Louisiana Personal Injury Lawyer Blog

In October 2007, a Norco tankerman was injured aboard the M/V DUSTIN CENAC at dock #2 of the Valero Corporation's facility in Norco. The tankerman was completing the loading procedure of the barge when the Valero dock man prematurely began lifting the loading arm and he was pinned between the arm and a winch on the barge. He brought suit against his employer and owner of the barge, Cenac towing, and Cenac filed a motion for summary judgment. The motion was granted on February 12 when a Federal judge ruled that no issue of material fact existed as to whether they were negligent.

The Jones Act provides seaman with a cause of action for injuries that result from an employer's negligence. To prove negligence, the injured party must prove that the employer had a duty to them which was breached and that the breach was the cause and proximate cause of the accident. Proving proximate cause goes beyond merely proving that without the breach of duty the injury would not have occurred but also that the injury naturally and foreseeably resulted from the breach.

In this case the judge found that nothing in the complaint or depositions showed negligence on the part of Cenac. While the injured tankerman's attorney suggested possible negligence by the Valero employee and suggested the vessel may have been unseaworthy due to a malfunctioning loading arm, the tankerman testified that nothing done by the Cenac's crew did anything to contribute to his injury.

Cenac towing was not the only defendant in this lawsuit. When an injured individual chooses to bring a Jones Act case, their attorney must carefully consider which parties to include in the claim and ensure that liability can be proven under the law with respect to each party. Proving negligence under the Jones Act is complex and requires experienced counsel. If you have questions about the elements of a Jones Act claim we would be happy to discuss them with you. Please call usToll-Free at 1-866-574-8005.

Early in the morning hours of Saturday, February 6th, 20 year old Jamane M. County of Montgomery was driving a 2002 Honda Civic South on U.S. Highway 71 when he lost control of the car. According to an article on thetowntalk.com,

The car ran off the right side of the road, vaulted across a creek, hit an embankment on the opposite side and overturned.

County and two of his passengers sustained moderate injuries and were taken to nearby hospitals; County to Nathitoches Regional, 18 year old Kayla Monroe to Louisiana State University (LSU) Medical Center, and a male juvenile to Rapides Regional Medical Center. A third passenger,19 year old Kimber Vanantwerpen, was injured seriously and also taken to LSU Medical Center.

This accident raises some significant legal issues. As here, when a driver, who may have been acting improperly, is in an accident and passengers are injured, it is important that each party’s legal rights be protected. Despite a friendly relationship between the driver and his passengers, it may be appropriate for one or more of the passengers to bring a negligence claim against the driver. If it can be proven that the driver owed a duty to one or more of his passengers, the duty was breached, and passengers’ injuries resulted from the breach, the driver may be held liable and may be forced to pay damages. If more than one passenger is considering a claim it may seem like a practical, money saving idea for them to hire one attorney to represent them. However, this is not a decision to be taken lightly. It is important that each person considering legal action have an attorney who is able to protect and represent their particular interests. Attorneys are sometimes even restricted by law as to who they may represent if an improper conflict of interest exists.

Under the Model Rules of Professional Conduct, (ethical guidelines which govern the actions of attorneys and have been adopted in Louisiana) an attorney shall not represent a client if doing so involves a concurrent conflict of interest. A concurrent conflict of interest exists if the interests of one current client are directly adverse to the interests of another current client. (Model Rules of Professional Conduct, Rule 1.7 (a)(1)). This rule absolutely prohibits one attorney from representing both parties in the same lawsuit. However, an attorney may represent two different parties that are suing the same person (co-defendants) if they believe they can do so adequately and if all parties give informed consent.

Even if parties give consent to the same representation in a case like this one and no rules are violated, it may still not be in the best interest of each party because their interests may differ too substantially. If you were a passenger in a vehicle that was in an accident and you have been injured the Berniard law firm would be happy to help you navigate your rights. Our attorneys are experienced in the complexities that can arise in these types of cases. Please contact our office Toll-Free at 1-866-574-8005.

Admitting your elderly mother into a nursing home is supposed to relieve stress and lift a burden from your shoulders. You believe she is going to receive the proper care she needs that you are unable to provide.

Unfortunately, for Edward Lewis, tragedy happened after he made this tough decision. His 93-year old aunt, who Lewis considered a mother, drowned in a whirlpool at Easthaven Rehabilitation Care Center in 2002. The nursing home told Lewis that his aunt died peacefully in her sleep but it wasn't until one month later he learned the truth — an employee had placed his wheelchair-bound aunt in a whirlpool unsupervised, even after Lewis told the staff he did not want her in the water. Sadly, actions that cause harm or even death to a nursing home resident can generate minimal response from the state.

In Louisiana, nursing homes are required to report all "suspicious deaths." Per a NOLA.com article approximately 4,500 nursing home residents die every year in Louisiana and of 250 wrongful deaths reported from 1999-2005, only 15 of those deaths were labeled as "suspicious." Steven Miles, a University of Minnesota professor who published a 2002 report called "Concealing Nursing Home Deaths," said almost half of the reported cause of deaths in nursing homes across the nation is wrong. For example, back in 1998 in Arkansas one 78 year old nursing home resident
suffocated while in restraints. The nursing home had claimed he died from natural causes and failed to report the death for nearly two months. The nursing home was only fined $500. Arkansas then became the only state to require a nursing home to report a resident death. No other state, including Louisiana, has enacted such a law.

In 2005, the Times-Picayune reviewed 250 nursing home wrongful death claims. They found that 52 residents died after being dropped by a staff member or falling, 42 suffered a fatal infection from an untreated bed sore, and 22 died from malnutrition or dehydration. NOLA.com says that inspection reports show that most of Louisiana's 300 nursing homes have been cited from 1999 to 2005 for mistakes that harmed or endangered residents. Additionally, during those six years, at least 760 residents have been harmed
by poor care. However, facilities in Louisiana often pay little or no penalty for fatal errors

Family members in Louisiana are starting to mobilize and speak up for their elderly relatives who were wronged in the facilities they were supposed to be comfortable in. From 1999-2005, at least 250 wrongful-death lawsuits were brought against nursing homes, resulting in 88 settlements or jury awards. Experts say nursing homes are less likely to break the rules when they know they'll be punished.

