author: CONERY, Judge.

text:
    PARK PLACE SURGERY CENTER, LLC dba Park Place Surgical Hospital v. NATIONAL OILWELL VARCO, L.P. and New Hampshire Insurance Company
    17-483
    Court of Appeal of Louisiana, Third Circuit.
    September 6, 2017
    Gerald A. Melchiode, Kevin A. Marks, Renée S. Melchiode, Benjamin M. Pri-tal, Melchiode Marks King, L.L.C., 639 Loyola Avenue, Suite 2550, New Orleans, Louisiana 70113, (504) 336-2880, COUNSEL FOR DEFENDANTS/ APPLICANTS/RELATORS NATIONAL OILWELL VARCO, L.P. AND NEW HAMPSHIRE INSURANCE COMPANY
    Thomas A. Filo, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, L.L.C., 723 Broad Street, Lake Charles, Louisiana 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/RESPONDENT: Park Place SurgeryCenter, LLC, D/B/A Park Place Surgical Hospital
    Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery, Judges.
   CONERY, Judge.

The defendants-relators, National Oilwell Varco, L.P., and New Hampshire Insurance Company, seek supervisory writs from the judgment of the Office of Workers' Compensation, District 04, the Honorable Adam Johnson presiding, which denied the relators' exceptions of res judicata, lis pendens, lack of subject matter jurisdiction, and nonjoinder of indispensable party. For the following reasons, the motion to seal the record is granted, except as to this opinion, and the writ is denied at relators' cost.

STATEMENT OF THE CASE

The instant case arises from a workers' compensation form 1008 claim filed by the plaintiff-respondent, Park Place Surgery Center, LLC d/b/a Park Place Surgical Hospital (Park Place), for underpayment of a workers' compensation medical bill by the relators (the employer and employer's insurer) pursuant to La.R.S. 23:1034.2(F) in connection with medical treatment provided for on-the job injuries sustained by employee Brian Armstead. Park Place also seeks statutory penalties and attorney fees under La. R.S. 23:1201(F)(4) for the arbitrary and capricious handling of the workers' compensation claim by relators.

The relators filed exceptions of prematurity, vagueness, res judicata, lis pendens, lack of subject matter jurisdiction, and nonjoinder of indispensable party, all of which were denied following a hearing on April 25, 2017. A written judgment was signed on May 1, 2017. The relators are now before this court on writs seeking review of the trial court's rulings on the exceptions. The relators also filed a motion to seal the record, briefs, exhibits, and any issued opinion or other pleading if confidential and proprietary information is included.

SUPERVISORY RELIEF

The requirement of irreparable injury is met in this case in light of Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc. , 396 So.2d 878 (La.1981). When the overruling of an exception is arguably incorrect, when a reversal will terminate the litigation, and when there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits.

ON THE MERITS

The relators argue that the medical bill that forms the basis of the dispute was initially reviewed by FairPay Solutions, Inc. (FairPay). FairPay provides review services of workers' compensation bills to employers and their respective insurers. The relators add that the payment made to the plaintiffs was in keeping with FairPay's recommendation and in accordance with a Settlement Agreement confected several years ago in a class action suit, Opelousas General Hospital Authority, a Public Trust d/b/a Opelousas General Health System and ArkLaMiss Surgery Center, LLC v. FairPay Solutions, Inc. , No. 12-C-1599-C, 27th Judicial District Court, St. Landry Parish (Class Action), and signed by the trial court on August 17, 2012.

The Class therein was defined as follows:

All Louisiana hospitals and ambulatory surgical centers that have provided outpatient services to workers' compensation patients pursuant to the Louisiana Workers' Compensation Act, LSA-R.S. 23:1021 [,] et seq., and whose bills have been discounted, adjusted, paid on a reduced basis, or otherwise paid at less than the billed amount after October 21, 2003[,] as a result of a reduction recommended by FairPay.

Pursuant to the Settlement Agreement, FairPay paid about seven million dollars to the members of the class for the dismissal of their claims. A permanent injunction was entered against any future claims involving FairPay's recommendation for payment on a medical bill made pursuant to the Future FairPay Pricing Methodology (FPPM). The Settlement Agreement also contained a mechanism for dispute resolution for a Class Member to seek additional reimbursement from a released party under the agreement. Additionally, the Class Members agreed to a safe haven for FairPay wherein they agreed to waive and release all claims and liability pertaining to bills paid pursuant to FairPay's recommendation in keeping with the FPPM. Once a Class Member exhausts the delineated procedure for dispute resolution and FairPay and its clients have allegedly failed to follow the Methodology, the Class Member may file an action in district court or in the Office of Workers' Compensation (OWC). The issue of whether FairPay adhered to the Methodology was the sole issue in the prior litigation.

After the Settlement Agreement was approved, Qmedtrix, a competing bill review company, appealed on numerous grounds, including the assertion that the class action claims arose under the exclusive jurisdiction of the OWC. A panel of this court affirmed the district court's approval of the settlement and the adoption of a new methodology for pricing. Opelousas General Hosp. Authority v. Fairpay Solutions, Inc. , 13-17 (La.App. 3 Cir. 7/3/13), 118 So.3d 1269. Further, that panel concluded that the class action claims did not arise under the Workers' Compensation Act (WCA); thus, the claims did not fall within the exclusive jurisdiction of the OWC.

The Settlement Agreement provides for a Reconsideration Period which requires the Class Member to submit to FairPay for review and reconsideration the amount recommended to be paid and the amount actually paid on a bill or bills. FairPay then reviews the bill or bills to determine if it erred in the application of the pre-approved Methodology. FairPay then has thirty days to seek a mediation of future disputes. Only after these procedural remedies have been exhausted may a healthcare provider bring an action alleging FairPay has not properly applied the Methodology under the Settlement Agreement.

Park Place maintains, however, that it complied with the Initial Reconsideration Period and submitted the subject claim to FairPay before the thirty-day period required prior to filing the workers' compensation form 1008 claim. Further, Park Place asserts that the relators, who had the burden of proving their exception of prematurity, offered no evidence to show that Park Place failed to comply with the Initial Reconsideration Period.

Park Place adds that its 1008 claim was filed pursuant to La.R.S. 23:1034.2(F) for underpayment of a workers' compensation medical bill in connection with treatment provided to Mr. Armstead. The 1008 form, Park Pace asserts, indicates that the claim is limited to "non payment [sic] of medical services" and statutory penalties/attorney's fees for arbitrary and capricious handling of the claim. As such, Park Place argues that this claim arises under the WCA. Park Place adds that the claim is made against the employer and insurer only, and does not mention the Settlement Agreement or refer to FairPay discounts. Further, Park Place claims that the relators wrongly assert that the "zero payments" notation on the bill at issue was in keeping with the FPPM in the Class Settlement.

Res Judicata

The relators argue that the claim in the instant matter is barred by the doctrine of res judicata as provided in La. R.S. 13:4231 :

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The relators urge that each element of La. R.S. 13:4231 is met from the prior class action lawsuit and settlement:

1) a valid settlement was confected;
2) the settlement is final;
3) the instant matter involves the same parties;
4) the causes of action are identical;
5) the settlement was designed to apply to future transactions; and,
6) the causes of action herein involve the same transaction or occurrence previously settled and subject to a permanent injunction.

The relators maintain that Park Place was a Class Member in the prior litigation. Further, the relators point out that they are "released parties" under the settlement and paid the invoice for medical treatment provided to Mr. Armstead pursuant to FairPay's recommendation using the FPPM.

In opposition, Park Place argues that the settlement to which the relators refer actually authorizes the claim herein. Section 11.7 of the Settlement agreement reads:

Each Class Member agrees that, should a dispute arise concerning the proper application of the Future FairPay Pricing Methodology, the Class Member must first submit the dispute directly to FairPay for reconsideration of the recommended reduction. FairPay will have 30 days (the "Initial Reconsideration Period") from presentation to resolve the dispute and/or make any corrections to the recommended reduction and the Class Member is prohibited from taking any further action during the Initial Reconsideration Period. If at the end of the Initial Reconsideration Period, a dispute over the Future FairPay Pricing Methodology still exists, the Class Member agrees to submit to non-binding mediation if, but only if, requested by FairPay. Any such mediation shall be conducted within 30 days of the end of the Initial Reconsideration Period at a cost to be born [sic] equally by FairPay and the Class Member. At the expiration of the 30 day Initial Reconsideration Period (or after mediation if required by FairPay) the dispute has still not been resolved, then, and only then, will the Class Member have the option of pursuing a claim for underpayment in the Louisiana Office of Workers' Compensation. If the Class Member does pursue a claim in the Louisiana Office of Workers' Compensation or proceeding in any other venue on the basis that the payment was not consistent with the Future FairPay Pricing Methodology, then the prevailing party shall be entitled to an award of costs and reasonable attorneys' fees.

Since the Settlement Agreement authorizes the instant claim and it was never settled in the FairPay Class Settlement, Park Place concludes that the FairPay Class Settlement is not res judicata .

Additionally, Park Place contends that the relators' exception of res judicata attempts to ignore, circumvent, or disregard the final judgment approved and incorporated in the Settlement Agreement which expressly authorizes the filing of workers' compensations claims. As such, Park Place urges that the exception constitutes an impermissible collateral attack of that judgment, which is forbidden by Louisiana law:

A collateral attack is defined as an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling it. Regions Bank v. Cabinet Works, LLC , 11-748 (La.App. 5 Cir. 4/10/12); 92 So.3d 945, 961. "No principle of law has received greater and more frequent sanction, or is more deeply imbedded in our jurisprudence, than that which forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face." Salles v. Salles , 04-1449 (La.App. 1 Cir. 12/2/05); 928 So.2d 1, 5, quoting Allen v. Commercial Nat'l Bank , 243 La. 840, 147 So.2d 865, 868 (La.1962). "A judgment rendered by a Court of competent jurisdiction imparts absolute verity and has the force of things adjudged, unless and until it is set aside in a direct action of nullity. It cannot be collaterally attacked." Salles, supra at 5-6 (internal citations omitted).

