Louisiana Personal Injury Lawyer Blog

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The blog will resume in 2011.

In 1988, Louisiana enacted the Louisiana Products Liability Act (LPLA) which provides for strict liability causes of actions against manufacturers of alledgedly defective products. This case is important because the ruling provides a guideline in which lawyers can litigate their client's cases and attempt to provide them the financial recovery they deserve.

Under the LPLA, set forth in La.R.S. 9:2800:53(A):

The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristict of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticapated use of the product by the claimant or another person or entity.

The cause of action against a manufacturer must identify whether the manufacturer fits into the LPLA's definition of manufacturer. Louisiana Revised Statutes 9:2800:1(a)-(c) provides that a manufacturer is:

a person or entity who is in the business of manufacturing a product for placement into trade or commerce ... producing, making, fabricating, constructing, designing, remanufacturing, reconditioning or refurbishing a product ... labels a product as his own or who otherwise holds himself out to be the manufacturer of the product... incorporates into the product a component or part manufactured by another manufacturer.

A manufacturer can also include

A seller of a product who exercises control over or influences a characteristic of the design, construction or quality of the product that causes damage [or a] seller of a product of an alien manufacturer if the seller is in the business of importing or distributing the product for resale and the seller is the alter ego of the alien manufacturer.

The second part of the cause of action against a manufacturer is whether or not the product was unreasonably dangerous. The Louisiana Revised Statutes 9:2800:53(B)(1)-(4) further provides that a product is "unreasonably dangerous" when the product is unreasonably dangerous in construction or composition, in design, when not provided with adequate warnings, or when the product does not conform to an express warranty.

The third part of the cause of action against a manufacturer must determine whether the damage is arises from a reasonably anticipated use of the product. As with all torts, a plaintiff must show causation. This is a subject that can be found discussed thoroughly in earlier blog entries.

The LPLA governs litigation against manufacturers and is, in fact, the exclusive remedy against manufacturers. The LPLA also provides a standard that if all the elements are not met may allow manufacturers to try to dismiss the case completely. This can be seen in the following case heard recently by the Court of Appeals, Third District.

On March 9, 2004, four boys in rural Rapides Parish were walking through the woods and found an oil well pump attached to a moving pendulum. Two boys attempted to "ride" the pendulum, but only one succeeded. However, this thirteen year old boy's high spirits and adventure only ended in injuries when his pants became entangled in the other parts of the pump while the pendulum continued to move upward. The mother of this boy brought suit in her name and her son's name against the manufacturer of the oil jack pump, Lufkin Industries, as well as other defendants. In response, Lufkin Industries filed a Motion for Summary Judgment.

As the Third Circuit Court of Appeals explained, "[a] motion for summary judgment is a procedural device to avoid a trial on the merits when there is no genuine issue of material fact." Lufkin Industries argued that the mother failed to show that riding the pendulum was a "reasonably anticipated use" of the oil well pump and supported this argument by assertions that the oil well pump was for the sole purpose of extracting oil and did not "reasonably anticipate" that the pendulum would be ridden. The Court also explained that in a Motion for Summary Judgment, Lufkin Industries, as the moving party only has to "point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." By doing that, the burden of proof shifts to the mother.

The mother demonstrated that Lufkin Industries should have reasonably expected that children would try to "ride" the pumping unit by presenting testimony that an employee of Lufkin Industries had heard of a fatal accident in Shreveport where another teenager attempted to "ride" a pumping unit as well as introducing evidence of three cases in other states where children were injured "riding" a pumping unit. The trial court determined that the mother's evidence was insufficient and granted the manufacturer's Motion for Summary Judgment. On appeal, the Third Circuit reversed allowing the mother to continue the case.

As is illustrated by the above case, the LPLA and the trial process is complex. Failure to prove one element can act as an end point on the entire case. If you or someone you know has been injured by a product, please seek legal help.

Continue reading " Mother Successfully Appeals Motion for Summary Judgment Against Her Case " »

As we have discussed previously on this blog, summary judgment is a procedural device for expediently resolving a case without a full trial where there is "no genuine issue of material fact." Johnson v. Evan Hall Sugar Co-op, Inc., 836 So.2d 484, 486. (La. App. 1st Cir. 2002). It is well settled in Louisiana that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact" and that party requesting judgment is entitled to it as a matter of law. See La. Code Civ. P. Art. 966(B). A trial court's analysis of whether summary judgment is proper can involve the review of a considerable volume of documents which may contain conflicting information. The First Circuit Court of Appeals recently ruled on a summary judgment motion in a medical malpractice case that turned on the trial court's treatment of the defendant doctor's deposition and subsequent affidavit.

On June 9, 2007, Percy Bethley, 80, was admitted to Baton Rouge General Medical Center Mid-City ("BRGMC") with breathing difficulties. He had a five-year history of serious heart and lung disease. Bethley underwent various treatments in the hospital and received a pulmonary consultation by Dr. Reza Sheybani. After examining Bethley, Dr. Sheybani decided to replace the Bethley's tracheostomy tube. A respiratory therapist, Cecilia Eason, was brought in to perform the replacement. Eason had great difficulty with the procedure and, sadly, as a result of a series of further complications, Bethley expired.

Following Bethley's death, his widow and children (the plaintiffs) filed a medical malpractice complaint with the Louisiana Patients' Compensation Fund. The panel found that the evidence supported the possibility that Dr. Sheybani failed to meet the applicable standard of care and that his conduct had been a factor in Bethley's death. The plaintiffs then filed suit against BRGMC and Dr. Sheybani, alleging that Dr. Sheybani and the hospital employees who treated Bethley negligently contributed to his death. BRGMC answered and filed a motion for summary judgment. Dr. Sheybani responded with a pleading that opposed summary judgment and which included a personal affidavit that contained his own expert medical testimony. This testimony was offered to prove that genuine issues of material fact existed in the case: Dr. Sheybani alleged that Eason, a BRGMC employee, had been negligent in her treatment of Bethley. BRGMC then filed a motion to strike the affidavit of Dr. Sheybani, which the trial court granted after a hearing. The trial court also granted BRGMC's motion for summary judgment, and dismissed with prejudice the plaintiffs' claims against BRGMC. Dr. Sheybani filed a motion for devolutive appeal.

