Beverly James and Rodney Glenn James v. Christus Health Central Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-775

BEVERLY JAMES, ET VIR

VERSUS

CHRISTUS HEALTH CENTRAL LOUISIANA

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, DOCKET NO. 261,107
HONORABLE PATRICIA KOCH, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John
E. Conery, Van H. Kyzar and Candyce G. Perret, Judges.

REVERSED AND RENDERED.

Conery, J., dissents and assigns reasons.

Edmond H. Knoll
The Knoll Law Firm, LLC
P.O. Box 426
Marksville, LA 71351
(318) 253-6200
COUNSEL FOR PLAINTIFF/APPELLANT:
Beverly James and Rodney Glen James

Brandon A. Sues
Sarah Spruill Couvillon
Gold, Weems, Bruser, Sues & Rundell
2001 MacArthur Drive
P.O. Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
COUNSEL FOR DEFENDANT/APPELLEE:
Christus Health Central Louisiana d/b/a Christus St. Frances Cabrini Hospital

COOKS, Judge.

The facts of this case are largely undisputed. On June 16, 2017, Plaintiff,

Beverly James, was picking up her husband, Rodney James, who had been a patient

at Christus St. Frances Cabrini Hospital (hereafter Christus) in Alexandria for

persistent, severe headaches. Rodney was discharged that day and he and Beverly

were leaving the hospital. After taking the elevator down to the first floor, the couple

realized they were unsure if the discharge instructions included any prescriptions.

Beverly and Rodney then returned to the second floor to speak with Rodney’s nurse,

Edgar Byon. After waiting a few minutes, Beverly spoke with Nurse Byon as to

whether Rodney had any prescriptions to fill. As they were walking down a hallway

with Nurse Byon, Beverly slipped and fell to the floor. It was alleged she slipped

on a clear liquid substance and struck her head, hip and back on the fall.

Beverly and Rodney filed suit against Christus seeking damages for the

injuries she incurred as a result of the fall. Christus answered the petition denying

the allegations. Christus then filed an amended answer. It denied any fault or

negligence, and asserted Beverly was negligent and/or at fault for the alleged

accident. In the further alternative, Christus specifically asserted the negligence

and/or fault of HHS, through its employees, who allegedly spilled and/or allowed a

liquid substance on the floor and failed to clean up the liquid. Prior to trial, it was

stipulated that damages did not exceed $50,000.00, and, as a result, a bench trial was

conducted. Witnesses at trial included Beverly, Rodney, Bert Tassin and Dennis

Howard.

Beverly testified on the morning of the incident she went home from the

hospital to shower and change her clothes, as well as to bring a change of clothes

back for Rodney. Upon leaving and returning, she traversed the same hallway where

the incident later occurred. After returning and getting Rodney ready to leave the

hospital, the couple took the elevator down to the first floor. As they were leaving,

Beverly stated they realized they were unsure if Rodney had any prescription to fill

as part of his discharge instructions. They returned to the second floor and were able

to locate Nurse Byon. After waiting approximately fifteen minutes while Nurse

Byon finished assisting another patient, Beverly talked with him. As they were

walking down the hospital hallway, Beverly slipped and fell to the floor after

stepping in a clear, liquid substance. Beverly testified she had previously noticed a

cleaning cart near the area where she fell. She also acknowledged she had walked

down this same hallway four or five times that morning.

Beverly testified that she fell backwards, striking her rear, back area and the

back of her head against the floor. Hospital staff assisted her and brought her to the

emergency room for evaluation. She was released later that day after having x-rays

performed. It was found that she suffered a cervical and lumbar strain. She was

prescribed hydrocodone and instructed to follow up with her primary physician.

Approximately six weeks after the incident, she sought treatment from Dr.

Jeffrey Rapp, complaining of lower back pain and neck pain. Dr. Rapp previously

treated Beverly as early as 2013 through the present. He also testified he saw

Beverly in April and May of 2017 for chronic neck and back pain. At one point

prior to the accident a steroid injection was performed and Beverly, on occasion,

required the assistance of a walker to ambulate.

Rodney corroborated Beverly’s timeline of events on the day of the fall. In

his deposition testimony, Rodney noted at one point prior to the fall, he saw a

housekeeping cart in the area of the spill leaking liquid. He testified Beverly was

walking towards him when she slipped on the liquid.