What types of claims can you make for a disappointing experience with a nursing home? Wrongful death is a prominent one. This means that the nursing home's negligence caused one of the elderly resident's death. The tragedy involving Lewis' aunt would be characterized as a wrongful death because not only did the nursing home put her in the whirlpool when she should not have been, but they failed to supervise her, leading up to her drowning.

Additionally, after Hurricane Katrina, a multitude of nursing home residents died as a result of the storm. Several wrongful lawsuits are pending that blame the nursing homes themselves for not mobilizing and evacuating the residents. At Lafon in Orleans Parish, nuns that were in charge of the residents were able to evacuate, but somehow the elderly were left on the first floor of the home, as water seeped in to the home, covering three feet.

More so, a classic negligence claim is possible. Here, the nursing home is careless but thankfully, no death results, just injury. An example would be mixing up medications for patients or leaving residents unsupervised and a potential fight or argument breaks out, leaving some residents with injuries.

Therefore, if you think a loved one died from a wrongful death in a nursing home, contact the Berniard Law Firm Toll-Free at 1-866-574-8005 and an attorney will be more than happy to help you.

Wrongful death. Negligence. We hear these terms thrown out all the time when we read the newspaper or watch TV. Both terms have a similar connotation. We know something "bad" happened to someone, something that should never have happened. However, most people don't really know what these terms mean.

The legal concept of negligence means that someone has suffered physical and/or mental injuries caused by someone else being careless. Negligence is not derivative of an accident - someone else was not diligent and that failure to act properly was the cause of the injury. An example is featured on when a family suffered damage to their home because of an inspector's negligence in failing to report defects in the house.

Residents of Monroe, Louisiana, and the surrounding area are fortunate that a train derailment appears benign. The train derailed the evening of Saturday, February 20th, in the vicinity of Highway 165. Fortunately, other than the damage sustained by the derailed cars and the train tracks, the accident seems to have caused little harm.

According to a report by Zack Southwell that appeared on thenewsstar.com, the cause of the accident was initially unclear and under investigation. But Caldwell Parish deputies have assured the public that the accident poses no danger to the surrounding area. The report quoted Chief Deputy Glen Gilmore as saying, "We had (hazardous materials) crews out here also, making sure the wreck caused no danger. They declared the area safe shortly after midnight [on Sunday]." A representative of Union Pacific indicated that "most of the cars that derailed were empty," but she added that some were carrying a non-hazardous fuel oil additive.

The folks living near the accident site are indeed lucky that the derailed cars were not carrying more hazardous substances. Train derailments are not always so harmless. For example, during a 2008 derailment near Lafayette, the damaged BNSF cars leaked 11,000 gallons of toxic hydrochloric acid onto the ground surrounding the accident site. As reported by newsinferno.com, the acid gathered in yellow pools and emitted vapors that formed a toxic cloud around over Lafayette. The spill forced the evacuation of 3,000 local residents, shut down businesses and closed roads until officials could neutralize the acid and remove all contaminated soil. In addition to lost business and property damage resulting from the accident, several folks required treatment for medical ailments related to the spilled acid.

Large-scale accidents like trail derailments have the potential to cause significant damage and harm, if not handled properly. As illustrated by the 2008 BNSF derailment in Lafayette, chemicals spilled during such accidents can be responsible for many types of injuries – to persons, to property, to business. Hopefully those affected by the Lafayette incident were able to recoup financial compensation for any injury they sustained as a result of the accident. Fortunately, it appears at this time that no chemicals or other hazardous substances leaked from the Union Pacific cars that derailed near Monroe. However, those in close proximity to the site should still keep a close eye on anything out of the ordinary on their property or with their health.

According to a recent article in New Orleans' Times Picayune, Kenneth Allain of Tailsheek pled guilty last month to charges that he permanently injured a 75 year old woman by ramming his car into her while under the influence of prescription drugs. The accident occurred on Louisiana 41 about three miles south of Louisiana 21 in northeastern Tammany Parish. The injured woman, Edythe Proze, was driving in front of Allain and stopped to make a left turn when Allain continued driving, slamming into the back of her vehicle. Troopers at the scene determined that Allain was intoxicated and took a blood sample.

Allain pled guilty to first degree vehicular negligent injuring and was sentenced to ten years in prison: five years for the crash (the max allowed under state law), and five years because he was a repeat offender.

Proze was taken from the scene with moderate injuries. She is now faced with "life-changing" injuries and is living in an assisted-living facility.

Intoxicated/drunk driving is incredibly dangerous and leads to hundreds of deadly accidents a year. In 2008 in Louisiana there were 912 traffic fatalities, 404 of which were alcohol related alone.

Intoxicated driving is taken very seriously in the eyes of the law as well. Not only do offenders like Allain face harsh criminal penalties, but their civil liabilities can be sizable. Typically someone who causes an accident is responsible for the damages created by the accident, which can include being forced to pay medical expenses of those injured, cover the cost of damaged property, and pay for wages that are lost while injured persons are recovering. In addition, when drugs or alcohol are involved, Louisiana law provides for even more damages. Punitive damages, or those meant to punish someone who cause an accident and are awarded in addition to other damages, may also be recovered.

Punitive damages can arise anytime driving has been impaired by some type of chemical substance, whether it be alcohol, narcotic drugs, or even medication prescribed by a physician. Under Louisiana Civil Code Article 2315.4, proving a claim for punitive damages requires proof of three elements:

1. The driver was intoxicated or had consumed enough of an intoxicating substance to lose control of his mental and physical faculties.
2. The intoxication was a cause in fact of the resulting injury. This means that but for the intoxication the resulting injury would not have occurred.
3. The driver had wanton or reckless disregard for the safety of others.

If you or someone you love was injured in an accident caused by an impaired driver, you too may be entitled to collect punitive damages beyond medical expense, lost wages, and other ordinary damages collected in car accident cases. Proving not only the elements of your injury claim but requirements for punitive damages as well will require the help an experienced attorney well versed in this area of law and committed to conducting an intense factual investigation

When Kimberly Carter, a Little Rock, AR, resident, was visiting family in Louisiana in November of 2001, a misstep in a hole in the ground led to a legal battle that would not be resolved until 2010. After suffering an injury from the hole, Carter was transported to Women's and Children's Hospital in Lake Charles. Dr. Clark Gunderson, an orthopedic surgeon, viewed Carter's x-rays and determined she suffered a spiral fracture in her right tibia that would require surgery. Carter chose to stay in Louisiana to have Dr. Gunderson perform the surgery.