On appeal, BRGMC argued that the trial court's granting of its motion for summary judgment was proper because "the affidavit of Dr. Sheybani was self-serving and drafted in an attempt to create a false issue of material fact sufficient to defeat summary judgment." BRGMC relied upon Douglas v. Hillhaven Rest Home, Inc., 709 So.2d (La. App. 1st Cir. 1998), for the point that a party's affidavit which contradicts his prior deposition testimony is not sufficient to create an issue of fact which precludes summary judgment. BRGMC also relied on Wheelock v. Winn-Dixie Louisiana, Inc., 822 So.2d 94 (La. App. 1st Cir. 2002), as authority for the position that "where there are unexplained inconsistencies between deposition testimony and a subsequent affidavit, the affidavit is not sufficient to create a genuine issue of material fact ... in order to defeat a motion for summary judgment."

In response, Dr. Sheybani justified his affidavit by citing La. Code Civ. P. Art. 967. This article establishes that, as the adverse party to a motion for summary judgment, he cannot "rest on mere allegations or denials," but "must respond by affidavit to provide evidence of a material dispute that precludes the granting of summary judgment." Given the trial court's failure to assign specific reasons for its ruling, Dr. Sheybani urged the court to presume that the trial court's striking of the affidavit resulted merely "from arguments put forth at the hearing by BRGMC." Furthermore, Dr. Sheybani asserted that the statements in his affidavit did not contradict his earlier deposition testimony, but rather "merely clarified or supplemented [his] previous deposition testimony," which, according to Terrebonne v. Floyd, 767 So.2d 754 (La. App. 1st Cir. 2000), would require the trial court to consider the affidavit when determining genuine issues of material fact.

After reviewing the record, the court sided with Dr. Sheybani. It concluded, "since the statements made by Dr. Sheybani in his subsequent affidavit merely clarified and were not inconsistent with testimony given ... in his earlier deposition, we conclude the affidavit and the attached exhibits were admissible." Dr. Sheybani's affidavit "should have been considered by the trial court in evaluating BRGMC's motion for summary judgment... [W]e conclude that there are genuine issues of material fact regarding whether BRGMC and/or its employees failed to meet the applicable standard of care with respect to their treatment of Mr. Bethley." The court reversed the trial court's granting of BRGMC's motion to strike Dr. Sheybani's affidavit and remanded the case for further proceedings as to Dr. Sheybani's meeting the standard of care in treating Bethley.

This case further demonstrates the complex nature of tort litigation, especially when multiple parties may have been negligent and at fault for harm to the plaintiff. Dr. Sheybani sought to defeat BRGMC's motion for summary judgment in the interest of his own defense; by pointing to the negligence of the respiratory therapist, he could potentially reduce or even eliminate his own blame. This path would have been foreclosed if BRGMC had been dismissed from the action at summary judgment.

Continue reading " Court Examines Role of Key Document in Summary Judgment in Baton Rouge Medical Malpractice Case " »

On behalf of the Berniard Law Firm, Happy Holidays to you and your family during this season. Blogs will resume after the New Year.

The Environmental Protection Agency can attempt to phase out chemicals which are "unsafe" under the Toxic Substances Control Act (abbreviated TSCA and pronounced "ToSCA"). TSCA is a complete failure of a statute and hardly regulates anything. Unlike its counterpart in the European Union, TSCA does not require every chemical manufacturer to report on its chemicals before being granted market access. Rather, TSCA blacklists a handful of chemicals and companies have to report anything that is chemically similar. If a company makes something that is tremendously dangerous but not chemically similar to something already on a TSCA blacklist, TSCA does not apply.

TSCA may be supplemented soon with Senator Lautenberg's Safe Chemicals Act. Doing so would no doubt be a great victory for environmentalists as it would replace TSCA with something which might actually work. The Safe Chemicals Act is taking aim at a number of problems that TSCA has been unable to address, foremost above them, asbesdos. The question, however, of what is and is not reasonably "safe" remains.

Historically asbestos was considered to be useful material in its day. Its strength makes it a great cement additive; what's more, its resistance to heat makes it excellent for brake pads, building insulation, and flame retardant.

Unfortunately, asbestos is obviously very hazardous. As scientists and doctors have come to profess, asbestos causes the dangerous illness mesothelioma. Mesothelioma is a rare form of cancer that anyone who watches television knows about. What's more, mesothelioma has led to enough pain and suffering that awareness is essential.

The scary thing about mesothelioma, and asbestos, is that it is amounts to a death sentence. Forty percent of people who contract this ailment die within a year. Ninety percent of people who contract this sickness within four years. Besides its high fatality rate, the popular fear of asbestos gains strength from the chemical's insidiousness. Up to fifty years could pass between coming in contact with asbestos and developing mesothelioma.

Despite the ubiquity of mesothelioma class action lawsuit ads, the actual disease is fairly rare and the average American has a very low risk of contracting it. In most industrialized Western nations - that is, places where asbestos was, or is, manufactured and used - between seven and forty people per million contract mesothelioma each year. Mesothelioma is practically nonexistent in countries without asbestos.

To really assess the danger of asbestos, one has to distinguish risk from hazard. "Risk" is the chance that something will go wrong. "Hazard" is a measure of the severity what happens if something does go wrong. The hazard for asbestos is very high. The hazard is mesothelioma and death within a few years. The risk is very low. Between seven and forty in one million is almost as low as the proverbial "one in a million."

Tobacco, by comparison, is far more risky than asbestos. Male smokers have about a seventeen percent lifetime risk of developing lung cancer. For women, the risk is about twelve percent. Tobacco is roughly as hazardous as asbestos. Lung cancer's overall five year survival rate is about fourteen percent.