Christus presented the testimony of Bert Tassin, who was an executive

administrator at the hospital. Mr. Tassin testified about five years before the accident

at issue, Christus contracted with Hospital Housekeeping Services (HHS) to provide

housekeeping and cleaning services for the hospital. HHS was a company which

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performed housekeeping and cleaning services at hospital and healthcare facilities

throughout the country. Mr. Tassin testified HHS hires and trains its own employees

and is solely responsible for the cleaning supplies, equipment and cleaning devices

used at the hospital. He further stated HHS established its own policies and

procedures for its employees to follow in performing its housekeeping and cleaning

services at the hospital. Mr. Tassin stated HHS employees were responsible for

inspecting, cleaning and maintaining the rooms and hallways. Specifically, he stated

the contract required HHS to periodically inspect the hallways. Mr. Tassin testified

it was the responsibility of HHS to clear any liquid that might spill from a cleaning

cart, as it was its employees and equipment that created the condition.

Christus also presented the testimony of Dennis Howard, a certified safety

consultant, who stated the water more than likely came from the HHS cleaning cart.

He also testified it was his opinion that no acts of Christus contributed to the

accident.

Following post-trial memoranda, the trial court rendered written reasons for

judgment on May 17, 2019, finding no negligence on the part of Christus. The trial

court found as follows:

Christus hired a specialized independent contractor, HHS, to
perform housekeeping duties in the hallway on the date of the incident.
Several trips by Beverly James on the same hallway as the
housekeeping cart, did not appear to raise any concerns for not only
Beverly James but also the Christus staff, in particular the nurse Edgar
Byon. There was no lack of diligence on the part of Christus for not
discovering the liquid but instead any responsibility would rely solely
on the independent contractor HHS. As reported, regular inspections
of the hallway floors took place with swift cleanup procedures. In this
instance, Christus did not have actual or constructive knowledge of any
liquid being on the floor as supported by the testimony of the witnesses
at trial. There has been no testimony that there was anything Christus
or any of its employees could have done differently to prevent the
accident from occurring. In this case, the actions of Christus and its
employees were reasonable and appropriate in all respects.

As stated in Smith [v. Northshore Reg’l Med. Ctr., 14-628
(La.App. 1 Cir. 1/26/15), 170 So.3d 173], a hired independent
contractor, HHS (and not the hospital, Christus) is responsible for

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inspecting and maintaining the hospital hallways and that the liquid
located near the cart more likely than not came from the HHS cart.
HHS is solely responsible for the alleged condition of the floor on the
date of the event, thus responsible for any alleged damage[s] to Beverly
James; therefore, this action against Christus Health Central Louisiana
is dismissed.

In accordance with its written reasons, a final judgment was signed on May 17, 2019,

dismissing Plaintiffs’ suit against Christus. This appeal followed, wherein Plaintiffs

assert the following assignment of error:

1. The trial court erred in dismissing Plaintiffs’ claims as there is
insufficient evidence in the record to support the finding that HHS
is an independent contractor given that no evidence was introduced
on Christus’ right to control HHS.

ANALYSIS

I. Liability

This court in Bell v. Carencro Nursing Home, Inc., 16-190, p. 5 (La.App. 3

Cir. 9/28/16), 202 So.3d 499, 503, writ denied, 16-1918 (La. 12/16/16), 212 So.3d

1170, discussed the applicable law for slip and falls that occur in hospitals:

With regard to a slip and fall accident in a hospital setting, the
fourth circuit, in Neyrey v. Touro Infirmary, 94-78 (La.App. 4 Cir.
6/30/94), 639 So.2d 1214, 1216 (citations omitted), stated that:

A plaintiff in a slip and fall case against a hospital
must show the fall occurred and injury resulted from a
foreign substance on the premises. The burden then shifts
to the hospital to exculpate itself from the presumption of
negligence. A hospital owes a duty to its visitors to
exercise reasonable care commensurate with the particular
circumstances. The hospital must show that it acted
reasonably to discover and correct the dangerous condition
reasonably anticipated in its business activity.