After the surgery and some time had passed, Carter would later sue Dr. Gunderson for medical malpractice when a mal-rotation in excess of fifteen degrees was discovered by Dr. Johannes Michael Gruenwald, a board-certified orthopaedic traumatologist at the University of Arkansas Medical Center. Dr. Gruenwald was providing Carter's post-operative care. In August of 2007, Carter filed a suit alleging malpractice by Dr. Gunderson. A three-day trial resulted in a jury verdict finding that Dr. Gunderson had not deviated from applicable standards. This judgment was affirmed on appeal.

According to the Supreme Court case Martin v. East Jefferson General Hospital

In a medical malpractice action against a physician, the plaintiff carries a two-fold burden of proof. The plaintiff must first establish by a preponderance of the evidence that the doctor's treatment fell below the ordinary standard of care expected of physicians in his medical specialty, and must then establish a causal relationship between the alleged negligent treatment and the injury sustained.

This ruling helps illustrate three components a potential plaintiff, and his or her attorney, must consider when determining the likelihood of a favorable ruling. First, it is important to determine the standard of care for not just medical practice in general, but for the specialty in question. Second, one must consider whether the care given fell below that standard. According to Charpentier v. Lammico Ins. Co., the law does not require perfection in medical diagnoses and treatment. Thus, a less-than-perfect result in a surgery such as this will not necessarily result in a favorable judgment for a plaintiff. Third, it must be established whether there is a causal connection between the failure to meet the standard and the increased damage suffered by the plaintiff (whether the failure actually caused some further injury to the patient). This means that even if there was a deviation from the applicable standard, if no harm was caused there will not be a successful claim. That is to say, if a patient suffers additional harm and there was a deviation in the standard, there still might not be a successful claim if it cannot be shown that the deviation caused the harm.

This is not the end of the road for a court analysis or ruling as the analysis above takes place at the trial court level. Like Carter, some plaintiffs will not be successful at this level and will wish to appeal the decision. When a trial court has made reasonable fact findings regarding the components above, an appellate court will not overturn the decision unless there is manifest error. That a reviewing court would have come out differently does not necessarily mean a decision will be overturned; that decision must have been unreasonable given the circumstances.

A good lawyer can guide a potential malpractice plaintiff through these considerations. After suffering an initial injury or illness, plus added damages resulting from treatment, no patient wants to jump into an unsuccessful claim because of a lack of knowledge regarding the components of a malpractice claim. This is why hiring an attorney with your interests at heart, as well as a successful track record with malpractice claims, is very important.

Imagine the following scenario: you are involved in a fender-bender in the parking lot of the grocery store. Your car is taken to the body shop for repairs. Since you need transportation to get to work and other places in the mean time, you rent a car from the local agency. When picking up the car, you'll no doubt be offered liability insurance through the agency--at an additional cost, of course. There may also be coverage available through the credit card you use to pay for the rental. And then there is the policy you maintain on your regular car. Does it extend coverage to the rental?

Louisiana law recognizes a "temporary substitute vehicle," which is commonly defined by insurance companies as a short-term substitute for a car that is out of service due to breakdown, repair, servicing, theft, or destruction. State statute requires automobile insurance companies to "extend to temporary substitute motor vehicles ... any and all such insurance coverage in effect in the original policy." La. R.S. 22:681. In other words, the auto insurer must provide the same coverage to the rental car as was already in place on the regular vehicle.

The recent case of Smith v. Louisiana Farm Bureau Casualty Insurance Company, No. 45,013, Ct. of App. of La., 2d Cir. (2010), explored the definition of "temporary substitute vehicle" in detail. On the morning of May 28, 2005, Brian Smith was driving a 2003 Nissan Altima on U.S. Highway 425 in Morehouse Parish. At the same time, Joshua Pruett was driving a 1998 Dodge Ram pickup truck on the highway in the opposite direction. Pruett's truck was pulling a utility trailer containing crawfish and ice that had been loaded in Crowley. The ball on the truck's trailer hitch was too small for the trailer and Pruett did not use any safety chains to ensure that the trailer remained attached to the truck. The trailer eventually disconnected from the truck, at which point it crossed the highway's center line and collided with Smith's Altima. Smith died at the scene from the severe trauma he sustained in the accident.

Ordinarily, Pruett hauled crawfish for his employer, Broubar, Inc., in a larger Dodge pickup truck that is equipped with a refrigeration cooler biult into its bed. However, on the day of the accident, the larger truck was being repaired, so Pruett's employer substituted the smaller truck. The smaller truck could not hold a cooler for the crawfish in its bed, and so the utility trailer was used instead.

One of the issues before the court on appeal was whether Pruett's truck and trailer, together, would be considered a "temporary substitute vehicle" for purposes of insurance coverage. The insurance carrier who issued the policy for Pruett's usual truck argued that the trial court erroneously treated the truck and trailer as a single unit. However, the Court of Appeals noted that

in order for the [smaller] Dodge to function as a temporary substitute vehicle for the [larger] Dodge, it needed to pull a trailer that could hold a cooler to keep the crawfish refrigerated... Accordingly, we find no error in the trial court's conclusion that the [smaller] Dodge truck and the trailer together constituted a temporary substitute vehicle operating as a single unit.

The Smith case demonstrates the willingness of Louisiana courts to interpret the "temporary substitute vehicle" concept broadly in a way that can significantly benefit plaintiffs. If insurance coverage is not extended to temporary substitute vehicles, a motorist who is injured by a driver operating a substitute vehicle could seek damages only from the vehicle's owner. Even in a situation like the Smith case, where a corporation owned the vehicle, the owner may not have sufficient assets to fully compensate the victim. By extending insurance coverage whenever possible, the courts make it more likely that an accident victim can be made whole.

Continue reading " Tragic Auto Accident in Morehouse Parish Illustrates Insurance Coverage Requirements for Substitute Vehicles " »

In litigation, the term venue means "the location where an action or proceeding may properly be brought and tried under the rules regulating the subject." In other words, for each suit, there is a particular court where the plaintiff should file based on the situation's unique facts. The Louisiana Code of Civil Procedure's general rule of venue states that a defendant must be sued in the parish where he is domiciled (where he lives). LSA-C.C.P. Art. 42.

