Louisiana Personal Injury Lawyer Blog

Kerry Becnel was injured while working on a barge, but his relationship with the vessel is not clear cut, making it difficult to determine whether he was a seaman under the federal Jones Act. In Becnel v. Chet Morrison, Inc., No. 2010-CA-1411 (La. Ct. App. 4 Cir. 8/31/11), the Louisiana Fourth Circuit Court of Appeal reversed the St. Bernard 34th Judicial District Court and sent the case back for trial.

Becnel was a cook on a quarters barge owned by Chet Morrison Contractors, Inc. (CMC). One night in 2005, he was walking from one barge to another to reach a water taxi used to get to his living quarters. Before he reached the water taxi, he fell several feet into the water. Becnel claimed that "there was no safety device, railing, chain, rope, or other safety feature to prevent falling from the side of the vessel," and the owner knew this. To add to the danger, the only light near where he fell was not working. He said he could not avoid the danger because he could not see it.

Becnel sued his employer, Coastal Catering, L.L.C., which had contracted Becnel's services to CMC. He also sued CMC and the companies' insurers. The battle became one between the companies and their insurers. Coastal's insurer, State National Insurance Co. (SNIC), claimed that Coastal's maritime general liability insurance policy did not cover CMC's potential liability for Becnel's injuries, but the district court decided it did.

CMC sought recovery against Coastal for Coastal to compensate and defend CMC's claim against Becnel. CMC argued before the district court that the legal definition of a seaman was enough to show that Becnel was a seaman under the Jones Act. It sought resolution in summary judgment, a means to resolve issues without trial when no genuine issue of material fact complicates the analysis. Coastal and SNIC disagreed.

The district court agreed with CMC's motion that no factual dispute prevented Becnel from being considered a seaman under the protection of the Jones Act. It also found that CMC was an additional insured under Coastal's insurance policy with SNIC. Coastal and its insurers have since settled their claims with Becnel.

Insurer SNIC and employer Coastal appealed the district court decision. They asked the court of appeal whether any disputed facts would prevent the district court from concluding that Becnel was a Jones Act seaman. If there were disputed facts, the question would need to go to trial.

To answer the question, the court of appeal analyzed the Jones Act and cases that have explained its coverage. The federal Jones Act allows a seaman who suffered personal injury while employed to qualify for additional means of recovery for damages and a jury trial. The trial is to be located in the court assigned to the district where the employer resides or has its principal office.

But, what is a seaman? The U.S. Supreme Court case of Chandris, Inc. v. Latsis sets out a two-part test for whether someone is a seaman covered under the Jones Act. The first question is "whether the employee's duties contributed to the function of the vessel or accomplishment of its mission." The second question is "whether that employee had a connection to a vessel in navigation which was substantial both in terms of duration and nature."

The first question is easy to answer in most cases. "[A] maritime employee who does the ship's work falls within the purview of the Jones Act." This includes "[a]ll who work at sea in the service of a ship." Becnel was working as a cook on the quarters barge. The parties didn't appear to dispute that Becnel contributed through his work. Becnel worked 17-hour days preparing three meals, cooking, and cleaning in a galley. These tasks were undisputed, and they were enough so that the first part of the Chandris test was not in dispute. Summary judgment, so far, was OK.

But, the second test was more difficult to resolve and ultimately required choosing among too many disputed facts for a reviewing court to decide (see Part 2).

The right to a jury trial for personal injuries may be the difference that allows recovery for a seaman's injury. In a specialized economy in which services are provided by third parties, it may be difficult to determine whether one is considered a seaman under the Jones Act. Becnel's circumstances provide a warning. A trained lawyer will be able to ask the right questions to find out the important facts and how they affect your case.

Continue reading " Court Determines if Injured Temp Qualifies Under Jones Act " »

This post serves as a concluding piece on the Oliver Medical Malpractice case reviewed in our previous two entries:

The higher burden in a medical malpractice case requires that the state show that the discrimination furthers a legitimate governmental interest. The Taylors argued that by including nurses in the categories of medical practitioners who have limited liability, those in Taylor's shoes have inadequate remedy. The state argued that it was creating this distinction for the overall purpose of protecting individuals who are in situations just like Taylor.

