crawford, 06-0844 (La.12/7/07), 969 So.2d 1248, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

/s/ John L. Weimer

Justice, Supreme Court of Louisiana


author:
PICKETT, J.
      PICKETT, J.

text:
    Margie F. MARTIN v. SAFEWAY INSURANCE CO. OF LOUISIANA, et al.
    No. 08-1419.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 2009.
    Rehearing Granted Nov. 5, 2009.
    Opinion Granting Rehearing Dec. 30, 2009.

      Gary J. Ortego, Attorney at Law, Ville Platte, LA, for Plaintifi/Appellee, Margie F. Martin.
    Gregory J. Laborde, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Robert Gallow.
    Melissa F. Doise, Borne & Wilkes, Lafayette, LA, for Defendant/Appellant, Safeway Insurance Company of Louisiana.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, J.

| |The defendant, Safeway Insurance Company of Louisiana (hereinafter Safeway), appeals a judgment of the trial court finding coverage in favor of an excluded driver who was • involved in an accident while operating the insured’s vehicle. We reverse the judgment of the trial court.

FACTS

We quote the facts from the trial court’s written reasons for judgment:

The matter before the court arises from an automobile accident which occurred on July 26, 2006. From the evidence presented at trial, it appears unchallenged that the vehicle being operated by plaintiff was struck by a vehicle being driven by defendant, Robert Gallow (hereinafter referred to as “Gallow”). Callow’s actions and/or omissions were the sole cause of the accident. This portion of the case presents little challenge for the court. The same cannot be said with regard to insurance coverage.
Defendant, Safeway Insmrance Company of Louisiana (hereinafter referred to as “Safeway”) admits that it had issued a liability policy to the owner of the vehicle driven by Gallow, Mr. Lyndon Ardoin (hereinafter referred to as “Ar-doin”). Safeway, however, denies coverage as a result of an exclusion of named drivers which purports to exclude coverage with respect to damages caused as a result of the operation of the insured vehicle by Gallow.

Thus, the only issue presented for our consideration on appeal is the interpretation of the “named driver exclusion” in the Ardoin policy which excluded Gallow from coverage as an insured driver.

LAW AND DISCUSSION

Both the trial judge and the appellee rely heavily on a case decided by a panel of this court: Khaliq v. Progressive Sec. Ins. Co., 06-1207 (La.App. 3 Cir. 2/7/07), 950 So.2d 938, writs denied, 07-471 (La.4/22/07), 955 So.2d 688. We do not disagree with the outcome in the Khaliq case; however, we find it is not applicable to the case at bar as the issue in Khaliq dealt with collision coverage not with liability |.¿coverage as in this case. In Khal-iq, Progressive Security Insurance Company (Progressive) appealed the trial court’s finding of coverage and granting of a $18,296.72 judgment against it and in favor of its insured, Farhad Khaliq. At the time of the accident, Mr. Khaliq’s vehicle was being driven by his son, a named excluded driver under the Progressive policy. Mr. Khaliq had already settled with the owner of the other vehicle for $8,269.72 as payment for his property damage. Mr. Khal-iq attempted to collect from Progressive under his collision coverage (a situation wherein the liability of the driver has no bearing) and when Progressive resisted, filed suit. The trial court in Khaliq relied on Bryant v. United Servs. Auto. Ass’n, 03-3491, 04-28 (La.9/9/04), 881 So.2d 1214, to find coverage. We note that in the instant case, the trial court and the appel-lee also cite Bryant to support their position. We find that case also inapplicable to the case before us.

In Bryant, the court was asked to decide “the narrow issue of whether La. R.S. 32:866, the ‘no pay, no play’ law, applies to bar a portion of a named insured’s recovery of her own bodily injury and/or property damages when an excluded driver is involved in an accident while driving the named insured’s vehicle.” Id. at 1215 (emphasis ours). Bryant involved two consolidated cases, one in which an excluded driver was driving the insured vehicle with the insured’s permission and the other in which an excluded driver was driving the insured vehicle without the insured’s permission. The court concluded that La. R.S. 32:866, the “no pay, no play” law, should apply in situations where the named insured gave permission to drive the insured vehicle to an excluded driver, but should not apply if an excluded driver was driving the insured vehicle without the insured’s permission. We note however, that the Bryant case involved two conflicting decisions from different appellate circuits | ¿wherein each of the insured owners of damaged vehicles brought suit against the tortfeasor-defendant-drivers of the other vehicles. The only issue in Bryant dealt with the “no pay, no play” law, La. R.S. 32:866, and whether that law should apply to partially bar the plaintiff-named insured’s own recovery.

In the case before us, the plaintiff is seeking to recover from the insurer of an insured vehicle which was being operated by a tbrtfeasor-named excluded driver pursuant to La. R.S. 32:900(L)(1). That section, which deals with motor vehicle liability coverage, states in part that:

an insurer and an insured may by written agreement exclude from coverage the named insured and the spouse of the named insured. The insurer and an insured may also exclude from coverage any other named person who is a resident of the same household as the named insured at the time that the written agreement is entered into, and the exclusion shall be effective, regardless of whether the excluded person continues to remain a resident of the same household subsequent to the execution of the written agreement. It shall not be necessary for the person being excluded from coverage to execute or be a party to the written agreement. For the purposes of this Subsection, the term “named insured” means the applicant for the policy of insurance issued by the insurer.

(Emphasis ours).

In this case the tortfeasor, a named excluded driver, seeks protection from personal liability by seeking to become an insured, under a Safeway policy which specifically excluded him from coverage.

We note that Safeway knew the tortfeasor, Robert Gallow, was a resident of their insured’s household. When Safeway made that determination in early January 2006, it notified its insured, Lyndon Ardoin, by a letter dated January 12, 2006, that Gallow would either have to be added as an insured to Mr. Ardoin’s policy or named as an excluded driver. The record reflects that on January 23, 2006, Mr. Ar-doin |,executed an “Exclusion of Named Driver” form excluding Gallow from coverage under his policy.

To allow the plaintiff to recover from the defendant, Safeway, in this case would make the terms of La. R.S. 32:900(L) meaningless. “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 (2004).” Lockett v. State, Through Dept. of Transp. and Dev., 03-1767, p. 3 (La.2/25/04), 869 So.2d 87, 90-91. Furthermore, in Munsch v. Liberty Mut. Ins. Co., 05-147, pp. 6-7 (La.App. 1 Cir.2/10/06), 928 So.2d 608, 612, units denied, 06-590 (La.5/25/06), 930 So.2d 2 our colleagues of the first circuit have reminded us of the following:

A court is bound to follow the language of a relevant law. See La. C.C. arts. 1-4.
The jurisprudence has developed additional rules for interpreting laws. In Ransome v. Ransome, 01-2361, p. 8 (La. App. 1 Cir. 04/21/02), 822 So.2d 746, 754 appears the following:
Pursuant to the standard rules for statutory construction (1) it is presumed that every provision of law was intended to serve some useful purpose; (2) it is not presumed that the lawmaker intended for any part of a law to be meaningless; (3) the lawmaker is presumed to have enacted the law with full knowledge of all other laws pertaining to the same subject matter; (4) it is the duty of the courts to interpret a provision of law which harmonizes and reconciles it with other provisions pertaining to the same subject matter; and (5) when a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is preferred to one that renders part of the act nugatory.
See also David v. Our Lady of the Lake Hospital, Inc., 02-2675, p. 11 (La.07/02/03), 849 So.2d 38, 46-47; Gregor v. Argenot Great Central Insurance Company, 02-1138, pp. 6-7 (La.05/20/03), 851 So.2d 959, 964. (Emphasis added.)

LWe find that to allow the decision of the trial court to stand would render La. R.S. 32:900(L) meaningless and violate the well established rules of statutory construction.

