Louisiana Personal Injury Lawyer Blog

The term "venue" refers to the particular court where a plaintiff should file his suit. In the case of car accidents and other tort actions, the Louisiana Code of Civil Procedure gives the plaintiff a choice of venue. The plaintiff can file the suit in the parish where the accident occurred or, alternatively, in the parish where the defendant driver resides. When a liability insurer is involved as a defendant, the suit can also be filed in the parish where the insurance company is registered. The case of Lopez v. Richard illustrates how the misapplication of the venue rules can have serious, undesirable consequences for a plaintiff.

On March 31, 2006, Gil Lopez was rear-ended by another driver in Lafayette Parish. The driver was Josette Richard, a resident of Lafayette Parish who was insured by Allstate. On the last day of the one-year prescriptive period (April 2, 2007), Lopez filed suit in Iberia Parish, which is the parish where he and his wife live. Richard and Allstate filed an exception for improper venue, and the parties agreed to transfer the case to Lafayette Parish in August of 2007. Once the case was transferred, Richard and Allstate filed an exception of prescription, arguing that Lopez's action was not properly filed before the expiration of the prescription period. The Third Circuit agreed, stating that "it is well settled that the transfer of an action to a correct venue, after prescription has run, does not resurrect the plaintiff’s lawsuit." In an attempt to preserve his cause of action, Lopez offered the novel argument that venue in his home parish was proper under the state's "joint obligor" statute. That is, Lopez argued that because he was a beneficiary under Richard's Allstate policy, he was also an "insured" under the terms of the policy which provided Allstate's connection to Iberia Parish and permitted suit there. The court deemed this theory a misapplication of the law which was intended for suits involving Uninsured Motorist coverage, but not a direct policy such as the one Allstate had issued to Richard. Instead, Lopez is merely a "claimant" who will "be paid by Allstate on behalf of their insured, Richard, if Richard is found liable" for the accident. Thus, because Lopez filed his suit in the wrong parish and did not transfer it to a proper parish before the running of the prescription period, his case was dismissed.

The lesson from the Lopez case is that proper venue should be identified as early as possible to ensure that the prescriptive period does not expire before the suit can be filed in the correct court. Misfiling a suit does not toll the running of the period. Had Lopez not waited until the very last minute to file his original suit, he may have been able to transfer to the correct venue and avoid losing his case on a mere (but critically important) technicality.

Continue reading " Poor Choice of Venue Following Auto Accident in Lafayette Parish Leads to Dismissal of Suit " »

A person's worst fear when undergoing an invasive surgery, is for something to go wrong. For one patient, this fear came true when his doctor operated on the wrong knee. This severe error was not disputed by the Doctor, who admitted he erroneously operated on the plaintiff's right knee when he intended to treat the plaintiff patient's left knee with arthoscopic surgery. What was at issue in this recent Louisiana Second Circuit Court of Appeals decision, is whether or not the injured plaintiff was awarded an appropriate amount in damages. Numerous factors are weighed when determining damages. However, in Louisiana, as well as numerous other states, there is a cap on how much a person may recover in a medical malpractice suit. Patients who have been injured face a litany of complicated issues and standards that are difficult to understand, thus, obtaining legal representation as soon as possible is highly recommended in order to protect legal rights throughout the process.

In a recent Louisiana Second Circuit Court of Appeals decision, the court explored the amount of damages a patient was initially awarded for damages they sustained from an erroneously performed surgical procedure. The plaintiff patient complained on appeal that the trial court abused its discretion in awarding inadequate damages for past lost wages, past medical expenses, as well as pain and suffering. Additionally, the victim contended that the trial court erred in failing to award future lost wages and future medical expenses for the patient plaintiff and loss of consortium for his wife. The appellate court affirmed the trial courts damages award for numerous reasons, many based on statutory limits that are in place restricting the amount a patient may obtain. Yet, the decision is in large part held by the jury. The jury has the duty to hear the evidence and determine a price that may "make the plaintiff whole again." In this case, the jury decided that the patient plaintiff had $40,000 in pain and suffering and $10,000 in loss of income. It may seem a harsh factor in the legal process, that despite the severity of a patients injuries, the numerical value given such injuries is designed to "fix" such issues. The plaintiff in this case felt that the jury's damages award did not adequately resolve any of the issues he was experiencing after having the botched surgical procedure. Since the accident, the victim of this botched surgery had been experiencing serious issues in almost every part of his life, including that the knee which was erroneously operated on was in constant pain, decreased his range of motion, his sense of instability caused him to limp, insomnia, impaired ability to work, back pain induced by the limp which resulted in a herniated disk, and loss of consortium with his wife. Thus, the problems went deeper then the categorical terms such as "pain and suffering and loss of income." The court however, explains and supports their decision by exploring the governing statutes at issue.

Juries factual finding decisions are highly regarded, and under Louisiana law such decisions may not be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. The appellate court will review the witnesses testimony at trial in order to determine whether or not their may have been an erroneous decision. Here, the plaintiff alleged he had to undergo four surgeries due to the Doctor operating on the wrong knee plus a discogram of his back. To support the additional damages that were a result of the erroneous surgical procedure performed by the defendant doctor, the plaintiff offered the testimony of a doctor who contended that the plaintiff would need two back and neck surgeries and would have pain in his right knee for the rest of his life. Further, the plaintiff would have to get a total knee replacement at some point in his life. In consequence to the erroneous surgery, the plaintiff was declared disabled by Social Security and began receiving Social Security Income payments. Additionally, the plaintiff was unable to perform the part time work he was previously able to and the couple eventually went bankrupt. Despite these very sad consequences, the court has to abide by the regulations and statutes that are in place and govern medical malpractice issues.

