Louisiana Personal Injury Lawyer Blog

Every year thousands of medical malpractice claims are filed. Why? The answer is simple. The practice of medicine is complex, and, as advanced as our medical sciences are, mistakes are made, false diagnosis are given, and new conditions emerge. Since there are so many complexities, the fact that a patient is misdiagnosed or suffers from a condition that the doctor missed does not necessarily guarantee a successful medical malpractice claim. As illustrated by Cheramie v. Norem, in order to succeed on such a claim, a plaintiff must establish that the doctor did something or failed to do something that fell below the appropriate standard of care which resulted in harm to the patient.

In most medical malpractice cases, including Cheramie v. Norem, the most contested issue regards the standard of care. Typically, healthcare providers are held to a reasonable care standard, requiring them to use diligence and their best judgment in applying their skills. General practitioners are held to local standards which are the standards that prevail in the area they live or a similar location. Specialists, on the other hand, are held to a single national standard that applies to the entirety of that particular specialty. Regardless of which locale's standard applies, all standards are comprised of a number of elements which the failure to comply with can give rise to a medical malpractice claim.

Cheramie v. Norem provides a glimpse into one of these standard of care elements. In this case, a doctor provided post-operative treatment to a patient after repairing a hernia. After the hernia operation, a small hole opened in the patient's small intestine, requiring permanent sutures. As time passed, the patient's body began rejecting the sutures and the question arose as to whether or not the doctor should operate to remove them. After years of the doctor's recommendation that the sutures should remain, the patient was forced by his insurance company to get a second opinion. This second doctor operated to remove the sutures, resulting in a full recovery by the patient. Afterwards, the patient filed suit against the original doctor for malpractice.
In this case, the standard of care element the court looked to was informed consent. Louisiana statutes provide that doctors are required to provide their patients with sufficient information to permit the patient to make an informed decision on whether or not to pursue a course of treatment (Hondrouis v. Schuhmacher, 553 So.2d 398, 411 (La. 1988)). This information includes the nature of the patient's condition, the nature and risks involved with a proposed treatment, the likelihood of success of a particular treatment, and the risks of foregoing any treatment. When an issue of informed consent is raised regarding a general practitioner's standard of care, local medical experts and doctors will often testify as to the defendant doctor's actions. If these testifying doctors make statements indicating that certain medical practices or advice was reasonable and appropriate, then malpractice likely has not occurred.

At trial, a jury found that the doctor in Cheramie's case acted within proper standards of providing informed consent. This informed consent included informing the patient of treatment options and the risks, in addition to alternative medical treatments. Dispute arose concerning whether or not the doctor conceded, in a timely matter, that a second opinion was needed. However, when there are conflicting opinions concerning compliance with a standard of care, a reviewing court gives deference to the trier of fact's conclusion. Thus, since the jury found the doctor to be in compliance with the suitable standard of care, the appellate court upheld that decision.

Since the standard of care a general practitioner is required to adhere to correlates to where the doctor practices, rural areas may have a lower standard of care than those in urban settings. The reasons for this are varied, but may include limited access to equipment and technological resources. Therefore, a rural doctor would not be expected to have conducted tests that require an expensive piece of equipment only owned by large urban hospitals. Yet, this same rural doctor would likely be expected to have at least notified the patient of that opportunity, if the doctor knew of such a test. On the other hand, the doctor who practices in a technologically advanced hospital would be held to a higher standard of care because he would have more access to such equipment and specialists. For this reason, when an individual is deciding whether or not to file a medical malpractice claim, she must be aware of the standard of care a doctor is required to give in that location.

Medical malpractice claims are complex, incorporating several elements that may change the legal analysis based on things as simple as the doctor's location. These matters are best left to a practicing attorney with knowledge and experience in this field. If you have any questions regarding a medical malpractice claim, please contact the Berniard Law Firm.

When an auto accident results in an injury and is taken to court, one of the most important issues a judge must decide is causation. If a plaintiff can show that an injury was directly caused by the accident, then the judge will determine the amount of damages to be awarded. However, the determination of causation can be difficult. This is especially true when figuring out whom exactly caused the accident. For example, if a car on the interstate swerves into a lane and slams into another vehicle it may appear that the driver of that car directly caused the accident. If this were true, then the driver would be liable for any injury damages. Yet, there are several factors that must be considered. Consider, was any part of the car defective? Was there a problem with the road that caused the car to swerve? The various answers to these questions can change what actually caused the accident and the injury, thereby shifting liability to differing parties.
When making a personal injury claim, the burden of proof is on the plaintiff to prove both that the defendant caused the accident and that the injuries resulted from that accident. The plaintiff need only prove these elements by a preponderance of the evidence, meaning that it is more likely than not that the defendant caused the accident and that the injuries resulted from that accident. If causation is proved, then the judge will determine the damages that are to be awarded.