Accordingly, for the reasons stated the judgment of the trial court is reversed, and the defendant, Safeway Insurance Company, is dismissed with prejudice. All costs of this proceeding are assessed against the plaintiff, Margie Martin.

REVERSED AND RENDERED.

OPINION ON REHEARING

Court composed of SYLVIA R. COOKS, OSWALD A DECUIR, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.

PICKETT, J.

_JjWe granted rehearing in this case to consider an issue which was over-looked in the original appeal. The excluded driver, Robert Gallow, appealed the quantum of damages awarded. Upon considering that issue, we amend the damage award, and render that award as amended.

DAMAGES

The trial court awarded the plaintiff general damages in the amount of “$45,00.00, together with medical expenses [of] $1,851.71 and all costs ... with a credit of $10,000.00 as a result of previous payments.” The defendant, Robert Gal-low, appeals arguing that the general damages awarded by the trial court are so excessive as to constitute an abuse of discretion. We agree.

In Brown v. State ex rel. LSU Medical Center Health Care Services Division, 08-273, pp. 7-8 (La.App. 3 Cir. 12/10/08), 998 So.2d 367, 373, writ denied, 09-72 (La.3/6/09), 3 So.3d 491, we reviewed the law applicable to claims of inadequate/excessive damages:

In Miller v. LAMMICO, 07-1352, p. 28 (La.1/16/08), 973 So.2d 693, 711, the supreme court noted:
An appellate court reviews a trial court’s general damage award using the abuse of discretion standard. Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976). The trier of fact is afforded much discretion in independently assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 834 (La.1991). An appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993); Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993) (the fact finder’s discretion in awarding general damages is vast and should rarely be disturbed); Reck v. Stevens[,] 373 So.2d 12498, 501 (La.1979). To determine whether there has been an abuse of discretion by the fact finder, the reviewing court looks first to the facts and circumstances of the particular case. Theriot, 625 So.2d at 1340; Reck, 373 So.2d at 501. Only if a review of the facts reveals an abuse of discretion, is it appropriate for the appellate court to resort to a review of prior similar awards. Reck, 373 So.2d at 501; Anderson, 583 So.2d at 834; Youn, 623 So.2d at 1261.

The record reveals that the accident at issue happened on July 26, 2006. The plaintiff, a legal secretary, did not seek medical treatment for two days. On July 28, 2006, she consulted her family physician, Dr. Charles Fontenot. He diagnosed the plaintiffs injuries as an acute cervical strain superimposed over a prior herniated disc (suffered in an accident 1992) and an acute lumbar strain. Dr. Fontenot prescribed an analgesic, an anti-inflammatory, and a muscle relaxant. The plaintiff returned to Dr. Fontenot and had her prescriptions refilled on August 4, 2006. She was referred for physical therapy, took three treatments (August 14, 15, and 18, 2006), and discontinued the therapy. On August 23, 2006, the plaintiff once again returned to Dr. Fontenot, had her analgesic prescription refilled and a prescription for a different muscle relaxant filled. Thereafter, she said she relied on over-the-counter medications as she had done after the 1992 accident. She saw Dr. Fontenot only twice more — on September 14 and October 16, 2006. He advised her to return as needed. She has neither returned nor consulted another physician. The plaintiff has missed no work, but her employer did provide her with a different chair. She does complain that she has some residual problems with her neck “especially at work, you know, typing, sitting in certain positions and stuff.” The plaintiffs total medical expenses, including doctor, MRI, prescriptions and physical therapy total $1,851.71.

| ..Considering the plaintiffs diagnoses, the extent and duration of her medical treatment, fact that she sustained no disability, and that she missed no work, we find the general damage award “beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances.” Andrus v. State Farm Mutual Automobile Insurance Co., 95-0801, p. 8 (La.3/22/96), 670 So.2d 1206, 1210. It then falls upon us to review prior awards in similar cases to determine the highest award within the trial court’s discretion.

In Simon v. Lacoste, 05-550 (La.App. 3 Cir.12/30/05), 918 So.2d 1102, the plaintiff was in an accident on 1-10 in July 2001. He complained of lower pelvic, back, and neck pain, and left arm numbness. In October 2001 he was diagnosed with thoracic outlet syndrome. The plaintiff recovered slowly amassing over $29,000.00 in medical expenses over the next three years. A jury award him $5,000.00 in general damages which this court raised to $15,000.00.

The plaintiff in Henry v. Wal-Mart Stores, Inc., 99-1630 (La.App. 3 Cir. 3/1/00), 758 So.2d 327, writ denied, 00-929 (La.App. 3 Cir. 5/26/00), 762 So.2d 1107, slipped and fell while shopping in the defendant’s store. He sustained shoulder, lower back, and leg pain as a result of the accident. The plaintiff saw an orthopedic surgeon approximately five times over a period of ten months for his complaints, and took a number of prescription medications for symptoms. The trial court awarded the plaintiff $22,000.00 in general damages and $721.00 in past medicals, which was affirmed by a panel of this court.

In Perry v. Anderson, 99-0230 (La.App. 4 Cir. 1/12/00), 751 So.2d 374, the plaintiff was injured in an automobile accident. He suffered neck and pack pain requiring eight months of treatment including muscle relaxant and anti-inflammatory medications, the use of a TENS unit, and a back brace. He testified that his pain 14continued three months following his discharge. The appellate court awarded the plaintiff $5,000.00 in general damages.

Thus, after review of the record in light of the standard set forth in Brown, 998 So.2d 367, and Miller, 973 So.2d 693, and the cases referenced above, we conclude that $ 37,500.00 is the highest point that was within the trial court’s discretion. Accordingly, we lower the award of general damages to $ 37,500.00.

Accordingly, for the reasons stated the general damage award of $45,000.00 in favor of the plaintiff, Margie Martin is reduced to $37,500.00.

AMENDED AND RENDERED.


author: PAUL A. BONIN, Judge.

text:
    Calvin WALKER v. STATE of Louisiana, et al.
    No. 2009-CA-0973.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 21, 2009.

      Calvin Walker, Winnfíeld, LA, In Proper Person/Appellant.
    James D. “Buddy” Caldwelll, Attorney General, David G. Sanders, Assistant Attorney General, Bridget B. Denicola, Assistant Attorney General, LA Department of Justice, Litigation Division, Baton Rouge, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

L Calvin Walker is a prisoner in the custody of the Louisiana Department of Corrections who is confined at the Winn Correctional Center. He filed a lawsuit for tort damages against the state in the Eighth Judicial District Court for the Parish of Winn, but was, he claims, unable to prepay the costs of court. His failure to prepay the filing fees resulted in an automatic stay of those proceedings pursuant to the provisions of La. R.S. 15:1186 B(2) of the Prison Litigation Reform Act, La. R.S. 15:1181-1190.

He then instituted this action, initially pursuant to La. R.S. 15:1171. § 1171 is an administrative procedure. In that procedure, he challenged the constitutionality of § 1186 B(2). The administrative decision was unfavorable to him and he sought judicial review in the Nineteenth Judicial District Court for the Parish of East Baton Rouge. While the judicial review proceedings were pending, he was permitted to amend and supplement his petition in the district court to seek a declaratory judgment of the unconstitutionality of § 1186 B(2). La. C.C.P. arts. 1871 et seq. The attorney general was served with the amended and supplemental |2petition. La. C.C.P. art. 1880. After a contradictory hearing, a commissioner of the district court recommended that the prisoner’s request for declaratory relief be denied and that the administrative decision denying his initial request be set for hearing. On June 2, 2008, the district judge adopted the commissioner’s recommendation.