It is difficult to think of a hard and fast rule for distinguishing between safe and unsafe chemicals, but that is precisely what the EPA will likely be doing after the passage of the Safe Chemicals Act. American manufacturing could be on the brink of a very big change. It could be a victory for the environmental movement, but a victory with very unknown consequences and a huge development in law.

If you are facing an issue that that is similar to the one discussed, an attorney can help you with the legal issues surrounding it. Contact our offices today for a free legal consultation on your rights.

A Union Carbide Corporation plant facility in Taft, Louisiana, leaked a toxic chemical compound for at least seventeen hours on September 10th and 11th in 1998. Rainwater accumulation from Tropical Storm Frances caused partial collapse of the floating roof on a large tank storing liquid naphtha. Consequently, a tank seal broke allowing escape of liquid naphtha which volatilized and exposed workers and surrounding residential areas to naphtha fumes including the towns of Montz and Killona. An estimated 4.6 million pounds of naphtha vaporized before application of a chemical foam to the tank roof effectively stopped the volatilization hazard.

In the case of Howard v. Union Carbide Corporation, the Supreme Court of Louisiana reduced to negligible amounts the already decided damages awarded to plaintiffs exposed to the naphtha fumes. Specifically, original damages awarded were $3,500, $2,500, and $1,500. However, the Supreme Court reduced these damages to amounts of $500, $250, 150, and $100 based on proximity to the leak with higher awards to those within the plant and lower awards to those in the surrounding residential areas.

Exhibiting a controversial impression of the dangerous chemical involved, as well as defining exposure injuries, the Court concluded "simply no reasonable relationship" exists between the injuries and the original damages awarded. Assuming all fumes are equal regardless of the vastly different compounds which any given chemical leak may constitute, the Court cited other negligible awards in other cases despite the fact that the other cases involved unrelated chemicals.

In fact, the Court categorized exposure injuries to the vaporized naphtha as "mere annoyances." Acute naphtha exposure symptoms may include irritation of the eyes (stinging sensation in the eyes, tearful eyes), nose irritation (stinging sensation in membranes lining nasal passages), sore throat, and coughing. Notably, the Louisiana Supreme Court determined that immediate exposure symptoms are the only consequences of exposure to toxic chemicals. On the contrary to some specialists, forms of naphtha may be carcinogenic. In addition, naphtha has been determined to be a central nervous system depressant, which is the mechanism for the reported headaches, nausea, dizziness, and the sensation of being inebriated (drunk). Further, components within the naphtha often possess additional harmful qualities.

Finally, the Louisiana Supreme Court uses as support for reducing damage awards the lack of professional medical attention and evacuation, noting that, oftentimes, acute exposure symptoms were self-treated because plaintiffs were not provided with adequate nor accurate exposure details.

If you have faced a similar situation, it is important that you contact an attorney immediately to get the legal advice you deserve. When facing a situation like this, an individual who has been injured must be careful with the lawyer you select because it can mean the difference between recovering your losses and being left in the dark. Call our offices today for a free consultation on your legal rights.

As we have examined in several prior blog posts, expert testimony plays a very important part in the resolution of many tort suits, especially those involving medical malpractice claims. Because the details of medical procedures can add considerable complexity to a case, expert witnesses are commonly relied on by both plaintiffs and defendants to help the jury better understand the facts. The input of experts is essential to the jury's analysis of whether a doctor's conduct which caused the plaintiff's harm met the applicable standard of care; the recent case of Verdin v. Hospital Service District No. 1 of the Parish of Terrebonne, No. 2010 CA 0456 (La. Ct. App. 1st Cir. 2010), offers a look at the considerations a court may give when qualifying a witness as an expert.

On February 27, 2002, Don Verdin underwent back surgery at the Terrebonne General Medical Center to repair a herniated disc. Dr. Henry Haydel, an orthopedic surgeon, performed the procedure. During the surgery, Dr. Haydel's tool punctured an artery, which required emergency surgery to repair. It was also discovered that Verdin's bowel had been punctured, which necessitated yet another surgery to correct. Following these procedures, Verdin developed a severe infection that required an extended hospital stay, during which he experienced a number of other complications prior to his release from the hospital nearly a month later. Verdin filed a medical malpractice complaint with the Louisiana Patient's Compensation Fund against Dr. Haydel, alleging that Dr. Haydel breached the standard of care in performing the back surgery and failed to properly treat the injuries that occurred during the surgery. Verdin also included similar claims against the surgeons who repaired the artery and bowel perforations. The Medical Review Panel found that none of the doctors who treated Verdin failed to meet the applicable standard of care as charged in the complaint. Nevertheless, Verdin filed a medical malpractice suit against Dr. Haydel in June of 2005, alleging the same claims as were denied by the Review Panel. Following a four-day trial, during which numerous expert witnesses testified, the jury returned a verdict in favor of Dr. Haydel, finding that he did not breach the standard of care in his treatment of Verdin. Verdin then filed an appeal in which he attacked the jury verdict as manifestly erroneous.

Verdin's primary enumeration of error centered on the expert testimony of Dr. Chad Millet, who was called as a witness by Dr. Haydel during the trial. Verdin objected to Dr. Millet's qualifications, arguing that he did not have the necessary knowledge to qualify as an expert witness because he had not performed spine surgery in the six years prior to Verdin's procedure in 2002. Verdin further asserted that because Dr. Millet had not taken any continuing medical education courses in the area of spine surgery during that time, he was not qualified to testify regarding the surgical procedure employed by Dr. Haydel. In reviewing the trial court's decision to nevertheless accept Dr. Millet as an expert in the field of orthopedic surgery, the court reviewed La. R.S. 9:2794(D)(l)(b) and (c). These provisions require that in order to qualify as an expert witness, a physician must have knowledge of accepted standards of medical care for the treatment involved in the claim, and that the physician must be qualified on the basis of training to offer an expert opinion regarding those accepted standards of medical care. The court also reaffirmed the long-standing view "trial courts have great discretion in determining the qualifications of experts and the effect and weight to be given to expert testimony. In the absence of a clear abuse of this discretion, [appellate courts] will not disturb a trial court's ruling on the qualification of a witness." See Bradbury v. Thomas, 757 So.2d 666, 673 (La. App. 1st Cir. 1999). "It is well settled," noted the court, "that the law does not require an expert to be actively practicing in the particular specialty about which he or she will testify." Instead, "the court need only be satisfied that the witness is qualified to give testimony regarding the applicable standard of care. Bradbury, 757 So.2d at 674.