Ultimately, the state argued that by creating the liability limit for nurses in the act, it had in mind the future consequences of unlimited liability. They argued that by creating the cap the amount of liability is reduced, which means that it costs less overall for a nurse to practice within the state of Louisiana. The state goes on to argue that this reduction in cost insures that there will be a sufficient number of nurse and medical practitioners who practice within Louisiana. This, they argue, ensures people like Taylor that someone will be there to help them. Moreover, the state argues that a lower liability limit means that nurses like nurse Duhon will have at least enough money to cover the costs up to the cap and that with unlimited liability, it would not be guaranteed that nurses would have the sufficient amount of resources to compensate victims of malpractice.

The court did not agree with this. The court noted that its first objective was to see if the clause which includes nurses can be taken out of the act without destroying the acts underlying purpose. If this can be done, the court must save the act by taking that part out. In this case, the court held that removing nurses from the protection of the act will not have such an effect. The court went on to state that nurses like nurse Duhon are allowed to practice in Louisiana without sufficient training and experience required to be a doctor. As a result, nurses are able to give medical advice without jumping through the hoops that doctors have to. The court stated that individuals like Taylor get advice without realizing that they may be getting wrong advice. Further, he court did not see that there was any legitimate governmental interest which could justify leaving Taylor in the state she is in by nurses who give wrong advice. The court argued that those in Taylor's situation would likely be more than happy to take the chance at suing for malpractice without the liability limit rather than be assured that they will get at least $500,000 but no more. In its conclusion, the court ruled the limitation as it applied to nurses to be unconstitutional.

Medical malpractice cases are inherently complicated and require exceptional legal assistance in order to get the financial judgment you deserve. If you believe you have suffered due to the actions of a medical professional, contact an attorney immediately to preserve your legal rights.

Ultimately, the Olivers sued the nurse practitioner alleging malpractice. A jury awarded them over one million dollars in damages. Eventually, the award of general damages, which in Louisiana included medical and non-medical costs, was reduced to $500,000 as required by the statute. Needless to say the Olivers were distraught at the low value the court ascribed to Taylor's injury.

The Oliver's challenged the constitutionality of the statute by alleging that it violated the principle of equal protection. When a statute is constitutionally challenged one of the most important aspects of the case is what burden the state has in defending the act. If the act does not violate the equal protection clause of the 5th and 14th amendment, the state only needs to prove that the act has a rational basis connected with a legitimate government interest. Generally, this standard is not very hard to meet. On the other hand, if the act violates equal protection, a higher standard is used to evaluate the act. The Louisiana equal protection clause states the following:

"No person shall be denied the equal protection of the law. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations."

If the act does violate any of these categories the state has a higher burden to meet. The state must show that the act furthers a legitimate governmental interest. The defendants argued that the act did meet the rational basis test because the goal was to prevent medical practitioners from being subject to excessive malpractice suits.

The Olivers argued that the act violated the equal protection clause. The court stated that there was in fact a distinction drawn by the act which would appear to violate the clause. The Louisiana equal protection clause states that there should not be any unreasonable discrimination based on physical condition. The court viewed the effect of the act on children like Taylor who are catastrophically and severely injured by a medical practitioner. The $500,000 liability limitation in fact creates a category of those whose injuries are not severe or catastrophic and who will likely be able to be fully compensated for damages done to them within the limitation. The act also creates a category of those victims of medical malpractice who are severely and catastrophically injured and who will not be able to be fully compensated for their injuries.

Taylor had a disease which would be fully treated in 90% of cases if diagnosed at an early stage. Nurse Duhon did not consult with a doctor when Taylor was her patient. As a result, the cancer spread to a point where Taylor would be almost fully disabled for the rest of her life. She is a victim of malpractice who cannot be compensated within the $500,000 liability limit. This disparity of protection in the law is what the court saw as a violation of equal protection. As a result, the higher standard of burden was imposed on the state.