The elements of proof in a slip and fall accident occurring in a
hospital setting were applied to nursing homes by this court in Williams
v. Finley, Inc., 04-1617 (La.App. 3 Cir. 4/6/05), 900 So.2d 1040, writ
denied, 05-1621 (La. 1/9/06), 918 So.2d 1050. Thus, Ms. Bell’s burden
was simply to establish by a preponderance of the evidence that she
sustained an injury as a result of a foreign substance present on
Evangeline Oaks’ premises. She clearly carried that burden, and the
burden shifted to Evangeline Oaks to establish that it “exercise[d]
reasonable care commensurate with the particular circumstances.”
Neyrey, 639 So.2d at 1216.

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Accordingly, Plaintiffs burden was to establish by a preponderance of the

evidence that Beverly sustained injury as a result of a foreign substance present on

Christus’ property. Plaintiffs met this burden, presenting uncontroverted evidence

and testimony that Beverly slipped on a clear, liquid substance that was present on

the hallway floor of the hospital. Plaintiffs also introduced medical records

concerning the injuries and subsequent treatment incurred by Beverly due to the fall.

Therefore, at that point, the burden shifted to Christus to establish it “exercise[d]

reasonable care commensurate with the particular circumstances.” Neyrey, 639

So.2d at 1216.

The trial court dismissed Christus because it found HHS was an independent

contractor, and thus, was “solely responsible for the alleged condition of the floor

on the date of the event,” and was liable for any damages incurred by Plaintiffs. It

is this finding that Plaintiffs appeal, contending it was not supported by the evidence

adduced at trial.

Under Louisiana law, a principal is generally not liable for the offenses

committed by an independent contractor while performing its contractual duties.

Isgitt v. State Farm Ins. Co., 13-204 (La.App. 3 Cir. 10/16/13), 156 So.3d 669;

Loftus v. Kuyper, 46,961 (La.App. 2 Cir. 3/14/12), 87 So.3d 963; Smith v.

Zellerbach, 486 So.2d 798 (La.App. 1 Cir.), writ denied, 489 So.2d 246 (La.1986).

The factors used to determine the existence of an independent contractor relationship

are: (1) a valid contract between the parties; (2) the work being done is of an

independent nature such that the contractor may employ non-exclusive means in

accomplishing it; (3) the contract calls for specific piecework as a unit to be done

according to the contractor’s own methods, without being subject to the control and

direction of the principal, except as to result; (4) there is a specific price for the

overall undertaking; and (5) the duration of the work is for a specific time and not

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subject to termination or discontinuance at the will of either side without a

corresponding liability for its breach. Tower Credit, Inc. v. Carpenter, 01-2875 (La.

9/4/02), 825 So.2d 1125, citing Hickman v. Southern Pacific Transport Company,

262 La. 102, 117, 262 So.2d 385 (1972). The distinction between an employee and

an independent contractor is a factual determination that must be decided on a case-

by-case basis. Tower Credit, 825 So.2d 1125. The primary focus in determining

whether a relationship is a principal-independent contractor relationship or an

employer-employee relationship is the right to exercise control over the work.

Crews v. Blalock, 99-311 (La.App. 3 Cir. 11/3/99), 746 So.2d 761; Hulbert v.

Democratic State Central Committee of Louisiana, 10-1910 (La.App. 1 Cir.

6/10/11), 68 So.3d 667, writ denied, 11-1520 (La.10/7/11), 71 So.3d 316.

Plaintiffs first note it was Christus who bore the burden of proving HHS’

status as an independent contractor. They point to this court’s holding in Smith v.

Prime, Inc., 09-269 (La.App. 3 Cir. 10/7/09), 20 So.3d 1184. In that case, this court

found an employer asserting that a claimant is an independent contractor bears the

burden of proving this status. They argue no evidence was presented regarding

Christus’ right of control, or lack thereof, over HHS. It offered only the testimony

of Bert Tassin, its employee, that Christus relied upon HHS for its housekeeping and

cleaning needs. Mr. Tassin concluded HHS was an independent contractor because

it hired and supervised its own employees, maintained its own procedures and

purchased and used its own equipment. It is imperative to note that Mr. Tassin did

not have any knowledge regarding the contract, or its terms between Christus and

HHS, which purportedly designated HHS as an independent contractor. In fact, Mr.

Tassin acknowledged he had not read the contract between Christus and HHS and

did not know what it stated. Rather, he relied upon his own beliefs and opinions as

to what the relationship was between Christus and HHS.

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The testimony of Dennis Howard served only to further establish the liquid

Beverly slipped on more than likely came from the HHS cleaning cart, a factual

conclusion not in dispute by the parties. Mr. Howard also was not privy to the

contract between Christus and HHS, thus could not offer any definitive testimony as

to Christus’ ability to control the actions of HHS.