Allstate Ins. Co. v. Daniel , 15-90, p. 7-8 (La.App. 5 Cir. 10/28/15), 177 So.3d 169, 173.

The Disputed Claim for Compensation form 1008 was filed by Park Place against the relators for "Nonpayment of medical services, penalties, and attorney fees for arbitrary and capricious handling of this claim." Park Place also indicated that it is not a PPO related claim. The EOB reflects that six of the eight charges were not paid, but were reduced to zero following bill review and PPO reductions. A total of $11,267.23 was charged with bill review reductions of $387.53 and a PPO discount of $5,136.01, leaving a recommended allowance of $5,004.50. Gallagher Basset-Baton Rouge is listed as the bill reviewer.

At the hearing, the OWC did not give verbal reasons for ruling, nor did it provide reasons in its written judgment or issue separate written reasons for ruling. Considering the arguments of the parties and the Settlement Agreement discussed herein, the relators have not shown that res judicata applies to the instant matter. Park Place does not allege in its 1008 claim that it disputes the application of the FPPM. Further, the claim is directed at the employer and employer's insurer for nonpayment of portions of the bill. Accordingly, we find that the WCJ did not err in denying the relators' exception of res judicata.

Lack of Subject Matter Jurisdiction

The relators argue that this court has already determined that the OWC does not have jurisdiction over the FairPay Settlement Agreement; thus, the issue of subject matter jurisdiction is law of the case.

The present matter simply does not arise under the Act as the Act does not regulate contracts between bill reviewers and medical care providers. "Mere involvement of workers' compensation issues is insufficient; such disputes may 'relate to' [ ] workers' compensation matters, but they do not 'arise out of' the Act." Broussard Physical Therapy v. Family Dollar Stores, Inc. , 08-1013, p. 9 (La. 12/2/08), 5 So.3d 812, 817. The contract claims resolved in this class action settlement involve a civil dispute between companies that provide bill review services to medical care providers. The district court properly had jurisdiction over this matter.

Opelousas General Hospital Authority v. Fairpay Solutions , 13-17, p. 6 (La.App. 3 Cir. 7/3/13), 118 So.3d 1269, 1274. The relators also maintain that the mere involvement of a workers' compensation statute or claim does not automatically subject the matter to the OWC's jurisdiction. Broussard Physical Therapy v. Family Dollar Stores, Inc. , 08-1013 (La. 12/2/08), 5 So.3d 812.

The relators disagree with the OWC court's reliance on Musculoskeletal Institute of Louisiana, APMC v. McDonald's Corp. , 45,628, 45,629 (La.App. 2 Cir. 9/22/10), 48 So.3d 359, which was abrogated by Agilus Health v. Accor Lodging North America , 10-800 (La. 11/30/10), 52 So.3d 68. The relators also complain that the authority cited by Park Place predates the Agilus Health decision wherein the supreme court clarified that a preferred provider organization's (PPO) discounted reimbursement payment to a health care provider in an amount below that set forth by the reimbursement schedule in WCA was not a violation of the Act.

The relators also refer this court to Gunderson v. F.A. Richard & Associates, Inc. , 07-331, 07-400, 07-264 (La.App. 3 Cir. 2/27/08), 977 So.2d 1128, writs denied , 08-1063, 08-1072 (La. 9/19/08), 992 So.2d 953, wherein this court found that claims against the PPO provider arose out of the PPO contract, not the Workers' Compensation Act; thus, the claims were not within the exclusive jurisdiction of the OWC (abrogating Southwest Louisiana Hospital Association v. Superior Carriers, Inc. , 06-807 (La.App. 3 Cir. 11/2/06), 942 So.2d 754 ).

Since Park Place's dispute arises from a contractual dispute regarding the relators' application of the FPPM, the relators aver that the matter is not subject to OWC jurisdiction. The relators contend that whether the invoices were properly adjusted is a question of contract interpretation subject to the exclusive jurisdiction of a district court. According to the relators, Park Place sent them an invoice for medical treatment, and the explanation of benefits (EOB) reflects that an adjustment was made pursuant to the contract. As such, the relators conclude that the application of the contract is not a defense and constitutes the entirety of the dispute.

The relators add that the OWC relied upon La.R.S. 23:1034.2(F)(1) to support its subject matter jurisdiction over the instant claims:

Should a dispute arise between a health care provider and the employee, employer, or workers' compensation insurer, either party may submit the dispute to the office in the same manner and subject to the same procedures as established for dispute resolution of claims for workers' compensation benefits.

This provision, the relators argue, refers to disputes arising under the Workers' Compensation Act. The Settlement Agreement, however, is a contract between FairPay, its clients, and the healthcare providers and set forth the methodology for adjustment of medical bills. The relators urge that Park Place alleges that payments were not made pursuant to the methodology, and thus FairPay has breached the contract.

In opposition, Park Place argues that the relators ignore this court's en banc decision in Beutler England Chiropractic Clinic v. Mermentau Rice, Inc. , 05-942 (La.App. 3 Cir. 5/31/06), 931 So.2d 553, and the supreme court's decision in Broussard Physical Therapy v. Family Dollar Stores, Inc. , 08-1013 (La. 12/2/08), 5 So.3d 812. The courts therein held that the OWC had jurisdiction to consider a healthcare provider's claim for unpaid amounts following the discount of the provider's bills by a third-party administrator. Park Place asserts the claims were brought under La.R.S. 23:1034.2(F)(1) ; thus, the respective claims arose from the Workers' Compensation Act and were within the OWC's jurisdiction.

Park Place maintains that a simple review of the 1008 claim shows that it is not seeking to enforce any settlement nor does it request such relief. Although Park Place may qualify as a released party under the FairPay Class Settlement, Park Place contends that it is not trying to enforce any settlement in the workers' compensation claim. Park Place adds that the relators have the right to raise the FairPay Class Settlement as a defense to pay less than the amount of the fee schedule.

Lastly, Park Place asserts that an employer cannot defeat subject matter jurisdiction in an action properly brought before the OWC through its choice of defenses because the main demand controls subject matter jurisdiction. The main demand, Park Place urges, simply asserts claims for non-payment of charges submitted in the medical bill; thus, it falls within the subject matter jurisdiction of the OWC and La.R.S. 23:1310.3.

The relators have not shown that this matter involves the FPPM of the Settlement Agreement. In light of this court's decision in Beutler England Chiropractic Clinic , 931 So.2d 553, and La.R.S. 23:1034.2(F)(1), we find that the OWC has jurisdiction to consider Park Place's claim for the unpaid amounts due to the discounts applied to the bill. Accordingly, the WCJ did not err in denying the relators' exception of lack of subject matter jurisdiction.

Lis Pendens

The relators argue the trial court erred in denying their exception of lis pendens. They urge the identical issues in this matter were pending before this court in Opelousas General Hosp. Authority v. FairPay Solutions, Inc. , docket number 17-42. The district court's ruling was recently affirmed on appeal.

Opelousas General Hosp. Authority v. FairPay Solutions, Inc. , 17-42 (La.App. 3 Cir. 6/13/17), and writs were filed in the Louisiana Supreme Court on July 13, 2017, docketed as 2017-C-1223 and on July 27, 2017, docketed as 2017-C-1319. As such, that matter is still pending.

Pursuant to La.Code Civ.P. art. 531, "[w]hen two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by exception thereto as provided in Article 925 (declinatory exception of lis pendens)."

In opposition, Park Place argues that none of the requirements of lis pendens are met. The parties to the class action are not the same parties as those involved in the instant workers' compensation claim, and the claims are completely different. On July 15, 2016, the Class filed suit in district court to enforce the Settlement Agreement, alleging therein that FairPay was applying the FPPM inconsistently in the adjustment of claims. The district court evaluated FairPay's payment of bills to determine if it complied with the provision of the Settlement Agreement. The trial court found an error occurring in the performance of the FPPM (Medicare edits), resulting in improper payments, and granted the plaintiffs' motion. As previously stated, writs have been taken to the supreme court in that case.

The relators have not shown that this matter involves the application of the FPPM of the Settlement Agreement; thus, the claims are not the same. Accordingly, we find that the WCJ did not err in denying the relators' exception of lis pendens.

Nonjoinder

The relators argue that complete relief cannot be granted to the parties in the absence of FairPay, which paid almost $7,000,000 in return for the release of all claims of the Settlement Class. The relators maintain that the dispute herein concerns obligations between three distinct parties, one of which-FairPay-is not present in the suit. The relators conclude that FairPay is unjustly unrepresented, and FairPay's absence will result in prejudice to the relators in providing a defense. The relators assert that Park Place's claim involves the underpayment of its bill made pursuant to an adjustment by FairPay. As such, any interpretation of the Settlement Agreement requires that FairPay be present. Further, the relators maintain they will incur multiple and inconsistent obligations in FairPay's absence.

In opposition, Park Place notes that the relators conceded in their exception that FairPay could not be joined or named a defendant in this matter, as FairPay is not an employer or workers' compensation insurer and is not responsible for paying the bill. This concession, Park Place maintains, demonstrates why the exceptions of res judicata, lis pendens, and lack of subject matter jurisdiction are without merit. FairPay may have an interest in the instant claim, but Park Place urges that FairPay's absence does not require the drastic remedy of dismissal sought by the relators.

Park Place contends that FairPay does not qualify as an indispensable party under Article 641, which reads, in part: "A person shall be joined as a party in the action when ... (1) In his absence complete relief cannot be accorded among those already parties." As such, Park Place avers that the only relief sought in the instant claim is for the payment of the workers' compensation bill under La.R.S. 23:1034.2 and for penalties and attorney fees under La.R.S. 23:1201(F). Park Place can only obtain relief from the relators; thus, Park Place concludes that complete relief can be obtained in FairPay's absence.