In some states, the legislative branch creates certain protections for classes of residents. These protections can come in the form of protective presumptions, statutory liability limitations, or any other form which the legislative branch thinks is necessary for its state. In most states, statutes protect those in the medical field from unlimited liability. The reality is that these protections are necessary in order to protect doctors and hospitals from being involved in numerous civil cases. If doctors could be sued freely, chances are that the cost of liability insurance would sky rocket. If this happens, medical professionals would be wary to establish a practice in that particular state. Needless to say, this would create a huge crisis in the medical field.

These protections generally do not apply if there has been an egregious act by a doctor. Moreover, these protections do not apply if a doctor has intentionally committed an act against a patient. In Louisiana, for a general claim of malpractice, the award of general damages is limited to $500,000. This protection exists for doctors, hospitals, and some types of nurse practitioners. However, if an exception to the statutes application exists, the shield will not be helpful to medical practitioners.

In a recent case Joe Oliver vs. Megnoila Clinic, the protection did not apply to a nurse practitioner. The statute involved was expanded to include nurse practitioners of the type the defendant was. However, one of the requirements was that the nurse practioner consult with a medical doctor on issues before giving medical advice. Susan Duhon, one of the defendants in the case, was a nurse practitioner. She was seeing the Taylor Oliver who was an infant at the time that she was first brought to Ms. Duhon's office. Taylor was brought in because she was crying a lot and the parents could not figure out what the problem was.

Ultimately, Ms. Duhon rendered an incorrect prognosis and sent the Olivers on their way. In fact, the Olivers returned to the office on a number of occasions because Taylor would simply not get better. Every time the Olivers came to her office, Ms. Duhon made a diagnosis without consulting with a medical doctor, as was required by Louisiana law. Eventually, the Olivers took Taylor to the hospital to see the doctor that Ms. Duhon was supposed to be consulting with all along. The doctor referred the case to a children's hospital where the Olivers' learned that Taylor had neuroblastoma which is a form of cancer that originates from the nerve tissue. It was also determined that Taylor showed signs of bruising around the eye, which is a tell-tale sign of the disease. However, this was not diagnosed until much later after the disease began to manifest.

This topic will be continued in our next entry.

As part of our Constitutional right to due process, an individual is allowed to bring grievances before a court. However, certain judicial policies may be enacted to deny plaintiffs from bringing suits that have already been litigated, are being brought with the intent to harass, or are frivolous. The purpose behind such policies is to make courts as efficient as possible by deterring such actions. A recent case out of the Louisiana Fourth Circuit Court of Appeal shines a light on several of these deterrents.

In Mendonca v. Tidewater, Inc., the plaintiff sought to nullify several final judgments made by the district court. Mendonca's list of suits stretched over four years, with multiple appeals and pleas for annulment. However, none of Mendonca's nullity claims or his appeals were successful. In his final appeal for anulment, the Fourth Circuit Court of Appeals handed down three restrictions that laid Mendonca's long line of cases to rest.

The first of these restrictions was the court's upholding of the defendent's plea of res judicata and failure to state a claim. When res judicata is enacted, the court declares one of two denials. First, that the claim has been subject to a final judgment and thus no longer qualifies for an appeal, or second, that the litigant cannot bring a claim against the same party in a second claim because all claims should have been brought against that party in the initial suit. The policy considerations supporting res judicata is to preserve court resources and protect defendants from being subject to litigation multiple times, with the possibility of having to pay damages more than once. A defendant's plea that a plaintiff has failed to state a claim goes hand-in-hand with res judicata. If res judicata is applicable, then all duplicitous claims cancelled. In Mendonca's case, this means that there were no new claims. Since there were no such claims, the court held that Mendonca's nu
llity actions were a failure to state a new claim.

A second deterrent to brining frivolous, harassing, or duplicitous suits is the possibility of monetary sanctions. Rules of civil procedure require that an attorney make objective inquiries into the facts of a case and the law that pertains to it. These inquiries are held to a high standard as they are seen as an attorney's duty. This means that one's subjective good faith inquiry is not sufficient. When an attorney files a claim, it is important that case history is analyzed to ensure that res judicata does not apply. A failure to inquire about previous claims is a failure to impose the applicable law and is essentially poor lawyering. This was the case in Mendonca's appeal. Any attorney who objectively analyzed the situation would have known that the claim was precluded through res judicata. Yet, Mendonca proceeded. The court interpreted this as an abuse of the judicial system and an attempt to harass the defendant. This abuse justifies the imposition of sanctions.