However, the Code also provides the following exception:

"An action for the recovery of damages for an offense ... may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained." LSA-C.C.P. Art. 74.

One case that illustrates the complexity of venue was Daniels v. Rachal, 610 So. 2d 967 (La. Ct. of App., 1st Cir. 1992). On February 21, 1989, Sheree Daniels visited the Eye Care and Surgery Center (the "Center") in Ascension Parish for an eye exam. Dr. Vincent Rachal performed the examination but failed to diagnose a brain tumor, which was discovered two months later. Daniels filed a medical malpractice suit against Rachal and the Center in Tangipahoa Parish, where she lived. The defendants filed a motion objecting to venue, which Daniels refuted by arguing that her "damages were sustained" in her domicile of Tangipahoa Parish because her illness progressed there. The trial court agreed with Daniels, and the defendants appealed immediately before the trial proceeded.

On appeal, The Court of Appeal considered a similar case involving a legal malpractice claim that had recently been decided by the Louisiana Supreme Court. In Chambers v. Leblanc, 598 So.2d 337 (La. 1992), the plaintiffs filed a suit in their parish of domicile, Livingston, against an attorney who was domiciled in Iberville Parish and practiced in Ascension Parish, for a mistake he made in a matter in East Baton Rouge Parish. The Court concluded that the harm occurred either in Ascension Parish or East Baton Rouge Parish, but clearly not in Livingston Parish; as a result, Livingston was not a parish of proper venue under the Code of Civil Procedure. Applying the reasoning of the Chambers case to Daniels's decision to file in Tangipahoa Parish, the Court of Appeal concluded, "it is clear that [Daniels] was damaged in Ascension Parish where the wrongful conduct occurred. Therefore Ascension Parish is the proper venue in this case." The court then noted that "When an action is brought in a court of improper venue, an appellate court has the discretion to dismiss the action or, in the interest of justice, transfer it to a court of proper venue." Luckily for Daniels, the court elected to transfer the suit to Ascension Parish rather than dismiss.

It is important to note that the Court of Appeal was not required by law to transfer Daniels's suit to the proper parish. Indeed, plaintiffs should never rely on a court to transfer an improperly filed lawsuit rather than dismiss it outright. For this reason, it is critical for a plaintiff to retain competent counsel who understands Louisiana's venue requirements to ensure that a procedural matter like venue does not result in a dismissal of the case before the jury can even hear the evidence.

Continue reading " Medical Malpractice Case Demonstrates the Importance of Proper Venue " »

Breaking news from the Times-Picayune with reports up to 29 workers were injured when a supply vessel struck a gas line 15 miles southeast of Cocodrie.

24 workers in total were evacuated from the scene of the accident, with five other workers transported to the Louisiana Marine Consortium. The Consortium functions as a makeshift medical center to deal with any problems related to the BP oil spill in the Gulf of Mexico.

More information will be posted here as it becomes available.

When you file a claim alleging asbestos exposure, what do you need to prove? This is an important question that, if not satisfied, may be the end of your lawsuit. Simply being exposed to any asbestos is not sufficient to maintain a claim. You, as the plaintiff, have the burden of showing that you were exposed to the defendants asbestos-containing product, and that particular exposure was a substantial factor in causing the damage. Simply showing that exposure to asbestos occurred will not be sufficient.

A 2008 Jefferson Parish case, Thibodeaux v. Asbestos Corp. Ltd., illustrates the importance of producing adequate evidence to support your asbestos claim. Here, the Thibodeaux's filed suit against Eagle Asbestos and its insurer, OneBeacon, alleging personal injuries as a result of their exposure to asbestos, namely mesothelioma. Mrs. Thibodeaux died from mesothelioma that her family claimed was the result of her exposure to Eagle's asbestos at Charity Hospital, where she worked. The Thibodeauxs would eventually lose this case because the court found that the evidence they provided was insufficient to support the claims they alleged. They did not prove that Mrs. Thibodeaux was exposed to Eagle asbestos. Without that, their argument was simply speculation.

So what do you need to prove exposure to a particular defendants asbestos?

To establish exactly what is sufficient and insufficient evidence, the court uses one particular case as an example, Grant v. American Sugat Refining, to show the type of evidence needed to support an asbestos-exposure claim. There, the victim was able to show employment records that placed him on site when asbestos-containing material was present, and affidavits of co-workers and managers stating that the defendant was the only company scheduled to perform the work involving asbestos-containing materials. In this case, the plaintiffs win because they were able to prove that the victim was exposed to the defendant's asbestos. While this is an example, it effectively shows what you need, as a plaintiff, to prove.

To win, the plaintiff in an asbestos-exposure case must show, affirmatively, that he was exposed to defendants asbestos-containing products, and that those products were a substantial factor in causing the plaintiffs injuries. Put differently, you have to prove, with sufficient evidence, that you were exposed to the defendant's particular product, and that the exposure to the defendants product was a significant cause of your injuries.

This is where the Thibodeauxs failed and the Grants succeeded. The Thibodeauxs knew there was some exposure, but they did not present evidence that showed Mrs. Thibodeaux was specifically exposed to Eagle asbestos. Grant was successful because they were able to show that the victim was specifically exposed to the defendants asbestos.

Keep these important requirements in mind when filing your asbestos claim. Make sure you can identify and prove exposure to the defendants asbestos-containing materials.

As the last couple posts have described, some aspects of asbestos cases do not fit within the traditional mold of other personal injury cases. Because these cases continue to be treated as personal injury matters, some of the rules must be relaxed or modified. The Louisiana Supreme Court dealt with some of these modifications in the case of Cole v. Celotex, 599 So.2d 1058 (1992). We look now to explore what the Court had to say about prescription rules that place time limits on a plaintiff's right to file suit for an injury.

Typically, the rules of prescription give an injured party one year from the date they are injured to file a lawsuit seeking damages against the person(s) responsible for the injury. As we have already noted, the time when an asbestos-related injury actually "occurs" is difficult to determine. Thus, the Court in the Cole case ruled that, for legal purposes, the repeated exposure to hazardous substances give rise to a claim. That is true even if the asbestos-caused disease does not manifest itself until later.