Next, Park Place refers to the second test for joinder of an indispensable party, the determination of whether a third party has the right to intervene under La.Code Civ.P. art. 1091. Park Place contends that if FairPay believed its rights were not being protected, it could intervene to further protect its interest. Since FairPay has not intervened, the veracity of the relators' claim that FairPay should be deemed indispensable is called into question.

Even if this court should find that FairPay qualifies as an indispensable party, Park Place urges that the exception was, nonetheless, properly denied under La.Code Civ.P. art. 642, which reads:

If a person described in Article 641 cannot be made a party, the court shall determine whether the action should proceed among the parties before it, or should be dismissed. The factors to be considered by the court include:
(1) To what extent a judgment rendered in the person's absence might be prejudicial to him or those already present.
(2) The extent to which the prejudice can be lessened or avoided by protective provisions in the judgment, by the shaping of relief, or by other measures.
(3) Whether a judgment rendered in the person's absence will be adequate.
(4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

Park Place contends that the relators skip over these factors and jump straight to the dismissal of the matter without contemplating the possibility of proceeding without FairPay.

Park Place maintains that all of the factors support proceeding with the action rather than dismissing it:

Factor one (1) has already been addressed by FairPay providing a defense to the instant workers' compensation claim. By providing a defense, FairPay can control the manner the case is defended, briefed, tried and appealed. Factor two (2) allows FairPay to intervene as an actual party if it believes that providing a defense to Defendants is not adequate. Factor three (3) deals with the adequacy of Claimant's Judgment in the absence of FairPay, and as discussed above, all relief sought can be obtained without FairPay and conversely no relief could possibly be obtained against FairPay in the OWC. Finally, factor four (4) weighs heavily against dismissal because Park Place can obtain no relief in any other forum for a workers' compensation medical bill dispute.

Park Place does not allege that the adjustment of the bill involved the Settlement Agreement or the FFMP. As stated by Park Place, FairPay may have an interest in the instant matter and is not prohibited from intervening. Park Place can only seek relief from the relators, not FairPay, for payment of the bill; thus, FairPay is not an indispensable party. Lastly, even if this court were to find that FairPay is an indispensable party, dismissal of the action is not necessary for the reasons discussed under La.Code Civ.P. art. 642. Accordingly, we find that the WCJ did not err in denying the relators' exception of nonjoinder.

CONCLUSION

The motion to seal the record is granted, except as to this opinion, and the writ is denied at relators' cost.

WRIT DENIED.

      Part of the record was sealed in Opelousas General Hosp. Authority v. FairPay Solutions, Inc., docket number 17-42, which is at issue herein, but not this court's opinion issued in that matter, cited infra.

      The bill was paid on February 26, 2014, almost two years after the effective date of the settlement, May 28, 2012.

      The bill is more fully described in the Explanation of Benefits (EOB) attached to the 1008 claim form.

      The supreme court held that the workers' compensation judge lacked subject matter jurisdiction to decide a third party demand for defense and indemnification filed by an employer and a workers' compensation insurer against a preferred provider organization. The court found that the third party demand was not a claim or dispute arising out of the Workers' Compensation Act, but was merely related to the Act.

      Park Place Brief in Opposition, p. 12.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    IN RE: S.D. and L.D., Applying for Adoption of A.K.O.
    No. 52,238-CW
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    TERRI MCDONOUGH MILES, Metairie, Counsel for Applicant, M.L.S.-Biological Father
    MICHAEL E. THERIOT, Baton Rouge, Counsel for S.D. & L.D., Applying for Adoption of A.K.O.
    DALE N. MONTGOMERY, Counsel for A.K.O.
    WIENER, WEISS, & MADISON, By: Franklin H. Spruiell, Jr., Counsel for Holy Cross Child Placement Services
    JEFFREY M. LANDRY, Chicago, Louisiana Attorney General, Counsel for Respondent State of Louisiana
    MADELINE SUE CARBONETTE, Baton Rouge, Assistant Attorney General, Counsel for Respondent State of Louisiana
    Before BROWN, MOORE, and STONE, JJ.
   STONE, J.

The applicant, Michael L. Shannon, filed a petition contesting the adoption of his biological daughter, A.K.O. Thereafter, the applicant amended his petition to challenge the constitutionality of La. Ch. C. art. 1138, which requires an unwed biological father to show substantial commitment to the minor child and parental fitness in order to successfully challenge the adoption. The trial court found La. Ch. C. art. 1138 constitutional, and the applicant now seeks supervisory review of the finding.

Since Louisiana statutes are presumed constitutional, the party challenging the statute bears the burden of proving it is unconstitutional. Krielow v. Louisiana Dep't of Agric. & Forestry , 2013-1106 (La. 10/15/13), 125 So.3d 384, 388. The burden plaintiffs carry in challenging the constitutionality of a statute is a heavy burden. It is not enough for a person challenging a statute to show that its constitutionality is fairly debatable; it must be shown clearly and convincingly that it was the constitutional aim to deny the legislature the power to enact the statute. Carver v. Louisiana Dep't of Pub. Safety, 2017-1340 (La. 1/30/18), 239 So.3d 226 ; Hite v. Larpenter , 04-1821 (La. App. 1 Cir. 9/23/05), 923 So.2d 140, 145, writ denied , 05-2255 (La. 3/10/06), 925 So.2d 511.

We granted this writ to docket for further briefing and oral argument. After entertaining the arguments of all parties involved in this matter, we find no constitutional issues with La. Ch. C. art. 1138. The applicant's writ is denied.

WRIT DENIED.

MOORE, J., concurs and assigns additional reasons.

MOORE, J., concurs and assigns additional reasons.

I concur in the denial of this writ application. However, because one of the arguments is significant and novel, I write to assign additional reasons.

The applicant, Shannon, was in a romantic relationship with VO, who became pregnant. The couple broke up, and VO told Shannon that she had miscarried. However, she gave birth to the child, AKO, in August 2013, and formally surrendered him to an adoption agency. When Shannon learned of this, he tried to contact the adoption agency, and was rebuffed; he then took a DNA test, which confirmed his paternity, and registered with the state's putative fathers' registry. When the prospective adoptive parents, SD and LD, filed suit to formalize the adoption, Shannon intervened, filed an acknowledgment of AKO, and alleged that La. Ch. C. art. 1138 unconstitutionally deprived him of equal protection and due process. The district court denied the constitutional claim, and Shannon took this writ, which we scheduled for oral argument.

Specifically, Shannon contests Art. 1138 A, which requires an alleged or adjudicated father to establish his parental rights by acknowledging his paternity "and by proving that he has manifested a substantial commitment to his parental responsibilities and that he is a fit parent of his child." While this article postures him and the mother as similarly situated individuals, he contends it places on the unwed biological father an undue burden to prove his fitness, a burden not placed on unwed biological mothers or married parents. He contends that this disparate treatment and classification by gender is inherently suspect and should be subject to close scrutiny. He submits that Art. 1138 creates a presumption of unfitness of an unwed biological father, which he must disprove, and that there is no compelling state interest in this burden of proof. In support, he cites a concurring opinion in In re AJF, Applying for Private Adoption , 2000-0948 (La. 6/30/00), 764 So.2d 47 ("This disparity is unfair and appears on its face to violate the equal protection clause of the United States Constitution").

No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. La. Const. art. 1, § 3. The legislature's purpose in establishing classifications must be considered in the context in which the legislation was enacted. Moore v. RLCC Techs. Inc. , 95-2621 (La. 2/28/96), 668 So.2d 1135. Article 1138 was enacted in 1991, following the Louisiana Supreme Court's recommendations in In Re Adoption of BGS , 556 So.2d 545 (La. 1990), which declared La. R.S. 9:422.8 unconstitutional because it deprived unwed fathers with protected interests in their children of parental rights without prior notice and an opportunity to be heard before a neutral decision-maker. The court cited United States Supreme Court jurisprudence rejecting the presumption that unwed fathers are unfit to have custody of their children, Stanley v. Illinois , 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), rejecting a scheme in which the unwed father's consent to an adoption was not considered, Caban v. Mohammed , 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), but upholding a New York statute that required the unwed father to demonstrate a full commitment to the responsibilities of parenthood, Lehr v. Robertson , 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983).

More recently, this court applied the same principles to affirm the termination of parental rights of an unwed biological father, Suttle v. Easter , 45,236 (La. App. 2 Cir. 12/10/09), 26 So.3d 1001, writ denied , 2009-2826 (La. 1/19/10), 25 So.3d 128. We concluded that the biological father does not necessarily have a fully established protected right to a parental relationship with his child until he demonstrates his fitness and commitment according to the standards provided by the law. "Due process guarantees him notice, hearing and an adequate opportunity to make such a showing; it does not require, however, that he be presumed fit and committed to parental responsibilities or that the burden of proving otherwise be allocated to the parties supporting the surrender." Id. at p. 9, 26 So.3d at 1006-1007.

In my view, the jurisprudence of Lehr v. Robertson , supra , and Suttle v. Easter , supra , completely refutes Shannon's due process claim.

His equal protection argument appears to be novel, at least in Louisiana, and deserves more than peremptory discussion. On this point, the rationale of the Utah Supreme Court in In Re Adoption of JS , 358 P.3d 1009 (Utah 2014), cert. denied , --- U.S. ----, 136 S. Ct. 31, 193 L.Ed.2d 24 (2015), is highly persuasive. A Utah statute required an unmarried biological father to file an affidavit asserting his willingness to assume custody of the child, his plan for care, and his agreement to pay all expenses in connection with the mother's pregnancy and the child's birth, in order to oppose an adoption. The unwed biological father, Bolden, challenged the statute on due process and equal protection grounds. The court turned away the challenge, noting that in every state, "unwed fathers are required to fulfill legal requirements not imposed on unwed mothers[.]" Id. at 1012. The differing treatment for fathers is "not from an outmoded stereotype but from a straightforward matter of biology." Id. at 1028. An unwed mother's connection to her child is objectively apparent, and substantial; the unwed father's is "inherently different." His connection to his offspring may be unknown or at least indeterminate; he has not necessarily given an objective manifestation of his commitment to the child's best interests; and the law has "long deemed the unwed father's rights as only inchoate or provisional[.]" Id. at 1031. The court concluded that the law's disparate treatment may not be perfect or immune from criticism as a policy matter, but it is not unconstitutional.