Sanctions are typically defined as an order to pay to the other party the amount of reasonable expenses through the employment of an attorney. Yet, "reasonable" is not confined to the actual expense accrued by the attorney. Instead, "reasonable" has been interpreted to mean additional costs that act to deter, punish, and compensate. When sanctions are imposed by a trial judge they are unlikely to be appealed. Appellate judges tend to give deference to the trial judge's intimate knowledge of the case, litigants, and attorneys. For these reasons, Mendonca was sanctioned in the amount of $10,000, all of which were upheld on appeal.

A third way that a court can punish an individual as a deterrent is to issue a sanction revoking in forma pauperis status. In forma pauperis is a legal termed used by a judge to allow a poor individual to file a legal case and/or represent oneself at trial. Allowing one to claim this status is to essentially cut most court associated costs for the needy individual in order to ensure due process. Mendonca qualified and was granted this status. However, courts have held that in forma pauperis status is a privilege, not a right. Therefore, any abuse of this status will result in revocation. The most common reason why in forma pauperis status is revoked is because one brings frivolous suits. Mendonca did this in his case and was punished accordingly.

Res judicata, sanctions, and other rules of civil procedure are complicated, requiring a full analysis of the facts and the law. Such situations should only be approached by a licensed practicing attorney.

Continue reading " Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits " »

Although the substantive issues involved in a case are the entire reason litigants make their way to courts, the procedural rules can have a beneficial or detrimental effect upon your case depending on how you use them. For example, a defendant has a limited amount of time to respond to an intial suit brought against him. In most cases, a defendant has to respond within 20 days of receipt of notice of a lawsuit. If he does not respond, the case will likely be decided against him. In evidentiary matters, the rules of evidence can have a serious effect upon litigation strategy.

If a litigant's case rests on one piece of evidence, which for some reason cannot be admitted into evidence, the litigant's entire case will be doomed. Moreover, if the litigant introduces evidence incorrectly, his case could be reversed on appeal. This recently happened in a case out of Louisiana, Porter v. Louisiana Citizens Property Insurance Corporation (LCPIC).

The basic issue in Porter was that Ms. Portner had settled her insurance claim with LCPIC in a settlement agreement after a car accident occurred. Two years after the settlement, Ms. Porter sued LCPIC alleging that part of her insurance claim was not covered under the original settlement agreement. At the trial court level, LCPIC filed an exception of res judicata with the court. An exception is a means by which the party using it claims that the claim of the other party is legally nonexistent. In the case of an exception of res judicata, the contention is that the claim has already been adjudicated before and therefore there is really no existing issue. LCPIC argued that because the settlement agreement already existed, Ms. Porter had extinguished her right to bring suit on the issue. Ultimately, the trial court decided in favor of LCPIC. Ms. Porter timely filed an appeal of the trial court's decision. She alleged that the trial court erred in making its decision and that it erred in not allowing her to have more time to submit and review evidence.

The appellate court agreed with the trial court that a settlement has a res judicata effect. However, the appellate court saw error in the way LCPIC admitted evidence. The issue was that LCPIC attached the settlement agreement to a memorandum, but did not formally admit it into evidence before the trial court. The appellate court cited to case law which indicated that appellate courts can only review a trial court's decision based on properly admitted evidence. Therefore, because the settlement agreement was not properly admitted, the appellate court could not properly review the issues decided by the trial court. This is true even if LCPIC provided a physical copy to the appellate court during the appeal. The appellate court was forced to send the case back to the trial court level to hold an evidentiary hearing. Ultimately, the settlement agreement will have res judicata effect. The real problem for LCPIC is that because the appellate court directed the trial court to hold a full evidentiary hearing, Ms. Porter will get the opportunity to submit and review evidence which she did not get to do at the trial court level. If LCPIC would have correctly admitted the settlement agreement at the trial court level, it would not have to retry issues it already dealt with. Moreover, LCPIC would not have to deal with any of the issues Ms. Porter is more than likely to bring up at the trial court level. In LCPIC's case, if it would have followed proper procedure, it would likely have been secure at the appellate level; instead, it finds itself treading the same path for the third time.

