Louisiana Personal Injury Lawyer Blog

When filing a complaint, the attorney needs to make sure that they are bringing in the correct parties and including the right claims with their legal action. Mistakes can result in losing the entire case before it even begins thus focusing on even the smallest details can save a complaint from utter failure.

As careful as one may try to be in forming a complaint, mistakes do happen. This aspect was explored in Glasgow v. Par Minerals Corporation, where an oilfield explosion and subsequent fire at a wellsite near Kinder, Louisiana, significantly injured a direct employee of Therral Story Well Service (TSWS). Par Minerals had contracted with several companies to drill the well for oil and gas, one of the companies being TSWS. The employee who was injured initially filed a tort suit against Par Minerals alone, including Avery Graves as the on-site supervisor for Par. The latter part of the petition was wrong as Avery Graves was the president and sole-shareholder of Pipe Services.

This mistake resulted in two supplemental and amended petitions, leaving Par as the sole defendant. Over one year later, a third supplemental and amended petition added to Par, Pipe Services and its insurer, Colony Insurance Company. Thus, the final petition had three defendants, one named within one year of the accident, and two named over one year after the accident. The timing of the amendments and petitions are extremely important, because had the latter of the two defendants been named within one year of the accident, the entire result of the case may have come out differently. Again, focusing even on the smallest details can help save a case from failure.

Overlooking details, including dates of decisions rendered within the case, can have enormous consequences. Specifically, the direct employee/appellant mistakenly appealed the wrong judgment in the motion for devolutive appeal, the employee stated he had been "aggrieved by the ruling rendered and signed on December 28, 2009, where the Court granted Pipe Services exception to prescription." The only problem with that appeal was that December 28, 2009, was not the grant of an exception to prescription. Rather, the exception to prescription was granted on December 5, 2009.

The appellant did catch a lucky break, however, when the Court ruled that the situation was analogous to Kirkby - Natus, where the defendant also appealed the wrong decision. The Court held that appeals are highly favored by the courts, and should not be dismissed unless there is substantial cause and, unless the grounds urged for dismissal are free from doubt, the appeal will be maintained. So, the question was whether or not appealing a decision based on the wrong date of decision could still be maintained even though there was a blatant mistake in the appeal. The court held that the appellant was clearly intending to appeal from a judgment different than the one identified in the petition for appeal, and both parties treated the appeal as if it were taken against the intended judgment, and it is apparent that the error was neither misleading nor prejudicial to either party.

Timing is everything in a case, and whether or not the time requirements are met determines the life span of the case. Louisiana has specific time requirements that must be met in order for a complaint to survive. For example, for a delictual action, there is a liberative prescription period of one year. Essentially, this means that if a complaint has not been made with all relevant parties within one year of the incident in question, prescription may bar the suit. Prescription may be interrupted, however, by filing suit in a court of competent jurisdiction, and this interruption is granted for the solidary obligor as well as their successors. But, it is important to note that the parties must be named in order for the prescription to be interrupted. This was the problematic issue the Court explored as well in Glasgow v. Par Minerals Corporation. The appellant added parties after one year, thus failing the necessary time requirement to interrupt prescription when he filed the initial suit. The appellant attempted to rely on the argument that since he filed a tort suit against his statutory employer, Par Minerals, the running of prescription in favor of the sub contracted company, Pipe Services, was interrupted. However, there is absolutely no case law to support his argument, in fact, case law holds to the contrary.

Courts have allowed interruption of prescription when the initial claim was failed as a worker's compensation suit. This was the case in Williams v. Sewage & Water Board of New Orleans, when an employee was killed after his crane came into contact with a power line, and electrocuted him to death. The successors of the deceased employee filed a worker's compensation claim and then subsequently, past the one year prescriptive time period, attempted to add the manufacturer of the crane he had operated at the time of the incident. The Court held that the timely filed worker's compensation suit interrupted prescription as to the following claims against the third party tort-feasor for damages. After the Williams decision, Louisiana's jurisprudence has maintained (Layman v. City of New Orleans, 753 So.2d 254, 98-705 (La.App. 4 Cir. 1998),; and Williams v. Holiday Inn Worldwide, 816 So.2d 998, 02-762 (La.App. 4 Cir. 2002)) that a tort suit filed against a statutorily immune employer does not interrupt prescription as to third party tort-feasors. Thus, the court will not allow a party to add parties after the one year prescriptive period when they initially filed a tort suit.

Thus, the Courts may forgive but they do not easily forget. Human error, such as making the mistake in terms of a date of a decision, is one thing. However, attempting to circumvent prescriptive periods are another. Therefore, as mentioned at the beginning of this piece, do not overlook the small details as it may be the small things that can destroy a case before it even begins. By hiring an experienced attorney that is careful with these matters and makes sure to cover these issues, you can make sure that you do not fall victim to these problems.

While many people receive much of their legal understanding from popular tv shows and movies, the fact remains that very real legal concepts are often explored. Regardless of your television preferences, the terms remain the same in real life litigation that often involves great tragedy and turmoil for all parties involved. Medical malpractice. Negligence. These two legal terms have unique meanings and can determine many aspects of a case.

Medical malpractice concerns professional negligence committed by a health-care provider such as a hospital, dentist, doctor or similar professional. A medical malpractice action centers around the behavior of the professional and his use of medical practices that depart from the normal care or skill that other similar professionals with similar experience utilize, that ultimately results in harm to the patient. General negligence, on the other hand, concerns conduct of a person that fails to meet the standard of care a reasonable person in their position would have exhibited in whatever the situation may be. Clearly, general negligence is a broader cause of action than medical malpractice.

This comparison recently became crucial in a wrongful death lawsuit against Pendleton Methodist Memorial Hospital. The facts concern Ms. Althea LaCoste, who passed away after Hurricane Katrina knocked out Pendleton's power supply. The Times-Picayune reported that although the hospital was prepared with emergency generators to fight through the storm, the generators lacked the improvements necessary to withstand the storm's raging water levels. Consequently, Ms. LaCoste's life support machine failed.