In reviewing the trial record, the court took notice that Dr. Millet is a board certified orthopedic surgeon who performed 100-150 lumbar procedures while in private practice from 1990 through 1996. Although Dr. Millet stopped performing lumbar procedures in 1996 to focus on joint replacement surgeries, he took continuing medical education courses in all of the subspecialties of orthopedics, including spinal surgery, and was recertified as an orthopedic specialist in 2002. The court concluded that, "under these circumstances, we find the trial court did not abuse its discretion in finding that Dr. Millet possessed the requisite knowledge and experience to testify as an expert in orthopedic surgery and render an opinion on whether Dr. Haydel breached the standard of care." Accordingly, the court affirmed the trial court's verdict and assessed all costs to Verdin.

While Mr. Verdin's experience in the hospital was unquestionably difficult and unpleasant, this case demonstrates that not every bad medical outcome indicates malpractice. A patient who has suffered a troubling experience while under the care of a doctor should consult a knowledgeable attorney before rushing to file suit to ensure he or she has a valid negligence claim.

Continue reading " Terrebonne Medical Malpractice Suit Reaffirms Trial Court's Role in Qualifying Expert Witnesses " »

In a prior post, we explored the elements that a plaintiff must prove in order to recover against the owner of a business due to an unsafe condition on the property. There, the plaintiff, Lisa Beckham, tripped and fell over some loose asphalt in an unpaved parking lot of a children's play facility in West Monroe. The case hinged on the analysis of whether the asphalt posed an "unreasonable risk of harm" to the customers who visited the property. The Second Circuit determined that under the facts of the case, the question was best left to a jury and was not appropriate for summary judgment. In the recent case of Bias v. Scottsdale Insurance Co. the Third Circuit also examined the requirement for the plaintiff to prove that there was a defect in the property that presented an unreasonable risk of harm, but reached a different result. Ray Bias injured his knees when he fell in the parking lot of David & Lori's Kitchen Restaurant in Mamou. Bias's fall was caused by several pieces of loose pea gravel on the concrete surface just outside the restaurant's takeout window. Bias didn't notice the gravel as he approached the window because he was looking up at the menu board posted above the window. In a complaint for damages against the establishment, Bias alleged that the gravel presented an unreasonably dangerous condition for restaurant patrons. The restaurant and its insurer, Scottsdale Insurance Company, filed a motion for summary judgment. At the hearing, Bias presented no expert testimony or other evidence to support his assertion that the gravel was unreasonably dangerous. Accordingly, the trial court granted the defendants' motion and dismissed Bias's action. Bias appealed, citing as error that there existed issues of fact as to the danger posed by the gravel.

The Third Circuit declared that "[t]he record contains no evidence to support [Bias's] opinion that the presence of ten to twenty pieces of pea-sized gravel on [the restaurant's] cement pad created an unreasonably dangerous condition." The court further noted that Bias admitted he was "not exercising ordinary care" when he walked into the cement area while looking up at the menu board. After reviewing the state's position that Louisiana property owners are not "insurers of the safety of visitors," but instead simply "owe a duty to keep their premises in a safe condition for use," the court concluded that the trial court's dismissing Bias's complaint at summary judgment was appropriate. Bias "did not present any evidence to support his allegation ... [and] it was incumbent on [him] to do so in order to survive summary judgment."

By contrast, the defective condition in the Beckham case required a more fact-intensive analysis. The plaintiff put forward evidence that painted a vivid picture of the overflow parking lot where she fell: the lot was unpaved and consisted of dirt, grass, rock, gravel, and chunks of crushed asphalt. Also, there was no evidence that she was not exercising ordinary care when she fell. Accordingly, the court concluded that based on the facts of the case, the determination of the lot's level of dangerousness should left to a jury.

For a plaintiff, the opposing outcomes of the Bias and Beckham cases demonstrate the importance of offering the court sufficient evidence upon which to evaluate the danger posed by a premises defect. If a court is satisfied that enough evidence exists to warrant an inquiry into whether the defect was unreasonable, the action will likely survive a motion for summary judgment by the defendant and go to a jury.

Continue reading " Mamou Slip-and-Fall Case Fails at Summary Judgment Due to Lack of Evidence " »

The parties to a legal dispute, such as the payment of damages resulting from a car accident, can reach an agreement between themselves to resolve the matter and avoid litigation. This agreement, under which the parties "give and take" to arrive at a solution that is satisfactory to both, is called a compromise. Under Louisiana law, a compromise is considered a contract which must be made in writing, but there is no specific requirement as to the form. What is important is that a compromise resolves only those differences that the parties clearly intend to settle, which under general contract law requires a "meeting of the minds."

Louisiana courts have recognized that a check can serve as a compromise if it recites that it is in full payment for all claims and the check is endorsed and deposited by the payee. But as the parties in the case American Century Casualty Company v. Sale, discovered, the courts will scrutinize a compromise based entirely on the endorsement and deposit of a check to ensure both parties' objectives were in alignment.