The trial court, in its written reasons for judgment, listed the relevant factors

in determining independent contractor status; however, it did not, and in fact, could

not, analyze whether the contract gave Christus the right to control HHS. This is

because the contract between Christus and HHS was never introduced at trial. The

trial court relied upon Smith v. Northshore Reg’l Med. Ctr., 14-628 (La.App. 1 Cir.

1/26/15), 170 So.3d 173, which involved a similar factual scenario. In that case, the

plaintiff slipped and fell in a hospital, alleging she fell in an accumulation of water

at a location in a hallway where a worker had been using a buffer machine

immediately prior to the accident. As in this case, the hospital contracted with HHS

to perform its housekeeping and cleaning services, and the worker using the buffing

machine was a HHS employee. The hospital answered the petition, and later filed a

third-party demand, naming HHS as a third-party defendant. The hospital filed

summary judgment asserting it could not be held liable for conditions on its premises

created by an independently-contracted maintenance company. Plaintiff and HHS

opposed the motion contending there were disputed issues regarding the hospital’s

liability based on its separate negligence and/or the control maintained over HHS.

The trial court granted summary judgment in the hospital’s favor. The appellate

court affirmed the judgment, finding after “review[ing] these [contract] provisions

[we] do not find that they show [the hospital] exerted the type of control over HHS

that would negate an independent contractor relationship.” Id. at 178. The court

noted the testimony of the hospital administrator in that case “confirm[ed]” its

interpretation of the contract between the hospital and HHS. Id. at 178.

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Smith is clearly distinguishable from the present case. The court in Smith

relied on the provisions of the contract to determine the degree of control the hospital

had over HHS. It was the review of the contract provisions that led the appellate

court to conclude the hospital in Smith did not exert “the type of control over HHS

that would negate an independent contractor relationship.” Id. at 178. The trial court

in this case, and this court on appeal, was not afforded the opportunity to examine

the provisions of the contract between Christus and HHS. As it was Christus’ burden

to prove HHS’s status as an independent contractor, it was incumbent on it to

produce sufficient proof. Contrary to Christus’ assertions, the testimony of its own

employee, Bert Tassin, is not sufficient on its own to meet that burden. As noted

above, in Smith the court noted the testimony of the hospital employee there

“confirm[ed]” its interpretation of the contract. Id. Simply establishing there was a

contract between Christus and HHS does not establish the degree to which, if at all,

Christus could exercise control over HHS in the performance of its cleaning and

housekeeping duties.

Plaintiffs burden was to establish by a preponderance of the evidence that

Beverly sustained an injury as a result of a foreign substance present on Christus’

premises. It is uncontradicted that Plaintiffs met this burden. Christus presented no

testimony that it acted reasonably to discover and correct the hazardous condition.

Despite a Motion to Compel filed by Plaintiffs, no maintenance or clean-up logs

were offered into evidence. Therefore, we reverse and vacate the judgment of the

trial court that dismissed Plaintiffs’ claims against Christus as it failed to meet its

burden of establishing HHS was an independent contractor. We render judgment in

favor of Plaintiffs finding it met its burden of establishing Beverly sustained injuries

as a result of a foreign substance present on Christus’ premises.

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Having a complete record before us, we will now review the evidence and

assess damages. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La. 2/20/95), 650

So.2d 742.

II. Damages.

As stated earlier, it was stipulated prior to trial that damages did not exceed

$50,000.00. The record establishes that as a result of the fall, Beverly suffered

injuries to her back, neck, head and right leg. It was uncontradicted that Beverly

suffered from neck and back pain, as well as migraine headaches prior to the fall.

Beverly testified her neck and back problems had subsided greatly after undergoing

a nerve block and steroid injections approximately six months before the fall at

Christus. She contended the fall at Christus significantly exacerbated these prior

conditions.

Immediately after the fall, Beverly was taken to the emergency room at

Cabrini Hospital. She was released after examination with a diagnosis of a cervical

and lumbar strain. She was given a prescription for hydrocodone and instructed to

follow up with her primary physician. She next saw Dr. Jeff Rapp, her pain

management physician, for additional treatment for the continuing pain she endured

following the fall. She complained to Dr. Rapp that her pain increased significantly

after the fall, back to the levels she had prior to the nerve block and steroid injections.