The Louisiana Supreme Court allowed the plaintiff in this case to proceed on a theory of general negligence, as opposed to medical malpractice. According to the Louisiana medical malpractice laws, damages are capped at $500,000, whereas damages are not so limited if a trial is allowed to proceed under a general negligence theory. The Chicago Tribune reports that just a few weeks ago, the Illinois Supreme Court ruled that the state's cap on medical malpractice damages was unconstitutional. The Court was mainly concerned with the idea of the legislative branch interfering with one of the rights of the judicial branch, that is, the right of a jury to come to its own conclusion about damages. Louisiana is currently embroiled in intense debate over whether to reform its own laws in this area as well.

The difference between medical malpractice and negligence is obviously crucial. We will provide more information on the state of the medical malpractice damage cap as it becomes available as well as any unfolding medical malpractice and general negligence cases of interest.

In Louisiana, actions in tort must be brought within a certain period of time after the incident occurs. This is called the "prescriptive period," and reflects the state's position that "a plaintiff is responsible to seek out those whom he believes may be responsible for a specific injury," Jordan v. Employee Transfer Corporation, 509 So.2d 420, 423 (La. 1987), and to file suit within a reasonable period of time. The specific prescriptive period for a given tort is set by statute. For example, the prescriptive period for damage to immovable, or real, property is one year. LSA C.C. Art. 3493. The one-year period "commences to run from the day the owner of the [land] acquired, or should have acquired, knowledge of the damage." LSA C.C. Art. 3493. A plaintiff's knowledge of damage is often closely connected with the concept of "constructive notice," which has been defined by Louisiana courts as "whatever notice is enough to excite attention and put the injured party on guard or call for inquiry." Campo v. Correa, 828 So.2d 502, 510-511 (La. 2002).

The expiration of the prescriptive period for property damage was central to the case of Hogg v. Chevron USA, Inc., No. 2009-CC-2632 (La. 2010). The Hogg family owned property in Ruston that was located next to Burt's Chevron Station. In 1997, it was discovered that the gas station's underground storage tanks were leaking. The tanks were replaced, after which the Louisiana Department of Environmental Quality (LDEQ) investigated for soil and groundwater contamination. In December 2001 and April 2002, the LDEQ sent the owners of property around Burt's Chevron, including the Hoggs, letters informing them of the environmental contamination. The first letter, dated December 20, 2001, reported that environmental contamination had been detected in the vicinity of Burt's Chevron as a result of a leaking underground storage tank system. The letter explained that the contamination had been detected in the subsurface soil and groundwater, and appeared to be migrating in a "west-northwesterly direction," toward an unnamed stream on the Hoggs' property. The letter further reported that water samples collected from the stream indicated "the presence of chemicals commonly found in gasoline (i.e., benzene, toluene, ethylbenzene, xylene)." The letter specifically warned the Hoggs: "Due to the direction of groundwater flow, there is a possibility that gasoline may have migrated underground from the Burt's Chevron site to your property or that such migration may occur in the future." The second letter, dated April 26, 2002, contained the results of ambient air sampling which revealed the presence of petrochemicals in the area of the stream. A map enclosed with the letter showed that the tests were actually conducted on the Hoggs' property. The LDEQ also recommended that the Hoggs "limit the time spent in the area immediately adjacent to the stream."

The Hogg family did not file suit against E. Lee Young, the owner of Burt's Chevron, until September 6, 2007--shortly after they were contacted by the LDEQ to request permission to enter their property to conduct clean-up. In the district court, Young filed a motion for summary judgment arguing that the one-year prescriptive period for filing the tort action had expired. Young's theory was that the period began to run when the Hoggs received the letters from the LDEQ in 2001 and 2002, as the letters provided them with notice of the presence of gasoline on their property. The Hoggs countered that the LDEQ's letters were subject to more than one interpretation, thereby rendering the reasonableness of the Hoggs' lack of response a question of fact that should go to a jury. The district court denied Young's motion, finding issues of fact about whether the LDEQ's letters provided knowledge of damage sufficient to start the running of the prescriptive period.

On appeal, the Supreme Court of Louisiana essentially reframed the nature of the dispute. The court stated:

"the dispute in this case centers around whether the information conveyed in the letters was sufficient to commence the running of prescription. Thus, while the question of subjective knowledge is ordinarily inappropriate for resolution by summary judgment, such a question is not presented here. In this case, there is no question as to what the plaintiffs knew and when. Plaintiffs' knowledge is contained in the letters. The question presented is whether this knowledge constitutes actual or constructive knowledge sufficient to commence the running of prescription."

The court found that "a plain reading of the LDEQ letters reveals that while it is arguable that the letters do not, as the district court concluded, specifically inform plaintiffs that the soil and groundwater on their property is contaminated, it is beyond peradventure that they provide sufficient information to excite attention and put plaintiffs on guard and call for inquiry." In conclusion, the court held that the Hoggs had "acquired constructive knowledge of the damage to their ... property sufficient to commence the running of prescription no later than 2002." Thus, their suit filed in 2007, well beyond the one-year period, was barred by prescription.

The decision in this case reveals the serious approach that the Louisiana courts take in enforcing the prescriptive period. Plaintiffs must always keep in mind that state law limits the amount of time they can wait before filing a suit. Although, in the words of the Hogg court, the prescription period "should not be used to force a person who believes he may have been damaged in some way to rush to file suit," it is clear that the courts are not sympathetic to a plaintiff who does not act even when given a reasonably good indication that he has suffered a loss due to someone else's conduct. For this reason, anyone who feels he may have been injured should seek the advice of counsel immediately to ensure that an expired prescription period does not ruin his day in court.