Mr. Walker appealed the judgment to the Court of Appeal, First Circuit. The parties filed briefs on the issue appealed. On January 26, 2009, the First Circuit issued a rule for the parties to show cause why the appeal should not be dismissed on the grounds that the judgment was non-appealable. The parties responded by timely filing briefs. The judges of the First Circuit recused themselves from this matter. On July 9, 2009, the Supreme Court of Louisiana transferred the appeal to this circuit.

The June 2, 2008, judgment denying a declaratory judgment is neither a final judgment nor a partial final judgment. La. C.C.P. arts. 1841, 1877 and 1915. No relief was granted to any party and the plaintiffs suit was not dismissed as to any party; thei’e is no dispositive language in the decree. Therefore, it is an interlocutory judgment. La. C.C.P. art. 1841. Article 2083 C provides that “[a]n interlocutory judgment is appealable only when expressly pi’ovided by law.” We have been cited no law which would allow an appeal from this interlocutory judgment. Cf, e.g., La. C.C.P. art. 3612 B. Accordingly, because this is not an \ ^appealable judgment, we dismiss Mr. Walker’s appeal of the judgment of June 2, 2008, and remand the matter to the district court for further proceedings.

APPEAL DISMISSED.

      . The assistant attorney general assigned to this matter was also representing the judges themselves in other litigation. See La. C.C.P. art. 1880 and Opinions of Supreme Court Committee on Judicial Ethics No. 217 (May 29, 2009).

      . Even if this denial of a declaratory judgment which did not dismiss a lawsuit could be construed as a partial final judgment, it would still not be an appealable judgment because the trial court did not designate it as such. La. C.C.P. art. 1911.


author: PETERS, J.

text:
    IBERIA MEDICAL CENTER v. Wendy WARD.
    Nos. 09-0380, 09-0381-WCA.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2009.

      Christopher R. Philipp, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Wendy Ward.
    C. Shannon Hardy, Penny & Hardy APLC, Lafayette, LA, for Defendant/Appellant, Iberia Medical Center.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PETERS, J.

11 These consolidated cases arise from a workers’ compensation claim by Wendy Ward against her employer, Iberia Medical Center (Iberia Medical). Ms. Ward claims to have injured her left hand in a work-related incident on Friday, February 3, 2006. The matter is now before us because Iberia Medical has appealed a judgment in favor of Ms. Ward awarding her indemnity benefits, medical treatment, penalties, and attorney fees; and Ms. Ward has answered the appeal seeking an award of attorney fees on appeal. For the following reasons, we affirm the judgment of the workers’ compensation judge (WCJ) as amended and render judgment in favor of Ms. Ward for the additional sum of $5,000.00 as attorney fees associated with the work performed on appeal.

DISCUSSION OF THE RECORD

Ms. Ward was displaced by Hurricane Katrina from the New Orleans, Louisiana area to the New Iberia, Louisiana area in August of 2005. In December of 2005, she applied for work at Iberia Medical and was hired as a relief food service worker. She claims to have suffered a work-related injury to her left hand on February 3, 2006, while she and a co-worker, Joy Erikson, were attempting to move a large food cart into the service elevator at the medical facility. According to Ms. Ward, as she attempted to enter the service elevator, the cart’s wheels became stuck in the gap between the sill at the opening of the elevator door and the sill of the elevator car. She claimed in her pleadings that she injured her hand when it “got caught in the elevator.” She immediately informed Ms. Erikson of her injury. Ms. Erikson testified that she observed Ms. Ward’s swollen hand, and urged Ms. Ward to report the accident and to seek medical attention at the emergency room.

|2Ms. Ward took Ms. Erikson’s advice and immediately reported the incident to her supervisor, Annie Hines. She and Ms. Hines completed an incident report the same day. With regard to the question in the incident report as to how the accident occurred, the following notation was made: “Pushing lunch cart and Shut Elevator on hand.” Concerning the need for medical treatment, the report states that Ms. Ward did not seek medical attention because she “[tjhought It would be okay.” Ms. Hines testified that immediately after the accident, Ms. Ward’s hand had an abrasion and appeared to be swollen. She encouraged Ms. Ward to go to the medical center’s emergency room, but Ms. Ward declined to do so.

When Ms. Ward returned to work on Monday, February 6, 2006, her hand was still swollen. She then sought evaluation by an emergency room doctor at Iberia Medical. The emergency room record recorded Ms. Ward’s complaint as “LEFT WRIST & HAND PAIN & SWELLING.” The examining physician concluded that Ms. Ward had sustained a contusion to her left hand as a result of her hand being caught between an elevator and a food cart. After administering a drug screen (which was completely normal) and taking an x-ray of the wrist (which revealed no fracture or dislocation), the emergency room physician released Ms. Ward with instructions for her to follow-up with her personal physician and to take Tylenol for pain.

On Wednesday of that same week, Ms. Ward saw her personal physician, Dr. Kimberly Smith. At the time of the office visit, Ms. Ward’s hand and wrist were swollen and bruised. According to Dr. Smith’s records, the elevator struck Ms. Ward’s hand while the palm of her hand was wrapped around the leg of the cart. Dr. Smith gave Ms. Ward an “EXCUSE SLIP” from work for the period from February [38, 2006, through February 13, 2006. She later issued a second and third “EXCUSE SLIP” extending that period, first to February 24, 2006, and then to March 6, 2006.

When Ms. Ward’s condition failed to improve, Dr. Smith referred her to Dr. Andre Cenac, a New Iberia, Louisiana orthopedic surgeon. Dr. Cenac first examined Ms. Ward on March 15, 2006, and continued to follow her medically thereafter. In his initial evaluation, Dr. Cenac observed that Ms. Ward had a deep contusion to her left hand with swelling and limited range of motion. He recommended physical therapy and pain medication. When he saw her again on April 12, 2006, Dr. Cenac found that her condition had not changed and recommended continuing the previously prescribed medical management. Because she continued to have no use of her left hand, he released her for, at best, light duty. Nothing had changed in the June 19, 2006 evaluation, and Dr. Cenac suggested that Ms. Ward undergo some additional medical tests to further evaluate his determination that she was possibly suffering from reflex sympathetic dystrophy, a nerve type of pain which can be attributable to a trauma. At this time, Dr. Cenac still was of the opinion that Ms. Ward was not employable in her prior position. However, the diagnostic tests suggested by Dr. Cenac were never performed.

In a December 14, 2006 letter addressed to HSLI, Iberia Medical’s workers’ compensation administrator, Dr. Cenac had completely changed his mind concerning Ms. Ward’s condition and stated that “I am in agreement with the recommendation [by Dr. E. Scott Yerger] of positive maximum medical improvement and return to regular duty.” Dr. Cenac last saw Ms. Ward on April 18, 2007. His report concluded that, despite a continued history of persistent pain and swelling, Ms. Ward suffered from no significant abnormalities.

Lin his testimony, Dr. Cenac acknowledged that his opinion changed between June and December of 2006 because of a surveillance video he received from representatives of Iberia Medical. This video was filmed over a period from March 2, 2006, through August 8, 2006, then reduced to the ten-minute segment and shown to the doctor. It purported to show Ms. Ward performing tasks not consistent with her medical complaints. Despite changing his mind concerning diagnosis and Ms. Ward’s ability to return to work, Dr. Cenac still was of the opinion that Ms. Ward had sustained a contusion to her left hand based on her objective signs of swelling of the hand and wrist. He was also impressed with the fact that Dr. Smith had seen such significant swelling as to refer Ms. Ward to him for evaluation. That, he explained, gave credibility to the existence of a significant traumatic event causing an injury.