I would fully subscribe to the rationale and conclusions voiced in In Re Adoption of JS . Article 1138's requirement of proving "that he has manifested a substantial commitment to his parental responsibilities and that he is a fit parent of his child" merely puts unwed parents on equal footing. This is not too much to ask, when balanced against the mother's commitment to carry the child to term.

Not only is Art. 1138 sufficient to satisfy equal protection, but I would note that Shannon has yet to present his case as to parental fitness in the district court. If he meets his burden of proof, no adoption can take place without his consent. At this juncture, however, the alleged constitutional violation is purely theoretical, even conjectural.

With these additional observations, I concur in the writ denial.


author: ROBERT A. CHAISSON, JUDGE

text:
    Anthony RUSSO v. INTERNATIONAL DRUG DETECTION, L.L.C. and Psychemedics Corporation
    NO. 18-C-93
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2018
    COUNSEL FOR PLAINTIFF/RESPONDENT, ANTHONY RUSSO, T. Carey Wicker, III, J. Alex Watkins, Donald L. Hyatt, II
    COUNSEL FOR DEFENDANT/RESPONDENT, INTERNATIONAL DRUG DETECTION, L.L.C., Christopher J. Kane, Gerard J. Gaudet
    COUNSEL FOR DEFENDANT/RELATOR, PSYCHEMEDICS CORPORATION, Charles H. Hollis, New Orleans, Allison A. Fish
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Marion F. Edwards, Judge Pro Tempore
   ROBERT A. CHAISSON, JUDGE

In this case arising out of workplace drug testing, Psychemedics Corporation seeks this Court's supervisory review of a January 10, 2018 trial court judgment denying its motion for summary judgment. For the following reasons, we grant Psychemedics' writ application, reverse the trial court ruling, grant summary judgment, and dismiss this matter as to Psychemedics with prejudice.

FACTS AND PROCEDURAL HISTORY

Mr. Anthony Russo, a communications technician who services offshore oil platforms and installations, filed a petition for damages on January 20, 2016 against International Drug Detection, LLC ("IDD") and Psychemedics, wherein he alleged that on or about July 7, 2015, he and approximately 200 other individuals, prior to transportation to an offshore oil platform, underwent sample hair collection at a temporary collection station set up at a heliport for the purposes of drug testing. The temporary collection station was set up by IDD personnel who proceeded to collect samples for breathalyzer alcohol testing, oral fluid drug testing, and hair drug testing. These samples were then sent to laboratories operated by Psychemedics for testing. On July 18, 2015, Mr. Russo was informed that the hair sample collected by IDD and tested by Psychemedics tested positive for marijuana usage. Mr. Russo was immediately removed from the oil platform and banned for life from all work at the facilities of the owner of the oil platform. In his petition, Mr. Russo alleges that IDD and Psychemedics breached a duty of care to him under La. C.C. arts. 2315 and 2316 in negligently reporting that he had a positive drug test result.

Specifically, with regard to Psychemedics, Mr. Russo alleged that the company was negligent for failing to ensure that it only tested and reported on samples taken from individuals using accepted methods to prevent cross-contamination, failing to prevent cross-contamination in its own testing facilities, and/or reporting test results with known or substantially certain catastrophic results on Mr. Russo's career and income without seeking a second sample and performing confirmatory testing. Mr. Russo also alleged that Psychemedics was negligent in failing to inform all recipients of the drug test results on his July 7, 2015 hair sample that subsequent drug test results on hair samples collected from him on July 20, 2015 came back negative for marijuana usage. Mr. Russo seeks recovery of damages for injuries he suffered as a result, including emotional distress, past, present, and future lost income, limitation of present and future employment opportunities, and injury to his reputation.

IDD and Psychemedics both filed motions for summary judgment seeking to have all of Mr. Russo's claims against them dismissed with prejudice. Psychemedics argued that Mr. Russo could not provide evidence in support of his claims that it was negligent in the handling or testing of the hair sample or negligent in the reporting of the test results. In opposition to this motion for summary judgment, Mr. Russo argued that Psychemedics failed to meet the standard of care, which is SAMHSA certification. The trial court denied both IDD's and Psychemedics' motions for summary judgment, finding that there existed genuine issues of material fact concerning the collection procedures and methodology utilized in the matter, as well as whether or not any duty owed to Mr. Russo was breached in testing the hair sample and timely reporting the results. Psychemedics filed a writ application for supervisory review by this Court. Pursuant to the recently enacted requirement of La. C.C.P. art. 966(H), we assigned the case for briefing by the parties and heard oral arguments.

DISCUSSION

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. C.C.P. art. 966(A)(3). The burden of proof rests with the mover. La. C.C.P. art. 966(D). However, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id. ; Dillenkofer v. Marrero Day Care Ctr., Inc. , 16-713 (La. App. 5 Cir. 5/24/17), 221 So.3d 279, 282.

To state a claim for negligence under Louisiana law, Mr. Russo bears the burden of proving the following elements by a preponderance of the evidence: (1) Psychemedics had a duty to conform its conduct to a specific standard; (2) Psychemedics breached that duty; (3) Pyschemedics' substandard conduct was the cause-in-fact of Mr. Russo's injuries; (4) Psychemedics' substandard conduct was a legal cause of Mr. Russo's injuries; and (5) actual damages to Mr. Russo. See Stead v. Swanner , 12-727 (La. App. 5 Cir. 5/16/13), 119 So.3d 110, 117.

In support of its motion for summary judgment, Psychemedics offered an affidavit of Dr. Thomas Cairns, a document custodian and senior scientific advisor for Psychemedics at its drug testing laboratory, who testified as to Psychemedics' FDA-approved testing procedures and methodology and that the chain of custody for Mr. Russo's sample was not compromised. Dr. Cairns also testified that Psychemedics' laboratory, which has the largest and oldest hair-testing program of any laboratory in North America, is licensed or certified to perform forensic toxicology drug testing by the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, Clinical Laboratory Improvement Amendments, and the College of American Pathologists, in addition to various other certifications and licensures. Psychemedics also offered the affidavit and expert report of Dr. Carl Selavka, a forensic scientist who testified that Psychemedics' hair testing conducted on samples collected from Mr. Russo provided evidence of multiple uses of marijuana during an extended period from late April 2015 to the end of June 2015, which was not scientifically refuted by oral fluid or urine drug tests also undertaken in the matter. Dr. Selavka's independent review of the hair test methodology and the integrity documentation demonstrated that the positive marijuana result reported for the sample provided by Mr. Russo was valid according to a test that meets or exceeds all industry standards.

In opposition, Mr. Russo argued that Psychemedics breached its duty of care to him because Psychemedics failed to have its hair testing process appropriately certified by SAMHSA or the College of American Pathologists as required under La. R.S. 49:1002 of the Louisiana Drug Testing Statute. In support of his opposition, Mr. Russo provided an affidavit of Dr. Patricia Williams, a toxicologist, who opined, essentially, that testing hair samples for drug use produces inconsistent analysis and results, and that the methodology utilized by Psychemedics could not rule out passive exposure to marijuana.

Mr. Russo argued that the following provision of the Louisiana Drug Testing Statute requires his hair sample to have been tested at a SAMHSA-certified lab:

J. This Chapter does not preclude an employer or an employer's agent from utilizing a USFDA-cleared specimen testing method that uses a sample as defined in R.S. 49:1001 provided that such sample is processed in a laboratory with a SAMHSA, CAP-FUDT, or CAP-FDT certification using generally accepted cutoff levels as established by the USFDA for the type of sample tested, or by SAMHSA at such time when SAMHSA implements a final rule to regulate the type of sample test. Any sample collected shall be subject to USFDA-cleared immunoassay screening and confirmation testing at a SAMHSA-certified, CAP-FUDT-certified, or CAP-FDT-certified laboratory. Such samples that test positive shall be preserved by the laboratory and available for challenge testing at the request of the donor. No sample shall be used to collect or analyze DNA.

La. R.S. 49:1002(J).

Upon de novo review, we do not agree that this statutory provision requires hair samples like those collected from Mr. Russo to be processed at SAMHSA-certified facilities. In fact, according to Mr. Russo's own expert witness, Dr. Williams, SAMHSA only certifies facilities for urine testing for drugs, not hair testing for drugs.

Additionally, we find that Mr. Russo is expressly precluded from relying on the Louisiana Drug Testing Statute, which states in La. R.S. 49:1002(H) :

This Chapter shall not apply to any person, firm, or corporation engaged or employed in the exploration, drilling, or production of oil or gas in Louisiana or its territorial waters. The initial cut-off level for marijuana testing of fifty nanograms per milliliter as provided in R.S. 49:1005(B) may be reduced or modified by any person, firm, or corporation engaged in construction, maintenance, or manufacturing at any refining or chemical manufacturing facility.

There is no dispute that Mr. Russo was engaged in and employed by a firm involved in the production of oil and gas in Louisiana and its territorial waters, and therefore his arguments relying on the inapplicable Louisiana Drug Testing Statute are without merit.

Mr. Russo also alleged that the positive test results were caused by cross-contamination by Psychemedics in its handling of his sample. In the aforementioned affidavit provided by Psychemedics, Dr. Cairns testified that the chain of custody in the handling of Mr. Russo's sample was unbroken and that there was no cross-contamination of his sample with any others at the Psychemedics' laboratory. Mr. Russo has presented no evidence, either in his own testimony or that of his expert witness, to support his claim that Psychemedics acted negligently in the handling of his sample. Additionally, Mr. Russo has presented no evidence to show that Psychemedics was negligent in the actual testing procedure conducted on his hair sample.