For health care providers that are insured by the state, they have their liability limited to $100,000 as described in the Patient Compensation Funds and Physicians Insurance. The Patient Compensation Fund (PCF) is the cap of what any injured patient may recover from any one or more doctors. Under Louisiana Statute § 40:1299.44, the liability of each qualified health care provider is limited to $100,000 plus interest per patient per incident. Judgments, settlements, or binding arbitration orders in excess of $100,000 per provider are paid out of the fund. The total recovery a patient may receive is limited to $500,000 plus future medical costs. However, such future medical costs are paid as incurred from the PCF. In the case at hand, the plaintiff patient was facing two major difficulties in the appellate court. First, in order to overturn the trial court's decision, there must have been manifest error in the jury's determination and award. Secondly, the plaintiff offered numerous witnesses, some whose testimony was determined not to be credible and others whose testimony was credible. The appellate court explored the lower level decision in order to determine whether or not the Doctor was liable for additional damages or whether the PCF was available for additional damages. The record contained a reasonable factual basis for each factual finding from which plaintiffs sought relief on appeal. In fact, the appellate court could not find any clear wrong or manifest error. The jury and trial judge heard the testimony and were in the best position to evaluate variations in demeanor and tone of voice that influence heavily the listener's understanding and belief in what is said. Virtually, the jury's decision to credit the testimony of one of two or more witnesses and reject others is never considered manifestly erroneous or clearly wrong. So, the fact that the defendant doctor was covered by the PCF protected him from paying any of the appellate court costs involved, or even having to pay any additional damages. Instead, the appellate court determined that the PCF and the plaintiff were to divide the costs attributale to the appellate court and pay in equal amounts. Therefore, at the end of the day, a jury's decision making ability is highly regarded, and it takes a substantial amount of error to overturn such a decision.

Thus, a medical malpractice case is a difficult and arduous process. An injured patient has to go through more than the physical pain sustained from a poorly performed surgery, but they also have to experience the complicated legal process that is involved. Having a competent legal representative is a necessity in such situations, someone who can protect your legal rights, answer all of your questions, and make a difficult process easier to handle.

Continue reading " Medical Malpractice and the Patient Compensation Fund " »

As discussed previously on this blog, the primary duty of Louisiana's Department of Transportation and Development (DOTD) is to maintain the public roadways in a condition that is reasonably safe and which does not present an unreasonable risk of harm to motorists who exercise ordinary care. As outlined in this recent post, a plaintiff must prove the following elements in order to hold the DOTD liable for damages arising from an accident on the roadway: (1) that the condition that caused the damage was in DOTD's control; (2) that the condition amounted to a defect that presented an unreasonable risk of harm; and (3) that the DOTD was aware or should have been aware that the defect existed. In addressing the extent of the risk of harm, litigants often rely on the standards established by the American Association of State Highway and Transportation Officials ("AASHTO") which, while not mandatory in Louisiana, offer a point of reference for whether DOTD's design of a particular roadway presented an unreasonable risk. The AASHTO's standards have evolved over time, however, and in many cases they have become stricter and more elaborate as vehicular traffic volume has increased. In light of this, the Louisiana Supreme Court has held that DOTD does not have duty to bring old highways up to modern standards unless a major reconstruction of the highway is undertaken. The question of what qualifies as a "major reconstruction" was at the center of the recent case in the First Circuit Court of Appeal, Davis v. Travelers Property Casualty Insurance Co.

On the evening of April 22, 2003 Nathaniel Davis, a flatbed truck driver for the Purpera Lumber Company, legally parked his truck in the northbound lane of La. Hwy. 308 so he could deliver a load of lumber to a residential construction site adjacent to the highway. Davis parked in the travel lane because there was no driveway at the site that would accommodate his truck and because the road, which was maintained by DOTD, had no shoulder. Davis was severely injured when his truck was rear-ended by an elderly driver who made no attempt to slow down before she collided with the truck. Davis filed suit naming DOTD as a defendant. His theory of recovery was based on the road's lack of a shoulder, a deisgn which violated the then-current AASHTO standards requiring an eight-foot extension of the highway. Presumably, the shoulder would have offered a safer location for parking his truck. Ultimately, the First Circuit reviewed a verdict in the trial court in which the jury determined that the lack of a shoulder posed an unreasonably dangerous risk to Davis. However, the jury also found that DOTD did not know (and had no duty to have known) about this condition and thereofre had no duty to cure the defect by constructing a shoulder. Davis argued that a resurfacing project undertaken by the DOTD some years prior to the accident qualified as "major reconstruction" which put DOTD on notice of its duty to upgrade the roadway to include a shoulder. The First Circuit court disagreed, noting that "there is no evidence from which to conclude that the roadway underwent a major reconstruction at that location or even that the State had obtained additional rights of way [necessary for such significant work] in the area of the accident site." Accordingly, the court affirmed the jury's verdict in favor of DOTD.

This is another example in a long line of cases that demonstrates the challenge of winning a claim against DOTD under an ordinary negligence theory. The Louisiana legislature and courts have made clear that DOTD is not the "guarantor for the safety of all of the motoring public [n]or the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway." As a result, an injured plaintiff must have a skilled attorney who understands the nature of DOTD's responsibilities to those who use the highways.

Continue reading " Court Examines DOTD Liability for Lack of Road Shoulder in Ascension Parish Auto Accident " »

As we have explored in several prior posts on this blog, claims brought against healthcare providers under the Louisiana Medical Malpractice Act must be examined by medical review panel before proceeding to court. Just over a year ago, the First Circuit Court of Appeal issued guidance to plaintiffs on the procedure they must follow if they should uncover new claims of negligence after the medical panel has completed its review of the original claims and issued an opinion.

On September 14, 1998 Doris Abel underwent surgery at the North Oaks Medical Center ("NOMC") in Hammond. She died a short time later from complications arising from the surgery. Her family (the "Plaintiffs") submitted a malpractice complaint against NOMC to the medical review panel in September of 2003, which rendered a decision in favor of NOMC. Plaintiffs then filed suit against NOMC that led to a protracted period of pre-trial discovery. During that time, Plaintiffs discovered new claims of negligence against NOMC and petitioned the court to amend their complaint to include these claims. NOMC objected on the grounds that the medical review panel had not examined these new claims and requested a new trial. The trial court denied NOMC's request and instead remanded the matter to the original medical review panel for the sole purpose of reviewing Plaintiffs' new allegations. NOMC sought review by the First Circuit, urging that the there is no procedure in the Louisiana Medical Malpractice Act (the "Act") for remanding a case back to a review panel once it has rendered its opinion and a suit has been filed.