At the request of Iberia Medical, Ms. Ward was also seen by Dr. E. Scott Yer-ger, a Lafayette, Louisiana orthopedic surgeon. Dr. Yerger first examined Ms. Ward on August 2, 2006. Following his examination, he was provided by Iberia Medical with not one, but two surveillance videos. Dr. Yerger found the content of these videos to be “impressive” in that it showed Ms. Ward doing things with her left hand that were “eontraindicative” to what he saw in his office. Specifically, her | Sactivities did not match with his provisional diagnosis. His summary of Ms. Ward’s condition is as follows:

I do believe she suffered a contusion to the left hand and wrist when she had her left hand caught in the door of an elevator, between the elevator and the food cart that she was pushing in a hospital, but it would be difficult for her to have a Complex Regional Pain Syndrome of her left upper extremity involving the left hand and wrist and still be able to perform the activities that she was doing on these videos. In light of these surveillance videos, I think she’s able to return to work at her prior position as a food service worker and that she had likely reached maximum medical improvement.

In other words, both Dr. Cenac’s and Dr. Yerger’s final conclusion concerning Ms. Ward’s physical condition rested solely on the credibility of the surveillance video[s] and not on any medical findings associated with their individual examinations of their patient.

Based on Dr. Yerger’s conclusion that Ms. Ward had reached maximum medical improvement, Iberia Medical terminated her indemnity benefits as of September 5, 2006. Ms. Ward never returned to her position with Iberia Medical.

On September 18, 2006, Iberia Medical filed a disputed claim for compensation alleging not only that Ms. Ward was capable of returning to regular work duties, but that she had forfeited her right to receive workers’ compensation benefits based on her fraudulent actions in providing misleading information pertaining to her injury and medical condition. On October 10, 2006, Ms. Ward filed a separate disputed claim based on Iberia Medical’s failure to pay indemnity benefits, to authorize medical treatment, to correctly calculate her workers’ compensation rate, and for the premature termination of her indemnity benefits. The WCJ consolidated these two claims for trial.

| (¡Following a trial on the merits, the WCJ rendered oral reasons in which he found that Ms. Ward suffered a work-related accident, awarded her temporary total disability (TTD) benefits for February 6 thorough 10, 2006, reinstated her TTD benefits as of September 6, 2006, and awarded her $8,000.00 in penalties and $14,667.65 in attorney fees based on Iberia Medical’s arbitrary and capricious termination of her indemnity benefits.

Iberia Medical has suspensively appealed the WCJ’s judgment, raising five assignments of error:

I. The trial court erred by determining that Ward sustained a work injury when her trial testimony was diametrically opposed to her prior sworn testimony and the physical evidence established that Ward’s testimony regarding how the accident occurred was an impossibility.
II. The trial court erred by determining that Ward was entitled to the reinstatement of temporary total disability benefits after September 6, 2006 when every doctor testified she was capable of returning to her prior employment by that date and there was no medical evidence submitted contradicting the doctor’s [sic] opinions.
III. The trial court erred in ruling that Iberia Medical acted in an arbitrary and capricious fashion and improperly terminated Ward’s benefits when the doctors provided opinions that Ward had misrepresented her physical and medical condition and was capable of returning to work prior to that date and there was no medical opinion or testimony that Ward was not capable of returning to work after that date.
IV. The trial court erred in awarding penalties and attorney’s fees.
V. The trial court erred in failing to find that Ward had willfully made a false statement or representation for the purpose of obtaining benefits or payments thereby entitling Iberia Medical to a judgment for the amounts previously paid.

Ms. Ward answered this appeal seeking additional attorney fees for work performed on appeal.

JjOPINION

Assignments of Error Number I and V

Because both of these assignments of error relate to the particulars of the accident itself and the factual record in general, they will be considered together.

Louisiana Revised Statutes 23:1021(1) provides that an accident is “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1). Proof on this issue is by a preponderance of the evidence. Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). Additionally, an employee’s testimony alone may be sufficient to discharge this burden, provided that (1) no other evidence discredits or casts serious doubt upon his or her version of the incident, and (2) his or her testimony is corroborated by the circumstances following the alleged incident. Id. In determining whether the employee has discharged his or her burden of proof, the WCJ should accept as true a witness’s uncontradicted testimony, even though the witness is a party, absent circumstances that cast suspicion on the reliability of that testimony. Id. Further, the WCJ’s determinations on whether the employee’s testimony is credible and on whether she met her burden of proof are factual findings not to be disturbed on appeal absent manifest error. Id.

Louisiana Revised Statutes 23:1208(A) provides in pertinent part that “[i]t shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” In order to prove fraud as defined by this provision, an employer must prove: (1) a false statement or | ^misrepresentation by the employee, (2) willfully made, and (3) that it was made for the purpose of obtaining workers’ compensation benefits. Campbell v. City of Leesville, 07-1061 (La.App. 3 Cir. 1/30/08), 974 So.2d 908, writ denied, 08-491 (La.4/25/08), 978 So.2d 366.

The food cart involved in the claimed accident was described in testimony as a five-foot high, heavy stainless steel box on four wheels, with doors at the front and back and a long rod-like handle extending from top to bottom on each corner of the cart. It is wide enough to hold two food trays side by side, and, when loaded, holds approximately thirty trays. At trial, Ms. Ward described how the accident occurred in the following manner:

Me and another co-worker, which is Joy Erickson [sic], we were going to deliver food trays to the patients because we had to get them out for a certain time, and she and I was pushing the food cart to the elevators. We got to the second floor, and we had delivered all the trays to the second, third, and fourth floor of the hospital. And upon returning back to the first floor where we had to bring the cart back until it was time to go pick up the trays, she and I was pushing the elevator — pushing the food cart into the elevator, and the wheels got stuck in the groove of the elevator. And as we were trying to get it out, the door closed on my hand, on the corner of the food cart and my hand.

Iberia Medical argued at trial, and argues before this court, that Ms. Ward’s numerous versions of how the accident occurred precludes any trier of fact from finding that she established the occurrence of an accident by a preponderance of the evidence. Admittedly, her testimony on this point is less than clear. As seen from the testimony set forth above, Ms. Ward testified at trial that she was pushing the cart onto the service elevator when the accident occurred. However, in her June 2007 deposition, Ms. Ward testified that the accident occurred while she and Ms. Erikson were retrieving trays from either the second or third floor — not while loading the cart on the first floor — and that she was pulling the cart inside the elevator, not pushing | flthe cart. Because the elevator door opened and closed from the left side, Iberia Medical contends that the elevator door would not have struck her left hand had she been pulling the cart instead of pushing it and that she changed her testimony to comport with the physical evidence. When questioned at trial about these conflicts in her testimony, Ms. Ward acknowledged that for her left hand to have been struck by the elevator door, she would have had to have been pushing the cart into the elevator, but she claimed that when she gave her deposition testimony, she was not really thinking about the details of the accident.

Ms. Erikson’s testimony did not support Ms. Ward’s trial testimony on the pushing/pulling issue. According to Ms. Erik-son, when the accident occurred, Ms. Ward was pulling the cart into the elevator as she [Ms. Erikson] pushed it from behind. Additionally, Ms. Erikson did not observe the cart’s wheels becoming stuck in the elevator door gap and suggested that this was not possible given the large size of the wheels when compared to the narrow gap. Ms. Erikson also questioned whether the elevator door could have jammed Ms. Ward’s hand givén the fact that the elevator had a safety sensor which caused the door to stop when someone crosses the threshold. She was unaware of any instance where the sensor malfunctioned.

Other instances in the record that Iberia Medical suggests give cause to question Ms. Ward’s credibility include the following:

■ Ms. Ward testified that she learned of the position at Iberia Medical from her cousin while her job application states that she became aware of the position through the food stamp office.
■ Ms. Ward, who was hired as a relief worker on an as-needed basis, asserted in her testimony that she thought she had been hired on a part-time basis and only learned of her relief worker status at trial. However, she checked on her job application that she was seeking a “relief’ position.
|inM Ms. Ward failed to list her most recent employment on her job application — an eight-year employment with Wendy’s Old Fashioned Hamburgers.
■ Ms. Ward testified that she was attending courses to complete her high school education at the time of trial. Yet, in her deposition, she testified that she had graduated from New Iberia Senior High School in 1986 and had attended some college.
■ When asked in her deposition about prior arrests, she testified that she had been arrested for a domestic disturbance in either 2004 or 2005. However, she admitted at trial that she had been arrested in 2006 for aggravated battery.
■ Ms. Ward received unemployment benefits while working for Iberia Medical.