Finally, we note that Mr. Russo's original petition alleged that Psychemedics was negligent in failing to timely report its test results, although this claim against Psychemedics is not mentioned in the opposition to the current writ application. At the hearing on the motion for summary judgment, Psychemedics introduced a copy of the Hair Analysis Drug Test Results indicating that the provided hair sample was tested and reported back to IDD within 48 hours of Psychemedics' receipt of the sample. Mr. Russo introduced no evidence to dispute this assertion.

CONCLUSION

Upon our de novo review of the writ application before us, we find that Psychemedics has met its burden in showing that there are no genuine issues of material fact and it is entitled to judgment as a matter of law on the claims of negligence brought by Mr. Russo. Accordingly, we grant this writ application, reverse the trial court's denial of the summary judgment, grant summary judgment, and dismiss Mr. Russo's claim as to Psychemedics with prejudice.

WRIT GRANTED; JUDGMENT REVERSED; SUMMARY JUDGMENT GRANTED AND CASE DISMISSED AS TO PSYCHEMEDICS

      The Substance Abuse and Mental Health Services Administration (SAMHSA) is a government agency within the U.S. Department of Health and Human Services responsible for oversight of HHS-certified laboratories operating under the mandatory guidelines for federal workplace drug testing programs.

      IDD also sought review of this judgment by filing a supervisory writ, which this Court denied upon finding, like the trial court, that there exists genuine issues of material fact regarding IDD's collection of the hair sample from Mr. Russo.


text:
    STATE of Louisiana, Appellee v. Kevin Lacey LIKER, Appellant
    No. 52,076-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Monroe, Counsel for Appellant
    J. SCHUYLER MARVIN, District Attorney, JOHN MICHAEL LAWRENCE, HUGO A. HOLLAND, JR., Assistant District Attorneys, Counsel for Appellee
    Before MOORE, STONE, and STEPHENS, JJ.
   STONE, J.

The defendant, Kevin Lacey Liker, pled guilty to negligent homicide in violation of La. R.S. 14:32(A)(1). The trial court imposed the maximum sentence allowed by law-five years at hard labor. On appeal, Liker argues his sentence is excessive. For the following reasons, we affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On June 21, 2016, Kevin Lacey Liker ("Liker") was erratically driving his vehicle in Webster Parish at a high rate of speed while under the influence of alcohol. In an attempt to pass two vehicles in a no-passing zone, Liker collided with an oncoming vehicle. The passenger in that oncoming vehicle, Linda McCoy ("McCoy"), died as a result of the collision. A chemical test revealed Liker's blood alcohol content at the time of the accident was 0.32%.

On October 20, 2016, Liker was charged by bill of information with vehicular homicide in violation of La. R.S. 14:32.1. The bill of information provided that Liker killed McCoy by operating his vehicle while under the influence of alcoholic beverages and having a blood alcohol content of more than 0.08%. Liker subsequently filed a motion to suppress the chemical test results arguing the blood sample used to conduct the test was obtained without a search warrant in violation of his Fourth Amendment right against unreasonable searches and seizures. See Birchfield v. North Dakota , --- U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). The trial court granted Liker's motion and suppressed the results of the chemical test.

On March 24, 2017, the state charged Liker by amended bill of information with negligent homicide in violation of La. R.S. 14:32(A)(1). The amended bill of information stated Liker negligently killed McCoy by: 1) driving a motor vehicle under the influence of an intoxicating beverage; 2) exceeding the posted speed limit by more than 11 but less than 15 miles per hour; and 3) passing in a no-passing zone.

On April 3, 2017, after being informed of his rights pursuant to Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), Liker pled guilty to negligent homicide. The state agreed not to file a multiple offender bill and that the trial court would determine to Liker's sentence after a presentence investigation ("PSI"). On July 3, 2017, the trial court sentenced Liker to the maximum sentence allowed by law-five years at hard labor. Thereafter, Liker filed a motion to reconsider sentence arguing the trial court's consideration of his intoxication was erroneous and that the imposed sentence was excessive. The trial court denied the motion. Liker now appeals.

DISCUSSION

On appeal, Liker challenges the constitutionality of the imposed maximum sentence. He contends he is not the most blameworthy or egregious offender and that the imposed sentence does not further the ends of justice. Liker insists his expressions of remorse and need for treatment, rather than incarceration, justify a lesser sentence.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance, so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. Lathan , 41,855 (La. App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied , 2007-0805 (La. 3/28/08), 978 So.2d 297.

The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La. 1982) ; State v. Swayzer , 43,350 (La. App. 2 Cir. 8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Jones , 398 So.2d 1049 (La. 1981) ; State v. Ates , 43,327 (La. App. 2 Cir. 8/13/08), 989 So.2d 259, writ denied , 2008-2341 (La. 5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker , 41,547 (La. App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied , 2007-0144 (La. 9/28/07), 964 So.2d 351.

Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Bonanno , 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166 ; State v. Robinson , 40,983 (La. App. 2 Cir. 1/24/07), 948 So.2d 379.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto , 2007-2031 (La. 2/15/08), 974 So.2d 665 ; State v. Lynn , 50,575 (La. App. 2 Cir. 5/18/16), 196 So.3d 607 ; State v. Woods , 41,420 (La. App. 2d Cir. 11/1/06), 942 So.2d 658, writs denied , 2006-2768, 2006-2781 (La. 6/22/07), 959 So.2d 494. However, this court has repeatedly held that a substantial advantage obtained by means of a plea bargain is a legitimate consideration in sentencing. State v. Lee , 51,167 (La. App. 2 Cir. 2/15/17), 216 So.3d 205, 209 ; State v. Mendenhall , 48,028 (La. App. 2 Cir. 5/15/13), 115 So.3d 727 ; State v. Ross , 35,552 (La. App. 2 Cir. 2/27/02), 811 So.2d 176. Accordingly, where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence for the pled offense. State v. Givens , 45,354 (La. App. 2 Cir. 6/23/10), 42 So.3d 451, writ denied , 10-1584 (La. 1/14/11), 52 So.3d 902 ; State v. Germany , 43,239 (La. App. 2 Cir. 4/30/08), 981 So.2d 792 ; State v. Black , 28,100 (La. App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied , 96-0836 (La. 9/20/96), 679 So.2d 430.

On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Thompson , 2002-0333 (La. 4/9/03), 842 So.2d 330 ; State v. Robinson , 49,677 (La. App. 2d Cir. 4/15/15), 163 So.3d 829, 844, writ denied , 2015-0924 (La. 4/15/16), 191 So.3d 1034.

The penalty for negligent homicide is imprisonment with or without hard labor for not more than five years and/or a fine of not more than $5,000. La. R.S. 14:32(C)(1). At Liker's sentencing hearing, the trial court noted its full consideration of the entire PSI report. The trial court began by acknowledging Liker's apology to the McCoy family, which it found significant considering Liker's offense included multiple victims, one being McCoy's husband, who was driving the oncoming vehicle.

While Liker does not have an extensive criminal history, the trial court addressed his 2009 guilty plea to two counts of aggravated assault with a deadly weapon in Texas. Liker received an eight-year sentence for both counts and was released on parole in 2015. The trial court stated the convictions stemmed from an altercation Liker had with two other individuals over the use of fireworks near his home. When the individuals continued to use fireworks, Liker fired a gun in their direction, hitting both. The trial court found Liker's handling of the situation "reckless" and "troublesome at best."

Additionally, the trial court observed Liker dropped out of high school, but later obtained a GED, and characterized Liker's work history as "sketchy." The trial court considered letters submitted by McCoy's family discussing their senseless, irreparable loss. McCoy's brother spoke at the sentencing hearing on behalf of the family and expressed the extent of their loss.

The trial court was apparently haunted by Liker's short, yet "reckless" criminal history, noting that Liker could have killed both victims of his Texas offenses. The trial court stated Liker's "decision to get behind the wheel of a car when [he was] under the influence of alcohol" and drive erratically in excess of 80 miles per hour culminated into the worst possible outcome. The trial court found Liker to be a significant danger to the general public and concluded that anything less than the maximum sentence would take away from the seriousness of the offense.

After a review of the record, we cannot find the trial court was manifestly erroneous in imposing the maximum allowable sentence on Liker for negligent homicide. The trial court adhered to the requirements of La. C. Cr. P. art. 894.1, and Liker's sentence is supported by the record. In arguing his sentence is excessive, Liker reasserts his claim that the trial court erroneously considered the suppressed results of his chemical test. Notably, the trial court made no reference to Liker's chemical test results at the sentencing hearing; the trial court merely indicated Liker was under the influence of alcohol at the time of the accident, a fact which formed the basis for his guilty plea.

Notwithstanding, Liker's argument that suppressed evidence may not be considered at sentencing has been soundly rejected. In State v. Bryant , 99-1998 (La. App. 3 Cir. 11/2/00), 776 So.2d 532, the court reversed a trial court's decision that it could not consider suppressed videotaped confessions for the purposes of sentencing. Relying on federal jurisprudence, the court concluded the exclusionary rule is generally inapplicable to the consideration of evidence for sentencing purposes, if otherwise reliable. The results of Liker's chemical test were clearly reliable and suppressed only for the state's failure to obtain a search warrant. Thus, Liker's argument is wholly without merit

Liker also asserts that the trial court's suggestion at the sentencing hearing that "a lot more has gone on" than what was included in the PSI report proves the trial court created its own narrative as a basis for his sentence. To the contrary, we discerned the trial court imposed the sentence based on the contents of the record. As observed by the trial court, Liker is a second-felony offender, prone to careless behavior that endangers the lives of others, who benefited substantially from pleading guilty to negligent homicide. Due to the suppression of Liker's chemical test that measured his alcohol levels at three times the legal limit, the state decided to charge Liker with negligent homicide instead of vehicular homicide. As a result, Liker's sentencing exposure decreased from 5-30 years to 0-5 years; his sentencing exposure was also reduced by the state's agreement not to file a multiple offender bill.