Because the time of the injurious event is difficult to pinpoint, the prescription rules are also hard to apply. Indeed, the Court recognized that a brief one year prescriptive period is incompatible with long latency diseases. An injured party may not even realize that he has suffered any harm for years. Thus, Lousiana courts can apply the "discovery" rule to asbestos cases. Under the discovery rule, the prescriptive period does not begin until "the plaintiff knows or through the exercise of due diligence should have known of the injury." Cole, 599 So.2d at 1084. Even then, the prescriptive period only runs on injuries the plainiff knows about or should know about. In other words, a plaintiff will not miss his chance to seek damages for disease he does not know about:

"Simply because a plaintiff knows or should know that he has a cause of action seeking damages for asbestosis, for example, does not mean that he knows or through due diligence should know all of the consequences that might develop later, including separate and distinct illnesses such as mesothelioma or another form of cancer." Id.

The discovery rule makes sense in light of two underlying principles of the prescription rules. First, the prescriptive rules seek to prevent the loss of evidence. In a typical injury case, the evidence - whether physical evidence or witness testimony - gets fuzzier with time. However, the Supreme Court observed that because of the nature of asbestos injuries, "evidence relating to [such issues] tends to develop, rather than disappear, as time passes."

Secondly, the legal system is concerned with properly compensating an injured party. As much as the law does not want to undercompensate a plaintiff, it also seeks not to overcompensate him at the expense of a defendant. Thus, preserving a plaintiff's right to sue for injuries as the injuries become evident prevents a plaintiff from having to guess about any future injuries or diseases that might arise. This fulfills the aims against both undercompensation and overcompensation. A plaintiff does not miss the chance to sue for a legitimate injury, but neither is a defendant forced to pay for an injury that never actually develops.

The complex and severe nature of the typical prescription rules and the asbestos modifications demonstrate the need to obtain qualified counsel as soon as possible. If a disease or condition begins to manifest itself, both medical and legal aid should be sought right away in order to protect and preserve an injured party's rights.

As research has revealed more about the dangers of asbestos and the mechanics of how it causes certain types of lung disease and cancer, medical and social opinion of asbestos has changed. Likewise, the law of asbestos-related injuries has changed in the last half century. For example, one of our blog posts recently discussed how workplace asbestos cases are now typically addressed through workers compensation proceedings rather than traditional personal injury tort law. A decision issued by the Louisiana Supreme Court in 1992 illustrates another change in the law related to asbestos injuries.

Background

The background and procedural history of Cole v. Celotex Corp, 599 So.2d 1058 (1992), is complicated. However, knowing the case is important when trying to understand the significance of asbestos litigation. The plaintiffs in the case suffered asbestos exposure in the course of their work duties and filed suit against twenty individual defendants. The defendants included manufacturers of the asbestos materials the plaintiffs encountered on the job as well as officers of their former employers. Additionally, the plaintiffs added as a defendant Insurance Company of North America ("INA"), the primary liability insurance provider for the officers.

The lawsuit proceeded and moved toward trial. Just before the trial commenced, the plaintiffs and the defendant-manfacturers reached a settlement agreement. As part of the agreement, the manufacturer-defendants admitted legal fault and paid a monetary sum to each plaintiff. Thus, the trial proceeded against the officers and INA, their insurer. At trial, the jury found the officers responsible for the plaintiffs' injuries and awarded each plaintiff monetary damages. As the officers' insurer, INA would be responsible for paying all amounts due as a result of the officers' legal liability.

Multiple Defendants' Liability

Because asbestos cases involve both long-term exposure and a period of latency - or development of the disease - it is not uncommon to see changes in the applicable law during the relevant time period of a case. The Cole case is no different. At issue was a change in how Louisiana law treats multiple defendants' liability for injuries caused.

Prior to 1980, defendants shared financial liability under what is referred to as virile share doctrine. This doctrine divides financial liability equally among all defendants who are found to be at fault. A plaintiff may seek his entire damage payment from any or all defendants. However, any defendant required to pay more than his equal share could seek reimbursement from those who had not paid. In 1980, Louisiana enacted Act 431, which replaced the virile share doctrine with a comparative fault doctrine. Under comparative fault, each defendant is assigned a percentage of fault, and that percentage corresponds to the percentage of the damages each defendant must pay to the plaintiff. (See LSA-C.C. 2323.)

Each scheme has practical consequences for all parties in a lawsuit. For a defendant, comparative fault obviously limits the amount of money he could be forced to pay. If a plaintiff is owed $100,000 from 5 defendants, under virile shares, one defendant may be forced to pay the entire sum and then seek reimbursement from the other defendants. Under comparative fault, if each defendant is assigned 20% fault, the plaintiff may only collect $20,000 from each individual defendant. That is regardless of the plaintiff's ability to collect from the other defendants. (See LSA-C.C. 2324.) This example illustrates a plaintiff's implications as well. He may or may not be able to collect his entire damage award under comparative fault, even if one defendant has the financial ability to pay the entire award.

In the Cole case, a major issue was determining which one of these fault doctrines applied. The Court determined [link to post # 1] that issue based on when the when the exposures to asbestos occurred, legally speaking. Ultimately, the Supreme Court ruled that the plaintiffs' injuries occurred before 1980, the year the comparative fault doctrine took effect. Thus, the virile share doctrine applied. For INA, this had a tremendous impact. The jury in the case had found the officers INA insured to be 95% at fault for the plaintiffs' injuries. Once the case was altered to apply virile share, INA's ultimate responsibility was only 9/20ths of the plaintiffs' award. (Of the twenty defendants, INA insured nine of them; hence, INA is responsible for nine of the twenty virile shares.)

The Cole case demonstrates that, even though the timing of the plaintiffs' injuries are difficult to pinpoint, the legal consequences of that timing are significant. The legal framework that applies to a case may increase or limit the amount of damages a plaintiff will actually be able to recover. In order to fully protect and preserve their rights, persons affected by asbestos exposure should be sure to retain an attorney that is familiar with the complexities of asbestos cases.

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Because of the nature of asbestos-related diseases and the way victims contract them, injury cases involving asbestos can be complicated. Lengthy exposure to asbestos in Louisiana and the long latency, or development, of asbestos-caused diseases take these cases outside the realm of typical personal injury cases. While this framework is not perfect, it still provides asbestos victims an avenue to seek compensation for their injuries.