On July 24th in Lincoln Parish, two trucks collided on I-20 leaving one dead and several injured. While traveling east on I-20, a Chevy Suburban attempted to pass a GMC truck hauling a livestock trailer. The Chevy Suburban swerved right hitting the GMC truck and both vehicles ran off the road. The vehicles struck the tree line, the Chevy Suburban striking several trees before stopping. The front-seat passenger of the Chevy Suburban was pronounced dead at the scene. Two backseat passengers suffered minor injuries, and the 16-year-old driver of the Chevy Suburban was in critical condition. The driver and passenger of the GMC truck sustained moderate injuries. Three cows in the livestock trailer died in the crash.

It is unclear whether the accident was due to a mechanical defect, driver error, or another cause. Louisiana State Police say that impaired driving is not a likely cause of the accident, but they are awaiting routine toxicology tests to make the final determination. All passengers were wearing seatbelts, and so far no citations have been issued.

The determination of whether the accident is due to a mechanical defect or driver error is critical to determine the claims to file and the parties to bring a lawsuit against. An attorney hired by an injured party may investigate whether the owner of the vehicle negligently maintained the vehicle. To establish negligence, the attorney must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the actual and proximate cause of the injury, and damages. Investigation of negligently maintaining the vehicle requires that the cars are examined and that the evidence is preserved.

The plaintiff may also have a claim for damages under the theory of products liability. Under a products liability cause of action, the focus is on the supplier's liability for a product that caused physical harm to a person or to property. For products liability the same injury may be brought on several theories including intentional torts, negligence, strict liability, or liability based on breach of an express or implied warranty.

As the accident report indicated, driver error may have caused the accident. If a claim is brought in negligence, the driver is held to a "reasonable person" standard of care. The question placed before the court in these cases is "Would a reasonable person behave this way under the same or similar circumstances?" In this case, the driver of the vehicle was 16 years old. Minors are held to the reasonable person standard of care of a person of similar age, intelligence, and experience. However, when minors engage in adult activities, such as driving vehicles, the child is held to the same standard as an adult.

It is also possible that a lawsuit may be filed under a wrongful death cause of action for the front seat passenger that was killed in the accident. Wrongful death statutes provide a legal remedy for wrongfully causing the death of another human being. The applicable Louisiana Civil Code wrongful death statute is under Book 3, Title 5, Chapter 3, Article 2315.2 and states, "If a person dies due to the fault of another, suit may be brought [...] to recover damages which they sustained as a result of the death." Negligence claims may also be brought on behalf of the injured passengers.

Claims may also be filed for property damage that was sustained by the vehicles, the damaged treeline, and the cows that were killed. Property damage is recoverable in negligence, with the recoverable damages in negligence cases remaining compensatory rather than punitive.

If you are involved in an accident, remember that you will need an experienced and knowledgeable attorney to represent you in order to navigate the complexity of the claims to file so that you are compensated for your injuries.

Continue reading " Lincoln Parish Truck Crash Demonstrates Need for Attorney Assistance " »

Asbestos was once used to make many common products including insulation, roofing materials, automobile brake pads, and other household and commercial goods. Beginning in the mid-1960s, asbestos was also regularly used as an additive for drilling mud in well-drilling operations by the petroleum industry. Drilling mud is used while drilling oil and gas wells to help clear debris out of the well and to help cool the drill bit. Various substances are often added to the drilling mud to adjust its thickness and fire retardant properties. Many of these, including lead, arsenic, and chromium, are toxic. Asbestos provided superior fire resistance and helped to improve the mud's consistency. Unfortunately, we now know that asbestos is linked to several types of cancer and other health problems.

The use of asbestos in drilling mud has been eliminated today; however, when it was first prohibited by the U.S. government, some petroleum companies apparently took the position that the federal ban did not apply to their offshore oil rigs or inland drilling barges. Thus, asbestos products may have been used in these environments even as late as the mid-1980s. Many drilling workers can recall working with a flaky, white additive that was packaged in 50-pound bags and mixed into the drilling mud in the mud shack. No proper breathing protection was provided to the workers who handled the mud additives, so many of these workers routinely inhaled pure asbestos fibers while mixing in the additives. Other oilfield workers such as roughnecks, mud engineers, and shaker hands also were likely exposed to asbestos on a regular basis during this timeframe. Even spouses and children of drilling workers were at risk of exposure if the workers came home with asbestos fibers clinging to their clothing.

Asbestos fibers are known to cause or increase the risk of many forms of cancer. The danger is highest among smokers, who face a substantially increased incidence of lung cancer. Studies have also shown a connection between asbestos exposure and gastrointestinal cancer, colorectal cancer, and a heightened risk for cancers of the throat, kidneys, esophagus, and other organs. Exposure is also linked to inflammation of the lungs, known as asbestosis, as well as pleural disease, which is inflammation of the tissue layers that line the lungs.

It is common for workers who have been exposed to asbestos to go for years before symptoms start to appear. Usually, early signs of exposure include shortness of breath and chest pain. A doctor can test for asbestos-related damage by using a stethoscope to listen for the characteristic sounds of the disease in the lungs. Xñrays or even more accurate CT scans can provide visual confirmation of exposure and the resulting damage.

Although a drilling worker's exposure may have happened years ago, the chemical companies that manufactured the asbestos and the oil companies who exposed their workers to the asbestos may still face liability today. Workers who were exposed to asbestos while working with gas or oil on an oil rig, oil platform, or other structure may qualify for compensation under maritime law. If you worked in a drilling operation in the 60s, 70s, or 80s and believe you may have been exposed to asbestos, you should contact an attorney who can inform you of your rights without delay.

Continue reading " Oil Rig Drilling Mud a Source of Asbestos Exposure for Workers in the Petroleum Industry " »

A July CNN report has brought to light a lawsuit filed against Louisiana school officials for repeatedly handcuffing and shackling a 6 year old. The lawsuit has been filed by rights advocates and the child's parents on behalf of children in the Louisiana Recovery School District, a statewide entity managed by the Louisiana Department of Education. The superintendent of the district, and school officials and security officers at the school, Sarah T. Reed Elementary, were named in the lawsuit as well.