The crime of negligent homicide does not adequately describe Liker's culpability for the tragedy that occurred on June 21, 2016. Ultimately, Liker's expressions of remorse are outweighed by the reckless nature and consequences of his actions. His reckless decision to drive while under the influence of alcohol imperiled the lives of more than one person and robbed McCoy of her life. The pain and irreparable loss McCoy's family has suffered cannot be minimized. As stated by McCoy's brother, "[Liker] took from us a great deal. There's an empty spot that...we can't find anything to take its place." Considering the undue risk of harm Liker poses to society, his five-year sentence is not a purposeless and needless infliction of pain and suffering, nor is it disproportionate to the seriousness of the offense.

CONCLUSION

For the foregoing reasons, Liker's conviction and sentence are affirmed.

AFFIRMED.

      The court subscribed to several federal court of appeals cases, including: United States v. Butler , 680 F.2d 1055 (5th Cir. 1982), where the court held that the district court did not err in considering the suppressed evidence for sentencing purposes, and United States v. McCrory , 930 F.2d 63 (D.C. Cir. 1991), cert. denied , 502 U.S. 1037, 112 S.Ct. 885, 116 L.Ed.2d 788 (1992), where the court held that the trial court properly considered the total quantity of crack cocaine in sentencing even though a portion of that amount had been suppressed as unconstitutionally obtained. See also, United States v. Nichols , 438 F.3d 437 (4th Cir. 2006) ; Del Vecchio v. Illinois Dep't of Corr. , 31 F.3d 1363 (7th Cir. 1994), cert. denied , 514 U.S. 1037, 115 S.Ct. 1404, 131 L.Ed.2d 290 (1995) ; United States v. Jackson, 713 F. App'x 963 (11th Cir. 2017).


author: LILJEBERG, J.

text:
    John MOSBEY, Jr. v. JEFFERSON PARISH SHERIFF'S OFFICE and Dale Bruce
    NO. 18-CA-69
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, JOHN MOSBEY, JR.: Darryl M. Breaux
    COUNSEL FOR DEFENDANT/APPELLEE, JEFFERSON PARISH SHERIFF'S OFFICE AND DALE BRUCE: Edmund W. Golden, Metairie, John A. Kopfinger, Jr.
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg
   LILJEBERG, J.

Plaintiff, John Mosbey, Jr., appeals a judgment entered by the trial court on September 8, 2017, against defendants, Joseph P. Lopinto, III, Sheriff of the Parish of Jefferson ("Sheriff") and its employee, Dale Bruce. Plaintiff argues the judgment is erroneous for three reasons: 1) the trial court awarded less than the proven and stipulated amount for past medical expenses; 2) the trial court failed to award future medical expenses; and 3) the trial court failed to award future general damages. For reasons stated more fully below, we affirm the trial court's judgment.

PROCEDURAL BACKGROUND

On December 29, 2011, Dale Bruce, a Jefferson Parish Sheriff's Office deputy, struck the back of a Ford F-250 pickup truck driven by plaintiff on Transcontinental Drive in Metairie, Louisiana. Plaintiff was slowing to turn into a private driveway when the accident occurred. On November 20, 2012, plaintiff filed a petition for damages against the Sheriff and his employee, Mr. Bruce, seeking past and future medical expenses and general damages. Prior to trial, defendants stipulated that Mr. Bruce was acting in the course and scope of employment at the time of the accident and also stipulated to liability.

A bench trial was held on August 28, 2017. At the conclusion of the trial, the judge took the matter under advisement. On September 8, 2017, the trial court signed a final judgment and declared defendants "liable to Plaintiff for damages as a result of the collision at issue in this litigation." The trial court awarded plaintiff past medical expenses and general damages as follows:

• $21,186.71 in special damages ($18,513.00 for medical visits and $2,673.71 for prescriptions); and
• $64,000.00 in general damages ($2,000.00 a month for 6 months; $1,000.00 a month for 42 months; and $500.00 a month for 20 months).

The trial court did not award future medical expenses or future general damages and did not provide written reasons for its decision. On September 27, 2017, plaintiff filed a timely motion and order for devolutive appeal, which the trial court granted on the same day.

On appeal, plaintiff contends the trial court erred by failing to award him the full amount of past medical expenses proven at trial. He further argues the trial court was clearly wrong by failing to award future medical expenses and general damages because he suffered permanent injuries to his cervical spine and nerves, and suffered from carpal tunnel syndrome in both wrists as a result of the accident. He contends that he continues to suffer from chronic headaches and neck pain, sleep difficulties and erectile dysfunction, all requiring future medical treatment. He further argues that all of his treating physicians indicated the accident at issue was the cause of his ongoing complaints.

Defendants argue in response that the evidence demonstrates inconsistencies between plaintiff's claims regarding the nature of his complaints and the complaints reflected in his medical records. They also argue that plaintiff's treatment was limited to two delayed epidural steroid injections and pain medication and he failed to take appropriate steps to properly address his injuries over the past six years. Defendants argue the trial court did not believe plaintiff was credible and believed he was exaggerating his symptoms. They argue the trial court correctly determined that plaintiff's injury was an exacerbation of a pre-existing condition that could have resolved if plaintiff followed his treating physicians' recommendations in a timely manner.

FACTUAL BACKGROUND

At the time of the accident, plaintiff was 34 years old. He testified that he dropped out of school when he was in the seventh grade to work for his father as a mechanic in his transmission shop. In 1996, plaintiff opened his own transmission shop, which he continued to operate at the time of the trial.

Plaintiff testified that his vehicle was totaled as a result of the accident at issue and he suffered injuries to his neck and mid-back between his shoulder blades. Following the accident, he complained of headaches, arm numbness, and arm and back pain. Plaintiff testified that before the accident, he did not take any medicine and did not suffer from any of the symptoms he continues to experience. Plaintiff also testified that since the accident, he has not sustained any other injuries and this is the only lawsuit he has ever filed. He testified that due to the accident, he is unable to work the same hours in his shop as prior to the accident. He also testified that he can no longer engage in his hobby of restoring and showing antique cars.

Five days after the accident, plaintiff went to see an internist, Dr. Leia A. Frickey, at Metairie Health Care Center. Plaintiff complained of right shoulder pain, right arm pain, neck pain with right hand numbness/tingling sensations, right calf pain and headaches. Dr. Frickey recommended therapy treatments consisting of moist heat, electromuscular stimulation and ultrasound, as well as stretching exercises at home. She also prescribed Naproxen and Flexeril. On direct examination, plaintiff testified the therapy did not alleviate his symptoms. However, Dr. Frickey's records from plaintiff's March 16, April 19, and June 21, 2012 visits indicate that plaintiff reported the "modality treatments/exercises were helpful."

On cross-examination, plaintiff initially denied his headaches became less frequent and severe during his treatment with Dr. Frickey. When confronted with Dr. Frickey's medical reports indicating plaintiff eventually reported after several months of treatment that his headaches were light and rare, plaintiff explained the medication prescribed by Dr. Frickey helped with the headaches. Plaintiff denied the accuracy of Dr. Frickey's May 18, 2012 report, which stated plaintiff was no longer experiencing headaches. Defense counsel also questioned plaintiff regarding the frequency of the therapy treatments he received during the six months he treated with Dr. Frickey. Plaintiff recalled going for treatment once a week. Defense counsel noted that Dr. Frickey's records indicated plaintiff only went for therapy treatments on four occasions during his six months of treatment with her.

Plaintiff testified that because he was still experiencing problems, he decided to consult with an orthopedic surgeon, Dr. George Murphy. Plaintiff testified that during his first visit on July 10, 2012, he told Dr. Murphy he was experiencing headaches, pain in his arm/mid-back/between the shoulder blades and numbness in his arm. Dr. Murphy's notes from that visit do not mention headaches, but indicated plaintiff reported pain in his neck and across his shoulders, numbness in his right arm from the elbow down and tingling in his left arm from the elbow down. Plaintiff reported that he experienced these symptoms at "night time." Dr. Murphy diagnosed plaintiff with cervical strain and also noted plaintiff had "a positive Phalen's test in both wrists indicating carpel tunnel syndrome." Dr. Murphy reported plaintiff "will get a brace for both wrists." Plaintiff testified that he wore the wrist brace "[f]or a little while."

On cross-examination, defense counsel questioned plaintiff as to why Dr. Murphy's records did not reference his complaints regarding headaches during his initial visit on July 10, 2012. Plaintiff testified that he reported his complaints regarding headaches to Dr. Murphy at his very first visit and could not explain why his records did not reference the headaches he was experiencing.

Following plaintiff's first visit, Dr. Murphy ordered an MRI (magnetic resonance imaging ). Plaintiff returned to see Dr. Murphy on July 23, 2012. Dr. Murphy's notes indicated the braces helped "the carpal tunnel," and the MRI found degeneration and bulging. Furthermore, because plaintiff was experiencing radiating pain from his neck into both of his upper arms, Dr. Murphy ordered an EMG (electromyography ) and nerve conduction study of both upper extremities, and prescribed Rozerem and Ultram.

Dr. Murphy's next visit with plaintiff was on October 30, 2012, following the completion of the nerve testing. Dr. Murphy explained that Dr. Daniel Trahant conducted the testing and reported damage to the left C6 nerve root in plaintiff's neck and carpal tunnel syndrome in both wrists. Dr. Trahant did not find any nerve root pathology on the right side. Based on the results of these tests, Dr. Murphy believed plaintiff was a good candidate for an epidural steroid injection. He explained that the injection is an outpatient procedure that can be done in a day and can reduce swelling or irritation in the area and quiet the nerve symptoms. He further testified that, in some cases, one injection can quiet the symptoms so that the patient does not need any further treatment.