On August 9, 2008, a car accident occurred between Dr. Charles F. Sale and Michelle Barett. Barrett, who was at fault, was driving a vehicle owned by her parents and insured by American Century Casualty Company (ACCC). A short time thereafter, an ACCC representative contacted Sale and discussed settlement. ACCC then mailed the following to Sale: a letter describing the steps that Sale would be required to take to resolve the claim; a settlement and release form; and a settlement check in the amount of $1,820. The enclosed letter directed Sale to sign the release and return it to ACCC, at which point ACCC would issue the settlement check. (Although the letter indicated that a settlement check would follow a "properly executed release," ACCC erroneously mailed all three documents in the same envelope at the same time to Sale.) The front of the settlement check included the following text: "CHARLES SALE, ONLY: IN F/F SETTLMT/RELEASE OF ACCC/... BARRETT FROM ANY/ALL CLMS/LNS ON D/L 8/9/08, CLM 10995-9." Sale, finding the amount of the settlement check insufficient, put the documents aside. Later, Sale's wife discovered the check and deposited it without his knowledge. When Sale filed suit against Barrett and ACCC in August of 2009, ACCC filed a motion for summary judgment contending that Sale had previously compromised and released his claims against the company and Barrett by endorsing and depositing the settlement check issued to him. The trial judge granted summary judgment in ACCC's favor and found that Sale had released all future personal injury claims. Sale appealed.

The Second Circuit declared that "a review of the entire record, including the settlement documents sent to Dr. Sale by ACCC, indicates that there was not a 'meeting of the minds' between Dr. Sale and ACCC as to what they intended when the purported compromise was reached." Additionally the court found, "it is apparent from the statements made by Dr. Sale during his deposition that he believed that his claims would not be settled or compromised until he signed the release form," which he never did. The court noted that the wording of ACCC's letter, which directed Sale to sign the release if he wanted to accept the offer to settle the claim for the amount on the enclosed check, further indicated that an endorsed check, alone, was insufficient to form a compromise. Accordingly, the court reversed the trial judge's decision and remanded the case for a trial.

The Sale case serves as a reminder that even out-of-court settlements can be confusing and potentially disastrous for plaintiffs who proceed without solid legal advice. Although Sale was ultimately able to move ahead with his lawsuit, the appellate process added considerable delay to the resolution of his claims. Had Sale referred the letter from ACCC to his attorney immediately, this appellate proceeding would likely never have been necessary.

Continue reading " Court Examines the Use of a Settlement Check as a Compromise and Release " »

In injury cases, general damages aim to compensate the victim for mental or physical pain and suffering, inconvenience, loss of quality of life, or other "intangibles." Because these damages cannot easily be quantified in monetary terms, the jury (or judge in a bench trial) is tasked with assessing and awarding them. Louisiana courts have consistently held that "in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion." Furthermore, "[i]t is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient."

Given this deferential standard, it is relatively rare for a jury's award of damages to be modified on appeal. Nevertheless, the case of Case v. Shelter Insurance Company, No. 10-302 (La. App. 3d Cir. 2010) offers an example. On May 22, 2006, Patricia Case was driving her car on Oday Road in Loreauville. She came upon a tractor being driven slowly by Barry Frederick, an employee of Burt Oubre Farms. Just as Case pulled into the oncoming lane in an effort to pass the tractor, Frederick began to make a left-hand turn across her path without signaling. The vehicles collided approximately two feet across the center line of Oday Road. Following the accident, Case experienced severe back pain that ultimately required her to undergo a lumbar microdiskectomy and laminectomy in December of 2007. Case filed a lawsuit against Frederick, Oubre Farms, and the farm's insurance carrier, Shelter Insurance Company. At trial, the jury found Case 25 percent and Frederick 75 percent comparatively negligent and awarded Case $49,999.98 in general damages. Case appealed this judgment, arguing that the jury improperly found her negligent and that the general damages award was insufficient.

On appeal, the Third Circuit quickly dispensed with Case's argument concerning liability, holding that the jury did not commit "manifest error" in reaching its conclusion. Next, turning to the issue of the damages award, the court applied the abuse of discretion standard. The court examined the extent and severity of Case's injuries and reviewed the various cases relied upon by Case to substantiate that the jury's award was "abusively low." Despite the good recovery Case had made by the time of the trial, the court nevertheless found that "when considering the record as a whole, we are required to find the award of $49,999.98 in general damages below the range of the jury's discretion." The court referred to its prior decision in Este v. State Farm Insurance Company, 676 So.2d 850 (La. App. 3d Cir. 1996), where it held that "an award of $75,000 was the lowest amount within the court's discretion for the aggravation of a pre-existing, asymptomatic, spondylosis and bulging disk that did not warrant surgery." Thus, the court reasoned, "[i]f a simple bulging disk and aggravation of an asymptomatic spondylosis can be awarded a minimum of $75,000 in general damages, an active herniation of a disk with surgical intervention warrants a general damage award of $100,000.00; any amount below that would be considered an abuse of the jury's vast discretion." Accordingly, the court amended the jury's damages award to $100,000.

The Third Circuit's decision to increase Case's general damages award was based on a very detailed review of the facts and a comparison to existing case law on the issue of general damages awards for back injuries to Cases's circumstances. Nothing less persuasive than this favorable combination of both facts and law is likely to convince an appellate court that a jury has abused its discretion in setting a general damages award.

Continue reading " Court Amends Jury's General Damages Award in Loreauville Car Wreck Case " »

Louisiana law requires owners of businesses to use reasonable care to ensure that their parking lots, sidewalks, entryways, and other areas are safe for the public. If a customer is injured by an unsafe or defective condition, he or she must prove the following four elements in order to recover in tort: 1) the location was within the defendant's control, 2) there was a defect which presented an unreasonable risk of harm, 3) this defective condition caused the customer's injury, and 4) the defendant knew or should have known of the defect.