According to the suit, the 6 year old boy was handcuffed and shackled for "minor offenses," involving a shoving match with another student. The School District stands behind the behavior of their employees and has indicated that the incident was an isolated one. They did not arrest the student or terminate the employee involved. The school principal, Daphyne Burnette also defended the school's action, going so far as to state that it is school policy to handcuff "out of control" students, and that if children fail to follow rules in the future, they will be handcuffed. The plaintiffs in the lawsuit disagree with this policy and have argued that the punishment methods crossed the line and that the conduct was "unreasonable and excessively intrusive."

The child's father, Sebastian Weston, claims that his son's life has been forever changed because of the incident.

What do you do if your child is somehow hurt by overzealous school officials? And what if the damage is not physical? Can you recover damages for emotional harm caused to your child at school? If there was intentional conduct on the part of the school or official and the conduct resulted in extreme emotional distress, the answer is yes.

Intentional Infliction of Emotional (or mental) distress is a tort claim that allows for recovery of damages if a defendant:

1. Acted intentionally or recklessly;
2. The conduct was extreme or outrageous;
3. The action was the cause of distress to the injured party;
4. The emotional distress was severe.

The intent of the act does not need to be to bring about emotional distress to qualify. For example, here, if school officials did not intend to cause the child severe emotional distress but had reckless disregard for the likelihood that such conduct could cause emotional distress that is sufficient.

The conduct also needs to be extreme and outrageous, which means that it goes beyond the standards of civilized society. Illegality of the conduct is irrelevant. Here, it may be legal for school officials to handcuff a child to a chair under corporal punishment laws. However, most would agree that to handcuff and shackle a 6 year old for failing to follow directions is heinous conduct that is intolerable in civilized society. Courts look at several factors to determine if the extreme and outrageous standard was met, several of which could easily apply in this case, including: whether there was a pattern of conduct, whether the plaintiff was vulnerable and the defendant was aware of that fact, whether the defendant was in a position of power.

Finally, the emotional distress suffered must be severe. The severity is quantified by the intensity, duration, and physical manifestations of the distress. Calling an expert witness or professional psychiatrist would be very helpful in this type of claim to prove the severity of the emotional duress since physical manifestations are sometimes difficult to pinpoint.

If you or your child has suffered severe emotional distress due to someone else's extreme or outrageous conduct you may have a claim for damages. Because the claim requires proving such subjective elements as "extreme conduct" and "severe emotional damages", having an experienced attorney on your side who will do the leg work to collect all necessary background information and ensure the best experts will testify on your behalf is absolutely necessary.

Continue reading " Class Action Lawsuit Filed Against Louisiana School Officials for Handcuffing and Shackling Student " »

Car accidents oftentimes are not simple, clear-cut events that lend a clear idea of who was right and who was wrong. Instead, many times it is left to a court to decide what the circumstances were that led to the collision and the amount of responsibility each party had for it occurring. As a result, because no court is perfect, individuals who have been harmed due to another party's acts are left out in the cold because they could not prove their case. However, each year new technology comes out that provides a better opportunity for plaintiffs, and their attorneys, to prove their case and receive the compensation they deserve.

One firm, Advanced Research and Technology (ART) Corporation, works with the very technology required to prove cases. Utilizing Finite Element Analysis (FEA), commonly referred to as computer simulations, the company provides compelling engineering evidence to explain the cause of a crash-related case. FEA's due this by calculating the kinematics of the investigated accident (speeds, relative motion, different parts of accident) and structural analysis (where the cars collided and relevant stresses, strains, failures, energy displacements, etc.). By analyzing this information, FEA can help plaintiffs win cases related to auto and motorcycle crashes, airbag and seatbelt related problems, structural analysis relating to accidents or blasts, slip and fall cases, fuel tank and pipeline pressure analysis and a variety of others.

FEA simulations are widely recognized by the engineering community as a reliable and advanced tool for solving structural dynamics, crash, blast and impact-related matters. Automotive companies often use FEA for car testing in the same way that highway safety systems are designed using the technology. The reliability of FEA comes down to the simulator being able to develop accurate formulations or equations to explain how the millions of small elements involved in a collision react when variables are at a certain set. Because of its ability to determine how a car will behave in a collision and the effects of a collision, technology experts are able to move backwards and determine what variables were in place to lead to the results suffered.

Being able to go backwards and determine the cause is crucial in cases where the alleged cause of the problem/accident has been removed from the scene. For example, should a faulty guardrail cause a fatality, a simulation may be required should that guardrail be removed along with the wreckage of the cars and be discarded. What's more, the simulations done and formulas executed by the computer are not something easily, or affordably, done by hand. What's more, there are a plethora of court cases where FEA techniques were used as evidence in a court. This admissibility, coupled with the cost-effective manner it can determine an accident (often 20% of the cost of a single crash test), makes this technology incredibly important.

Technology like the one described above is a key component of complex litigation and it is important that you hire an attorney willing to use state of the art techniques to help prove your case. To speak to an attorney about how to best prove your car collision case, call our offices today. For more information on this technology, head to www.artengineer.com.

Louisiana courts, like those in most other states, enforce a prohibition in jury trials known as the "golden rule." During a closing argument, the plaintiff's attorney may not ask the members of the jury to imagine themselves in the place of the plaintiff when deciding how much to award the plaintiff in damages. The rationale for prohibiting such a request is that the jury's sympathy may be unfairly invoked, resulting in an inappropriately large award of damages. So, while the jury should not be asked to imagine themselves going through the same experience that the plaintiff endured, the plaintiff's attorney may simply direct the jury to consider the pain and suffering the plaintiff has been through.