Damages awards may be found in several different areas. The most obvious is damages via costs accrued through medical treatment. Costs for medical transportation, doctor visits, prescriptions, and other hospital services are likely to be awarded as damages once causation has been proven. In addition to medical costs, a plaintiff may make claims for pain and suffering. These awards are highly discretionary, and are dependant upon the plaintiff's ability to show that he has suffered disfigurement, impairment of ability to work, anxiety attributable to the injury, and mental distress. Pain and suffering damages cover a broad area, but to succeed on such claims it is imperative that the pain and suffering is proximately related to the accident and/or injury. A plaintiff may claim other damages such as loss of wages, loss of enjoyment of life, and loss of consortium. However, all must be a result of the accident and injury that serves as the claim's foundation.

In Mouton v. Old Republic Insurance Co., the plaintiff sued an electrical company, its insurer, and its driver when the driver backed his truck into the plaintiff's car. At trial, Mouton filed claims against the electrical company, its insurer, and the driver, seeking damages to recoup his medical expenses and to receive compensation for his pain and suffering and his loss of enjoyment of life. The trial judge denied Mouton's claims because he did not believe that the injuries and the accident were causally related. On appeal, however, the judge looked to Mouton's medical history and activities prior to the accident to determine if there was causation. Since Mouton did not have any prior medical conditions that could have caused his injuries, the appellate judge found that the injuries more likely than not resulted from the accident. Therefore, the plaintiff's burden of proof was satisfied.

The appellate judge then turned to damages. First, the medical bills were examined to see if they pertained to the accident injuries, and if so, whether or not the costs were reasonable. In Mouton's case, the judge found the medical costs to be reasonable and thus worthy of award. Mouton's claims for pain and suffering and loss of enjoyment of life, on the other hand, were not supported by any evidence that such claims were causally related to the accident. These claims were therefore dismissed. General damages of $2,500 were awarded, which accounted for the minimal inconvenience Mouton experienced from his injury. This finding provides an example of the importance of the causal link between an accident and the injuries from which one is seeking damages.

Auto accident cases may seem clear cut at first glance, but they are often more complex than one presumes. Several different factors related to causation and damages must be examined closely to determine if a suit should be brought, and if so, against whom, and precisely what claims should be filed. Such a process is best left to an experienced attorney.

Continue reading "Crowley Auto Accident Gives Rise to Causation Examination in Louisiana Auto Case" »

Class actions are a type of action that most people have heard of but that may not be well understood. In Klier v. Elf Atochem North America, Inc. a class action was initiated against the operator of an industrial plant in Bryan, Texas. The class was divided into three subclasses for the purposes of settlement. Members of each class were granted specific remedies for their disparate injuries.

Class actions are a useful tool when a large number of people have been harmed by a single defendant but none or few of them have suffered sufficient harm to warrant filing an independent claim. Class action proceedings have res judicata power over plaintiffs who do not opt out. That means that if a plaintiff does not opt out of a class action, the verdict or settlement that results will be binding on that person and prevent them from filing that same claim in the future. If a plaintiff feels that his or her injury warrants a separate claim, that person is free to do so only after opting out of the class action.

In order to certify a class for a class action under the Federal Rules of Civil Procedure in the first place, a court must find that the class is so numerous that joinder of all members is impracticable, that there are questions of law or fact common to the class, that the claims or defenses of the representative parties are typical of the claims and defenses of the class and that the representative parties will fairly and adequately protect the interests of the class. Each of these requirements must be met in order for an action to go forward as a class action.

A class action necessarily requires a great deal of people to be involved. No hard number is found in the Federal Rules but joinder rules exist that are capable of incorporating many parties into a lawsuit before it becomes impracticable. Joinder rules lead to cases that are somewhat confusing from time to time but more people have to be involved to make certifying a class appropriate.

The people in the class must also be similarly situated. If there are not common issues of law or fact, a class action is not appropriate. In Klier v. Elf Atochem North America Inc. the court certified three subclasses. The people in each subclass were similarly harmed. There were questions of fact common to each subclass, as well. Each set of plaintiffs alleged that they had been harmed by the same plant. These subclasses were created so that the case could be settled instead of going to trial. One of the subclasses did not exhaust the resources allotted to it so the court utilized the doctrine of cy pres to distribute the remaining funds. That was determined to be a mistake and is the subject of another post on this blog.

Class representatives necessarily must represent the class. If the claims or defenses they present are atypical of the class, they are not accurately representing the interest of that class. This is likely the reason that the court split the Klier v. Elf Atochem North America, Inc. into three subclasses for the purposes of settlement. The representatives of each subclass likely had slightly divergent interests. In order to avoid a conflict of interest, the court split the class.

The fourth aspect of certifying a class to pursue a class action suit is part and parcel of the third aspect but requires something more. The representatives have a duty to the other members of the class to hire competent attorneys and to pursue claims that are in the best interest of the class as a whole. In order for a class action to be successful, someone must step up and take the lead. Without adequate representation, a class cannot be certified. Furthermore, it is unlikely that anyone would even begin a class action if nobody planned to step up and become the class representative.

The Klier v. Elf Atochem North America, Inc. opinion can be read here. The duties and obligations of the class representatives continued after the trial in that case. The rights of the class members were not fully realized after the initial settlement so the work continued. You can read more about the Fifth Circuit's determination in the opinion and this blog post.