The First Circuit began its analysis by noting that the Act's language "must be strictly construed." The court, in reiterating that the Act requires that "all malpractice claims against health care providers covered under the Act shall be reviewed by a medical review panel," concluded that the "use of the term 'shall' in these statutory provisions indicates that these procedures are mandatory." And, although the Act does not specifically address late-discovered claims, the court concluded that "the procedures the legislature mandates for filing a request for review by a medical review panel also encompass malpractice claims that are discovered after the panel has rendered an opinion and suit has been filed." The court found additional support for this conclusion in the statutory language that describes the review panel's duty to "express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care." The panel must be presented with all evidence in order to discharge this duty. Further, the court decreed that once a panel renders an opinion, its duty has been discharged. "Therefore, if additional malpractice claims are discovered... these new claims must be presented for review by a new medical review panel." Accordingly, the court found that the trial court erred by remanding the matter back to the original medical review panel. It reversed the judgment and remanded the case back to the trial court so it could arrange for a new panel to review the Plaintiffs' late-discovered claims before trial.

This case makes clear that under the Louisiana Medical Malpractice Act, no claim can get to a jury unless it has first been reviewed by the medical panel. This is critically important for an injured plaintiff to bear in mind given the Act's requirement for filing a petition for a panel review within one year from the negligent act or the date of its discovery. A plaintiff cannot rely on the proceedings of one malpractice claim to save another related, but later-found, claim from prescription. I

Continue reading " Court Clarifies Procedure for Medical Panel's Review of New Claims " »

The doctrine of res ipsa loquitur can be employed by a plaintiff to establish the defendant’s breach of duty in the absence of direct evidence of the defendant's negligent conduct. However, use of the doctrine "does not relieve the plaintiff of the ultimate burden of proving by a preponderance of the evidence all of the elements necessary for recovery." To prevail in a negligence claim based on the "ruin, vice, or defect in things," the plaintiff must show that the defendant knew or should have known of the defect and that the harm to the plaintiff could have been prevented by the defendant's reasonable care. See Cangelosi v. Our Lady of the Lake Medical Center.
As the plaintiff in Shuff v. Brookshire Grocery Co. learned, the doctrine cannot be invoked to circumvent this fundamental burden.

On October 15, 2006, Ashley Shuff entered the Super One Foods grocery store in Bastrop with her two children. Upon arrival, Shuff placed her 20-month-old daughter, Cloe, into the child seat that was built into one of the store’s shopping carts and fastened the seat belt. Shuff admitted that the belt mechanism appeared to be working properly when she buckled Cloe in. A short while later, Cloe fell from the seat to the store's concrete floor and broke her arm. A store patron who observed the incident later inspected the seat and discovered that a prong on the belt's snap was broken. Shuff sued the grocery store on behalf of her daughter on a negligence theory for damages caused by "ruin, vice, or defect in things." In the trial court, the parties filed cross-motions for summary judgment. Shuff argued that the store's liability for the incident was governed by the doctrine of res ipsa loquitur becuase it had responsibilty to maintain the seat and its safety belt. The court denied Shuff's motion and dismissed her claims.

On appeal, the Second Circuit explained that res ipsa loquitur was inapplicable to Shuff's claim because ample direct evidence on the elements existed. In fact, on the element of whether the store knew or should have known of the problem with the belt snap, the direct evidence worked against Shuff's negligence argument. The store's assistant manager testified that no store employees had any knowledge of the problem with the snap prior to Cloe's fall. Further, Shuff's own testimony that the snap was functioning properly at the time she buckled Cloe into the seat "demonstrate[d] a lack of constructive knowledge of the defect" by the store employees. Essentially, the court determined that if Shuff did not obtain actual knowledge of a problem with the snap at the time she placed her daughter in the seat, it could reasonably not impute constructive knowledge of the problem to the store. Thus, the court concluded that "[s]ince actual or constructive knowledge is an essential element of the plaintiff’s cause of action," Shuff failed to prove her claim. The court affirmed the trial court's dismissal of the action.

The Shuff case demonstrates that basic negligence principles govern the outcome of most disputes. Although certain doctrines like res ipsa loquitur exist to address unusual situations (such as when direct evidence is truly unavailable), courts prefer to rely on traditional burdens of proof and to avoid presumptions of fault whenever possible.

Continue reading " Court Weighs Applicability of Res Ipsa Loquitur in Morehouse Parish Grocery Store Mishap " »

In our last post, we explored the basic elements of class action certification, including the rules that guide a trial court's decision on whether to grant the certification. Although the trial court is granted wide discretion on this question, it must reach its decision through serious analysis; the failure to substantiate its analysis can result in reversal by the appellate court as illustrated in the recent case, Madison v. Chalmette Refining LLC. On January 12, 2007, a group of students, teachers, and parent chaperones visited the Chalmette National Battlefield. During a historical reenactment, the nearby Chalmette Refinery released a significant amount of petroleum coke dust that was carried to the battlefield area. Five individuals (the "Plaintiffs") filed suit in federal court against Chalmette Refining, demanding compensation for a variety of damages including "including personal injury, fear, anguish, discomfort, inconvenience, pain and suffering, emotional distress, psychiatric and psychological damages, evacuation, economic damages, and property damages." The suit sought to represent all individuals who were exposed to the coke dust, specifically:

"all persons entities [sic] located at the Chalmette National Battlefield in St. Bernard Parish, Louisiana, in the early afternoon of Friday, January 12, 2007 and who sustained property damage, personal injuries, emotional, mental, or economic damages and/or inconvenience or evacuation as a result of the incident."