With regard to how she came to know about the job vacancy, Ms. Ward acknowledged that she stated in her job application that she had heard about the job through the food stamp office rather than through her cousin, but did so at the instruction of her cousin who, at the time, was an employee of Iberia Medical. When questioned concerning the discrepancy in her education status, Ms. Ward testified that she did not recall telling anyone in her deposition that she had graduated from high school. She again stated that she had gone to college, explaining that she had attended Baytown Technical College in Waco, Texas. In explaining her failure to mention her 2006 aggravated battery arrest, Ms. Ward stated “I mean, I don’t remember everything that goes on in the past thirty, forty years of my life. I don’t think anyone does remember every detail of their life.” With regard to her receiving unemployment benefits while working for Iberia Medical, Ms. Ward testified that an employment office employee had described the benefits as supplemental pay for the hours she did not work in New Orleans because of Hurricane Katrina.

We must agree with Iberia Medical that Ms. Ward’s testimony is filled with contradictions. However, that fact alone does not defeat her claim. Before simply | ^reversing the judgment based on the existence of these contradictions, we must first consider the WCJ’s reasons for his decision and apply the manifest error standard to his factual findings. In that regard, it is necessary to reproduce the pertinent provisions of the WCJ’s reasons for judgment.

Mrs. Ward was a food service worker at the medical center when on February 3, 2006, a service elevator door shut on her left hand as she was loading a large food cart. She contends that the accident has caused serious, disabling problems to her hand ever since. She asked the Court to find that her injuries arose out of this alleged accident, and as such is entitled to not only reasonable and necessary medical care, but also penalties and attorney’s fees for what she terms her employer’s improper handling of her claim.
The employer counters with the rather unambiguous argument that Mrs. Ward has either concocted or exaggerated her injuries in an effort to commit fraud. It says it was perfectly justified in terminating her indemnity payments and medical treatment and wants back all of the money it has spent on this matter.
The testimony suggests that after Mrs. Ward allegedly hurt her hand, that she reported the injury to her supervisor, was subsequently treated by a series of physicians, including an orthopedic surgeon, Dr. Cenac, who began seeing her the next month, in March of 2006.
The tipping point seems to have occurred in August 2006, when the insurance adjuster showed Dr. Cenac, the treating physician, and Dr. Yerger, the employer’s choice of physician, a video surveillance tape of Mrs. Ward. Apparently, the video had the intended result. Dr. Yerger, who had earlier opined that the elevator door accident had caused Mrs. Ward to develop Complex Regional Pain Syndrome of her left hand and wrist, recommended that Mrs. Ward return to her job. Dr. Cenac agreed.
The insurance company at this juncture took the view that Mrs. Ward never had an accident in the first place; and in any event, she needed to return to work. Workers’ Compensation benefits were terminated.
The Court reviewed the video with both counsel and encouraged both to make comments on the record to explain the pictorial evidence. The video surveillance sequences began about 5:30 in the morning on March 2, 2005, and continued sporadically for some seventeen months or so until around 12:00 noon on August 8, 2006. This some year and a half was condensed into about ten minutes of snippets, clips and random shots. Now, I suppose that if any of these flashes in time had 112shown Mrs. Ward throwing a shot put, operating a jackhammer or something to that effect, it might be a different matter. But instead, we see Mrs. Ward’s left hand carrying a newspaper, holding a coffee cup and lifting — not sweeping, just lifting — a broom. That’s about it.
The purely unilateral use of video surveillance video, especially one as disjointed, ill-conceived and poorly produced as the one in open court to justify termination of medical treatment and indemnity payments to an injured worker flies squarely in the face of any sense of fair play.
I am hard-pressed to comprehend, much less agree with, the defense’s position that it is literally physically impossible for the elevator door to have injured her hand the way she described. The photos submitted into evidence show a very large metal food cart being pushed into an under-sized service elevator door with virtually no visible clearance between the side of the elevator and the cart. Mrs. Ward, who is not particularly articulate, did not describe the mechanics of the accident with any degree of precision; however, she’s not required by law to show the exact manner in which her hand was caught. The fact is that her left hand was remarkably functional before she pushed the cart in and was decidedly not thereafter, and she reported this immediately to her supervisor. There’s a reasonable presumption here that somehow, someway, the small door and the large cart somehow caused her left hand to get smashed.

Thus, as to the occurrence of an accident, the WCJ concluded that regardless of whether Ms. Ward was pushing or pulling the food cart, or whether she was struck by the closing elevator door or the side of the elevator itself, she sustained a work-related injury. We find no manifest error in that factual finding. No evidence points to a pre-existing injury as hinted to by Iberia Medical. Ms. Ward had worked a significant part of the work day without complaint and immediately complained upon sustaining the injury. Her co-worker had not observed any disability or evidence of traumatic injury prior to Ms. Ward’s complaint, but immediately observed that Ms. Ward’s hand and wrist had begun to swell. Ms. Ward immediately reported the accident to her supervisor, who also testified that she observed an abrasion on, and swelling of, Ms. Ward’s hand. Both specialists who treated her testified that Ms. [ 13Ward had sustained a traumatic injury to her hand. The comparative negligence of an employee does not play any part in a workers’ compensation claim and, therefore, the mechanics of how the accident occurred, other than for credibility purposes as argued by Iberia Medical herein, are less important than the mere fact that an accident occurred.

With the exception of the surveillance video, the WCJ made no mention of the other inconsistencies complained of by Iberia Medical. Apparently, the WCJ found that either these inconsistencies were adequately explained away by Ms. Ward, or they were not relevant to the accident or forfeiture issues. While we might have reached a different conclusion concerning Ms. Ward’s credibility given the inconsistencies, we find no error in the WCJ’s opposite conclusion in that regard. Assuming for purposes of argument that the inconsistencies were not adequately explained away by Ms. Ward, we do note that all except her criminal history relate to Ms. Ward’s attempt to obtain her job in the first place and, except for the credibility issue, do not relate to her workers’ compensation claim. Even her inconsistent criminal history statements relate only to credibility.

The one credibility issue that does relate to Ms. Ward’s workers’ compensation claim is the surveillance video. Despite maintaining surveillance of Ms. Ward for a period of almost six months beginning in March of 2006, the most Iberia Medical could produce was an approximate ten minute segment taken on July 13, 2006 and July 24, 2006, revealing her performing minimal activities and not wearing her 114compression glove. While obviously impressive to Drs. Yerger and Cenac, the WCJ found the video to be less than convincing. We find no error in the WCJ’s conclusion in this regard. See Fabre v. ICF Kaiser Int'l, 01-2734 (La.App. 1 Cir.11/8/02), 835 So.2d 724. Reaching that conclusion, it follows that we find no error in the WCJ’s conclusion that Ms. Ward sustained a work-related injury and that Iberia Medical failed to establish that Ms. Ward willfully made false statements for the purpose of obtaining workers’ compensation benefits and would, thus, have forfeited her right to receive benefits pursuant to La. R.S. 23:1208(E).

Assignment of Enor Number II

In this assignment of error, Iberia Medical argues that the WCJ erred in reinstating Ms. Ward TTD benefits as of September 6, 2006, when both Drs. Cenac and Yerger testified that she was at maximum medical improvement (MMI), and she failed to present any medical evidence contradicting these opinions.