Continue reading "Class Action Goes to Federal Court in Texas Plant Release Case" »

Happy Holidays from the Berniard Law Firm! We will resume blog posting on Tuesday.

Under Louisiana law, the plaintiff in a personal injury lawsuit may file his complaint with the court by fax. However, the plaintiff must, within five days of transmitting the fax, forward to the clerk of court the original, signed complaint and any fees that are due. If the plaintiff fails to forward the original document, the faxed copy will "have no force or effect." La. R.S. 13:580. The fax option can potentially help preserve an action that is facing the expiration of its prescriptive period. However, as we will see with the recent case of Taylor v. Broomfield, the courts do not take lightly the requirement that the original complaint must be submitted to the clerk within the time frame outlined in the statute.

On September 17, 2009, Jarred Taylor was involved in a serious car accident in Jackson Parish. The other party to the collision was Brandon Goss who was driving a Mack truck owned by Broomfield, Inc. Taylor suffered various injuries including two broken ribs, multiple contusions, and lacerations to his face. Taylor's lawyer initiated a lawsuit against Broomfield and its insurer on September 17, 2010 (exactly one year after the accident and the last day of the prescriptive period) by transmitting a faxed complaint to the Jackson Parish Court. The faxed complaint was not notarized. Although Taylor's counsel had, according to Louisiana statute, until September 24, 2010 to send the original complaint to the court's clerk, the original document was not filed until October 5, 2010. The original complaint filed with the clerk on October 5 included a verification notarized by one Donna Kay Tucker on September 20, 2010.

On November 12, 2010, Broomfield filed an exception of prescription requesting that Taylor's suit be dismissed because it was filed after the one-year prescriptive period had elapsed. A hearing was held on January 13, 2011. In opposition to Broomfield's exception, Taylor’s attorney argued that when his office faxed the complaint on September 17, 2010, his staff immediately mailed the original complaint, along with the filing fees, to the clerk of court. Several staff members from the law firm testified to this effect, but none of them could explain who the notary, Donna Kay Tucker, was or why the complaint's verification reflected a date after the day the firm put the document in the mail. Ultimately, the trial judge denied the exception of prescription and held that the notary date was "merely harmless error" and that the complaint had been timely forwarded by Taylor's counsel per state law. Broomfield appealed.

The Second Circuit began its analysis by reviewing the burden of proof: it noted that
"[a]lthough the party raising a peremptory exception of prescription ordinarily bears the burden of proof, when prescription is evident from the face of the pleading, the plaintiff bears the burden of showing the action has not prescribed." Cooksey v. Heard, McElroy & Vestal, L.L.P. This means that the plaintiff must prove by a preponderance of the evidence that the original complaint and fees were mailed to the clerk; this proof can take the form of affidavits or receipts that show the date and time of mailing or delivery. The court noted that Taylor’s attorney and office staff "testified that they executed their duties on September 17, 2010 with regard to the petition." Yet, when questioned, "no one could confirm that the envelope [containing the complaint] was actually forwarded from the firm to the post office nor could anyone explain the September 20, 2010 date affixed by the notary," who was unknown to the office staff. Also, no witness could explain why the faxed complaint was not notarized, while the purported "original" delivered to the clerk (late) was notarized. The court reasoned, "Taylor has neither postage proof nor any other form of time-stamped evidence to prove that his counsel timely forwarded the petition for damages. Without such proof of mailing to counter the missing and conflicting evidence, this court cannot agree that Taylor met his burden of proof by a preponderance of the evidence." Accordingly, the court concluded that the trial court was clearly wrong in denying the exception of prescription, and reversed its decision.

The Taylor case makes plain the critical importance of meeting filing deadlines in litigation. A plaintiff must choose his counsel carefully to ensure his case is not lost before it begins due to a technical error like failing to properly and timely file the complaint with the court. I

Continue reading "Lawsuit Over Jackson Parish Car Wreck Dismissed Due to Late Filing" »

In this, our final post of the Union Carbide/Dow Taft plant chemical leak series, we will consider the fifth requirement for class certification under Louisiana law: that the class is "defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case."Chalona v. La. Citizens Property Ins. Corp. The intent of this requirement is to ensure that the class is not "amorphous, indeterminate, or vague," such that any potential class members are challenged to determine whether they are actual members of the class. Plaintiffs initially submitted a class definition that included "[p]ersons throughout Louisiana" who were exposed to the ethyl acrylate that escaped the Taft plant and who suffered injury or loss as a result. The court desired a more precise definition, however. It reviewed the zip code maps, weather data, and expert testimony in evidence and incorporated Dr. Williams's method in describing the symptoms suffered by people who were exposed to craft its own definition. This action on the court's part was specifically permitted by Louisiana Code of Civil Procedure Art. 592(A)(3)(c), which envisions that the court may, prior to a final decision on the merits, enlarge, restrict, or otherwise redefine the constituency of the class. The court determined that its sharpened definition would mean that members "only need to determine if they were present in the geographically defined area on July 7, 2009, and if so, whether they experienced any of the symptoms commonly associated with the offending chemicals released." This meant, in the court's view, that its ultimate ruling as to whether the chemical released by the Taft plant caused the Plaintiffs' injuries and losses would resolve the claims of all class members.