The district court allowed the parties to conduct discovery on the issue of class certification. Chalmette Refining took the deposition of each of the five named class representatives, yet the Plaintiffs conducted no discovery at all. At the hearing on the motion to certify the class, no evidence was introduced; at the conclusion, the district court orally granted the Plaintiffs’ motion for class certification.

Even before the district court issued its written order, Chalmette Refining petitioned the Fifth Circuit Court of Appeals for an interlocutory appeal over the decision to certify the class. The thrust of Chalmette Refining's appeal focused on the district court’s findings of "superiority" and "predominance" as required under Federal Rule 23(b)(3). "Determining whether the plaintiffs can clear the predominance hurdle set by Rule 23(b)(3) requires district courts to consider how a trial on the merits would be conducted if a class were certified." This, naturally, demands a fact-intensive analysis that "will vary depending on the circumstances of any case." The district court's order, in the Fifth Circuit's opinion, revealed that it failed to meet this requirement. Instead, it "adopted a figure-it-out-as-we-go-along approach that ... Fifth Circuit cases have not endorsed." For example, the district court's order provided no evidence that it meaningfully considered how the Plaintiffs’ claims would be tried, or that it weighed whether the case could be “streamlined using other case management tools, including narrowing the claims and potential plaintiffs through summary judgment." The district court also apparently failed to acknowledge or resolve the "significant disparities" among even the named class representatives concerning exposure, location, and mitigation. Thus, the Fifth Circuit concluded that by failing to adequately balance the common issues against the individual issues, the district court abused its discretion in determining that common issues predominated and in certifying the class. The court was careful, however, not suggest that class treatment is necessarily inappropriate for the case; instead, Fifth Circuit precedent simply required a "more rigorous analysis" than the district court conducted. Accordingly, the court reversed the district court’s class certification order and remanded the case to the district court for further proceedings.

The Fifth Circuit leaves open the possibility that class certification may still happen in this case if, on remand, the district court properly engages in the analysis required by the Circuit's jurisprudence and Rule 23. It is interesting to note that no evidence was presented by the Plaintiffs in the district court's original hearing on certification. Perhaps had more evidence been in play at that stage, the court would have had more information at its disposal on which to base its analysis and could have avoided the reversal on appeal. Ultimately, this case demonstrates the complexities of class action litigation and reminds plaintiffs that an experienced attorney is essential.

Continue reading " Chemical Release at Chalmette Refinery Results in Battle Over Class Action Certification (Part 2) " »

In this post, we will explore the basic concepts of a class action lawsuit. In particular, we will examine the rules that govern the process by which the court decides whether to recognize a class and permit a group of plaintiffs to litigate under one single action. In a subsequent post, we will examine a recent case from the Fifth Circuit Court of Appeals in which the defendant, a petroleum refinery, challenged the district court's certification of a class of plaintiffs following a chemical release in Chalmette, Louisiana.

A class action is appropriate when numerous plaintiffs who have experienced similar harm collectively bring a suit against the defendant. For actions filed in federal court, Rule 23 of the Federal Rules of Civil Procedure sets out the requirements for a court to certify, or recognize, a class in a particular case. The four central prerequisites include:

(1) numerosity--a sufficient number of plaintiffs that for each to bring a unique suit is impracticable; (2) commonality--questions of law or fact are common to each plaintiff; (3) typicality--the named parties’ claims are representative of those of all plaintiffs; and (4) adequacy of representation--the class representatives will fairly and adequately protect the interests of all plaintiffs.

If each of these requirements is met, the plaintiffs must then meet two additional burdens. First, they must show that questions common to all the plaintiffs predominate over questions that affect only certain individuals. Also, the plaintiffs must demonstrate that the class action is better than alternative methods for resolving the controversy. Feder v. Elec. Data Sys. Corp. The district court is responsible for determining whether the class will be certified. “The decision to certify is within the broad discretion of the court, but that discretion must be exercised within the framework of Rule 23.” Castano v. American Tobacco Co. The court's "rigorous analysis" of the class question means "going beyond the pleadings ... [to] understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.” This typically involves the court's allowing the parties to conduct discovery specifically on the issue of class certification before rendering the decision.

Given that class certification involves "important due process concerns of both plaintiffs and defendants," the district court's proper handling of the certification petition is essential. For this reason, Federal Rule 23(f) provides that the parties may file an interlocutory appeal to challenge the court's grant or denial of class certification. The appellate court is charged with ensuring that the district court conducted a sufficiently rigorous analysis if a party challenges the class certification, such as in the recent case of Madison v. Chalmette Refining LLC, which we will take up in a future post.

Continue reading " Chemical Release at Chalmette Refinery Results in Battle Over Class Action Certification " »

According to Louisiana law, a landowner "owes a duty to a plaintiff to discover any unreasonably dangerous condition, and either to correct the condition or warn of its existence." However, the courts have consistently held that landowners generally have no duty to protect against "open and obvious" hazards. If the facts show that the condition that caused a plaintiff's injury should be "obvious to all," the condition is less likely to be considered unreasonably dangerous; in such a situation, the landowner may owe no duty at all to the injured plaintiff. The determination of whether a crack in a Shreveport sidewalk was unreasonably dangerous was at the center of the recent case of Williams v. Rubens Residential Properties, LLC.

On the morning of May 4, 2006, Marion Williams was walking with her friend on Line Avenue in the Cedar Grove neighborhood. Williams tripped on a buckle in the concrete sidewalk, fall forward, and shattered her right wrist. After seeking immediate medical attention, Williams returned to the scene and took several photographs of the buckle. Over the next several months, she required several significant surgeries which left her with pins in her wrist and lingering pain which is expected to get worse over time.