She also noted her migraine headaches were again occurring on a frequent basis.

Beverly later sought treatment at the emergency room at Avoyelles Hospital

on August 18, 2017 and November 16, 2017 for the continuing pain she attributed

to the injuries suffered as a result of her fall. She was referred to Dr. Mohammed

Ziebo, who treated her for migraine headaches. She also underwent several weeks

of physical therapy for her neck and back at Lemoine Physical Therapy. Beverly

testified she suffered severe neck pain, back pain and headaches for approximately

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one year following the fall. She stated she still endured occasional residual neck and

back pain as of the date of trial.

At trial, Beverly introduced $6,621.25 in medical bills she incurred

subsequent to the fall:

St. Francis Cabrini Hospital $2,330.00
Avoyelles Hospital $2,355.25
Dr. Jeff Rapp $ 570.00
Dr. Mohammed Zeibo $ 440.00
Lemoine Physical Therapy $ 926.00

There is no doubt that Beverly had a history of chronic neck and back pain, as well

as recurring migraine headaches. However, a defendant’s liability for damages is

not mitigated by the fact that a plaintiff’s pre-existing physical infirmity was

responsible in part for the consequences of the plaintiff's injury by the defendant. It

is clear that a defendant takes his victim as he finds him and is responsible for all

natural and probable consequences of his tortious conduct. Lasha v. Olin Corp., 625

So.2d 1002 (La.1993); Bienemann v. State Farm Mut. Auto. Ins. Co., 08-1045

(La.App. 3 Cir. 2/4/09), 3 So.3d 621. After a thorough review of the record, we find

Beverly is entitled to a general damage award of $30,000.00, along with the medical

expenses she incurred of $6,621.25.

DECREE

For the foregoing reasons, we reverse the trial court’s judgment dismissing

Plaintiffs’ claims against Christus. We render judgment in favor of Plaintiffs finding

they met their burden of establishing Beverly James sustained injuries as a result of

a foreign substance present on Christus’ premises. After a de novo review of the

record, we award medical damages of $6,621.25 and general damages in the amount

of $30,000.00 for pain and suffering. Costs of this appeal are assessed to defendant-

appellee, Christus St. Frances Cabrini Hospital.

REVERSED AND RENDERED.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

NUMBER 19-775

BEVERLY JAMES, ET VIR

VERSUS

CHRISTUS HEALTH CENTRAL LOUISIANA

CONERY, Judge, dissents and assigns reasons.

I respectfully dissent as the straightforward facts of the underlying trial on the

merits require an affirmation.

Plaintiff Beverly James alleges injury after a fall due to liquid on the floor at

Christus St. Francis Cabrini Hospital. After consideration of evidence submitted at

the trial on the merits, the trial court entered judgment in favor of Christus, finding

that third party independent contractor Hospital Housekeeping Services (HHS) was

responsible for the upkeep of the floor, that the liquid allegedly causing the fall was

more likely than not from an HHS cart, and that there was no indication that the

hospital failed to act reasonably in its own actions. The majority finds insufficient

evidence of HHS’s status as an independent contractor. In my opinion, the record

supports the trial court’s determination.

Significantly, we review this case using the manifest error standard. See, e.g.,

Richard v. Calcasieu Cameron Hosp. Serv., 19-338 (La.App. 3 Cir. 12/11/19), 286

So.3d 547, writ denied, 20-71 (La. 5/9/00), _ So.3d _. We do not, as an appellate

court, re-weigh the evidence or substitute our own findings for those of the trial

court, even if we “would have decided the case differently.” See Snider v. La. Med.

Mut. Ins. Co., 14-1964, p. 5 (La. 5/5/15), 169 So.3d 319, 323.

After hearing the testimony of Christus’s experienced hospital administrator,

the trial judge found that the hospital used reasonable care in hiring HHS, an

independent contractor, to inspect, clean, and maintain the facility’s hallways. There

was no evidence that any employee of the hospital knew or should have known of

the liquid that Plaintiff’s husband saw leaking from the hospital cart just after

Plaintiff’s fall. The evidence established that Plaintiff had traversed the area in

question five (5) times before her fall and that her fall occurred as she was leaving

the hospital within 15-18 minutes after she had recently walked the same hallway

without incident. In my opinion, this evidence supports a reasonable inference that

the “clear liquid leaking” from the hospital cart as seen by Plaintiff’s husband was

there only a short time before Plaintiff’s fall.