The court summarized its conclusions by reiterating that the substantive issue that will control the outcome of the case is whether ethyl acrylate "in the amount released can cause the damages as alleged by plaintiffs. This issue, along with the legal issues of duty of the defendants to the class ... will predominate." Accordingly, the court held that the Plaintiffs successfully demonstrated that certifying the class would not result in the action "degenerating into a series of individual trials."

As we observed previously in the class certification litigation related to the Chalmette Refinery leak in 2007, the court's task in determining whether to certify a class is an extraordinarily fact-intensive one. In many cases, the certification process is just as complex and involved as the trial on the merits of the ultimate issue. In fact, the class certification in the Taft plant case has not yet been finalized. Subsequent to the issuance of Judge Cade's Order on December 15, 2011, the Defendants filed a motion to appeal the class certification.

Please stay tuned to this blog for updates as they become available.

Following the prior discussion of numerosity and commonality, we will now examine the court's analysis of typicality under Louisiana Code of Civil Procedure Article 591(A)(3). This prerequisite obligates the court to examine whether the claims or defenses of the representative parties are typical of the entire class. The requirement is met if the claims of the class representatives arise out of the same "event, practice, or course of conduct that gives rise to the claims of other class members and those claims are based on the same legal theory." See Gudo v. Admins. of Tulane Educ. Fund.

The court reviewed the three putative class members presented by Plaintiffs. Ramona Alexander lived in Hahnville on the day of the chemical release. She testified that she smelled a strong odor in her home on the morning of July 7, 2009 which caused her to become sick and vomit. The odor also caused burning in her eyes, throat irritation, and shortness of breath. Vanessa Wilson lived in Waggaman on the day of the chemical release. She awoke to an odor that caused eye irritation, nausea, coughing, and a sore throat. Wilson testified that she traveled to Avondale that morning where the odor persisted; her symptoms worsened. She also received a panicked phone call from her mother who was being ordered to evacuate her home in St. Charles Parish. Upon arriving at her mother's house, Wilson observed her mother vomiting and suffering from burning in her eyes. Melissa Berniard, who is a licensed attorney in Louisiana, testified that she was in her home in Orleans Parish on the morning of July 7. She awoke to a foul odor that suggested to her that something may have been burning; she soon experienced eye irritation, headache, nausea, and feelings of anxiety. Berniard traveled to Jefferson Parish later in the day and spoke with others who experienced similar symptoms. The court found that Wilson, Alexander, and Berniard all offered "typical complaints of the constituency of the class" that were corroborated by Dr. Williams's analysis of numerous class members' intake forms which captured their symptoms. Accordingly, the court concluded that the "issue of whether or not a release of ethyl acrylate can cause the damage alleged by the class representatives is common to all class members and is adequately represented."

The court next considered whether the proposed class representatives are adequate under the Louisiana Code by referencing a definition adopted by the Fourth Circuit Court of Appeal. In essence, the Fourth Circuit's analysis of adequacy concerns whether the proposed representatives' claims are "typical of" the claims of all class members and whether the damages asserted by the representatives are of the same type as the class as a whole. See Dupree v. Lafayette Ins. Co. The court noted that Wilson, Alexander, and Berniard all testified to being present in the defined geographical area on July 7, 2009, suffering from the type of symptoms that were common to the class, and being willing to serve as class representatives. Thus, the court held that the adequacy requirement was met with respect to the plaintiff representatives. The court also made a finding on a related matter that Plaintiffs' counsel are "highly skilled attorneys with experience in class action litigation" and well qualified to serve as class counsel. The court expressed that it was "particularly impressed" with the attorneys' presentation at the certification hearing, and felt that "there is no dispute as to the competency and the zealousness of class counsel."

In our fourth and final post in this series, we will examine the court's analysis of the last prerequisite for class certification, the need for an "objective" definition of the class.

In our previous post, we began a discussion of the Union Carbide/Dow Chemical Taft plant chemical leak litigation filed by the Berniard Law Firm. This post continues with a review of the court's analysis of numerosity in certifying a class. Under this requirement, the class must be so large that joinder of all members is impracticable. La. Code Civ. P. Art. 591(A)(1). Generally, a class action is favored when there are so many plaintiffs that individual suits would unduly burden the court, and so the class action would be more judicially expedient than other available procedures. See Cotton v. Gaylord Container. There is no distinct number of plaintiffs needed to fulfill the numerosity requirement. In this case, the proposed class included all the residents of St. Charles Parish as well as certain residents of Jefferson and Orleans Parishes--clearly a large number. The court found persuasive the fact that "the size of the individual claims of class members is small enough that individual lawsuits are impracticable," but that that "separate suits would unduly burden the courts." In the court's view, a class action would "be more useful and judicially expedient." Thus, the court concluded that "numerosity exists," but that "the class is not too numerous to manage effectively."