Dr. Murphy's notes from the next visit on January 8, 2013 indicate that plaintiff delayed the epidural steroid injection because he had the flu. Dr. Murphy also noted that he prescribed plaintiff Norco for pain and Ambien for sleep. In February 2013, plaintiff indicated he could not set the appointment for the injection because his wife needed major surgery. Dr. Murphy's notes from October 8, 2013 indicate that plaintiff's wife finally had the surgery and plaintiff would try to obtain an appointment for the injection. Over the next several months, plaintiff scheduled and cancelled several injection appointments.

Almost two years after Dr. Murphy's initial recommendation and almost 11 months after his wife's surgery, plaintiff obtained a cervical epidural steroid injection on August 27, 2014, from Dr. Charles N. April. Though plaintiff testified at trial that the injection provided no relief, Dr. Murphy's notes from his September 23, 2014 visit with plaintiff indicate otherwise:

He finally had the injections. The headaches have been less severe and there is less arm numbness. He still has radiation of pain into the arm. He should see about having a 2nd set of shots. New prescriptions were written. He will return for routine follow-up.

According to Dr. Murphy's notes, plaintiff waited almost another eight months to obtain the second injection and reported that it aggravated rather than helped his symptoms for a period of time. On June 2, 2015, Dr. Murphy noted that plaintiff needed to start to decrease his medication since he does not want to consider other treatment options. Plaintiff continued to see Dr. Murphy until the end of 2016, when he suggested plaintiff should consult with a neurosurgeon and neurologist regarding his neck problems.

Dr. Murphy testified in his trial deposition that the injuries suffered by plaintiff were caused by the accident at issue. He also testified that he believes plaintiff's injuries are permanent and he will continue to require medical care and medication into the future for his injuries, particularly due to plaintiff's line of work as a mechanic. He did not believe plaintiff was exaggerating his conditions or seeking medication, and his clinical findings were consistent with the diagnostic tests.

Plaintiff consulted with a neurosurgeon, Dr. Rand Voorhies, in January 2017. Dr. Voorhies ordered a SPECT scan and indicated if the results were positive, he would need additional testing. Following the scan, Dr. Voorhies met with plaintiff again on March 3, 2017. He informed plaintiff that smoking and nicotine in all of its forms exerts a powerful negative effect and noted plaintiff smoked one and a half packs per day. He also informed plaintiff that because the SPECT scan noted several abnormalities, plaintiff needed to undergo a myelogram /CT scan before he could present plaintiff with surgical options. Dr. Voorhies further noted that:

After a thorough discussion of all of these issues, Mr. Mosbey communicated to me his ambivalence. On the one hand he certainly wants his pain syndrome to go away and to be rid of his five year ongoing affliction. On the other hand, he understands that there can never be any guarantees or promises regarding surgery in general, and specifically he has formulated the very definite opinion (apparently based on communication with friends and acquaintances) that a lumbar puncture is a 'nightmare' and he is unwilling to consider the myelogram /CT scan of the cervical spine (which for the reasons explained above I personally would require in an effort to try to plan the best surgical option for him.)

Plaintiff testified that Dr. Voorhies wanted to conduct additional tests, but told plaintiff "there was no guarantee that he can fix my problem. It could be better; it could be worse." Plaintiff did not want to go forward with testing to determine if surgical options existed to alleviate his pain without a guarantee of success.

Plaintiff also went back to neurologist, Dr. Trahant, in January 2017, complaining of worsening neck pain, daily headaches, cervical pain primarily on the right side, and numbness, tingling and tremors in both hands. Dr. Trahant ordered another EMG/nerve conduction study in March 2017 and changed plaintiff's medication to a muscle relaxant, Zanaflex, and 7.5 mg of Percocet for pain. Dr. Trahant noted that since the prior tests and studies, the left C6 nerve root findings were more prominent and also found new damage involving the right C6 nerve root. He also found evidence of pathology involving the right C5 motor root.

In his trial deposition, Dr. Trahant testified that Mr. Mosbey is a candidate for surgery. Furthermore, in his May 3, 2017 report, Dr. Trahant noted that plaintiff met with neurosurgeon, Dr. Voorhies, who recommended a myelogram and post-myelographic CT scan to search for a solution to plaintiff's pain. However, plaintiff was adamant that he did not want a myelogram procedure and preferred to use medication to alleviate his pain. Dr. Trahant also noted that based on plaintiff's refusal to undergo further diagnostic procedures, he was at "maximum medical improvement:"

I explained to Mr. Mosbey that unless we can proceed further from a neurodiagnostic standpoint with the myelogram and CT Scan, we would be unable to make any specific recommendations for cervical spinal surgery options. In this regard, he is at maximum medical improvement under these circumstances.

In his trial deposition, Dr. Trahant further testified that plaintiff received erroneous information from friends and family about the myelogram procedure and as a result, declined to have it performed. Dr. Trahant agreed that more probably than not, plaintiff's cervical pain, carpal tunnel, headaches and erectile dysfunction were caused by the accident at issue. He also testified that plaintiff's conditions will require future medical care in the form of continued prescription medications and doctor visits and diagnostic testing.

However, on cross-examination, Dr. Trahant indicated that he was not aware plaintiff waited two years to obtain the epidural steroid injections after they were recommended by Dr. Murphy. Dr. Trahant agreed that though the injections do not fix the underlying structural problems, the delay in receiving treatment could certainly worsen plaintiff's condition "[b]ecause the longer nerves are subjected to ... a pathological process that affects the nerves, whether it's inflammatory or direct pressure from a bone spur or disc, the more likely there is to be scarring of a nerve and permanent changes." Dr. Trahant further agreed that in his opinion, "it probably would have been wiser to get that treatment sooner rather than later." Dr. Trahant also testified that plaintiff has degenerative changes in his neck due to some degree of wear and tear caused by plaintiff's work. He explained that the accident caused an aggravation of his degenerative changes and made them symptomatic.

Dr. Trahant noted that at the time of trial, he was continuing to treat plaintiff's condition with medication, including muscle relaxants, Zanaflex at night and Flexeril during the day, and Percocet (Oxycodone ) for pain. In his notes from his August 15, 2017 visit with plaintiff, Dr. Trahant noted "continued conservative management is certainly appropriate."

Plaintiff testified that at the time of trial, he was still treating with Dr. Trahant and was still complaining of headaches, numbness, pain in the upper area of his back and sleeplessness. Plaintiff explained that he continues to take medication every day for his injuries. He takes Aleve or Advil in the morning and one Flexeril, a muscle relaxant. He is able to work until around 3 p.m. and takes a pain pill when he gets home. At the time of trial, plaintiff indicated that Dr. Trahant prescribed 90 Percocets per month. He indicated that he took two of these pills per day on average. The trial court asked plaintiff what he did with the extra medication left over at the end of the month and plaintiff stated that when he obtains a new prescription, he would "flush" any medication left over from the prior prescription. Plaintiff also testified that he developed erectile dysfunction and was prescribed medication. Dr. Trahant testified that erectile dysfunction is a side-effect of the pain medication plaintiff was taking.

Both parties also submitted reports from vocational rehabilitation experts into evidence. Plaintiff's vocational rehabilitation expert calculated future medical expenses up to $38,522.35 per year. Defendant's expert calculated that plaintiff would incur a future one-time cost of $4,450.00 for future diagnostic testing, plus future medical expenses of $11,291.74 per year.

DISCUSSION

Second Assignment of Error-Past Medical Expenses

In his second assignment of error, plaintiff argues the trial court erred by awarding less than the proven and stipulated amount of past medical expenses. Plaintiff claims that at the beginning of trial, he introduced exhibits for past medical expenses and prescription bills totaling $26,056.53, but the trial court only awarded $21,186.71. This included $18,513.00 for medical visits and $2,673.71 for prescription costs. Plaintiff contends that defense counsel agreed to the amount of past medical expenses and did not object to the introduction of the exhibits establishing these expenses into evidence. Plaintiff contends defense counsel's agreement constituted a stipulation as to the amount of past medical expenses and the stipulation qualified as a judicial confession.

Compensatory damages are divided into special damages and general damages. Special damages, such as medical expenses, can be determined with relative certainty. Wainwright v. Fontenot , 00-492 (La. 10/17/00), 774 So.2d 70, 74 ; Beausejour v. Percy , 08-379 (La. App. 5 Cir. 10/14/08), 996 So.2d 625, 628. General damages are inherently speculative in nature and cannot be fixed with any mathematical certainty. Wainwright , 774 So.2d at 74.

A plaintiff is required to prove special damages by a preponderance of the evidence, and the findings of the trier of fact are subject to the manifest error standard of review. Williams v. Walgreen La. Co., Inc. , 14-716 (La. App. 5 Cir. 2/25/15), 168 So.3d 812, 824, writ denied , 15-610, 15613 (La. 6/1/15), 171 So.3d 262. A plaintiff may recover past medical expenses that he incurs as a result of an injury due to the fault of another. Tamayo v. Am. Nat'l Gen. Ins. Co. , 14-130 (La. App. 5 Cir. 9/24/14), 150 So.3d 459, 470. To recover medical expenses, the plaintiff must prove that, more probably than not, the medical treatment was necessitated by the accident. Id. The trier of fact errs by not awarding the full amount of medical expenses incurred as a result of injuries caused by the accident when the record demonstrates the victim proved them by a preponderance of the evidence. Id.

La. C.C. art. 1853 defines a judicial confession as follows:

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.

The statement constituting a judicial confession must be the express acknowledgement of an adverse fact, the effect of which is to waive evidence as to the subject of the confession or to withdraw the matter from issue.

Cheatham v. City of New Orleans , 378 So.2d 369, 375 (La. 1979) ; Jones v. Gillen , 564 So.2d 1274, 1279 (La. App. 5th Cir. 1990). For these effects to be imposed, however, the other party must have been led to believe the fact was not at issue or he must have relied on the statement to his detriment. Gillen, 564 So.2d at 1279.