An alleged violation of the golden rule was one basis of the appeal in Tingle v. American Home Insurance Co., No. 10-71 (La.App. 3d Cir. June 11, 2010). On March 5, 2006, Brian Montgomery was driving his tractor-trailer while intoxicated in Lake Charles. He ran a red light and slammed into the car of Levi and Tasha Tingle. The Tingles' two-year-old daughter, Madison, who was also in the car, was killed; her parents suffered severe injuries. The Tingles settled with Montgomery's employer, Boots Smith, for the limits of his primary liability insurance policy. The Tingles then filed suit against Smith's excess insurance carrier, American Home Insurance Co. At the trial, the jury awarded the Tingles over $10 million in damages, of which approximately half were punitive damages.

On appeal, American argued that the trial court erred in permitting the Tingles' attorney to "implore the jury to put themselves in the [Tingles'] shoes." (The court did not include in its opinion exactly what the Tingles' attorney said in his closing argument.) But the court declared that it "prefer[s] to allow the trial court latitude to conduct a trial," citing a line of Louisiana cases espousing the view that

"Great latitude is permitted in argument before a civil jury, subject to regulation by the trial court whose duty is to confine argument within proper bounds." Temple v. Liberty Mutual Insurance Company, 316 So.2d 783 (La.App. 1st Cir. 1975).
"Unless the contrary is shown, the trial court's rulings regarding alleged improper argument are presumed to have been made within the trial court's discretion. Luquette v. Bouillion, 184 So.2d 766 (La.App. 3rd Cir. 1966).

Incidentally, the court also dismissed by the same reasoning American's similar argument that the trial court erroneously permitted the Tingles' counsel to prejudice the jury by emphasizing that Montgomery was from out-of-state. The court noted that American objected to this "home cooking" during the trial, but the trial judge apparently "did not find [it] particularly inflammatory." As a result, the court found "no abuse of the trial court's great discretion" in overruling the objection.

Although this appeal was ultimately resolved with the Tingles' receiving sizable damage awards, things could have turned out quite differently if the trial judge had found their attorney's statements inflammatory or prejudicial. With so much discretion afforded the trial judge, it would be foolish for a plaintiff to risk making an argument that could result in a mistrial at such a late stage, only further delaying a damages award. For this reason, a plaintiff should always select competent trial counsel who can deliver a compelling and persuasive closing argument while avoiding the prejudice minefield.

A power failure at Chalmette Refining LLC has led to a thin layer of white powder descending upon Southeast Louisiana, raising concerns about the toxicity and potential harm that could emerge from exposure. Citing a power failure for the reason that up to one ton of catalyst were released into the air and falling down atop cars, homes, businesses and other property, the company has attempted to assure the public that safety is not a concern. However, the care that the refinery recommends during clean-up tells a much different story.

Spreading across the communities of Arabi and New Orleans' lower ninth ward, the powder used for refinery processes resembled simple dust or powdered sugar and alarmed many during a time in which little to no information can cause significant panic. Taking place on September 6th, many in these communities are left wondering just why chemical releases keep happening and what is being done to prevent them from happening.

Louisiana's Department of Environmental Quality (DEQ), already investigating the unapproved release of catalyst, has notified the public that, after photographic any and all damage the powder has caused to their property, they can move forward with clean-up. Yet, in their required notice to the DEQ, the Chalmette refinery warned that gloves and safety glasses should be used when cleaning up the material. St. Bernard Parish Fire Chief Thomas Stone warned that the powder could be an irritant to individuals with respiratory problems and that the powder should be cleaned in order to prevent extended exposure.

This is not the first time that Southeast Louisiana has found itself on the receiving end of chemical releases. Aside from the BP oil spill that released hundreds of thousands of gallons of oil into the Gulf, the July 7th, 2009, release of ethyl acrylate by Dow in Hahnville led to hundreds of complaints related to health problems of individuals living or working in the area. While no legal outcome has come from this matter, it is important that people in Louisiana understand the unacceptable nature, both legally and in terms of common responsibility, for these incidences to be occurring and requires significant action on the part of the Department of Environmental Quality.

As was already noted, individuals who find the powder on their homes or property should photograph this in order to preserve record of the event. What's more, any individual who has suffered health problems related to exposure should contact a legal expert immediately to find out their rights due to this incident.

In November of 2005, Shane Kerry checked into the ER at West Calcasieu Cameron Hospital in Sulphur, Louisiana after fracturing the heel bone in his right foot. Kerry was examined by Dr. Charles Pearson, who discharged him later in the day with instructions to report for a follow-up at the LSU Medical Center in Shreveport the following week. As he was being transported back to his home, Kerry detoured to another ER, this time at the Christus St. Frances Cabrini Hospital in Alexandria. There, Kerry underwent surgery on his heel by a podiatric specialist. In September of 2008 Kerry filed a suit against Dr. Pearson, alleging that as a result of "delay, negligence, and deviations from the standard of care" on Dr. Pearson's part, he suffered "extreme disability, loss of sensation, and tissue necrosis with loss of muscle, tendon, skin, and subcutaneous tissue" around his heel. Kerry argued in his complaint that Dr. Pearson was negligent in failing to immediately decompress his foot, perform surgery, call in an orthopaedic surgeon, or arrange for his immediate transport to a hospital willing to properly treat him.

According to Louisiana procedure in medical malpractice cases, Kerry's complaint was submitted to a state medical review panel. On June 5, 2009, the panel returned a unanimous opinion that "the evidence [did] not support the conclusion that [Dr. Pearson] failed to comply with the appropriate standard of care as charged in the complaint." Accordingly, Dr. Pearson filed a motion for summary judgment with the trial court, requesting that the suit be dismissed on the grounds that Kerry could not establish that Dr. Pearson had failed to meet the applicable standard of care in his treatment of Kerry's foot.