Please call the Berniard law firm for your legal questions.

In 2008, Debra Goulas worked as a bookkeeper for Sunbelt Air Conditioning Supply in Baton Rouge. Jessie Touchet, owner of Sunbelt, and Diane Jones, Goulas's manager, accused her of stealing over $500 from the company during February and April that year. Goulas was tried for felony theft and acquitted. Following the criminal trial, she filed suit against Touchet and Jones in July, 2010 alleging defamation. Specifically, Goulas argued that Touchet and Jones "intentionally and negligently inflicted emotional distress" upon her, and that their accusations were "founded in malice to damage her person and reputation." The complaint sought damages for medical expenses, physical and mental pain and suffering, and loss of wages. The defendants filed an exception of prescription. The basis of the exception was that Goulas's claims were based on the defendants' actions that allegedly occurred during February and April of 2008. By the time Goulas filed suit in 2010, more than one year had passed, thereby prescribing the claims. In October, 2010, the trial judge granted the defendants' exception of prescription and dismissed Goulas's claims with prejudice.

Goulas appealed, alleging error on the trial court's ruling that her defamation claim was prescribed. Goulas reasoned that she could not initiate her defamation action until her criminal trial was concluded in March, 2010; accordingly, she argued that prescription did not begin to run until Frederick Jones publicly accused her of theft when testifying at her trial. The First Circuit noted that Louisiana recognizes a qualified privilege that protects parties from charges of defamation related to statements they make during a trial. "It necessarily follows that, during this time, the one-year period that applies to the filing of a defamation action is suspended." However, the court explained, the suspension of prescription applies "only to allegedly defamatory statements made by parties to a lawsuit." In this situation, Frederick and Jones were not parties to Goulas's criminal prosecution, so the prescription suspension did not apply. The court concluded that "since there has been no suspension of the 2008 alleged defamatory statements," the trial court properly granted the defendants' exception of prescription.

This result was no doubt a painful lesson to the Goulas that prescriptive periods and other rules of Louisiana civil procedure can be complex and confusing. At worst, such as here, missing a deadline can prove fatal to a plaintiff's case. Accordingly, it is critical that victims who think they may have a claim should consult a knowledgeable attorney immediately. Time may very well be of the essence in order to secure a day in court.

Continue reading " Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription " »

Everyone expects adequate, timely, and complete care from medical professionals in hospitals. However, times come when the expected level of care fails to come to fruition, and an action for medical malpractice arises. In March of 1993, a Tallulah, Louisiana, resident began a series of trips to doctors in hospitals in which his continued back, shoulder, and neck pain eventually led to lung cancer. This unfortunate victim of cancer, Mr. Kerry Scarborough, died 2 years later in March of 1995.

For a malpractice claim against a hospital, plaintiffs like Mr. Scarborough's mother, suing in her son's name, must prove by a preponderance of the evidence first, that the defendant owed the plaintiff a duty to protect against the risk involved, essentially providing a standard of care that the plaintiff was owed, second, that the defendant breached that duty or standard of care, and third, that the injury was caused by that breach. Louisiana revised statute 9:2794 provides the statutory language laying out the plaintiff's burden:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., . . . the plaintiff shall have the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, . . . licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians . . . within the involved medical specialty.

(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.

(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Generally, expert testimony is required to establish the degree of care that the defendant must meet and whether that standard was breached, except where the negligence is so clear on its face that an expert is unnecessary. Whether an expert's particular testimony will be admissible depends on whether a trial judge finds them qualified to testify as an expert, analyzed under what is called a 'Daubert standard,' in which the court will look at a variety of factors regarding the expert's background.

In Mr. Scarborough's case, not all his expert's met this standard, and some testimony that could have potentially helped his case was barred and never heard. We understand these complex issues patients face in these types of lawsuits, and are here to help you get through those difficult times.

Continue reading " The Scary Prospect of Inadequate Medical Care and the Legal Ramifications " »

The case of Jefferson Block 24 Oil and Gas, Inc. v. Aspen Insurance UK Limited highlights an important battle over money set aside for oil spill recovery, an obviously sensitive and important topic in the Gulf Coast. At the federal district court for the Eastern District of Louisiana, the defendants won a motion for summary judgment and the court dismissed the case. The plaintiffs appealed the determination and the United States Court of Appeals for the Fifth Circuit reversed the decision and remanded the case for further hearing.