Williams sued the City of Shreveport, which filed a motion for summary judgment in which it argued that it was obligated to provide a sidewalk in reasonably safe, but not perfect, condition and that it was not liable for the "open and obvious hazard which should have been observed by anyone in the exercise of reasonable care." The City relied on the deposition testimony of its Superintendent of Streets and Drainage, Ernie Negrete, who explained that the City does not perform routine inspections of all its sidewalks because doing so would be too costly. Instead, the City takes corrective action based on the roughly 6,000 calls it receives from citizens each year to report problems. The City had no record of any calls about the particular location where Williams fell. Williams's cross-motion urged that the sidewalk posed an "unreasonable risk of harm" of which the City did have notice, given that the buckle apparently had existed for over 15 years. The trial court denied the City's motion and the matter went to a bench trial in February, 2010. The trial judge found Williams's testimony and the testimony of her friend and husband "extremely credible" and accepted her assertion that she simply could not see the buckle in the sidewalk. The court awarded Williams almost $340,000 in damages including lost wages and medical expenses. In its appeal, the City argued that the trial court committed manifest error in failing to find that the defect in the sidewalk was open and obvious. The Second Circuit noted that the trial court's decision was based on the testimony of three witnesses who claimed that from the pedestrian's vantage point, the buckle was not apparent. Also, the City did not put on any evidence as to the height of the buckle or whether it was obvious to a pedestrian. Thus, the court concluded that the trial judge "was entitled to find that the condition was not open and obvious to a person walking straight down the sidewalk in the exercise of reasonable care." Finding no manifest error, the court affirmed the trialc court's judgment for Williams.

Although Williams was successful in her claim against the City, one wonders if the outcome would have been different if the City had put on any evidence to refute her assertion that the buckle could not be seen by pedestrians on the sidewalk. Given that the City's liability turned on the very issue of whether the defect was open and obvious, it seems possible that the trial court could have sided with the City if it had offered some evidence on the question.

Continue reading " Court Mulls Open and Obvious Defect in Shreveport Trip and Fall Case " »

The primary duty of the Louisiana Department of Transportation and Development (DOTD) is to "continually maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence." In a recent post, we explored the elements that a plaintiff must prove in order to find the DOTD liable for damages arising out of a highway accident. By placing this burden on a plaintiff, state law attempts to balance the need for roadway safety with the countervailing requirement that DOTD not become "the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway." The case of Schysm v. Boyd offers an interesting example of a jury's misapplication of this balancing test.

On February 22, 2003, Douglas Schysm visited the Isle of Capri Casino in Vicksburg, Mississippi. After consuming three beers, he left the casino around 1:00 a.m. and drove his truck into Madison Parish, Louisiana on I-20. Just outside of the community of Delta, Schysm's truck collided with a horse which, after wandering into the roadway, had just been struck by another car and which lay in the right lane. Schysm's truck shot into the air and landed upside-down next to a guardrail approximately 245 feet beyond the point of impact. Schysm suffered significant injuries as a result of the crash, including broken bones and nerve damage. He sued the owner of the horse, the owners of the property adjacent to I-20 where the horse was kept, and DOTD for damages related to the incident. Schysm argued that the DOTD failed to inspect and maintain a fence along I-20, allowed the fence to be cut for easier (but illegal) vehicle access, and failed to warn drivers that the cut in the fence would allow animals to roam onto the highway. After a trial, the jury assigned 50 percent fault to DOTD, 30 percent to the owner of the horse, and 20 percent to Schysm. It also awarded Schysm damages totaling $884,062. DOTD appealed, disputing any fault.

The Second Circuit reviewed the trial record for the evidence relating to two areas adjoining I-20 where DOTD either did not maintain a fence or did not build one in the first place. The area closest to the horse's pen and where it most likely entered the highway was separated from the road by a fence; however, this fence had been cut by local motorists who used the path as a short-cut to access I-20. The other area apparently never had a fence at all. At trial, the parties offered expert witnesses who referenced the design guidelines published by the American Association of State Highway and Transportation Officials ("AASHTO") which establish fencing recommendations for lands adjacent to interstate highways. The experts disagreed about which version of the guidelines applied in the case, and further about whether fencing was recommended at all due to the particular construction method of the highway near the point of impact. DOTD's witness, with whom the Second Circuit ultimately sided, explained that the purpose of the fencing along I-20 was "to control vehicular access, not to keep livestock off the Interstate." Furthermore, "there was no duty under the 2001 AASHTO guidelines to have a fence along I-20." The court found that if even if DOTD had a duty to construct fencing along the highway, it was only to restrict vehicle access to and from the interstate; "it was not intended to prevent a horse that had escaped from its pen from entering upon I-20." The court observed that the horse's pen was "not adjacent to I-20... In order to reach I-20, [the horse] had to cross a ditch, a gravel road, a paved road, and a grassy area. No unreasonable risk of harm was created for motorists under these circumstances by DOTD's failure to maintain or erect a right-of-way fence in this stretch of I-20." In light of the additional fact that there was no history of animals wandering onto the roadway in the area, the court concluded that the jury was "clearly wrong" in finding that DOTD was in any way at fault for Schysm's collision.

This case reflects the reality that, although the DOTD is obligated to take reasonable steps to create and maintain a safe roadway, the obligation does not extend to exceedingly burdensome or overly expensive measures. Given that DOTD is responsible for maintaining over 16,705 miles of roadway and 894 miles of interstate in Louisiana, it is understandable that the department must apply its limited funds in a way that benefits the largest number of Louisiana motorists possible. Clearly, it is not feasible to build fencing along every mile of highway in the state. Still, DOTD is held accountable for any failures to do what is reasonable to protect the traveling public.

Continue reading " Second Circuit Rejects Jury's Assessment of DOTD's Liability in Madison Parish Highway Accident " »

The Third Circuit Court of Appeal for the State of Louisiana affirmed a Calcasieu Parish court’s decision to grant the defendants’ motions for summary judgment and dismissal of the plaintiff’s claims for injuries she sustained when her electric grocery cart allegedly malfunctioned while she was grocery shopping.

In considering a motion for summary judgment, a judge must consider whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Because the moving parties here (the defendants) did not have the burden of proof at trial, they merely needed to show that there was an absence of factual support for at least one of the elements of the plaintiff’s claim. This is a question of law and is reviewed by an appellate court de novo, without any deference to the trial court.