In support of his motion, Dr. Pearson included the written opinion of the medical review panel, the affidavits of two doctors who sat on the review panel and who held licenses to practice emergency medicine in Louisiana, the medical records from Kerry's visit to the ER at West Calcasieu Cameron Hospital, and the discharge summary prepared by the podiatry specialist who treated Kerry at Cabrini Hospital. In his response, Kerry offered the affidavits of his mother and brother, both of whom suggested that there were clear indications that Kerry was in dire need of surgery when he entered the West Calcasieu Cameron ER, but that Dr. Pearson refused to perform it because Kerry lacked health insurance and couldn't afford the procedure. Kerry also attacked the accuracy medical records from his stay at that hospital, alleging that Dr. Pearson prepared them and that they did not reflect the severity of his injury. The trial court granted Dr. Pearson's motion and dismissed Kerry's claim because it "did not find that the submissions at th[at] point [were] adequate to establish a genuine issue of material fact as to the burden that is required under the unique specialization of medical malpractice." Kerry appealed.

The Third Circuit Court of Appeals reviewed the state of medical malpractice law in Louisiana:

"Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony." Samaha v. Rau, 977 So.2d at 884 (La. 2008).

In examining the record, the court concluded that the trial court was correct in holding that Kerry failed to offer sufficient evidence to establish that, during a trial, he would be able to prove that Dr. Pearson was negligent. The court's decision rested heavily on the fact that Kerry was unable to produce any expert testimony to support his negligence theory. Thus, the court concluded that Pearson's motion for summary judgment was properly granted, and affirmed the decision.

This case is yet another in a line of examples demonstrating the uniqueness and complexity of medical malpractice lawsuits. The testimony of an expert witness is absolutely essential for establishing the standard of care and explaining how a doctor failed to meet it. Even in cases of so-called obvious negligence, a plaintiff's case is nearly always made stronger by the opinion of a qualified expert. Here, Kerry was not even able to tell his story to a jury because he had expert to rely on to back up his theory of negligence.

Continue reading " Calcasieu Parish Medical Malpractice Case Shows Complexities of Delays, Negligence " »

In June 2007, Chadwick Dukes and his daughter, Skylah, were driving on La. Hwy. 983 in West Baton Rouge Parish. Their car was struck by a vehicle driven by Paul Declouette and owned by Sheryl Rogers. The following May, Dukes filed a lawsuit on behalf of Skylah seeking to recover damages for the injuries she sustained in the crash. Dukes named as defendants Declouette, and the Imperial Fire and Casualty Insurance Company, which was Declouette's as-then unknown insurance carrier.

Shortly thereafter, Imperial Fire was identifed and admitted that it had issued an auto liability policy to Declouette that was in effect at the time of the accident. Dukes added Imperial Fire as a named defendant and then signed an agreement to release Declouette and Rogers from the suit. As a result, on November 20, 2008, the trial court entered a judgment to dismiss Dukes's claims against Declouette. Imperial Fire immediately filed a motion for summary judgment, asserting that it could not be found liable because Dukes released its insured customer (Declouette) by agreement without a reservation of rights. Imperial Fire relied on the language of the insurance policy, which obligated the company to pay damages for any injuries for which

An insured person becomes legally responsible because of an accident arising out of the ownership, maintenance, or use of a covered vehicle.

Imperial Fire reasoned that Declouette could never be found liable for the accident because he was specifically released by the agreement with Dukes; given that Declouette could never be legally responsible for the accident, neither could his liability insurance carrier. The trial judge granted the motion for summary judgment, dismissing all claims against Imperial Fire, and Dukes appealed.

In the case styled Dukes v. Declouette, No. 2010 CA 0045 (La. App., 2010), the First Circuit Court of Appeals examined the language of the release agreement between Dukes and Declouette. The court concluded that "although Dukes did not specifically reserve the right to proceed against Imperial Fire in the settlement, it is evident that [Dukes] intended to release ... Declouette in his capacity as an insured under that policy." Because Imperial Fire was not even involved in negotiating the release, the court reasoned, the company should not be able to benefit from the release.

In addition, the court affirmed that "Louisiana law has consistently held that a liability insurer and its insured are co-debtors in solido," a term that means that two or more parties are each completely and equally responsible for what is owed. Further, under modern law, "a reservation of rights is not required to be included in a release to protect a settling plaintiff's right to pursue claims against non-settling solidary obligors." In essence, the court concluded, it was not necessary for Dukes to include a statement in the release agreement reserving his right to sue Imperial Fire even after releasing Declouette. Thus, the court reversed the summary judgment in favor of Imperial Fire and sent the case back for a full trial.

Although the Court of Appeals sided with Dukes in this case, it is clear that the outcome could have been vastly different if the language of the release had been drafted in some other way. The courts are not sympathetic to plaintiffs who agree to release potential defendants from liability only to turn around later and attempt to sue. And inadvertence does not get far with the courts. For this reason, it is critical to have an experienced attorney on your side through every step of the litigation process to ensure that any settlement agreements or releases you may enter into are as strategically beneficial as possible.

Continue reading " West Baton Rouge Parish Car Accident is a Cautionary Tale for Plaintiffs Who Sign Releases " »

In the town of Duson, a mother of a child slain in a car accident is frustrated and discouraged by the legal system after years of delay in the prosecution of the responsible driver. What's more, there now remains the possibility that charges may be lessened against the man charged in her son's death. This situation is an extremely unfortunate one but does illustrate the differences between civil and criminal litigation, as well as the standards involved.

21-year-old Shawn Lancon was killed when the driver of the vehicle in which he was a passenger drove their vehicle into oncoming traffic while attempting to make a left turn. The driver, the man charged in Lancon's death, was under the influence of alcohol and drugs at the time of the accident. This accident took place in 2007. Three years later, delays in going to trial are still anticipated and now the defense is trying to lessen the criminal charges from vehicular homocide to a first-offense OWI. The OWI charge comes with considerably less jail-time, leading to the anger being expressed in the community.

The reasons for all of these issues are varying. The defense is attempting to lessen the criminal charges by insisting that the blood alcohol level is not high enough for a vehicular homicide, and also that the positive drug test should be excluded because the drugs detected by the drug test does not prove that the drugs were "active" at the time of the accident. Procedural delay is slowing the calendar for trial, due to courts having to postpone cases in Lafayette, Acadia, and Vermillion parishes due to a legal dispute within the court system regarding the allotment of judges.