The plaintiff, Jefferson Block, owned and operated offshore gas leases, pipelines and a platform in the Gulf of Mexico. In November 2007, a drop in pressure in one of the pipelines was discovered that showed that oil was spilling into the Gulf. Jefferson Block cleaned up the oil under the direction of several government agencies and incurred a cleanup cost of approximately $3 million.

At that time, Jefferson Block owned an insurance policy which provided some coverage in the case of a leak, but was limited to the items set out in a "Declaration." This declaration listed the oil interests that Jefferson Block had in the area but did not specifically reference the 16-inch pipeline that was the cause of the spill.

Underwriters, one of the defendants, denied coverage and plaintiff sued in a Louisiana federal court. The policy provided that the governing law was New York law, and under New York law, the policyholder bears the burden of showing that the insurance contract covers the loss. Courts interpret insurance policies like any other contract, and there is a series of steps courts will take to determine what the terms of the contract are.

First, courts look to the express language of the policy, with reference to the subject matter and purpose of the policy. If the terms are unambiguous, the court will determine the parties' intent from the words in the document, and summary judgment is therefore appropriate as a matter of law.

However, if a policy is ambiguous, the burden of proof shifts to the party asking for summary judgment to show that its proposed interpretation of the policy is the correct one. At this point, the court can accept extrinsic evidence of the parties' intent. If the extrinsic evidence does not unambiguously favor the party that filed for the summary judgment, the court looks to the law for guidance. Typically, ambiguities in insurance policies are construed in favor of the policyholder.

In this case, the court found that because of the purpose of the policy, which was to comply with the Oil Pollution Act of 1990, this weighed in favor of finding for the plaintiff. Additionally, the policy referred to facilities "located" within certain areas, and the appellate court agreed with the district court that the word “located” was ambiguous. It also stated that the extrinsic evidence was not so one-sided as to require finding for the defendant.

The district court refused to construe the ambiguities in favor of the plaintiff, and the appellate court held that this was a legal error. For that reason, the court reversed the decision of the district court and sent the case back for further proceedings.

Under the Class Action Fairness Act (CAFA), federal courts have jurisdiction over class action claims. There are exceptions, however, including what is known as the “local controversy exception.”

The plaintiff, Opelousas General Hospital Authority, sued in state court three defendants, located in Texas, Illinois and Louisiana, for violations of the Louisiana Racketeering Act. The defendants removed the case to a federal district court under the Class Action Fairness Act and diversity of jurisdiction. The defendants were able to claim diversity of jurisdiction because they asserted that joinder of the only in-state defendant, LEMIC, was fraudulent. The plaintiffs then attempted to remand the case back to state court, asserting that the case fit within CAFA’s narrow “local controversy exception.”

The “local controversy exception” of the CAFA allows a plaintiff to bring a class action lawsuit in state court rather than federal court when several requirements are satisfied. These requirements are that: 1) more than 2/3 of the proposed plaintiffs (as a class) are citizens of the state in which the action was originally filed; 2) principal injuries resulting from the alleged or related conduct of each defendant occurred in-state, and 3) at least one defendant falls under a very specific category. This category covers defendants who meet all of the following: 1) significant relief is being sought from that defendant, 2) the defendant’s conduct forms a significant basis for the claims, 3) it is a citizen of the originally-filed state, and 4) the principal injuries the plaintiffs suffered happened in the originally-filed state. In such a case, the federal district court will “decline to exercise its jurisdiction” and the case will go back to state court. Additionally, for the 3 years before the original class action is filed, no other similar class action, alleging similar facts, can have been filed against any of the defendants.

Clearly, the plaintiff has quite a hurdle to surpass if it wants to claim the local controversy exception. Because the plaintiff must show that one of the defendants fits the above criteria (and LEMIC was the only possible candidate), it had to show that LEMIC’s behavior formed a significant basis for the claim. At the district court, however, the plaintiff did not present enough evidence to satisfy the appellate court. The fact that LEMIC and the other defendants may have been acting in concert was not enough to show that LEMIC’s behavior was significant enough.

