
    Jewel CARPENTER v. The BESCO CORPORATION, Magnolia Chemical Company, Vulcan Chemicals, and PPG Industries.
    No. 87-CA-599.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1988.
    Writs Granted Dec. 2, 1988.
    James B. Irwin, Paul M. Lavelle, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, for plaintiff-appellant.
    William G. Tabb III, H.F. Foster III, Ernest O’Bannon, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, Stephen N. Elliott, Bernard, Cassisa, Saporito & Elliott, Metairie, for defendants-appellees.
    Before GAUDIN, GRISBAUM, DUFRESNE, WICKER and GOTHARD, JJ.
   GRISBAUM, Judge.

This matter was first addressed by this Court in an opinion handed down February 8,1988 and found at 521 So.2d 421. Under that decision, the judgment of the trial court was to be set aside and the case remanded for new trial. One member of the three-judge panel dissented from the decision, assigning written reasons.

On April 29,1988, the Louisiana Supreme Court granted writs in the matter, deciding: “The judgment of the court of appeal is vacated and the case is remanded to the court of appeal for argument before a five[-]judge panel and an opinion.” 523 So.2d 1314, 523 So.2d 1315. Accordingly, reargument was held on Wednesday, September 7,1988, before a panel composed of the original panel and two additional judges. It is the decision of the majority of this panel that the original decision of this court be reinstated for the reasons originally enunciated.

Therefore, for the reasons found at 521 So.2d 421, we set aside the judgment of the trial court and remand the matter for a new (jury) trial.

SET ASIDE AND REMANDED.

GAUDIN and WICKER, JJ., dissent.

GAUDIN, Judge,

dissenting.

I regretfully dissent from this Court’s majority opinion remanding this case to the district court to be tried again before a jury. The record is complete and should be handled in accord with judicial economy and Gonzales v. Xerox, 320 So.2d 163 (La.1975).

WICKER, Judge,

dissenting.

I respectfully dissent for the reasons set forth previously. Carpenter v. Besco Corp., 521 So.2d 421, 427 (1988). Additionally, I should point out, during oral argument counsel for plaintiff admitted that no proffer of proof was tendered to the excluded testimony of Dr. Nix during the trial of this case. Further, plaintiff’s counsel unequivocally stated that the depositions, testimony, exhibits and proffers contained in the lengthy trial of this case are sufficient for this court to make a determination of the merits of this case without a remand. Counsel for defendants have unanimously agreed. Under all circumstances of the case I feel that this court has no alternative but to comply with the mandate of the Louisiana Supreme Court to decide the matter rather than remand it to the trial court for re-trial. Gonzales v. Xerox, 320 So.2d 163 (La.1975).  