The court next examined the issue of commonality, or whether there were questions of law or fact common to the class. To satisfy the commonality requirement, there must exist "as to the totality of the issues a common nucleus of operative facts." McCastle v. Rollins Environmental Services. of La., Inc. A common question is one that, when resolved for one class member, is resolved for all members. This issue is closely related to the predominance requirement, where the common questions predominate over any individual issues not shared among the class members. The Louisiana Supreme Court has indicated that predominance "entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class." The goal is to "prevent[] the class from degenerating into a series of individual trials. Brooks v. Union Pacific R. Co. The same court has also held that a mass tort can only be brought as class action if it arose from one single cause or disaster; however, this requirement does not mean that the amount or extent of damages must be identical for all class members. "[V]arying degrees of damages ... does not preclude class certification." In order to meet the common cause requirement, each member of the class must be able to show individual causation based on the same set of facts and law that any other class member would use. See Bartlett v. Browning-Ferris Indus. Chem. Services, Inc.

With these considerations in mind, the court analyzed the common threads identified by the Plaintiffs as to their claims. First, all class members were physically located in the identified parishes on the date and time of the chemical release. They all suffered various (but similar) physical injuries and financial losses as a result of the release. Also, common questions of law and fact surrounded the Defendants' negligence in failing to maintain its plant and prevent the chemical release. The court concluded that it was "satisfied ... from the evidence presented that common factual issues predominate with regard to whether Defendants took reasonable steps to prevent the release of [ethyl acrylate] that occurred on July 7, 2009 and whether or not the release could cause the harm as alleged by the Plaintiffs to the members of the class." The court's reasoning was based in part on the testimony offered at the hearing by Dr. Patricia Williams, a toxicology expert. Dr. Williams concluded that the symptoms described by the class were consistent with the type of exposure to ethyl acrylate that resulted from the release at the Taft plant. Although the Defendants offered its own expert witness to rebut Dr. Williams's testimony, the court nevertheless found that "a method of assessing general causation for the whole of the class exist[ed]." This permitted the court to reach the conclusion that common factual issues were present. The court thus identified a "common nucleus of operative facts" that permitted a finding that "uniform allegations of complaints of harm amongst the large number of class members that stem from one central release event" involved common legal issues among all members that superseded any individual concerns.

Having concluded that Plaintiffs met their burden of proof on the issues of numerosity and commonality, the court turned its attention to the third requirement: typicality. We will take up this analysis in the next post in the series.

It is well settled in Louisiana jurisprudence that an appellate court's review of a trial court's apportionment of fault in a negligence action is subject to the manifest error standard. In other words, in order for an appellate court to overturn a trial court's assessment of fault, it must conclude that no reasonable factual basis exists to support the trial court's finding and that it is clearly wrong. The Third Circuit reached this conclusion in Thibodeaux v. Trahan, a recent case that was marked by witness testimony that was "externally conflicting and often internally inconsistent."

On the afternoon of October 18, 2006, Melinda Trahan was driving a school bus owned by the Lafayette Parish School Board on Richfield Road in Duson. Harold Thibodeaux, driving an RV, pulled out from a side road in front of Trahan's bus and made a quick left turn into the parking lot of Thib's Corner, a grocery store. Trahan, who approached Thibodeaux's RV from the rear, also turned her bus into Thib's Corner, at which point the two vehicles collided. Thibodeaux suffered a knee injury in the collision and sued Trahan and the school board for damages. The trial court heard testimony from the parties as well as several witnesses and ultimately found both Trahan and Thibodeaux at fault for the accident. It awarded Thibodeaux damages for pain and suffering and medical expenses, but reduced the amount by 40 percent, the amount of his fault. Thibodeaux appealed, arguing that the trial court erred in finding him partially at fault for the accident. On appeal, the Third Circuit noted that "the trial court was left with numerous conflicting versions of how the accident occurred." It did, however, make specific findings of fact. Specifically, the trial court found Thibodeaux at fault "for having pulled out in front of Ms. Trahan while driving an RV in the rain while she was driving a school bus." It concluded Trahan was at fault because she should have maintained better control of her bus when she saw Thibodeaux's RV pull out into her path. The Third Circuit reviewed the testimony from the record and arrived at a different explanation of how the collision occurred: it concluded that Thibodeaux did nothing wrong when he pulled onto Richfield Road from the side street, but that he "failed to ascertain that the left turn could be made with reasonable safety" and therefore breached his statutory duty to execute the turn properly. Still, the court concluded that "the majority of the fault in this instance should be allocated to Ms. Trahan," as she "was in a better position, as the following vehicle, to prevent the accident from happening." The court concluded that the accident would have been avoided if Trahan had stopped her bus "within the adequate stopping distance existing between her and the RV," rather than being forced to take an evasive turn into the Thib's Corner parking lot. Accordingly, the court reversed the trial court's apportionment and assessed 80 percent of the fault to Trahan and 20 percent to Thibodeaux.

Continue reading "Third Circuit Rejects Trial Court's Apportionment of Fault in Lafayette Auto Accident" »

In a medical malpractice lawsuit, the plaintiff faces a three-part evidentiary burden. First, she must present evidence to establish the applicable standard of care. Next, she must show that a breach of that standard of care occurred. Finally, she must demonstrate a link between that breach and the injury that resulted. In nearly all cases, the opinion of a medical expert is an essential element of the required evidence. Without a qualified medical expert's opinion, the plaintiff risks losing at summary judgment due to a lack of material issues of fact to be determined at trial. The availability of an expert's opinion was at the center of the recent case in the Third Circuit, Dupree v. Louisiana Medical Mutual Insurance Co.