In the case of Cole v. Celotex, 599 So.2d 1058 (1992), the Louisiana Supreme Court recognized the difficulty of applying pure tort - or personal injury - principles to asbestos cases and handed down several important rules for asbestos injury cases coming after it. By reviewing the Court's analysis of when, legally speaking, an asbestos injury actually occurs, it is our hope that you can better understand the issues involved and how you might be able to receive compensation for any damages you face because of exposure. What's more, determining the legal timeframe is critical, as timing can affect both a plaintiff's right to file suit as well as the law that applies to the case.

The plaintiffs in the Cole case had all been exposed to asbestos during the course of their job duties. They brought suit seeking compensation from several manufacturers of asbestos-containing products. They also sued their former employers, claiming that the employers' negligence and failure to create a safe work environment contributed to the plaintiffs' injuries due to asbestos exposure.

After several appeals, the case landed in the Louisiana Supreme Court. The Court was asked to address several specific issues. Before tackling those, however, the Court had to confront an essential issue of determining the legal timeframe in which an asbestos injury occurs. The Court recognized that this is one aspect of tort law that does not operate well in asbestos cases. In its ruling, the Court stated

"Simply put, the requisites for asserting a [tort] cause of action are 'a wrongful act and resulting damages.' The problem with the suggested approach, however, is that the concepts upon which it is based were designed for handling traditional tort suits, and those concepts are inept for identifying the key 'events' giving rise to a cause of action for long-term exposure to asbestos in the workplace."Cole, 599 So.2d at 1065.

The Court continued, citing some federal court decisions:

"The factual predicate giving rise to potential liability from asbestos exposure is simply different from those that generated most tort doctrines [and] thus such cases differ in legally important aspects from the types of injuries that present tort doctrines were designed to accommodate." Id.

Because of both the "slow development" of asbestos-caused diseases and the "lengthy latency period" typical of most, there is a "temporal separation" between a defendant's injurious conduct and the appearance of a plaintiff's injury. That separation is somewhat unique to asbestos injury cases. In a car accident injury, for example, the injury, the act that causes the injury, and the moment at which those occur are readily evident. In contrast, the characteristics noted by the Court - slow development and latency - make determining the date of an asbestos injury "virtually impossible, medically and legally." Id. at 1066.

Regardless of the difficultly of "pinpointing" the exact time of an asbestos injury, the Court recognized that the timing of the injury affects several aspects of a case. Thus, it concluded:

"The key relevant events giving rise to a claim in long-latency occupational disease cases are the repeated tortious exposures resulting in continuous, on-going damages, although the disease may not be considered contracted or manifested until later." Id.

Thus, instead of trying to identify a single act that led to the injury, the Court was willing to accept the whole range of injurious conduct. While that seems like a straightforward and common-sense approach, it is still important to have the rule state as much.

Because relevant aspects of the law had changed during the time period involved in the Cole case, determining the time the injury occurred was essential to determining which law applied. Also, the Court discussed how the rules of prescription must be relaxed to accommodate long-latency diseases, an aspect dealing with the time a plaintiff has to bring a lawsuit. Make sure to return to this blog in the coming days for more information on this topic or click over to our section dedicated to mesothelioma and asbestos for more information.

Accidents happen and when they do people wonder just how much can be considered when calculating damages. Many wonder "what happens when someone who is already injured is in an accident?" What's more, if someone already had a bad knee, for example, can the defendant be held responsible for further damage to that knee. The Eggshell Plaintiff Rule helps explain the aggravation of existing injuries.

In a 2000 case, the Louisiana Supreme Court set out the Eggshell Plaintiff Rule but still reversed the Court of Appeal' finding of damages because the trial court's decision of no aggravation of injuries did not meet the high manifest error standard.

In April 1996 Mary Touchard drove a friend to Carnecro to pay her electric bill. While leaving the parking lot of the power company, Touchard's car was hit from behind by a pickup truck driven by Ted Breaux. Ms. Touchard did not have the ambulance called and complained of a headache at the scene while Breaux claimed he was not entirely at fault for the accident and that vehicular impact was minimal. Ms. Touchard sued Breaux and his insurance company, however, claiming she suffered mental and physical injuries in the accident.

Ms. Touchard was a bit of a unique plaintiff in that she had an extensive history of both car accidents and physical and mental impairment, the timeline of which is as follows:

1961-automobile accident causing fractured cervical vertebra 1965-automobile accident causing concussion, whiplash, chest wall contusions, and a severe traumatic lumbosacaral strain 1972-accident causing concussion, cervical and lumbar strain and requiring surgery Continued complaints of pain through 1970s, second surgery in 1979 1980s-continued severe pain--causing irritability and moodiness 1987-admitted to clinic for drug and alcohol abuse due to pain medication 1987-fourth accident 1993-started counseling at Cypress hospital after attempting to take her own life. Treated for anxiety disorder, post traumatic anxiety, and depression resulting from chronic pain.

Under the Eggshell Plaintiff Rule, defendants take plaintiffs how they find them and are responsible for all natural and probable consequences of their tortious conduct. If a defendant's negligent action aggravates a pre-existing injury or condition, he must compensate the victim to the extent of the aggravation. This means that if Mr. Breaux's conduct in driving the car that struck Ms. Touchard's car was found to have aggravated her pre-existing mental and physical injuries, despite how bad they may have been, he must compensate her for the aggravation.

The trial court in this case heard testimony from Ms. Touchard's doctors and several of her friends. The testimony was consistent in stating that she had emotional problems before and after the accident. Her psychiatrist was questioned as to whether she exhibited any objective signs of exacerbation after the accident and he replied that his findings (that she had) were only based on subjective information provided to him by Ms. Touchard. He also pointed to several factors that occurred after the accident that could have contributed to her depression. While Ms. Touchard's friends testified that she changed after the accident, their description of her behavior was consistent with that of prior to the accident. As such, the trial court found she did not suffer new injuries or an aggravation of existing injuries as a result of Mr. Breaux's conduct.

According to the Louisiana Supreme Court, these findings were supported by the record and were not clearly wrong. Therefore, because reviewing courts may only change decisions that are clearly wrong or show manifest error and may not substitute their judgment for the judgment of a trial court, they erred in reversing the trial court's findings that Ms. Touchard's injuries were not exacerbated in her accident with Mr. Breaux. As such, the Louisiana Supreme Court reversed the Court of Appeals and reinstated the trial court's finding of no liability.