Therefore, the United States Court of Appeals for the Fifth Circuit vacated the order to remand and reinstated the case on the federal district court’s docket. If you face a similar ordeal, it is important to hire the proper attorney to make sure that your case is maintained and that you receive the ruling you deserve.

In a recent Louisiana First Circuit Court of Appeals ruling, a plaintiff successfully appealed an earlier dismissal of his case for failure to properly serve all of the correct parties.

After Hurricane Gustav, Mr, Preston was working on the Southern University campus removing debris, including trimming tree branches, when he slipped and fell into a hole in the ground. He sustained injuries and sued Southern University for negligence, claiming that the campus allowed an unreasonably dangerous condition to exist and it failed to warn him of the dangerous condition.

Under a Louisiana statute (La. R.S. 13:5107), when a plaintiff sues the State of Louisiana or a state agency, he must serve the Louisiana attorney general and the head of the agency. Furthermore, if the suit is a personal injury lawsuit (tort lawsuit), the Office of Risk Management must be notified and served as well, according to La. R.S. 39:1538.

Southern University asserted that although the lawsuit was properly served on the attorney general, it was not served on the head of the department and of the Office of Risk Management, as required by statute. It also asserted that the complaint was too vague because it failed to name the specific parish, state, or location of the Southern University campus where the incident took place. It asked that the plaintiff be required to properly serve all the parties and to amend his complaint to add more specificity.

Mr. Preston amended the complaint, which cured the vagueness defect, but he still failed to serve the head of the department and the Office of Risk Management. His case was then dismissed, but he appealed the dismissal. Southern University claimed that an earlier case, Burnett v. James Construction Group, rendered the appealed issue moot and asked that the case be remanded back down to the trial court. In Burnett, the Louisiana Supreme Court decided that under La. R.S. 39:1538, a dismissal of the case was not required even if the plaintiff had failed to properly serve all of the parties necessary. The First Circuit Court of Appeals ruled that because of the Burnett case, Mr. Preston was entitled to more time to serve the proper parties; Southern University was not entitled to dismissal of the case until Mr. Preston was given an appropriate amount of time in which to serve the lawsuit and failed to do so.

Even in a chaotic environment, this case demonstrates that proper action by an attorney in a filing, as well as careful detailing in a lawsuit, are inherently necessary. If you have suffered a personal injury and need to make sure the lawsuit is done correctly, contact a lawyer at our firm today.

It is well settled in Louisiana law that automobile drivers are required to exercise care to avoid colliding with pedestrians. Motorists are charged with the duty to see what an "ordinarily prudent" driver should see to prevent striking pedestrians in the roadway. In fact, La. R.S. 32:214 requires drivers to

"exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway."

A driver's liability for injury to a pedestrian is based on ordinary negligence principles. The traditional duty/risk analysis is used to compare the driver's behavior to "how a reasonably prudent person [would] have acted or what precautions [he would] have taken if faced with similar circumstances and conditions; the degree of care required is dependent upon the foreseeable dangers facing the driver. It can be particularly challenging for a court to conduct the duty/risk analysis when a victim dies as a result of his injuries and there are no eyewitnesses to the accident other than the defendant himself. The "trier of fact is free to believe in whole or part the testimony of any witness," which means that the a judge or jury may disregard a defendant's own testimony about whether he saw--or should have seen--the victim. Scoggins v. Frederick. However, under Louisiana civil procedure, "a court cannot make [such] credibility determinations in ruling on a motion for summary judgment." This rule of procedure led to the First Circuit Court of Appeals' reversal of the trial court in Woodward v. Hartford Insurance Co.

On October 10, 2005, John Mouton was performing cement work in a parking lot that abutted the north side of South Choctaw Drive in Baton Rouge. Mouton was working about two feet from the edge of the roadway, and at various times crouched down to smooth the concrete that had been recently poured with a hand trowel. Around noon, Albert Champion turned his bus onto South Choctaw Drive. As Champion's bus passed Mouton's location, the bus's side mirror struck Mouton in the face, resulting in his death a short time later. Mouton's family sued Champion and his employer, the Baton Rouge Marine Institute. The defendants filed a motion for summary judgment, which was granted by the trial court. Mouton's family appealed, contending that the trial court erred in dismissing their claims because issues of material fact about whether Champion breached his duty of care to Mouton existed; in fact, the Moutons argued they could "satisfy their evidentiary burden on the material issue of whether Mr. Champion saw or should have seen Mr. Mouton as he proceeded westward on South Choctaw Drive" at trial.