Katie Dupree became a patient of Dr. Jose Dorta, an OB/GYN specialist, in 2008 when she was pregnant. On January 9, 2009, Dupree went to the ER at Opelousas General Hospital with facial swelling, vomiting, and a severe headache. She was told to stop working and rest at home due to elevated blood pressure. Two weeks later, Dupree again went to the ER with elevated blood pressure and other symptoms that suggested pregnancy complications. Dr. Dorta did nothing to treat these issues and did not suggest an early delivery of Dupree's baby. In fact, Dr. Dorta merely sent Dupree home with the suggestion of bed rest. Two days later, Dupree was found face down and unconscious. Tragically, her baby was stillborn the following day, at which point Dupree was then taken off life support and died. Dupree's parents requested review by a Medical Review Panel in June 25, 2009. The panel rendered its finding of no malpractice on Dr. Dorta's part on May 12, 2010. Sixteen days later, Dupree's parents filed suit against Dr. Dorta and his medical malpractice insurance carrier, Louisiana Medical Mutual Insurance Co. After overcoming a series of exceptions filed by the defendants, the plaintiffs requested a status conference to schedule a trial date. Immediately thereafter, the defendants filed a motion for summary judgment. The trial judge granted the defendants' motion based on the plaintiffs' "failure to submit an affidavit from an expert showing a genuine issue of material fact sufficient to defeat summary judgment." At the hearing, plaintiffs' counsel argued that he had obtained an expert but did not submit an affidavit because the trial scheduling order called for expert reports to be exchanged several months later. The trial court disregarded this argument. It then denied the plaintiffs' request for a new trial after they produced an affidavit from Dr. James Tappan, a board certified physician specializing in obstetrics and gynecology.

The Third Circuit Court of Appeal, mindful that a "trial court is imbued with great discretion in both pre-trial and post-trial matters," ultimately concluded the this denial of a new trial was an abuse of that discretion. "[T]he Louisiana Code of Civil Procedure provides that a 'new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law,'" the court reasoned, and "after reviewing the record before us, we find good and valid reasons for a new trial." Namely, Dr. Tappan's affidavit included "three specific acts of medical negligence ... : failure to diagnose, failure to warn, and failure to timely deliver the baby." The court noted that Dr. Tappan reported that "Dr. Dorta failed to warn Ms. Dupree and/or her family of her condition and what to look for with respect to further symptoms,” which was at odds with the Medical Review Panel's finding that “we are sure a lengthy discussion ensued” when Dupree sought treatment. These conflicting views presented a genuine issue of material fact. Yet, the trial court "ruled on the motion for new trial without reference to the affidavit, choosing to rely instead on the fact that plaintiffs failed to take advantage of their one opportunity to present evidence." Being careful not to "condone or legitimize the actions of plaintiffs' counsel in failing to timely file an expert affidavit," the court concluded that "the facts, the law, and plaintiffs' prudence and initiative in prosecuting this case compel a finding of an abuse of discretion by the trial court," and reversed the denial of a new trial.

The court admitted that "[r]are is the case where we find an abuse of the trial court's great discretion." But the Dupree case shows that a negative result at the trial level can still be overcome on appeal. Moreover, the case demonstrates the need for a skilled attorney for every step of a medical malpractice dispute.

Continue reading "Third Circuit Reverses Trial Court in Rare Finding of Abuse of Discretion in Med Mal Action" »

Paul Breaux, an employee injured on the job, hired an attorney to represent him in a personal injury suit against his employer, Jade Marine. Unbeknownst to Breaux, the company settled the matter out of court. A check in the amount of $60,000 was sent to the attorney, which was immediately forged and deposited into the attorney's IOLTA account at Gulf Coast Bank. After about fourteen months, Breaux finally learns of this despicable action by the attorney and files a claim against the bank for conversion. Specifically, the action was for check conversion or conversion of a negotiable instrument.

However, Breaux hit a wall when the defendant raised the exception that the statute of limitations for such a claim under La.R.S. 10:3-420 is strictly one year. Accordingly, Breaux appealed, arguing that the defendant’s exception was ineffective based on the doctrine of contra non valentem, specifically that “a prescription does not run against one who is unable to act.” Breaux emphasized that he was not equipped to discover what his attorney did, as he was under the impression that his case was ongoing. The court was not convinced.

Breaux sought the support from the case of Marin v. Exxon Mobil Corp., 09-2368, 09-2371(La. 10/19/10), 48 So.3d 234, which outlined four situations when contra non valentem (doctrine outlining prescription and when an individual knows the clock of liability begins) applies to defeat prescription. The fourth and most difficult category, known as the “discovery rule,” is where Breaux saw an opportunity. Under this exception, a plaintiff’s claim is not barred when the statute of limitations has run if the defendant has acted in fraudulent concealment.