The delay is importantly going to also delay the plaintiff's ability to sue in civil court.
After a criminal conviction, the plaintiff is often able to bring suit in civil court under
negligence and wrongful death causes of action. In civil court, the plaintiff may bring suit under a negligence cause of action. In a case of negligence, the plaintiff must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the acual and proximate cause of the injury, and damages.

Also under civil law, wrongful death statutes provide a legal remedy for being responsible for the death of another human being. Historically, under common law, a wrongful death cause of action was not available and only criminal law was an option. Under statutory law, however, a person can be held responsible in civil court in addition to criminal court for wrongful death.

The applicable Louisiana Civil Code wrongful death statute is under Book 3, Title 5, Chapter 3, Article 2315.2. The Code Article states

If a person dies due to the fault of another, suit may be brought [...] to recover damages which they sustained as a result of the death." Under the statute, among the claimants that may bring suit under the statute include the mother of the deceased child in this case.

The burden of proof in a civil case is also a lesser standard when compared to criminal cases. In a civil case, the plaintiff must prove guilt by a preponderance of the evidence. For example, in a negligence case the plaintiff must establish by a preponderance of the evidence that a duty of care has been breached. The burden of proof in a criminal case has a much higher threshold. In a criminal case the plaintiff must prove guilt beyond a reasonable doubt. The lower threshold when suing the responsible party directly makes it easier for the plaintiff to recover in civil court.

If you have a case in criminal court, remember that a civil case can also be brought and that you will need a knowledgeable attorney experienced in civil law matters to assist you in recovering the damages that you deserve.

John C. Elliott, 26, of Zavalla, Texas was driving a 1999 GMC pickup east on LA.8 and he lost control while passing another vehicle in a curve. He collided with several trees before the truck stopped on La. 8 facing the other direction. Elliot was injured seriously and taken to Lake Charles Memorial Hospital. There were two passengers in the car.

As reported in the Leesville Daily Leader

His two passengers,19-year-old Susie Dixon and an infant, both of Zavalla, Texas, suffered minor injuries and were transported to Byrd Regional Hospital.

Police believe Elliott was impaired by narcotics. He was charged with driving while impaired, child endangerment, careless operation, no driver’s license, and passing in a no passing zone.

In addition to having to deal with criminal charges, Elliott will most likely face civil repercussions from the accident. In Louisiana the person found to be at fault for an automobile accident is financially responsible for all damages created by the accident. Damages that can be collected include compensation for medical expenses, property damage, and pain and suffering. The situation as to who is at fault may be more complicated when there are two drivers who contribute to the accident. Because Louisiana is a comparative fault state if an injured party is found to be partially at fault for his accident, his damages are reduced by his percentage of fault.

Here, however, there was only one car involved in the accident. If the driver, is found to have acted negligently in causing the accident he will be found at fault and will be liable for injuries to his two passengers. Negligence means that the driver’s standard of care fell below that a reasonable person would be expected to exercise in the situation. Negligence has several elements, proving them requires research and an excellent understanding of the facts of the case. There are other places to look for support for a fault finding as well. For example, if a police report has been filed and there is any mention of a traffic law violation or careless driving it can show the driver was at fault.

A civil lawsuit is very different from criminal charges. A criminal case is filed by a state prosecutor and if convicted the defendant can face fines, incarceration, or other penalties. If a defendant is found guilty in a civil suit they must pay restitution to the plaintiff who was injured by their negligent action. In a civil lawsuit the plaintiff must prove by ‘preponderance of the evidence’ that the defendant committed the negligent action and that the action caused damages. Preponderance of the evidence means that the plaintiff’s version of the facts is more likely to be true than not true. This standard is lower than the standard required to be successful in a criminal case.

If you have been injured in a car accident and believe that your injuries were caused by the negligent action of another person, you may be entitled to be compensated. It is vital that you have a hardworking, dedicated attorney on your side.

Lamar Richardson of Joyce brought an action against his employer, Kansas City Southern (KCS) Railway Company, for injuries he claims to have sustained on May 14, 1990 when he was working on a maintenance crew. While clearing debris off train tracks, Richardson was cutting limbs from a large willow tree on the track at mile post 149.8 in Winn Parish and claims he was struck with a large limb and injured.

Richardson sued KCS under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq for medical expenses, mental anguish, and lost wages that resulted from the alleged injury. He contended that his employer failed to provide a safe workplace and was negligent in not adequately supervising the clearing of trees or training personnel in how to cut trees. Richardson claimed his injuries kept him from working and eventually led to a need for cervical disc surgery. The case went to trial in 1994 and 1995. Judgment was entered in June 1998 in Richardson’s favor and he was awarded medical expenses of $3,869.75, general damages of $150,000, and lost wages of $525,435.00. The major contention presented during the trial was Richardson’s report that he visited the emergency room Jackson Parish Hospital on May 15th after the pain in his neck intensified. Hospital records do not confirm the report but rather show he visited the ER three days prior to his alleged injury on May 11, 1990 where he complained of, among other things, neck pain that had lasted about a week. The emergency room had no record of a visit on May 15. Richardson claimed that he drove his son to a basketball event in Hammond on May 11 and therefore could not have gone to the emergency room. Witnesses at trial corroborated his testimony and the jury found his account more convincing than the hospital records which Richardson claimed had been made in error.

KCS appealed, and in their April 1, 1999 decision, the Louisiana Court of Appeals reversed. The court found that the Richardson failed to show that the date in the hospital records was inaccurate and that the idea that the records were created in error is implausible and not supported. The court also found that Richardson’s claim that he was treated by a particular doctor and nurse when he visited the hospital on May 15th was impossible given the testimony of those individuals. Finally, Richardson made no claim that the hospital intentionally falsified medical records or provide a motive for them to do so. The court found the hospital records to be accurate and reliable. Medical records are typically considered to be inherently reliable given that health care providers rely on them in making life and death decisions. As such, the plaintiff sought medical treatment for neck pain prior to his alleged injury and was not entitled to damages from his employer.