Champion was the only witness to the incident. He provided the investigating police officer a written statement immediately following the accident in which he claimed he had seen Mouton as he approached the point of impact but did not believe at any time that Mouton was at risk of being hit. Conversely, in his deposition, Champion stated that he did not see Mouton at all until he "heard a thump" and saw a man falling toward the sidewalk in his mirror. The First Circuit noted, "[c]learly, the trial court concluded that the explanation Mr. Champion provided in his deposition was more credible than that which he offered in his written statement." However, this conclusion was a judgment that was reserved for the trier of fact and was therefore inappropriate for resolution by summary judgment. "Because reasonable persons could disagree about whether Mr. Champion saw Mr. Mouton ... or did not see him ..., the issue of whether Mr. Champion breached the duty he owed Mr. Mouton to see him and avoid colliding with him is a genuine issue of fact." The court determined, therefore, that "the trial court erred in dismissing the Moutons' claims on this basis."

The Woodward case makes plain that, under Louisiana jurisprudence, questions of fact must be left to a jury or trial judge to decide and cannot be resolved through summary judgment. If you have been injured by someone's negligence, it is essential that you obtain counsel who understands Louisiana civil procedure and who can ensure your case is not improperly dismissed at the summary judgment stage.

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In a recently published case, a four-judge panel of the Third Circuit Court of Appeal for the State of Louisiana upheld a trial court's determination that the defendants pay all of the court costs, even though they prevailed on the merits of the case. This kind of decision is highly unusual; typically, the losing party pays court costs, which can include, for example, filing fees, expert witness fees, and costs of depositions. They can be substantial, especially in a decade-long court case such as this one. Here, the defendants were ordered to pay court costs of $326,307.09, which they promptly appealed.

In order to appeal a judgment of costs, the costs must be substantial and a hearing on the subject must be held after the case has resolved on the merits. Here, the trial judge, Judge Hebert, did in fact hold a hearing where both sides were allowed to present briefs and arguments as so why the opposing party should be forced to bear the costs.

The judge acknowledged that the lawyers for both sides were aggressive advocates and did not fault them for that. Though Judge Hebert took one of the plaintiff's attorneys to task for losing his temper and throwing a pencil, he also pointed out that the defendants' attorneys engaged in behavior that was calculated to mislead the court, intimidate and harass witnesses, and impede litigation.

Under Louisiana Code of Civil Procedure article 1920, the trial court has discretion in equity to decide which party is responsible for costs. Generally, the rule is to assess costs against the party that lost the case on the merits, but in some situations, the best interests of justice are served by ordering the winning party to pay all costs; the appellate court cited numerous examples. The appellate court found that Judge Hebert did in fact take note of the relevant factors, and noted that he had presided over the case for ten years and was fully aware of all aspects of the litigation.

One of the defendants' in-house counsel wrote a letter to the editor of a scientific journal which was about to publish an article written by a plaintiff's expert, alleging "scientific anomalies" which were found not to exist. The paper was temporarily pulled from publication, but the damage was done and the trial was delayed for several days while the expert was again examined. The defendants' counsel claimed not to know anything about the correspondence, but the questions they asked the expert revealed their guilt.

During trial, one of the plaintiffs and her husband were sued to collect on a debt the day he was scheduled to testify. Defendants' counsel claimed not to be involved in the collection effort, but the trial judge believed that it was done solely to intimidate the plaintiffs, not to further a good-faith debt collection. The trial judge also dismissed the defendants' arguments that they took certain depositions in good faith and that unused depositions should not be counted against them.

On the whole, the trial judge noted a pattern of "overreaching and unduly aggressive behavior" by the defendants' attorneys that justified imposing costs. The appellate court agreed and upheld the decision in full.