Unfortunately Breaux’s argument failed for the following reason:

Here, the bank could not be held responsible for the lost funds, as it did not act out of the ordinary. Banks are accustomed to depositing large client checks into lawyers’ trust accounts, and had no reason to suspect that the instrument had been forged. The bank did not participate in any fraudulent acts to conceal anything. Although exceptions of prescription require a substantive case-by-case factual analysis, the courts share a common goal to encourage consistency and uniformity. The holding in this case is aligned with the Uniform Commercial Code and reinforces the legislative intent of the utility of negotiable instruments, that they “are intended to facilitate the rapid flow of commerce by providing certainty and finality in commercial transactions” as stated in the court’s opinion.

The real question: Breaux possibly saw a chance for full compensation with the bank as the defendant. However, it is clear that Breaux’s true cause of action should have been filed against his attorney along with a heavy claim for malpractice. At the very least, the fourth class of contra non valentem exceptions is satisfied by the attorney's actions, irrespective of other possible victories against this unethical practitioner.

Cases such as this are not only a valuable tool for learning legal practices but also why hiring the proper attorney is crucial.

Continue reading "Dishonest Attorney Helps Illustrate Need to Hire Representation Carefully" »

Alan Kite had many disagreements with his father as the two separated from their business relationship. Alan said that his father had harmed his reputation, that his father had discharged Alan to retaliate against him, and that Alan had relied on his father's promises to his detriment. Alan had other disputes, but the 36th Judicial District Court, Beauregard Parish, saw disputed facts that required more consideration than dismissal by a motion for summary judgment. The Louisiana Court of Appeal agreed with the district court's decision to dismiss some of Alan's claims in Kite v. Kite Bros., No. 11-334 c/w 11-335 (La. Ct. App. 3 Cir. 10/5/11).

Alan Kite had worked in the Kite Brothers recreational vehicle dealership since the 1980s. He did well, earning more than $200,000 a year, as set by his father, Robert Kite. Alan wanted more. He agreed with his brother, Jeff, to raise their salaries, as much as triple the salary for Alan, and to take 10% of the business revenues. The chaos from Hurricane Rita hid this action temporarily, but the father learned about it a few months later in January 2006. The sons quit, or were fired, from the dealership. Alan took business papers with him. The sons sued their father and the business and set up their own competing RV dealership. The brothers fought over control of their own dealership, and Jeff reconciled with his father. Jeff dismissed his claims against his father.

Robert Kite tried to have dismissed more of the claims against the business. The trial court agreed in part. The trial court's decision does not affect other claims that Alan still has against his father's business. Alan claimed that his father had damaged his reputation by calling him a "thief" and a "liar." The district court dismissed the claim. It concluded that "the fact that Alan did what any reasonable person would see was stealing would be a complete defense to the action for defamation."

The first of four required elements for defamation is "a false and defamatory statement concerning another." The court of appeal easily found that element had not been satisfied. "The evidence clearly established Alan, without his father's permission, raised his salary substantially and also unilaterally gave himself an unauthorized percentage of all revenues." In addition, "Alan, without permission, removed business documents from the Kite Bros., L.L.C. office," and didn't return them even after he told a police officer that he would. The court of appeal agreed that the father's statements were not false. The defamation claim was properly dismissed.

Alan claimed that Kite Brothers fired him in retaliation for objecting to renting recreational vehicles without a license to do so. The Louisiana Whistleblower Statute prohibits an employer from taking a reprisal "against an employee who in good faith, and after advising the employer of the violation of law . . . [o]bjects to or refuses to participate in an employment act or practice that is in violation of law," or "[d]iscloses or threatens to disclose a workplace act or practice that is in violation of state law."

Alan facilitated the two contracts for renting recreational vehicles in September 2005, and he claims that he is owed 10% "of the funds realized from those leases." Whistleblowers refuse to participate in the employer's illegal practices or intend to report them. Alan participated, to his profit, and did not intend to report the violation. He stayed with his employer for four months after this alleged objection. By the time he left, Kite Brothers had a license to lease vehicles. For these reasons, the court of appeal found that Alan's claim had "no merit." It agreed with the trial court's dismissal. Finally, Alan sought a 1% ownership in the business because he claimed to rely upon his father's statement that Alan would obtain ownership. The trial court dismissed this claim because "Alan has acknowledged elsewhere that [Mr. Kite] was the sole owner of [Kite Bros.,] LLC and Alan disclaimed any ownership of the [Kite Bros.,] LLC in his divorce proceedings."

Detrimental reliance occurs when a promise induces the other party to rely on it, and the other party suffers as a result of reliance that is reasonable. In such circumstances, the promise is enforceable under the Louisiana Civil Code. It's a powerful tool, and for that reason, courts look "carefully and strictly" at those claims.

The alleged statement by the father that he wanted Alan to have a controlling interest in the business came from a conversation more than 20 years ago. Alan's testimony does not support that he reasonably believed his dad promised him a share of ownership in the dealership. Since that alleged statement, Alan has admitted at least three times before a court or administrative board that his father was the company's sole owner. Even if the statement had become a promise that Alan believed in, the court of appeal noted that Alan has not shown that he changed his position because of the alleged promise. As a result, the court of appeal affirmed dismissal of the three claims.