Our review of the record indicates that defense counsel did not stipulate or agree to the amount of past medical expenses. At the beginning of trial, plaintiff's counsel offered, filed and introduced medical and prescription bills as exhibits and stated the total amount billed to plaintiff by each medical provider. At the end of the introduction, plaintiff's counsel stated: "[p]laintiff's calculations of past medical expenses to date are $26,056.53." The trial court then asked defense counsel if he agreed "with all those-those exhibits being introduced without objection." Defense counsel responded, "Yes, Your Honor. No objection."

We do not find that this exchange qualifies as a stipulation or judicial admission by defendants as to the amount of past medical expenses. Stating that no objection exists to the introduction of medical bills does not constitute an express acknowledgement that the medical expenses set forth in the exhibits are recoverable or otherwise necessitated by the accident.

Furthermore, it is apparent from the record that the amount of past medical expenses the trial court excluded from its award was a portion of plaintiff's prescription expenses. At trial, plaintiff introduced a global exhibit that included receipts from various pharmacies totaling $7,543.53. Most of the receipts do not identify the name of the patient, the prescribed medication or the name of the prescribing physician. Some receipts contain non-prescription items. Plaintiff did not review or identify any of these receipts during his trial testimony.

Included within this global exhibit is a printout of prescription costs from a Walgreens Pharmacy covering a period from 1/1/2017 to 8/23/2017. The printout lists plaintiff as the patient, provides the name of the prescribing physician and the medication prescribed. The cost of the prescriptions on the Walgreens printout totals $2,673.71, the amount awarded by the trial court.

In Reid v. Allstate Ins. Co. , 407 So.2d 34, 36-37 (La. App. 3rd Cir. 1981), the appellate court ruled that prescription receipts, which failed to include the complete date and the identity of the prescribed drug, were insufficient to satisfy the plaintiff's burden of proof absent a stipulation from the defendant acknowledging their connection to the accident at issue. The court noted:

The copy of the prescription receipts show the day and month filled but fail to show the year. The medication prescribed is represented by a number alone. Without more, we have no way of knowing whether or not the prescribed medication is recoverable under the insurance policy or whether or not it properly relates to this suit.
Id. at 36-37 fn. 1.

The trial court in the instant matter obviously determined that prescription receipts lacking information to identify the patient, prescription and prescribing physician were insufficient to satisfy plaintiff's burden to establish these were expenses incurred as a result of the accident. We do not find the trial court was manifestly erroneous by failing to award some of plaintiff's past prescription costs based on the receipts provided by plaintiff.

First and Third Assignments of Error

In his first and third assignments of error, plaintiff argues the trial court erred by failing to award him future medical expenses and future general damages.

As discussed above, the plaintiff must prove by a preponderance of the evidence that the claimed injuries resulted from the accident at issue. Harrington v. Wilson , 08-544 c/w 08-545 (La. App. 5 Cir. 1/13/09), 8 So.3d 30, 38-39. A presumption of causation will aid a plaintiff in meeting this burden, if before the accident, the injured person was in good health, but, commencing with the accident, the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be reasonable possibility of a causal connection between the accident and the disabling condition. Housley v. Cerise , 579 So.2d 973 (La. 1991). To rebut this presumption, defendant must show that some other particular incident could have caused the injury in question. This is a factual issue, reviewed by an appellate court under the manifest error standard. Harrington , 8 So.3d at 39.

The fact finder is not precluded from making determinations regarding the credibility of witnesses and respect should be given to those conclusions. Id. After weighing and evaluating the medical testimony, the trier of fact may accept or reject the opinion expressed by the medical expert. The fact finder should evaluate the expert testimony by the same rules which are applicable to other witnesses and the trial court is not bound by expert testimony. Id.

When conflicts in the evidence exist, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether his conclusion was a reasonable one. Stobart v. State through Dep't of Transp. and Dev. , 617 So.2d 880, 882 (La. 1993). Thus, where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell , supra . Moreover, on review, an 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. Guillory v. Lee , 09-75 (La. 6/26/09), 16 So.3d 1104, 1117.

In accordance with well-established law, much discretion is left to the judge in the assessment of quantum, both general and special damages. La. C.C. art. 2324.1 ; Menard v. Lafayette Ins. Co. , 09-1869 (La. 3/16/10), 31 So.3d 996, 1006-07. Because the discretion vested in the trier of fact is so great, and even vast, an appellate court should rarely disturb an award on review. Menard , 31 So.3d at 1007.

Future Medical Expenses

In order to recover future medical expenses, the plaintiff must prove the expenses will be necessary and inevitable. Gunn v. Robertson , 01-347 (La. App. 5 Cir. 11/14/01), 801 So.2d 555, 565, writ denied , 02-170, 02176 (La. 3/22/02), 811 So.2d 942. Future medical expenses must be established with some degree of certainty and must be supported with medical testimony and estimation of probable costs. Id.

An appellate court, in reviewing a trial court's factual conclusions with regard to special damages, must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong. Id. This test requires a reviewing court to do more than simply review the record for some evidence which supports or controverts the trial court's findings. Id. The court must review the entire record to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Id. The issue to be resolved on review is not whether the judge was right or wrong, but whether the judge's fact finding conclusion was a reasonable one. Id.

After reviewing the entire record, we find a reasonable factual basis exists for the trial court's denial of an award of future medical expenses and further find the trial court was not clearly wrong in its determination. As set forth above, inconsistencies exist between plaintiff's testimony at trial and the treating physicians' medical records with respect to several aspects of plaintiff's treatment. Furthermore, the evidence indicates that plaintiff did not always obtain the treatments or follow the recommendations provided by his treating physicians. First, plaintiff denied his headaches became less frequent and severe while treating with Dr. Frickey, though near the end of plaintiff's treatment with Dr. Frickey in May 2012, the medical records indicate plaintiff was no longer experiencing headaches. Plaintiff also claimed that the therapy treatments did not alleviate his symptoms, but Dr. Frickey's records indicate that plaintiff reported they were helpful. Plaintiff claimed he received these treatments once a week, but Dr. Frickey's billing records indicate that plaintiff received only four treatments during the six months he treated with Dr. Frickey.

Plaintiff also testified that he told Dr. Murphy about his headaches when he began treatment with him in July 2012. Dr. Murphy's records do not mention that plaintiff was experiencing headaches until 2014. On his first visit, Dr. Murphy recommended that plaintiff wear braces to treat the carpal tunnel syndrome in plaintiff's wrists. Plaintiff testified that he only wore the braces "for a little while." In addition, Dr. Murphy recommended plaintiff undergo an epidural steroid injection in October 2012, but plaintiff did not have the injection performed until almost two years later in September 2014. Plaintiff testified that the injection he received on August 27, 2014 did not provide relief for his symptoms. However, Dr. Murphy's notes from plaintiff's visit almost a month later on September 23, 2014 indicated that following the injection, plaintiff's headaches were less severe and plaintiff had less arm numbness. Dr. Murphy recommended a second injection, but plaintiff waited almost eight months to follow this recommendation.

Plaintiff's treating neurologist, Dr. Trahant, testified that the delays in receiving the epidural steroid injections could have worsened plaintiff's condition:

Q. It's my understanding that early on in Mr. Mosbey's treatment there had been some recommendations for epidural steroid injections.
A. Right.
Q. But ... according to him ... he waited ... about two years before having them done. Were you aware of that or?
A. No.
Q. Okay. Well, I believe the record would reflect that that would be the situation. Would that have any bearing on the-the worsening of his condition in your mind?
A. It could, certainly. Because the longer nerves are subjected to path-a pathological process that affects the nerves, whether it's inflammatory or direct pressure from a bone spur or disk, the more likely there is to be scarring of the nerve with permanent changes.

Dr. Trahant also testified that plaintiff was a candidate for surgery. However, Dr. Trahant and Dr. Voorhies both explained to plaintiff that they could not provide any recommendations for surgical treatment unless plaintiff underwent additional diagnostic testing, which plaintiff refused. Dr. Trahant noted that by refusing additional testing plaintiff was at "maximum medical improvement." Plaintiff reported that he preferred to treat his symptoms with medication. Dr. Murphy also noted that he explained to plaintiff that he would have to figure out how to decrease his medication if he chose not to pursue other treatment options.

Based on the conflicts between the medical records and plaintiff's trial testimony, plaintiff's failure/delay in following treatment recommendations, and his refusal to pursue diagnostic testing without a guarantee from doctors as to the success of possible future treatments, the trial court obviously determined plaintiff failed to satisfy his burden of proof to recover future medical expenses. Credibility is paramount in the award of such damages. The trial judge had the opportunity to view the demeanor, as well as hear plaintiff contradict his own medical records. Additionally, the trial judge was presented with evidence that plaintiff waited almost two years to undergo a procedure that could have mitigated his pain problems. Based on the foregoing, we find the trial court's conclusion to not award plaintiff future medical expenses was reasonable and was not clearly wrong.

Future General Damages

Plaintiff also complains the trial court erred in failing to award future general damages.

The trier of fact is also given great and even vast discretion in setting general damage awards, and an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp. , 623 So.2d 1257, 1260 (La. 1993), cert. denied , 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed. 2d 379 (1994). The initial inquiry in appellate review of general damages is "whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the 'much discretion' of the trier of fact." Id. Furthermore, findings of fact are subject to the manifest error standard of review. Wainwright, supra.

For the same reasons stated above to affirm the trial court's decision not to award future medical expenses, we also find the trial court was not manifestly erroneous nor did it abuse its vast discretion by declining to award plaintiff future general damages.

DECREE

Based on the foregoing, we affirm the trial court's September 8, 2017 judgment.

AFFIRMED

      Plaintiff did not seek an award for lost wages.

      Dr. Murphy's records do not mention headaches until September 2014.

      Plaintiff testified that prior to the accident, he would work until 6 or 7 p.m.