The plaintiff in this case was a 73-year-old woman who used a motorized cart called the Mart Cart, provided by Kroger. She alleged that in order to reach a can from a shelf, she dismounted the Mart Cart and put her left foot on the ground, but while she had one foot on the cart and another on the ground, the cart rolled forward, causing her to fall. She filed suit against Kroger and the manufacturer of the Mart Cart, alleging that they were liable for her injuries under the Louisiana Products Liability Act (the LPLA).

Specifically, the plaintiff’s claim was governed by La. R.S. 9:2800.6, paragraph B. In order to succeed on the merits of the claim, the plaintiff had to prove that (1) the condition existing in or on Kroger’s premises presented an unreasonable risk of harm and that risk was reasonably foreseeable; (2) the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and (3) the merchant failed to exercise reasonable care. Constructive notice means that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

Immediately after the accident, the manager at Kroger’s tested the cart’s brakes and did not find any problems. The day after, he sent the cart to Kroger’s mechanic, who also found no safety hazards. The plaintiff’s case was dismissed in part because she was unable to present any evidence to the contrary that the cart presented an unreasonable risk of harm. Her own expert, who also evaluated the cart, was only able to suggest the potential for an unreasonable risk of harm and his statements did not rise to the level of creating a genuine issue of material fact. She was also unable to show that Kroger had actual or constructive notice that the cart posed an unreasonable risk of harm.

The plaintiff also sued under a products liability theory, laid out in the LPLA at La.R.S. 9:2800.51 et seq. The burden was on the plaintiff to show that the product (the Mart Cart) was unreasonably dangerous in one of four ways: (1) its construction or composition; (2) its design; (3) failure to adequately warn; or (4) its nonconformity to an express warranty. Under the LPLA, the question of unreasonable dangerousness is assessed at the time the product leaves the manufacturer. The plaintiff in this case had evidence that there were alternative, safer brake design systems, but did not show that they were available at the time of manufacture. The plaintiff was also unable to show that the warnings posted on the Mart Cart were inadequate; indeed, she admitted that she had not read the warnings.

If you have been injured in a slip-and-fall case, you must show that the owner of the premises had actual or constructive notice that a condition on its property posed an unreasonable risk of harm.

Continue reading " Slip-and-Fall Dismissal Upheld Due To Lack of Evidence " »

On March 13, 2008, Sarah Hollier visited Dr. Gregory Green for treatment of bronchitis. Dr. Green wrote Hollier a prescription, which she took to the Super One Pharmacy in Monroe to have filled. The pharmacist on duty, Katy Buntyn, was not familiar with the particular form of the drug that Dr. Green prescribed because it had been discontinued some four years prior. Buntyn directed her pharmacy technician to phone Dr. Green's office for clarification on how to fill the order. Ultimately, after further confusion over the form of the drug and the dose, Buntyn mistakenly filled the prescription at a dosage which was at more than 2.5 times the "top end" dose indicated on the drug's literature and eight times the dose intended by Dr. Green. When Hollier began taking the medication, she experienced high energy levels, sleeplessness, increased heart rate, and nausea.

Hollier's husband, himself a pharmacist, recognized her symptoms and discovered the erroneous dose after inspecting the prescription bottle. The Holliers reported the problem to the pharmacy and, later, filed suit against the pharmacy and Buntyn. In Louisiana, pharmacists are not subject to the state's Medical Malpractice Act, so the matter was heard in Monroe City Court on September 21, 2009. The trial court entered a judgment for Hollier and awarded her $7,500 in general damages and $827.08 for medical expenses. The defendants appealed, refuting liability.

The Second Circuit first reviewed the elements of general negligence, but then noted that a "pharmacist has a duty to fill a prescription correctly and to warn the patient or to notify the prescribing physician of an excessive dosage or of obvious inadequacies on the face of the prescription which create a substantial risk of harm to the patient." Buntyn argued that she met this duty by calling Dr. Green's office to inquire about the prescription. But the court disagreed that this action was sufficient to discharge her duty; instead, "the fact that the package insert lists the top end of an initial daily dosage of [the drug] at 9 mg should have aroused Ms. Buntyn’s suspicions that a 24 mg initial daily dosage was excessive." At that point, reasoned the court, Buntyn "should have inquired further." Thus, the court could not find that trial court committed manifest error in finding that Buntyn breached her duty to Hollier by supplying the extremely high dose of the drug, and affirmed the judgment.

The Hollier case makes clear that the law considers a patient's health paramount. Even if some or all of the fault for an erroneous prescription can be traced back to the doctor, a pharmacist is still required to use independent judgment when filling a prescription. Circumstances such as a particularly high or low dose, a call for a drug that's unrelated to the patient's condition, or other irregularity should trigger the pharmacist to investigate further before dispensing the medication. The Hollier case suggests that simply confirming with the ordering doctor may not be sufficient when other common resources, such as the drug manufacturer's package insert, suggest that the doctor's orders are unsafe or inappropriate.

Continue reading " Prescription Drug Overdose Leads Court to Review Pharmacist's Standard of Care " »

An employer takes a worker as he finds him or her, and a worker who is more susceptible to injury is entitled to no less protection under the Louisiana Workers Compensation Act than a healthy one. This holding comes from a Louisiana Appellate decision that supports the concept that employees, who are injured in the course of employment, are to be provided appropriate compensation and medical care. A recent 2nd Circuit Court of Appeals Decision explored workers compensation in Louisiana, and the elements necessary to obtain compensation, despite underlying health risk that may have helped create the injury in question. In Lloyd v. Shady Lake Nursing Home, the nursing home sought for the court to apply the Louisiana Worker's Compensation Act, in order to avoid having to pay higher damages to the surviving spouse and family under a negligence or tort based remedy.