In cases involving pre-existing injuries, it is important for an individual who has been harmed to hire an attorney that can conclusively help them receive the judgment they deserve. By utilizing expert testimony and navigating the perilous and tricky nature of litigation, the proper attorney will successfully get for his or her client the judgment they deserve. With extensive experience in this field, the Berniard Law Firm is willing to discuss over the phone or in person the legal rights of a potential client and help them receive the compensation they deserve for suffering as they did from the mishap.

Samuel Silverman Jr. was injured while working for BJ Services Company, a contractor for Bass Enterprises Production Company, hired to provide services on an oil well in Cado Parish. The injury was to Silverman's knee and occurred because a hoist operator employed by another contractor at the site, Mike Rogers' Drilling Company, dropped a cement head and pinned his knee against a derrick.

Silverman sued Rogers' Drilling, alleging that the negligence of their employee (the hoist operator), caused the accident. Rogers' Drilling tried to get around liability by filing a third-party demand against Bass under a provision in the contract between Rogers' and Bass wherein Bass, as operator, agreed to indemnify Rogers, as contractor.

According to the provision, indemnification included a release of any liability and agreement to protect, defend, and indemnify against all claims, demands, and causes of any kind without regard to negligence of any party. Can such a strong indemnity clause be upheld under Louisiana law and the Louisiana Oilfield Anti-indemnity Act (LOAIA)? The trial court found the provision to be against the LOAIA and thus null and void, and in a decision this summer, the Louisiana Court of Appeals agreed.

The LOAIA, or La.R.S. 9:2780 provides as:

null and void and against public policy of the state of Louisiana any provision in any agreement which requires defense and/or indemnification, for death or bodily injury to persons, where there is negligence or fault (strict liability) on the part of the indemnitee, or an agent or employee of the indemnitee, or an independent contractor who is directly responsible to the indemnitee.

The law specifically applies to contracts involving wells for oil, gas, water, or drilling for minerals and was enacted to stop perceived inequities faced by certain contractors.

Bass filed peremptory exceptions of no cause of action where he argued that the indemnity provision he was sued under was in violation of the LOAIA and against the public policy of the State of Louisiana. Rogers' Drilling disagreed and argued that the LOAIA should be interpreted according to a legislative intent theory and that as such should not prevent small oilfield contractors (like himself) from receiving indemnity under a Louisiana contract. According to Rogers', he essentially "worked for" Bass, and smaller contractors were what the statute was intended to protect .

The trial court and Court of Appeals disagreed however and found that the statute should be interpreted according to its plain language only. As long as the law is "clear and does not lead to absurd consequences," it should be applied as it was written. Courts only need to look to context, or legislative intent, when the text of a law is ambiguous. The language of the LOAIA is not ambiguous in the least. Any indemnity agreement pertaining to an oil well which requires an indemnitor to indemnify an indemnitee for an indemnitee's own negligence that caused death or bodily injury is null and void.

This case teaches an important lesson about statutory interpretation in Louisiana. Courts will not look beyond the text of a statute to determine what it means unless they have to. That is, unless the words in the statute are susceptible to more than one meaning, an examination into legislative history and intent will not be undertaken.

Medical malpractice insurance is a big expense for health care providers. The average award in 2006 for medical malpractice claims was $521,560. To alleviate the financial burden on individual providers, the State of Louisiana created the Louisiana Patient's Compensation Fund.

Under Louisiana Revised Statutes 40:1299.44:

State health care providers are automatically entitled to be covered by the fund. Private health care providers are eligible for coverage as well. The liability of each qualified health care provider is limited to $100,000 plus interest, per patient, per incident. Any judgments, settlements, or arbitration orders in excess of $100,000 per provider are paid out of the Patient's Compensation Fund.

To illustrate how the fund works, we look at a 2003 Court of Appeals case involving the Southwestern Louisiana Hospital Association in DeRidder, Louisiana. Divorced parents brought individual actions against a doctor for his negligence in causing their son's death. The doctor admitted fault and paid $100,000, the maximum amount he is individually responsible for. The Compensation Fund then paid $250,000 to the father, and an additional $400,000 to the mother, bringing the total damages to $750,000.

The total amount awarded in this case actually exceeds the $500,000 maximum damages amount in a medical malpractice case. Section 1299.42 states:

The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.

The single $500,000 cap applies collectively to all claims which flow from one act of malpractice resulting in a victim's injury or wrongful death. Future medical costs are paid as they are incurred from the Patient's Compensation Fund.

Because the $750,000 award in the above case was well beyond the limit, the damage award was reduced to reflect the $500,000 limit on medical malpractice damages. The mother's award was subsequently reduced from $400,000 to $150,000 to reflect the limit.

Louisiana Patient's Compensation Fund Recap:

(1) Medical Malpractice awards limited to $500,000
(2) $500,000 cap applies collectively to all claims which flow from one act malpractice
(3) $100,000 maximum liability for individual health care providers
(4) Future medical expenses are covered by the fund

More than 98,000 people are killed each year as a result of medical errors. The rights of the deceased are protected in court through what is called a survival action, which allows the relatives to file a claim in place of the deceased for conscious pain and suffering, damage to person/property, and medical expenses. Survival actions are commonplace where a doctor's negligence caused someone's death.

The law was unsettled, however, on whether parents could bring a survival action for an unborn/stillborn child. A 2010 Louisiana Court of Appeals case addressed this very issue:

Carli Long, 7 months pregnant, was injured in a car accident. She was pinned in her vehicle and was ultimately diagnosed with a hip fracture. She was admitted to the ER shortly after the accident where the attending nurse charted a fetal hart rate of 120. Two hours later, nurses were unable to detect a fetal heart rate. Long underwent a cesarian section to deliver the stillborn child. She subsequently filed a survival action on behalf of her unborn child.

Louisiana Civil Code article 26 provides that

An unborn child shall be considered as a natural person for whatever relates to its interests fro the moments of conception. If the child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death (does not include survival actions).

In 1997, a Louisiana court, addressing the issue of an unborn child's right, stated

A cause of action can be pursued only if the fetus is subsequently born alive. A survival action for damages suffered by a stillborn fetus clearly does not fit within this first exception because the stillborn fetus is not born alive. Because it is born dead, it is as though it had never existed and the cause of action it acquired became conditional on its live birth. (Wartelle v. Women's and Children's Hospital, Inc.)