The hospital administrator, Mr. Tassin, had been with Christus for more than

38 years and was an administrator for over 15 years. He confirmed that, as part of

his position, he was “familiar with the independent contractors who have been hired

to perform work on the hospital premises[.]” With regard to HHS, hired to perform

housekeeping services at the hospital, Mr. Tassin explained that the independent

contractor had been performing housekeeping services at Christus for 4-5 years

under his watch. He testified without contradiction based on his personal knowledge

of the functions HHS was expected to and had been performing, as well as his

experience as hospital administrator. He was completely familiar with HHS and its

duties and responsibilities. He noted especially that HHS hired its own employees

to perform the work, trained its own employees, had its own supervisors who

supervised HHS employees while they worked at Christus, had its own policies and

procedures in place for HHS employees to follow with regard to housekeeping

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policies and inspections. He knew first hand from his own observations and

experience that HHS was expected to and did inspect the hospital hallways

throughout the day at times determined by HHS, used its own equipment to perform

housekeeping services on the premises, and inspected, maintained, and cleaned the

hallway floors repeatedly, including the floor at the scene of Plaintiff’s fall. Plaintiff

herself characterized the floor as “very clean.”

In particular, Mr. Tassin testified that HHS owned the hospital carts used by

its employees and that HHS had the responsibility to clean up any liquid spilled from

those carts. Mr. Tassin explained that HHS had performed satisfactorily and that he

was unaware of any issues regarding its work performance in the past.

Christus also presented the testimony of Dennis Howard, an expert safety

professional with experience in hazard recognition, evaluation and control and

accident investigation. Pertinent to this case, Mr. Howard explained that he provided

instruction in the area of hospital safety and taught classes pertaining to preventing

slips, trips, and falls. After a review of all the pleadings, discovery, and depositions,

Mr. Howard inspected the hospital premises and listened to the trial testimony. He

was accepted by the trial court as an expert without objection and presented his

undisputed expert testimony to the court:

I think from the evidence that I’ve heard they [HHS] were
reasonable and appropriate. They hired people with expertise. They
hired people that had prior experience, even bigger than the local area.
They – they provide hospital services in a number of large areas.
Aramark does it in many different environments as well. Their
experience had been positive in four to five years. There had been no
negative experiences. No – no negative reports that I’m aware of and
no accidents. That’s a reasonable expectation of them fulfilling the
safe, efficient and effective delivery of services.

(Emphasis added.) Mr. Howard opined that he “didn’t see that” Christus had done

anything to cause or contribute to the accident but that “they were reasonable in – in

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what they were doing and how they had conducted themselves.”

Mr. Howard further opined that the sole responsibility of preventing liquids

from leaking from a hospital cart and preventing, noticing, or correcting a spill was

on HHS, not Christus, and stated: “If it’s their cart, their liquid and their

responsibility to clean, maintain and inspect, sure, it would be their sole

responsibility.”

Plaintiffs argued in brief, and the majority agrees, that because there was a

contract in place, the contract between the parties was the “best evidence” of its

terms. For whatever reason, the contract does not appear to be in evidence. The

majority notes that in Smith v. Northshore Reg’l Med. Ctr, Inc., 14-628 (La.App. 1

Cir. 1/26/15), 170 So.3d 173, the hospital’s contract with HHS for housekeeping was

in evidence, whereas in this case it was not.

Respectfully, Plaintiff did not present any evidence disputing the testimony

of Mr. Tassin and Mr. Howard. Plaintiff had an equal or greater opportunity to

introduce the contract in evidence if its terms differed from the testimony of Mr.

Tassin and Mr. Howard as to either the hospital’s or HHS’s respective

responsibilities. Notably, the testimony of Mr. Tassin as to the responsibility of HHS

was completely uncontradicted, and based on years of experience and first-hand

knowledge. Likewise, Mr. Howard’s credentials were never challenged and his

opinion was uncontradicted.

Based on all the evidence, the experienced and knowledgeable trial judge

accepted the uncontradicted evidence, evaluated the credibility and reliability of the

witnesses, found the facts, and rendered a decision in accordance with the law and

evidence. If the manifest error rule is to mean anything, it is our duty to apply it in

this case. I would therefore affirm her well-reasoned decision.

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