Whether the condition of the premises posed an unreasonable risk is often the most disputed matter in a slip-and-fall case. Over the years, the Louisiana courts have determined that there is no "fixed rule" for determining whether a defect presents an unreasonable risk of harm. The trier of fact must "balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair." The courts have generally concluded that the analysis of whether a defect presents an unreasonable risk of harm encompasses "an abundance of factual findings, which differ greatly from case to case," such that the analysis "cannot be applied mechanically." As the parties discovered in Beckham v. The Jungle Gym, L.L.C., No. 45,325-CA (La. Ct. App. 2d Cir. 2010.), this means that, practically speaking, slip-and-fall cases are not ideally suited for resolution by summary judgment.

On October 7, 2006, Lisa Beckham took her two children to play at the Jungle Gym indoor playground in West Monroe. Upon arriving, Beckham parked her car in the "overflow" parking lot because the main parking area was full. The overflow lot was unpaved; its surface consisted of dirt, grass, rock, gravel, and chunks of crushed asphalt. When Beckham later returned to her car, she tripped on one or more large chunks of asphalt, fell to the ground, and broke her right ankle. Beckham filed suit against Jungle Gym alleging that the parking lot where she fell was unreasonably dangerous. Jungle Gym filed a motion for summary judgment in which it denied custodial responsibility and asserted that the parking lot did not pose an unreasonable risk of harm. The trial court granted Jungle Gym's motion and dismissed Beckham's complaint.

On appeal, the Second Circuit stated,

"whether a defect presents an unreasonable risk of harm is a mixed question of law and fact that is peculiarly a question for the jury or trier of the facts. It entails innumerable considerations; and, because it requires a balancing of the risk and utility of the condition, it is not a simple rule of law which can be applied mechanically to the facts of any particular case. ... It is 'a matter wed to the facts' and must be determined in light of the facts and surrounding circumstances of each particular case."

Jungle Gym's motion for summary judgment was based on the argument that the risk Beckham encountered in the parking lot was "obvious, universally known, and easily avoidable," and thus not unreasonably dangerous as required to impose liability. The court concluded that while a gravel parking lot's utility is clearly known, the particular facts of this situation would have been better assessed "at a trial on the merits for the determination of whether an unreasonable risk of harm was present." Accordingly, the court reversed the trial court's granting of Jungle Gym's motion for summary judgment and remanded the case for further proceedings.

Following this appeal, Beckham presumably faced the challenge of presenting to the jury the facts and circumstances that demonstrated the unreasonable risk posed by the large chunks of asphalt in the Jungle Gym parking lot. A fact-intensive argument at trial, like this one, unquestionably benefits from the planning and execution of an experienced accident attorney.

Continue reading " West Monroe Slip-and-Fall Case Reviews Premises Liability Standards " »

Time is of the essence when filing a claim; a person can essentially lose the case before it even begins if the claim is not filed "in time". But the question is when is a claim "on time?" In the recent case holding of Casborn v. Curran and Northshore Regional Medical Center, the court explained that under Louisiana Revised Statutes 9:5628, "no action for damages for injury or death arising out of patient care shall be brought unless filed within one year from the date of discovery of the alleged act." What has become an issue for many to understand is from what point does the court consider a person to have "discovered" the injury or wrongful act? Exploring the cases' analysis sheds some light on the issue and hopefully provides an answer to this dilemma.

Prescription is a legal term that is a powerful tool that many litigants utilize to dismiss a case. Specifically, prescription is defined as "the loss or forfeiture of a right, by the proprietor's neglecting to exercise or prosecute it during the whole period, which the law hath declared to be sufficient to infer the loss of it." The prescription clock starts ticking as soon as the person who feels they have been damaged discovers the alleged injury; if they wait too long, the time limit is up and the clock stops ticking, resulting in the loss of their claim.

In the case of Cosborn, prescription ultimately ended the case before it even began, causing the plaintiffs to be completely out of luck in obtaining any relief. Dates are extremely important when a court explores the issue of prescription, which is why the dates of the plaintiff's alleged injury, eventual discovery, and final act of filing is vital in the analysis. The plaintiff, Mrs. Casborn, went to the Northshore Regional Medical Center on May 5, 2007, suffering from severe tongue swelling and difficulty breathing. The examining staff physician, Dr. Curran, administered the medication Benadryl —however, Mrs. Casborn continued to suffer and the symptoms actually began to grow worse. Eventually, she had to be taken into surgery and had a mechanical ventilator inserted, where it remained until May 18, 2007. In total, Mrs. Cosborn stayed in the hospital for almost an entire month, suffering from other complications including pneumonia, anemia, and acute renal problems.

On May 23, 2008, Mrs. Cosborn filed a medical malpractice complaint alleging that Dr. Curran's failure to administer the proper medication in the face of an acute allergic reaction was a breach in the medical standard of care. However, this is where the plaintiff's claim has a hiccup: Cosborn filed her complaint over one year after the date of the alleged negligence. The plaintiffs argued that the time did not start ticking until the ventilator was removed and she had regained her ability to speak, and that she did not discover the malpractice until a frame of between May 24, 2007 and June 1, 2007 when she was able to ask questions. The defendants immediately filed an exception of prescription claiming that the clock had stopped ticking and her time was up, alleging she had lost her right to complain since she waited for over one year past the allowed prescriptive time period.

The court held that Mrs. Casborn failed to specify certain facts that could have allowed her case to move forward. Thus, she had lost her ability to file a complaint against Dr. Curran and Northshore Regional Medical Center. Mrs. Cosborn never stated why she was unaware of the malpractice prior to the date of the alleged discovery and any evidence to emerge did not support the argument that she inquired into the issue as soon as she was able. What the court did focus on was the fact that Mrs. Cosborn remained on a ventilator until May 18, 2007 but she did not file her complaint until May 23, 2008. Therefore, her argument that she inquired into the situation as soon as she could speak does not explain or justify why she took over one year to file a claim.

Thus, prescription can be a sharp sword that can do away with a claim before it is even heard. While many individuals may be hesitant to bring a suit, the lesson of the day is if you feel that you have been injured, damaged, hurt, and seek legal guidance in order to ascertain if you have a claim, thus evading prescription. If you have questions or need legal representation feel free to contact our firm any time for a free consultation.