A claim may have a popular definition, but that won't hold up in court. A lawyer is needed to recognize all the strengths and limitations of a claim. If one isn't sure that the claim will succeed, time and money may be spent without anything in return. If you believe that you have been wronged, you should seek counsel of an experienced attorney, who may guide you through the claims that are most likely to succeed.

Continue reading "Family Business Suit in Beauregard Parish Illustrates Dismissal Principles" »

As sons of an owner of a successful recreational vehicle business, Alan and Jeff Kite worked in the family business of Kite Brothers. The relationship went sour between father and son. The children gave themselves raises and later left -- taking some business records with them. But, Alan Kite's claims, such as defamation, retaliatory discharge, and detrimental reliance, against Kite Brothers didn't hold up at trial court or the court of appeal. In Kite v. Kite Bros., No. 11-334 c/w 11-335 (La. Ct. App. 3 Cir. 10/5/11) the court of appeal affirmed the 36th Judicial District Court, Beauregard Parish after it determined that the trial court had rendered a final judgment on those claims.

Family businesses create unique disputes of a personal nature. Robert Kite co-founded the dealership with his brother in 1961. It began as a corporation but was changed to a limited liability company in 1998. During the 1980s, Robert Kite hired his sons Alan and Jeff. Although he never signed an employment contract, Alan had broad powers in the business to write checks on the company account. The father believed that he was being generous to son Alan, who earned more than $200,000 a year. But, the father set the salaries. Hurricane Rita in September 2005 provided a diversion for the sons to decide, on their own, to raise their salaries. Alan agreed with his brother to take more than triple his previous weekly salary, which had been set at $1,500 a week. They also agreed to take a 10% cut of all revenues. They agreed that this arrangement would end when "everything settled down after the storm."

They didn't stop. The father noticed the increased unauthorized compensation to Jeff in January 2006. He demanded that Jeff return his salary to its authorized level. The father also revoked both sons' authority to write checks and canceled their credit cards. Alan continued to give himself a weekly salary of $5,000 instead of $1,500. Later that month, the sons left the business. Father and sons disagree whether Alan and Jeff quit or were fired. Alan took with him, also without permission, business papers owned by the business. The father sought them back by filing a criminal complaint. Alan assured an investigating police officer that he would return the records, but he never did. Alan's lawyer later returned some of them.

The father still wanted to make things right and keep the family together. He couldn't verify Alan's rightful final compensation because Alan took some of those records. The father just "wrote Alan a check for $100,000, minus employment taxes." The sons still sued their father and the business, and the father and business counterclaimed ("reconventional demands") for the unauthorized salaries and raises. The father tried to resolve the dispute through mediation. The parties came to an agreement, but Alan and Jeff failed to abide by it. The trial court combined with the sons' claims the father's claim to declare the mediation null. The sons started a competing RV dealership, but Alan and Jeff argued about control of their company. Jeff reconciled with his father and dismissed the claims he had against his father.

The father moved the trial court to dismiss Alan's claims. The motion for summary judgment had numerous affidavits and depositions to support dismissal. Although Alan argued that the parties disputed various facts, preventing dismissal, Alan never gave the court what it wanted: specific statements in dispute. The court dismissed several of Alan's claims, but not all. The dismissed claims included defamation, retaliatory discharge, and detrimental reliance.

For an issue to be accepted by the court of appeal, the trial court must be done with it. The trial court shows this by issuing a valid, final judgment. That issue was unclear. The trial court dismissed only some of Alan's claims; others could be tried. The court did not explain why it considered its judgment on some of the claims to be final. It only said "there is no just reason for delay." But, that's just some words cribbed from the Louisiana Code of Civil Procedure. Without a valid, final judgment, the court of appeal had no authority to hear the case. The trial court should have been explicit, but when a court is not, the court of appeal can decide for itself. Four factors are decisive. What is the relationship between the claims decided by the trial court and those that were not? Could the trial court's deciding of other matters make review unnecessary? Might the reviewing court, if it decides to review the issue now, have to consider the issue again? Do various other factors, such as delay, economics and solvency, shortening the time of trial, the frivolous nature of the other claims, expense, and similar concerns preclude review?

For the appeal of the partial summary judgment, dismissing only some of Alan's claims, the court of appeal felt safe in hearing the appeal. The claims were individual. They didn't relate to the claims that the trial court had not decided. It would be unlikely that the court of appeal would face the same issues again from another appeal from the case. The court accepted review of the trial court's dismissals.

The results of the claims on appeal will be described in a subsequent blog.

Sometimes, the reasons for seeking just recovery are many and complicated. In such cases, some of those claims may be solved individually. A lawyer can make sure that the trial court made a valid, final judgment that resolves the matter or allows an appeal.

Continue reading "Family Feud Demonstrates Appealable Judgements in Court Case" »

On behalf of the Berniard Law Firm, we'd like to wish all of our clients and employees a Happy and Safe Holidays and New Years.

The blog will resume postings in 2012!