A survival action is based on the victim's right to recovery being transferred upon the victim's death to the beneficiary. Therefore, a baby's rights transfer to the parents upon the child's death, if and only if the child was born alive. Under Louisiana law, a stillborn fetus cannot transfer any rights because it has acquired none. Rights are only acquired in a live birth.

Although Long was unable to recover for her survival action under Louisiana law because she delivered a stillborn child, it is important to pursue all possible options. Long may still have had a valid claim for negligence or wrongful death against her nurse or doctor.

Distracted driving is a huge problem in Louisiana. In fact, according to a study of the Louisiana Highway Safety Commission, at any given time, at least one of every eleven cars on the road is driven by someone using a cell phone. The Study was commissioned by the legislature in an effort to help policy makers understand how dangerous mixing cell phones and driving truly is. Specifically, a survey of street corner observers noted that on average 9.2 percent of drivers were using hand-held phones at any given time, slightly more than the national average. A summary of the complete results of the study can be found here.

Distracted driving leads to traffic accidents and facilities, and according to other studies, distracted drivers are at increased risk of crashing. However, despite a threefold increase in cell phone use in the last decade, crash trend data in Louisiana and nationwide has decreased overall. This does not mean that using a cell phone while driving is not a distraction or that distracted driving is not incredibly risky. Rather, some questions exist over how much the distraction contributes to a crash. Drivers tend to slow down when talking on the phone, which may be the reason crashes overall have not increased. The reality is that the risk posed by driver phone calls is difficult to measure, particularly distinguishing between handheld and hands-free phone calls.

Many different solutions have been proposed to deal with the distracted driving problem. For example, a Baton Rouge firm is selling a new device that actually restrict cell phone calls and messaging when the user's vehicle is moving. State and federal legislators have proposed changes as well.

Current Law in Louisiana and Proposed Changes

Right now it is illegal in this state for any driver to text. What's more, it is illegal for novice drivers and those 17 and younger to use the phone at all. Some wonder, though, if that is enough. State Rep. Austin Badon of New Orleans doesn't thing so and is bringing a bill this year that would ban hand-held cell phone use by drivers across. The same proposal failed last year. Badon discussed his legislation with the Times Picayune in a recent article and said:

There's more credible evidence this year that Louisiana needs to go hands-free... Louisiana needs to be on the front end of passing this legislation.

Badon is not the only one with something to say about this hot button issue. Rep. Neil Abramson of New Orleans has filed a bill that would make it easier to find fault in a collision if one of the drivers was using a hand-held communication device. If passed, this legislation would affect those who go to trial to recover damages after a car accident occurs because it would make it easier to prove negligence. Rep. Charmaine Marchand Sitaes, also of New Orleans, has filed a bill to prohibit licensed commercial drivers from using hand-held phones while on the road. Given that the current texting law only calls for a traffic violation as a secondary action when someone is pulled over for another infraction (like speeding), Sen. Butch Gautreaux of Morgan City has proposed legislation to create a primary offense for drivers who text.

Proposed Changes to Federal Law

U.S. Senator David Vitter also has ideas. Vitter is currently co-sponsoring a bill that offers federal incentives to states that outlaw hand-held phone calls and texting while driving. The bill would direct the U.S. Secretary of Transportation to make $94 million in federal grants to states that enact such laws so that they can start national education programs on the issue and make other traffic safety improvements.

Louisiana's other Senator, Mary Landrieu, is co-sponsoring a bill to prohibit drivers from texting, taking away federal highway funds from states that don't pass their own legislation.

Overall it is important to know that liability for accidents can lead to culpability issues and problems with insurance companies or, at worse, the law. Through discovery or fact-finding efforts on the part of their attorney, someone involved in an accident can find out answers to what caused a collision. By doing this, responsibility can be attributed to the individual texting while driving and justice for the victim of a client can be achieved.

Almost every person who is admitted at a hospital has had to deal with a nurse at some point. Nurses, like doctors, are responsible for providing medical care to patients and can be subject to liability if they deliver treatment that falls below the standard set forth by the law of proper care. A 2010 case centering around the Willis Knighton Medical Center in Bossier City, Louisiana, discusses the standards required of a nurse.

Mr. Reilly was admitted to the ER with multiple pelvic fractures after a horse had fallen on top of him at Louisiana Downs. After surgery, doctors inserted a catheter to alleviate bladder pressure. Reilly was cared for by several nurses in the following months who removed and reinserted additional catheters. Reilly alleged that on numerous occasions, the nurses were negligent in the removal and insertion process, leaving him impotent and in need of additional surgery to correct the damage that he had suffered from this process.

To file a medical malpractice claim against a nurse or doctor, you must establish the:

(1) standard of care applicable to the nurse/doctor
(2) that the nurse/doctor breached that standard of care, and
(3) that the nurse's/doctor's actions were causally related to the resulting injury

Standard of care is usually established with expert testimony; perhaps a nurse/doctor in a similar field that can show how an ordinary professional in that situation would have behaved. Showing that the nurse/doctor's actions deviated from the standard is less intensive and is typically established by a close examination of the facts.

More importantly, however, and the reason why Mr. Reilly ultimately lost his claim in the case mentioned above, is to show that the nurse's/doctor's negligence was the proximate (most direct) cause of the accident. Your claim cannot survive without this element. What this requires is demonstrating in court that but for the improper care demonstrated by the medical expert, your harm or damage would not have been suffered. Mr. Reilly was unable to prove that the catheter procedures were the specific reason for his damage.

While claims against the nurse or doctor may seem the most obvious path to take, another avenue of relief may be against the hospital itself. The doctrine of respondeat superior says that employers are responsible for the negligent acts of their employees if the act is performed during the normal course of duties. Liability for the nurse's behavior can be assigned to the medical facility and viewed in light of the employee's actions. Claims addressing respondeat superior are attractive to patients because the pocket of the medical facility is typically much larger than that of the individual nurse or doctor.

If you are a victim of nurse/doctor negligence, consider your options. Your choice of defendant may have a significant effect on the dollar amount of your recovery. Perhaps what is an even more important choice is the legal representation you select for your litigation. By carefully selecting an attorney with extensive experience in medical malpractice suits, settlements and trials, you can insure that you do not fall into the unfortunate class of people who never receive the justice they deserve.