An employee who proves, by clear and convincing evidence, unaided by any presumption of disability, that they are physically unable to engage in any employment as a result of a work-rélated injury will be awarded TTD benefits. La. R.S. 23:1221(1). Disability can be proven by both medical and lay testimony, and the WCJ must weigh all of the evidence in order to determine whether the employee has satisfied her burden of proof. Jack v. Prairie Cajun Seafood Wholesale, 07-102 (La.App. 3 Cir. 10/3/07), 967 So.2d 552, writ denied, 07-2388 (La.2/15/08), 976 So.2d 178. Whether the employee has proven disability is a factual determination that is subject to a manifest error analysis. Id.

|1fiMs. Ward testified that she suffers from hand symptoms a majority of the time, and that her hand is very sensitive to hot and cold temperatures. Following her accident, she began wearing a compression stocking glove, but was told by her physical therapist that she did not have to wear it all the time. In fact, she claimed that sometimes weai-ing the glove makes her hand hurt worse.

According to Ms. Ward, since injuring her hand, much of her daily activity is hindered because of the limitation of use of her left hand. While she used to work in the kitchen, she now has difficulties because she cannot handle pots or dishes with her left hand. At best, she can carry a saucer-sized plate with her left hand. Ms. Ward further testified that she is able to carry a broom, a cup of coffee, and a newspaper, as was shown in the surveillance video. However, she explained that she was encouraged by both Dr. Cenac and her physical therapist to use her hand as much as possible. She stated that she is not capable of performing her position ■with Iberia Medical because she cannot carry a tray with her left hand and she felt that the heat from the tray would affect her hand.

Ms. Ward also called as a witness Sheila Jacquette, a life-long friend who had grown up with her. Ms. Jacquette testified that between childhood and late 2007, she had no contact with Ms. Ward, but became reacquainted after she found that Ms. Ward had moved into the same neighborhood following Hurricane Katrina. Since their reacquaintance, Ms. Jacquette testified that she has heard Ms. Ward complain of being unable to carry heavy items with her left hand and that her hand is susceptible to hot and cold temperatures. She stated that she actually saw Ms. Ward’s left hand swell up on one occasion when Ms. Ward was sitting in a car. Ms. Jacquette testified that she has also seen Ms. Ward shake her hand and complain of stiffness or | ^discomfort in hex-fingers, and. she observed Ms. Ward wearing a compression glove on several occasions.

In this instance, both Drs. Cenac’s and Yei'ger’s determination that Ms. Ward had reached MMI and was capable of returning to work was based on the surveillance video and not on an actual physical examination of her hand. Pxior to viewing the video, both doctors had resti-icted Ms. Ward from working. On June 16, 2006, Dx*. Cenac noted that Ms. Ward was complaining of continuing swelling in the dor-sum of her hand, which caused problems with the flexibility of her hand and the movement of her fingers. Dr. Cenac, based on the fact that Ms. Wax-ds’ condition had not improved over time, ordei’ed an EMG and nerve conduction test to determine if she was suffering from reflex sympathetic dystx-ophy. He restricted her from working. On April 18, 2007, he ordered a triple phase bone scan in order to definitively diagnose her condition. Neither of these tests were conducted.

Dr. Yerger examiixed Ms. Ward only once, on August 2, 2006. At that time, she complained of pain in her left hand and wrist, numbness in her left long finger, and swelling within her hand and wrist. She stated that her hand felt cool to the touch and was hypersensitive to light touch. On exam, Dr. Yerger noted that Ms. Ward seemed to lack terminal flexion of the PIP and DIP joint of the fingers when making a fist with her left hand. She complained of pain along the dorsal aspect of the wrist and hand while making a fist. Dr. Yerger noted a decrease in the light touch in the tip of the long finger as compared to the other four fingers of her left hand, decreased skin turgor on the left hand and wrist, and the skin of her left hand was duskier in appearance, paler, and cooler to touch than her right hand. Based on his examination and a review of her medical records, Dr. Yerger felt that Ms. Ward had developed a | ^complex regional pain syndrome in her left hand and wrist, which he stated was another name for reflex sympathetic dystrophy.

Unfortunately, both Dr. Cenac’s and Dr. Yerger’s medical impartiality has been compromised as a result of viewing Iberia Medical’s surveillance video. As of the October 15, 2008 trial date, no further medical examination of Ms. Ward had been conducted. Thus, we have no evidence concerning her physical condition past April 18, 2006.

After reviewing the record, we find that it was reasonable for the WCJ to find that Ms. Ward was entitled to TTD benefits as a result of this injury. This is based on the fact that Dr. Cenac found objective signs of swelling in Ms. Ward’s hand on a couple of occasions and because he emphasized the fact that Dr. Smith found the swelling significant enough to refer Ms. Ward to him for a consultation. Moreover, until he viewed the surveillance video, Dr. Yerger concurred with Dr. Cenac’s findings and recommended that Ms. Ward undergo evaluation by a pain management specialist.

Our difficulty lies in the fact that we are now approximately three years and eight months post-injury and two years and seven months past the last examination of Ms. Ward’s hand. However, barring any evidence to the contrary, we find that Ms. Ward is entitled to TTD benefits for eighteen months past February 3, 2006. This period of time accords with Dr. Cenac’s testimony that this condition only lasts an average of eighteen months. Should Ms. Ward be able to prove otherwise, she is entitled to revisit this issue before the WCJ. Accordingly, the judgment of the WCJ is amended to reduce the period of time Ms. Ward is entitled to TTD benefits to eighteen months past February 3, 2006.

11SAssignments of Error Numbers III and IV

In these assignments of error, Iberia Medical asserts that the WCJ erred in concluding that it was arbitrary and capricious and in awarding Ms. Ward penalties and attorney fees pursuant to La. R.S. 23:1201(1) based on the termination of her benefits. Specifically, Iberia Medical asserts that it acted pursuant to medical opinions that “[Ms.] Ward had misrepresented her physical and medical condition and was capable of returning to work prior to [the date it ceased paying benefits] and there was no medical opinion or testimony that [Ms.] Ward was not capable of returning to work after that date.”

In making this argument, Iberia Medical ignores the fact that the medical opinions relied upon to terminate Ms. Ward’s benefits were based on its own surveillance video and not any medical evaluation. Additionally, in considering Iberia Medical’s attitude toward Ms. Ward’s claim from the beginning, we note that she was never paid disability benefits for the week of February 6 through 10, 2006, and Iberia Medical instituted surveillance activities less than one month after the accident without any evidence to suggest Ms. Ward did not sustain a work-related injury. In other words, Iberia Medical seems to have immediately begun a campaign to terminate Ms. Ward’s benefits without any basis for such a campaign. We find no merit in this assignment of error.

DISPOSITION

For the foregoing reasons, we amend the judgment of the WCJ to reduce the period of time Ms. Ward is entitled to TTD benefits to eighteen months past February 3, 2006. We affirm the judgment in all other respects. We render judgment in favor of Wendy Ward and against Iberia Medical Center in the amount of $5,000.00 as |19attorney fees for the prosecution of this appeal. We assess all costs of this litigation to Iberia Medical Center.

AFFIRMED AS AMENDED AND RENDERED.

      . Although Ms. Ward signed the report, Ms. Hines provided the handwritten information in the report.