Margaret Caldwell was the focus of the Court's analysis, and her suffered injury and subsequent death. Mrs. Caldwell, was a fifty-four year old woman, known to be suffering from morbid obesity, worked as a Certified Nursing Assistant at the Shady Oaks Nursing Home for over twenty years. One day, as she was cleaning her station, mopping the floors, she spotted a patient out of his room. She asked him to return to his room and it was at this point he attacked her, striking her in the face. Immediately following the attack, Mrs. Caldwell experienced elevated blood pressure levels and was taken to East Carroll Parish Hospital, where only a few hours later she was pronounced dead. The autopsy found the immediate cause of death to be hypertensive heart disease and coronary artery disease, with the underlying cause of death being a physical blow to the face. This last portion became the ultimate point of controversy between Mrs. Caldwell's family and Shady Oaks, as her employer attempted to rely on a specific Louisiana Revised Statute that negates workers compensation benefits for heart related illnesses or death that arises during the scope of employment. The court explores the meaning behind each element of workers compensation and definitional terms in order to formulate their decision.

To begin with, the Louisiana Worker's Compensation Act, provides medical help and/or compensation or injuries or possible death that occurs during the course of employment. However, breaking this down into sections, one must understand what injury/accident legally means, and how it is measured in order to determine whether one is afforded such relief. An accident is defined by La. R.S. 23:1021(1) as follows:

"[A]n unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration."

Such types of injuries are thus, protected and covered by the Worker's Compensation Act. However, there are limitations applied to certain accidents that occur under certain circumstances, even if they occur during the course of employment. of specific relevance is La. R.S. 23:1021(8)(e), which provides,

"Heart-related or perivascular injuries. A heart-related or perivascular injury, illness or death, shall not be considered a personal injury by accident arising out of an in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:

(i.) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and (ii.) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death."

The Court denied Shady Oaks attempt for summary judgment, based on the tenuous argument that the patient's act of striking Mrs. Caldwell should be considered an accident that aggravated her preexisting condition resulting in her stroke and heart attack. The defendants had not shown by the required "clear and convincing evidence," that the work environment was extraordinary and unusual or that the physical stress or exertion she had to perform in the course of her employment, was higher than other types of employment related duties. Thus, the court next had to evaluate the work environment, and whether the incident in question was extraordinary or whether it was a normal happening for Mrs. Caldwell during the course of her employment.

The tragic incident that Mrs. Caldwell experienced shortly before her death, was thoroughly explored by the Court. The specific patient who attacked her did not have a history of attacking nurses, however, testimony given declared such incidents of physical assault were not rare for certified nurse's or staff to experience. The court ultimately determined that reasonable minds could disagree as to whether or not Mrs. Caldwell experienced extraordinary or unusual physical work stress and whether that stress, versus her pre-existing conditions, was the predominant and major cause of her heart-related death. Yet, the court does not end their discussion there, the court desiring compensation for the loss Mrs. Caldwell's family incurred, explore an alternative avenue that is available.

Where an employee is not entitled to a remedy or compensation under the Louisiana Worker's Compensation Act, then there is no immunity in tort for the employer. Remember, that when one is afforded the worker's compensation benefits, they have traded their right and ability to sue the employer in tort for negligence. Thus, if worker's compensation is not available or obtainable, than a tort remedy is available. Thus, her family is able to pursue an intentional tort, such as battery and assault against Shady Oaks for the acts of the patient performed against the late Mrs. Caldwell.

Therefore, there are many available legal routes and avenues to pursue if the unfortunate occurrence happens that one is physically injured or is killed during the course of their employment. Louisiana affords protection to its residents, desiring compensation for losses in order to promote the public policy of having an efficient administration of justice. Thus, if Louisiana Worker's Compensation Act is not available to one who is injured or killed, than tort remedies may be available, thus, providing relief to those who would otherwise be prevented from receiving anything.

On June 19, 2006, CITGO Petroleum Corp. released some four million gallons of hazardous slop oil and seventeen million gallons of wastewater into the Calcasieu River from the waste water treatment unit at its Lake Charles refinery. The overflow was caused in part by a storm that dropped more than six inches of rain in a three-hour period. The slop oil, which contained numerous toxic chemicals, fouled approximately one hundred miles of the river's shoreline. Within a few days, the sludge migrated to the waters surrounding a small industrial plant located on an island in the river owned by the Calcasieu Refining Company ("CRC"), where several employees continued to work during CITGO's clean-up efforts. Some of the workers in the dock area at CRC were directly exposed to the water and slop oil. They reported nausea, rashes, and peeling skin as a result. The vapors from the slop oil led to respiratory and central nervous system injuries to other workers. Complaints included headaches, nausea, dizziness, as well as eye, nose, and throat problems.

In May, 2007, fourteen plaintiffs from the CRC plant filed suit against CITGO for their injuries related to the spill. On September 17, 2008, CITGO entered a plea agreement in federal court over the spill in which it agreed to pay a $13 million criminal fine for various EPA violations. On September 19, 2008, the trial court entered a judgment against CITGO and awarded each CRC plaintiff general damages in the amount of $5,000, punitive damages in the amount of $30,000, and $2,500 for "fear of future injury."

CITGO appealed, citing as error, among other things, that the award for fear of future injury lacked a basis in the evidence and was speculative. In support of its argument, CITGO cited a prior case, Broussard v. Olin Corp., where the plaintiff sought recovery for fear of developing cancer after he was exposed to phosgene gas. Because the plaintiff failed to clearly link phosgene gas exposure to an increased risk of cancer, the court in Broussard concluded that the claim was "mere speculation" and that the facts did not support an award for "anxiety." The Third Circuit distinguished the present case in that CITGO's own technical data showed that

"more than one of the chemicals in the slop oil can cause cancer, particularly benzene, a known carcinogen, and the [Material Safety Data Sheet] discusses chronic lung dysfunction, [and] organ and system damage."

After reviewing the evidence presented at the trial of the plaintiffs' physical conditions following exposure and considering the testimony of several medical experts, the court concluded the "plaintiffs had a justified fear of future injury," and affirmed the trial court's award.