According to state police, and reports in LaPlace's L'Observateur, two men died and two others were injured in a car accident a little over a month ago on Louisiana Highway 3127 in Wallace.

At about 5:14 p.m. on Friday, September 24th, James Davis and Kerry Rodrigue of Plaquemine were killed when the Chevy Silverado they were riding in collided with an unoccupied, parked vehicle. Neither of the men were wearing a seat belt. Colby Landry, the driver of the truck, and front passenger Reggie Daigle sustained moderate injuries, and consequently, were wearing seat belts. According to investigators, Landry was trying to pass another vehicle when he lost control of the truck and crashed into the other vehicle, which was parked on the shoulder of the highway. Speed appears to be a factor in the crash.

This tragic accident brings questions to mind as to what liability attaches to a driver who acts negligently to bring about the death of his passengers? Also, in Louisiana, is liability reduced at all if the two passengers who were negligent themselves in not wearing their seat belts?

Here, the families of the deceased passengers may be able to bring a claim against the driver if the evidence supports that he is at fault for the accident, that is, if he acted negligently. Negligence occurs when someone's action falls below the appropriate standard of care for a given situation and that action or inaction hurts someone else, to which they owed a duty. A driver has a duty his passengers (and other drivers on the road) to obey the law and drive at an appropriate level of speed. If he did not, and that action was the actual and proximate cause of the passengers' deaths, he was negligent. A variety of damages can be collected in this type of wrongful death action, including: funeral and medical expenses (actual damages), as well as compensation for the wages the victims would have earned, and compensation for pain and suffering.

In addition, Louisiana is a pure comparative negligence state. La. Civ. Code Ann. Art. 2323. This means that individuals' damages are reduced by whatever percentage they are deemed at fault for an accident. So, if the driver is found to be 80% at fault for the death of his two passengers due to his negligent behavior, but the deceased passengers are found to be 20% at fault for not wearing their seat belts, damages the survivors of the passengers can collect from the driver will be limited to 80% of the total damages recoverable. The question is, does not wearing a seat belt constitute negligent behavior? There is a good chance it might..

Under Louisiana law, seat belt use is mandatory for anyone riding in a car. If an individual breaks a law, it is easier to prove that they have acted negligently under the doctrine of negligence per se. While in a typical negligence action, it must be proven that the defendant owed a duty to the claimant and that duty was breached, causing injury to the claimant, in a negligence per se case the elements of duty and breach are presumed. Now obviously, no one will be bringing a negligence claim against the deceased drivers arguing they are at fault for the accident here. However, their negligent action would be taken into account when it is time to apportion fault between the parties.

If you were injured in an accident and are not to blame, it is important to choose an attorney who will be able to convince a court that you were not at all fault for any of the damages, in order to maximize your recovery. At the Berniard law firm our attorneys are experts in accident injury law and would be happy to talk to you about your case.

Falling victim to a sexual assault is a nightmare that too many people in the Gulf Coast, and across America, are forced to fear. While most people think of such an incident in the realm of criminal charges, there are very real civil elements to such an event that are important. When a variety of individuals, or in the rare case businesses, are involved, civil liability exists that allows the victim to receive compensation for the various damages they suffered. However, hiring the proper attorney can be very important in such complex cases.

In the case of Piligra v. America's Best Value Inn, Susana Piligra attended a nightclub located inside of the America's Best Value Inn. There, Ms. Piligra consumed an excessive amount of alcohol. She eventually lost consciousness and was escorted by a nightclub employee to a hotel room. On the way to the hotel room, an unknown male offered to assist the nightclub employee and Ms. Piligra to the hotel room. Unfortunately, the hotel employee left Ms. Piligra in the care of the unknown male and, when Ms. Piligra's friend went to check on her, she found the hotel room locked and the curtains closed. Her friend opened the door but the security chain was latched. When the friend moved the curtain, she did, however, see an unknown male climbing off of Ms. Piligra with his pants down. After Ms. Piligra was transported to a local hospital, it was determined that she was allegedly raped by the unknown male while she was unconscious.

In response to this incident, Ms. Piligra filed suit alleging that the owner of America's Best Value Inn, Dhan Laxmi and their insurance company Evanston. In her suit she claimed that both parties negligently took her to a hotel room without her consent, failed to attend to her responsibly as required by an innkeeper or as one who assumed a duty of care and that she was left alone with an unknown male subjecting her to rape and other injuries. Upholding the lower court's decision, the Court of Appeals refused to hold the insurance company, Evanston, responsible for any of Ms. Piligra's injuries. Interpreting the insurance policy as it would any other contract, the court held that the policy exclusions found in the policy were unambiguous and prevented Ms. Piligra from recovering from the insurance company.

In its ruling, the court discussed the (1) assault and battery exclusion, (2) sexual abuse and/or molestation exclusion and (3) Restaurant, Bar, Tavern, Night Clubs, Fraternal and Social Clubs Endorsement. Under the assault and battery exclusion provision, Evanston would not be responsible for any injuries arising from any assault or battery occurring on the premises or those caused by the actions of Dhan Laxmi employees. The sexual abuse and/or molestation exclusion prevented Ms. Piligra from recovering from the Evanston because Louisiana courts have held that the term "sexual molestation" includes rape and the general definitions of "molest" implied some degree of unwanted touching. Finally, the court found the Restaurant, Bar, Tavern, Night Clubs, Fraternal and Social Clubs Endorsement clearly prohibiting recovery for injuries resulting from alcohol consumption.

Louisiana courts have consistently held that, with these unambiguous policy exclusions in place, insurance companies do not have to cover injuries arising from assault, battery and rape on its policy holder's property. These provisions highlight the importance of consulting experienced attorneys to examine potential claims against insurers and review the policy provisions that limit coverage for ambiguity as well as any conflict with the law or public policy.

Resuming where we last left off in this important case...