The FELA is a federal law specifically geared at protecting railroad workers who are exposed to additional inherent risks due to the nature of their job. FELA was designed to provide a statutory federal negligence action for railroad employee and are their exclusive remedy for workplace injuries. On appeal, a court will not reverse an FELA case unless they find complete absence of probative fact to support the fact-finder (jury) conclusions.

This case demonstrates how fact intensive workplace injury cases can be. As here, courts sometimes deal with the difficult decision of whose account of an accident is correct given conflicting testimony or medical records. If you have been injured at work it is vital that your attorney be willing to put forth the effort needed to ensure facts are presented clearly and effectively. This requires extensive case preparation, witness selection, and the use of expert testimony if needed.

Continue reading " Louisiana Workplace Injury Judgment in Favor of Joyce Man Reversed " »

In November 2000, Debra Anne Addis of Addis, Louisiana filed a request for review with the Louisiana Patient’s Compensation Fund alleging that Mary Eschette M.D. of LSU Medical Center acted negligently in changing her prescription medications and violated the appropriate standard care in failing to properly diagnose a problem with her left wrist. The medical review board entered their decision in September 2003 and concluded that Ms. Addis failed to show that the defendant’s did not meet the applicable standard of care in her treatment. Two and a half years later the defendant doctor and medical center filed a motion for summary judgment and submitted the medical review panel opinion, asserting that the plaintiff Ms. Addis failed to name an expert despite almost six years of discovery.

The Louisiana Court of Appeals (first circuit) entered their decision in March of last year in favor of the defendants. The court found that the record of the case showed Ms. Addis failed to submit any evidence to counter the medical review panel’s opinion or show she could meet her burden of proof should the case go to trial. Therefore, the court granted summary judgment to the defendants and ordered the Plaintiff to pay all costs associated with her appeal.

The granting of a summary judgment motion means that a case will not proceed any further because the plaintiff has failed to present evidence showing sufficient issues of material fact that can be decided by a jury. Therefore the decision is decided by the court as a matter of law. Summary judgment motions can be granted for the plaintiff or defendant. Here, the motion was granted for the defendant, effectively dismissing Ms. Addis’ case.

In Louisiana injured patients may bring claims against health care providers under the Louisiana Medical Malpractice Act. When such actions are brought they are screened by a panel of one non-voting attorney and three competent doctors to determine whether the evidence proves that the physician or facility failed to act according to the appropriate standard of care or whether they were negligent, incompetent or acted unlawfully. If the patient is successful in her claim, a portion of the damages is then paid out of the Louisiana Patient’s Compensation Fund. The decision of the panel is considered expert testimony and is admissible against a plaintiff. The members of the panel may even be called as an expert witness during court proceedings.

If, as here, the defendant submits a medical review panel opinion in support of a motion for summary judgment, the plaintiff can no longer rely on the allegations in her pleadings to prove her claim but must present evidence establishing genuine issues of material fact. This often requires the expert witness testimony of a doctor that can contradict the findings of the review board. Ms. Addis and her attorney had over six years to find a doctor and get such testimony but according to the court, failed to do so.

Ms. Addis may have been able to get past the defendant’s motion for summary judgment in this case if her attorney had taken the time and effort to employ a competent expert witness to testify on her behalf. In medical malpractice cases expert witnesses are often expensive, but necessary, in order that the injured individual have the greatest chance of recovery.

In certain situations, a person that witnessed another get physically injured has a legal claim against the person that caused the physical injury—even when the witness suffered only mental anguish, without any direct physical injury. The rule allowing this recovery is known as the bystander recovery rule.

Louisiana’s bystander recovery is governed by Louisiana Civil Code Article 2315.6 and the Louisiana Supreme Court case of Trahan v. McManus. As stated in Trahan, the bystander recovery rule does not "compensate for the anguish and distress that normally accompany an injury to a loved one under all circumstances." Rather, the bystander recovery rule is more limited and has four requirements in order for a bystander to recover damages for his mental anguish from witnessing another’s injuries.

Those four elements are:

1. The bystander must be closely related to the injured person. Specifically, the bystander must be the spouse, parent, grandparent, child or grandchild of the injured person.
2. The injured person must suffer a significantly grave harm so that it’s reasonable to expect the bystander to suffer serious mental anguish or emotional distress from witnessing the incident.
3. "The bystander’s mental anguish or emotional distress must be severe, debilitating, and foreseeable," as quoted from Article 2315.6.
4. The bystander’s mental distress must immediately, or almost immediately, follow witnessing the defendant’s actions that caused the direct victim’s injury.

The best way to explain the basics of the bystander recovery rule is by example. A good example of failing to satisfy the bystander rule is the Trahan case. In Trahan, a child was in the hospital. The doctor negligently elected to not treat the child and told his parents that the child would be fine. The parents then took the child home, where he later died.

Although the first three requirements of the bystander rule were met, the fourth requirement was not: The parent’s mental anguish from witnessing their child die occurred well after the doctor’s negligent failure to provide medical treatment. "There was no observable harm to the direct victim that arose at the time of the negligent failure to treat, and no contemporaneous awareness of harm caused by the negligence."

Conversely, the following is a good example of satisfying the four elements of the bystander recovery rule. A mother is playing in her front yard with her eight year old son. A drunk driver veers off the road and into their yard, killing the child but leaving the mother untouched. Unlike the Trahan example above, here, the mother suffers from mental anguish immediately after the defendant’s action of crashing his car into her son.

If you’ve witnessed a traumatic event and, as a result, suffered mental anguish, it’s imperative that you seek legal representation. Cases involving bystander recovery involve many legal questions, such as whether the mental anguish was foreseeable, whether the mental anguish was sufficiently contemporaneous and more.

Continue reading " Understanding the Law: Bystander Recovery After Tragedy Strikes " »