      . Despite the long period of time over which Ms. Ward was observed by the individual or individuals taking the surveillance video footage, that which was shown to the WCJ at trial begins with a July 13, 2006 segment at 6:34 p.m. that shows Ms. Ward at her apartment picking up a mop with her right hand and opening a door with her left hand; shows her leaving the apartment at 7:18 p.m. carrying a cup of coffee in her right hand and switching it to her left hand; a moment later returning to her apartment and, after shifting the coffee cup back to her right hand, swinging her left arm in a normal fashion without any guarding effort; then going to a store and ultimately exiting the store at 7:39 p.m. with a newspaper in her left hand. The next segment was filmed on July 24, 2006, beginning at 10:57 a.m., and initially shows Ms. Ward pushing the door of her apartment open with her left hand. She is next seen opening the door with her left hand at 11:01 a.m. Next, at 11:19 a.m., she is seen walking out of her apartment adjusting her robe with her left hand. Next, at 11:21 a.m. and 11:24 a.m., she is seen opening the door of her apartment with her left hand. Finally, at 11:26 a.m., she is seen sitting in a chair in front of her apartment with her left hand in her lap.

      . One was provided to him on July 13, 2006, and the other on July 24, 2006.

      . The WCJ erroneously concluded in his reasons for judgment that surveillance had begun in March of 2005, not March of 2006. However, this error does not change the WCJ’s characterization of the video.

      . During her August 2, 2006 appointment with Dr. Yerger, Ms. Ward wore a compression glove on her left hand, complained of pain while making a fist and with flexion and extension of her fingers and wrist, and complained of significant pain upon light palpation of her hand.


author: EDWIN A. LOMBARD, Judge.

text:
    Casey BILLIESON, Individually and on Behalf of Her Minor Children, Ryan Billieson and Ronnie Gladstone, and Dione Coleman, Individually and on Behalf of Her Minor Children, Dwayne Coleman, Ciera Coleman and Marcel Coleman, et al. v. CITY OF NEW ORLEANS, Housing Authority of New Orleans, C.J. Brown Public Housing Management Company, XYZ Insurance Company, and Louisiana Insurance Guaranty Association.
    Nos. 2009-CA-0410, 2009-C-0811.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2009.
    Rehearing Denied Dec. 10, 2009.

      Gary J. Gambel, Murphy, Rogers, Sloss & Gambel, New Orleans, LA, for Casey Billieson, Individually and on Behalf of Those Similarly Situated.
    Judy Y. Barrasso, Steven W. Usdin, John W. Joyce, Barrasso Usdin Kupper-man Freeman & Sarver, L.L.C., New Orleans, LA, William H. Murphy, Jr., Pro Hac Vice, Richard V. Falcon, Pro Hac Vice, Baltimore, MD, David C. Frederick, Pro Hac Vice, Michael J. Burstein, Pro Hac Vice, Kellogg Huber Hansen Todd Evans & Figel, P.L.L.C., Washington, DC, for Ventana Property Management, Inc.
    John K. Etter, Roy J. Rodney, Jr., Rodney & Etter, LLC, New Orleans, LA, for Housing Authority of New Orleans.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

|,In this class-action suit, Defendants, the Housing Authority of New Orleans (“HANO”) and C.J. Brown/Ventana, appeal the district court’s judgment denying them motions to decertify the class. Finding that the district court did not abuse its discretion in denying Defendants’ motion to decertify, we affirm the judgment and remand the case for further proceedings.

Relevant Facts and Procedural History

This suit was originally filed over fourteen years ago on behalf of children alleged to have been poisoned by lead in New Orleans public housing developments owned by HANO and managed by C.J. Brown/Ventana. In January 1995, Plaintiffs moved to certify the case as a class action, but following a hearing in December 1997, the district court denied Plaintiffs’ motion to certify the class. After a subsequent motion for new trial was also denied, Plaintiffs appealed to the Louisiana Fourth Circuit Court of Appeal. This Court reversed the district court’s ruling on March 3, 1999, finding that the trial court abused its discretion by |2denying the motion for class certification “because the plaintiffs presented sufficient record evidence to fulfill the statutory and jurisprudential requirements.”

Eight and a half years later, On October 22, 2007, HANO filed the instant motion to decertify the class action. C.J. Brown/Ventana subsequently filed its own motion to decertify, adopting HANO’s arguments by reference. The parties argued the merits of the motions before the trial court on January 14, 2009.

In their motions to decertify the class, Defendants argued that the class should be decertified because legal, factual, and procedural developments since the initial class certification demonstrate that class adjudication will not adequately resolve Plaintiffs’ claims, and because individual factual and legal issues will predominate over common issues. In response, Plaintiffs argued that Defendants have made, and lost, the same argument before, that Defendants’ arguments are really directed towards the trial plan and not towards class certification and that nothing has changed since the initial class certification to justify a decertification.

The trial court denied the motions from the bench and, later issued extensive reasons for judgment substantiating its refusal to decertify the class. After recounting the pertinent facts and procedural history, the trial court thoroughly analyzed this Court’s ruling that originally ordered certification of the present class. The trial court observed that many of the arguments made in the present motion have been urged and reurged in the decade the case has been certified and that the arguments have been rejected repeatedly by the District Court, the Fourth ^Circuit, and the Supreme Court. The court acknowledged the numerous appellate decisions in the past ten years concerning class certification, but opined that the applicable law has not changed in any way that would warrant decertification of this case. The court also noted that there have been no factual changes in this case that would justify decertification. The court discussed the impracticality of decertifying the class, noting, “from a practical standpoint, it is clear to this court that decerti-fying this class after fourteen years of litigation and ten years of certification would be most inappropriate for multiple reasons” including “the potential of flooding the docket of the Civil District Court with hundreds, perhaps thousands, of additional lead poisoning suits,” which would “do nothing to serve litigant or judicial economy.” Finally, the court noted that the trial, which is set to begin on March 1, 2010 would resolve all common issues, including those involving insurance coverage, and that to disrupt the forward progress of this case at this point in time by decertify-ing it would be inappropriate. In conclusion, the district court, ruled that, “pursuant to the analysis of the Fourth Circuit Court of Appeal herein adopted and reiterated by this Court, taken together with the absence of material change in the posture of the case, in fact, or law from the Fourth Circuit’s certification forward, at the present time this case still meets all of the requirements for certification as a class action.” Thus, the district court concluded that the class action device remains the most effective, efficient, and fair method of concluding this matter.

14It is from this judgment that Defendants now appeal.

Arguments on Appeal

In their appeal, Defendants first argue that the trial court’s ruling should be reversed because under recent Louisiana law, mass tort cases cannot be certified as class action suits unless the individual cases share a common cause. In support of this claim, Defendants primarily rely on the Louisiana Supreme Court’s decertification rulings in Ford v. Murphy Oil, U.S.A., Inc., 96-2913 (La.9/9/97), 703 So.2d 542, and Brooks v. Union Pac. R.R., 08-2035 (La.5/22/09), 13 So.3d 546.

In Ford, St. Bernard Parish residents brought an action against the operators of four petrochemical plants, claiming physical and property damages as result of emissions from the petrochemical facilities. After remand from federal court, the trial court certified a class for claims against two operators but denied certification as to the other operators, and an appeal was taken. This Court affirmed the trial court’s ruling. Ford v. Murphy Oil, U.S.A., Inc., 94-1218 (La.App. 4 Cir. 8/28/96), 681 So.2d 401. The Louisiana Supreme Court granted writs, reversed and ruled that the action did not present common questions that predominated over individual issues, as required for a class certification. The Ford Court observed:

Ififar from offering the same facts, each class member will necessarily have to offer different facts to establish that certain defendants’ emissions, either individually or in combination, caused them specific damages on yet unspecified dates (which dates may run into the hundreds or even thousands). The causation issue is even more complicated considering the widely divergent types of personal, property and business damages claimed and considering each plaintiffs unique habits, exposures, length of exposures, medications, medical conditions, employment, and location of residence or business. In addition, each plaintiff will have to prove that the specific harm he suffered surpassed the level of inconvenience that is tolerated under C.C. art. 668. By the very nature of the claims that have been made, the length of time involved, and the vast geographical area in which the class members live, the degree of inconvenience or damage suffered will vary greatly as to the individual plaintiffs. The individualistic causation and liability issues are further magnified in this case by the claim that four* different sources of emissions are involved. This case simply strays too far from the “true” class action that the Legislature intended to allow.
Ford, 96-2913, pp. 11-12, 703 So.2d at 548-549.