The court then turned to the deposition of Rigoberto Garcia, an employee of Maxum. Garcia had testified that while he was at work the day before the accident, all safety barricades were set up. He said that Maxum employees never removed the safety barricades when they worked around or passed through the holes. Instead, they would climb over or through the cables. Garcia finally stated that he left work every day at 5 p.m. The depositions of two other Maxum employees supported Garcia's testimony. The combined testimony of these Maxum employees tended to show that the removal of the cables occurred when Maxum workers were not on site.

Finally, the court examined the testimony of Glenn Russo, an employee of Corrosion. Russo testified that his foreman, also an employee of Corrosion, had confirmed he'd been the one to place the plastic sheeting over the manhole. This admission effectively eliminated Maxum as the culprit behind the plastic sheeting that obscured the hole from Cotone's view.

Based on the above pieces of evidence and testimony, the court concluded that the removal of the safety cables occurred sometime in the evening. Because Maxum employees were typically away from the barge hole during the day, and home from work at night, it was not probable that a Maxum employee had removed the cables. This was buttressed by the Maxum employees' consistent testimony that neither of them removed the cables, nor ever witnessed them removed at any time. Furthermore, the admission of the Corrosion employee that the company's foreman had placed the plastic over the hole removed from the realm of possiblity the idea that a Maxum employee was to blame for that particular action.

Because the depositions and invoice showed that there was no genuine issue of material fact in regards to Maxum's alleged involvement in the removal of the safety cables and placing of the plastic, the Court of Appeals affirmed the district court's dismissal of the company from the case. Accordingly, Corrosion was left to defend the suit by itself.

The Cotone case is instructive because it showcases the "divide and conquer" strategy a plaintiff can implement when he sues multiple defendants. For instance, once Corrosion and Maxum were named in the suit, Maxum ran for the exit door, as opposed to uniting its legal energies with Corrosion against the plaintiff, Cotone.

Whether or not a defendant will choose to become advesaries with another codefendant is often a matter of risk analysis. If the defendant in question is confident it can escape from the suit without much financial harm or exposure, it will likely do just that. On the other hand, if the facts squarely suggest some sort of negligent behavior on behalf of the defendant, it will often join forces with the other codefendant to create a united front against the plaintiff--or at the very least try to keep the more "innocent" codefendant from exiting the suit. After all, misery loves company.

A skilled attorney can a help a client determine which defendants should be sued when there are a multitude of negligent individuals available to choose from. By strategically selecting defendants who are solvent and who have a high likelihood of opposing one another, lawyers can maximize the recovery for their client.

Continue reading " Part 2: Case of Barge Accident Reveals Strategy to Prevent Plaintiff's from Winning Case " »

The Third Circuit Court of Appeals for Louisiana released their decision in Cotone v. Corrosion Control Systems, Inc. The case highlights the importance of the plaintiff's "divide and conquer" strategy when litigating against multiple defendants. Additionally, it illuminates the challenges defendants and plaintiffs may both face in lawsuits involving injuries occuring in settings controlled and occupied by multiple parties.

In 2006, Timothy Cotone was employed by Superior Derrick Services as a shipyard supervisor on a Lousisiana river barge. Superior was tasked with converting the barge into a drilling rig. In order to accelerate the conversion, Superior subcontracted temporary workers supplied by Maxum Industries to perform welding and fitting services. Meanwhile, Corrosion Control Systems was hired separately by the barge owner to provide sandblasting and painting services. Superior and Corrosion were separate companies otherwise unaffiliated with one another.

On November 3, 2006, Cotone stepped into an open hole on the barge and suffered injuries. Typically, the hole was barricaded by safety cables. However, when Cotone stepped into the hole, no such safety cables were in place. Furthermore, plastic had been placed over the whole, preventing Cotone from noticing the opening. Naturally, Cotone concluded that one of the other barge workers must have negligently removed the safety cables and placed the plastic over the hole. Consequently, he sued to recover for his injuries.

Faced with multiple actors who occupied and controlled the hole in question, Cotone originally sued only Corrosion. Later, by amended pleading, he added Maxum to his suit. Cotone's amended lawsuit alleged that either a Corrosion or Maxum employee had negligently removed the safety cables, and both companies should therefore be jointly and severally liable. (Notably, Cotone did not name is own employer, Superior, as a defendant in the suit).

In a game of legal "hot potato," Corrosion and Maxum each denied responsibility and implied that the other was to blame for Cotone's injuries. When Maxum filed a motion for summary judgment to remove itself from suit, Corrosion resisted. Corrosion wanted Maxum to remain in the suit so it could share the cost of any damages award a jury might award to Cotone.

Maxum alleged that it had presented enough evidence to show that no trier of fact could conclude that a Maxum employee had removed the cables or placed the plastic over the hole. Because Maxum, as a defendant, would not have to bear the burden of proof in a subsequent trial, Maxum only needed to "point out that there [was an] absence of factual support for one or more" elements essential to an adverse party's claim. Convinced of Maxum's motion, the district court dismissed Maxum as a defendant. In response, Corrosion appealed.

In determining whether the dismissal of Maxum should stand, the Third Circuit Court of Appeals looked to the depositions of Cotone and Maxum employees, as well as documentation submitted by the company during the discovery phase of the litigation.

The court first looked to Cotone's deposition. In it, Cotone noted that he was the last person to leave the barge on the evening before his accident. This fact suggested that the person responsible for removing the safety cables and adding the plastic committed the negligent act sometime in the evening between Cotone's departure for the previous day and his arrival on the day of the injury. Cotone further asserted that Corrosion's crew worked on the barge during the evenings.

Next, the court looked to an invoice provided by Maxum. The invoice showed that during the week surronding Cotone's injury, the majority of Maxum's workers completed assignments in the shipyard and away from the barge. Because most of Maxum's employees were not working around the hole Cotone fell in, the liklihood of a Maxum employee removing the safety cables and adding the plastic was diminished.

Check out the blog tomorrow for more information on this important case.