The CITGO case offers a valuable lesson for plaintiffs who seek to recover damages for fear of developing future injuries as a result of exposure to toxic chemicals or other hazards. Such a claim requires that the future injury giving rise to the fear be causally linked to the initial exposure. Otherwise, the court will likely consider the claim to be too speculative.

Continue reading " Lake Charles Toxic Spill Case Explores Claims for Fear of Future Injury " »

Previously on this blog, we have discussed the Louisiana Medical Malpractice Act ("LMMA") and its requirement that "all claims against healthcare providers be reviewed or 'filtered' through a medical review panel before proceeding to any other court." A plaintiff who fails to do this is subject to the defendant's "exception of prematurity," which is a procedural mechanism by which the defendant can petition the court to dismiss the plaintiff's claim until the medical review panel has properly conducted its review. The defendants in the case of Heacock v. Cook attempted to invoke the exception in a case that involved a sexual relationship between a doctor and his patient.

In December of 2005, Margaret Heacock was admitted to the Palmetto Addiction Recovery Center (“Palmetto”) in Rayville for an inpatient substance abuse treatment program. After being discharged in May of 2006, she underwent outpatient treatment which continued through January of 2008. In 2009, Heacock filed two lawsuits against Palmetto and her treating physician, Dr. Douglas Cook. Both suits alleged essentially the same facts: that Dr. Cook "entered into an inappropriate, sexual relationship" with Heacock during the time she was his patient; one suit's theory of recovery was based on intentional tort, the other on negligence. Dr. Cook and Palmetto filed exceptions of prematurity, seeking to have all claims dismissed in the trial court and instead brought before the medical review panel. After a hearing, the trial court determined that Heacock's claims sounded primarily in medical malpractice and therefore required a review by the medical panel. Thus, the trial court dismissed Heacock's suits without prejudice. Heacock appealed, arguing that it was error for the trial court to require the panel's review given that her allegations gave rise to a general tort claim, and not a medical malpractice claim.

The Second Circuit Court of Appeal noted that the LMMA applies only to “malpractice” as defined by the statute, while other tort liability on the part of a health care provider is governed by general tort law. Further, Louisiana statute provides separate and distinct definitions for "malpractice" and "tort," the former extending only to unintentional actions. Thus, "by definition, 'malpractice' does not include the intentional acts of the health care provider." Noting that "Dr. Cook took deliberate action as a physician by becoming involved in a sexual relationship with his patient," the court reasoned that Heacock's claim of intentional tort against Dr. Cook was not “malpractice” as defined by the LMMA. Instead, "this type of deliberate action, a sexual relationship, has been deemed to be an intentional tort, and, as such, not considered a malpractice claim." The court, concluding that the trial court erred in granting Dr. Cook’s exception of prematurity for Heacock's claim of intentional tort, reversed the trial court's judgment as to the intentional tort action and affirmed the trial court's judgment as to the negligence claim.

The Heacock case reveals the limits of the LMMA and its requirement for panel review before a case can proceed to trial. Intentional torts, even when committed by a healthcare provider, are outside of the LMMA's scope. Indeed, only actions in negligence that meet the state's specific definition of "malpractice" trigger the application of the Act. This is a critical point for a plaintiff who, like Heacock, may have several possible theories of recovery against a defendant medical provider. Any action that can be styled as an intentional tort will avoid the delay of the LMMA's review process.

Continue reading " Ouachita Parish Case Examines the Applicability of the Louisiana Medical Malpractice Act to Intentional Torts " »

The Louisiana Supreme Court recently provided guidance on the jurisdictional limit for proper filings in Louisiana civil courts. At issue in the case of Thompson v. State Farm was the jurisdictional limit required for proper filing in city court. While filing may seem to the unknowing person on the street like a minor issue, a failure to file a case in the correct district can have dire consequences for the case of a well-intending plaintiff.

In Thompson, the plaintiff sought damages from injuries she sustained in a rear-end chain reaction collision allegedly caused by a driver insured by State Farm. In her filing, she named the driver at fault and State Farm as defendants. Thompson's husband joined the suit and sought damages for loss of consortium, medical expenses, and loss of his wife's income due to the injuries she suffered. In their petitions, which were filed in Alexandria City Court, the plaintiffs explicitly demanded an amount "less than the jurisdictional maximum of [the] court." The Alexandria City Court entered judgment for the plaintiff, awarding her $50,000 in general damages and her husband $20,000 for loss of consortium and $30,000 for past and future medical expenses on behalf of the community. Subsequently, State Farm filed an exception for lack of subject matter jurisdiction, arguing that it was improper for the city court to have heard the case since the amount of damages awarded exceeded the court's jurisdictional limit of $50,000. The appellate court agreed, vacating the judgment and remanding the case to the lower court in order to transfer the action to a court of competent jurisdiction.

The Louisiana Supreme Court reversed the ruling, finding that the test for subject matter jurisdiction of a city court is the amount in dispute, or the amount demanded by the plaintiff. According to the Louisiana Code of Civil Procedure, the Alexandria City Court has concurrent jurisdiction with the district court in civil cases where the amount in dispute does not exceed $50,000, exclusive of interest and costs. Since both plaintiffs unequivocally limited the amount demanded to "an amount less than the jurisdictional maximum of... yet within the jurisdictional limits of [the Alexandria city] court," the Supreme Court concluded that the city court had proper subject matter jurisdiction over the case. Accordingly, the Supreme Court reinstated the trial court's judgment but remanded the case on another issue.

Thompson v. State Farm demonstrates the importance of filing suit in a proper court, which entails filing the case in a court with subject matter jurisdiction, or power to hear the case. When filing a lawsuit, plaintiffs must initially determine where to file the claim since there are several state trial courts that have jurisdiction over civil cases. As shown by Thompson v. State Farm, if jurisdiction is ever challenged and upheld, the consequences are costly to a plaintiff who may end up losing a favorable judgment or relitigating the matter on jurisdictional grounds. Issues like this demonstrate why hiring the proper attorney, who can navigate these very tricky pitfalls, is essential when trying to receive justice for damages suffered caused by someone else.