Accordingly, the Supreme Court reversed the class certification.

In Brooks, property owners filed a mass-tort class action petition for damages against a railroad company, as well as city and parish governments, alleging that inadequate box culverts installed and maintained by the railroad, combined with inadequate drainage facilities designed and maintained by the city and parish, caused the owners’ property to flood during rainstorms. The trial court certified the class. On appeal, the Third Circuit Court of Appeal reversed the class certification. The Louisiana Supreme Court granted writs but affirmed the Third Circuit’s ruling, determining that the trial court’s finding of a common cause was erroneous because as all the experts testified that the predominate cause of flooding would vary depending on whether an individual lived in the Northern, Southern or Eastern basin. Further, the Court found that plaintiffs’ claims that the combined fault of all three defendants contributed to the flooding in all three basins 16based on their theory of “interflow” between basins did not satisfy the common cause requirement, since the cause of the “interflow” flooding would still vary depending on the location of each particular household. Brooks, 08-2035, p. 9.

Based on the holdings in Ford and Brooks, Defendants assert that Plaintiffs’ claims are unsuitable for class action because the class members’ injuries do not result from a common cause. We find, however, that this case is distinguishable from Ford and Brooks on its facts. While the plaintiffs in Ford and Brooks attempted to certify a class in which multiple harm-inducing instrumentalities, owned by multiple defendants, were alleged to be the cause of plaintiffs’ harm, here, Plaintiffs’ alleged harm was caused by only one substance — lead, in buildings built and owned by HANO and operated by C.J. Brown. Moreover, unlike Ford and Brooks, Plaintiffs’ injuries do result from a common cause — Defendants’ alleged breach of their duties to Plaintiffs by allowing hazardous levels of lead to exist throughout HANO units for years — allegedly causing Plaintiffs to develop lead poisoning.

Defendants also argue that, in this case, individual causation issues predominate over common questions. Defendants maintain that causation in the present case can only be proven on the basis of facts that are unique to each individual. In support of this assertion, Defendants cite to case law from other jurisdictions, as well as scientific literature, to argue that while evidence of an elevated blood level in a child indicates exposure to lead, any subsequent injury is dependent upon a number of other factors, e.g. genetics, individual medical history, environmental and socio-economic, unique to each individual. Thus, Defendants claim that Plaintiffs will need to present evidence from at least one 17doctor for every individual plaintiff, as well as supporting medical opinions and evidence of each plaintiffs- unique medical history. Therefore, Defendants assert that individual issues will predominate greatly over common issues at trial, thus necessitating decertification of the class.

In Brooks, the Court held that “[a]n inquiry into predominance tests ‘whether the proposed classes are sufficiently cohesive to warrant adjudication by representation.’ ” Id., p. 9. The process prescribed by the Court in making this determination is to identify the substantive issues that will control the outcome, to assess which issues will predominate, and then to determine whether the issues are common to the class. Id. This process is ultimately meant to prevent the class from degenerating into a series of individual trials. Id.

Here, Plaintiffs argue that the common issue is whether Defendants breached the standard of care owed Plaintiffs and that this issue predominates over any individual liability issues in the case. All of Plaintiffs’ claims are founded on an assertion of negligence on the part of Defendants in allowing hazardous levels of lead to exist throughout the HANO units, and that the lead in the HANO units was a substantial contributing factor in causing Plaintiffs’ lead poisoning. Each class member will have to prove causation based on the same set of operative facts. A determination of whether Defendants were negligent is therefore a substantive issue that will control the outcome of all of Plaintiffs’ claims. Because a determination of this issue will dispose of all of Plaintiffs’ claims one way or another, it predominates over any individual issues which may be presented by the circumstances surrounding the claim of an individual class member. Finally, because all of Plaintiffs’ claims are premised on an assertion of negligence on the part of Defendants, that predominant issue is common to the class. Because it is Impossible to reconcile the trial court’s finding of predominance with the analysis prescribed in Brooks, we find no manifest error in the trial court’s finding that the applicable law has not changed in any way that would warrant decertification in the present matter.

Defendants also assert that the scientific research concerning lead poisoning has developed to such a degree since the original class certification that decertification is now warranted. However, the trial court has yet to rule on the admissibility of the scientific literature relied upon by Defendants in their trial court memoranda. We further note that Defendants’ motions to decertify were not based upon any scientific testimony, whether by sworn affidavit or deposition, elicited from expert witnesses. As such, we find that the trial court did not abuse its discretion in ruling that there has been no material chance in circumstances warranting class decertification.

Finally, Defendants additionally argue that the trial court should have decer-tified the class because this case has become so unmanageable that any adverse verdict will result in a violation of Defendants’ due process rights. However, Defendants failed to raise this argument before the trial court. In fact, Defendants’ argument on this point is based, in part, on actions taken by the trial court after it orally denied Defendants’ motion to decer-tify class on January 14, 2009, and issued written reasons on May 14, 2009. It is well established that as a general matter, appellate courts will not consider issues raised for the first time, which were not pleaded in the trial court below and which the trial court has not addressed. John son v. State, 02-2382, p. 4 (La.5/20/03), 851 So.2d 918, 921. Accordingly, we must disregard this assignment of error because it was not raised and briefed before the trial court.

|¡,The jurisprudence indicates that a trial court’s ruling concerning a motion to decertify a class is reviewed under an abuse of discretion standard. Doerr v. Mobil Oil Co., 04-1789, p. 4 (La.App. 4 Cir. 6/14/06), 935 So.2d 231, 234. In Doerr, we held: “In the absence of materially changed or clarified circumstances, or the occurrence of a condition on which the initial class ruling was expressly contingent, courts should not condone a series of rearguments on the class issues by either the proponent or the opponent of class, in the guise of motions to reconsider the class ruling.” Id.

Here, Defendants’ arguments for decer-tification, as the trial court noted, are very similar to those we rejected in our earlier decision to certify the case as a class action. We do not find that there has been a material change in the facts, law or circumstances since the initial class ruling that would warrant class decertification. Moreover, we find that this case is proper for class certification because common questions of law and fact predominate over individual issues of law and fact. Therefore, we conclude that the trial court did not abuse its discretion in denying Defendants’ motions to decertify and we affirm the trial court’s judgment.

AFFIRMED.

      . See Billieson v. City of New Orleans, 98-1232 (La.App. 4 Cir. 3/3/99), 729 So.2d 146

      . Defendants also filed an application for supervisory writ with this Court (No. 2009-OS 11) seeking review of this same judgment, which, by Order of this Court, has been consolidated with this appeal. At the outset, we note that a judgment denying Defendants’ motions to decertify the class is an interlocutory judgment. The Louisiana legislature amended Article 2083, effective January 1, 2006, and in its present form, Article 2083 provides that an interlocutory judgment is appealable only when expressly provided by law. La.Code Civ. Proc. art. 2083(C). The denial of a motion to decertify a class action is an interlocutory judgment that is immediately appealable by law. Sutton Steel & Supply, Inc. v. BellSouth Mobility, Inc., 07-146, 07-512, p. 7 (La.App. 3 cir. 12/12/07), 971 so.2d 1257, 1263. Moreover, since Defendants timely filed an application for supervisory writ seeking review of this judgment, which has been consolidated with this appeal, we will exercise our supervisory jurisdiction to review this judgment on appeal.

      . Brooks v. Union Pac. R.R., 07-1427 (La.App. 3 Cir. 6/4/08), 985 So.2d 864.