Louisiana Personal Injury Lawyer Blog

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.

Early in the morning of July 7, 2009, a 640,000 gallon chemical storage tank at Union Carbide/Dow Chemical's Taft plant began to rupture. The tank contained ethyl acrylate, a foul-smelling chemical used in making various products including industrial flavorings, fabric finishes, pigments and dyes, floor polishes, adhesives, and caulk. The substance is listed as a possible carcinogen by the National Institute of Occupational Safety and Health, and is known to cause a number of significant heath issues such as burning of the mucous membranes and eyes as well as respiratory irritation and nausea upon contact through the air. Westerly winds gusting as high as 20 miles per hour carried the chemical vapor into the neighboring communities. St. Charles Parish sheriff's deputies began evacuating residents while officals from the Louisiana Department of Environmental Quality were summoned to perform air testing. Numerous residents in St. Charles Parish and surrounding parishes experienced extremely unpleasant physical symptoms as they came into contact with the chemical vapor.

The Berniard Law Firm filed a lawsuit on July 29, 2009 on behalf of those who suffered effects from the Taft plant chemical leak. On December 15, 2011, Judge Herbert Cade of the Civil District Court of the Parish of Orleans granted the Plaintiffs' Motion for Class Certification. The class is defined as persons living or located in St. Charles Parish and certain areas of Orleans and Jefferson Parishes on July 7-8, 2009 who experienced "eyes, nose, or throat irritation, coughing, choking or gagging, or nausea, or headaches, dizziness, trouble breathing or other respiratory issues" as a result of their exposure to the ethyl acrylate that escaped the Taft facility. The court's order contains an illustrative description of the process by which it analyzed the Plaintiffs' argument for class certification, and an exploration of that analysis will serve as the basis for this and a series of subsequent blog posts.

Previously on this blog, we have examined the requirements for class certification in a federal case according to Rule 23 of the Federal Rules of Civil Procedure. Louisiana's Code of Civil Procedure, in Article 591, sets forth a similar set of standards for certification. Specifically, a plaintiff who seeks to represent a class must show:

(1) the class is so numerous that joinder of all members is [impracticable]; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties will fairly and adequately protect the interests of the class; and (5) the class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of conclusiveness of any judgment that may be rendered in the case.

Additional criteria, such as whether the common questions of law or fact predominate over issues pertaining only to individual members, and the practical ability of individual class members to pursue their claims without class certification must also be considered by the court. Only once the court is satisfied that these various factors resolve in favor of class certification can it grant the plaintiff's motion to represent the class.

In the Taft plant litigation, three proposed class members were presented to the court in support of the motion for class certification: Ramona Alexander, a resident of St. Charles Parish; Vanessa Wilson, a resident of Jefferson Parish, and Melissa Berniard, a resident of Orleans Parish. In the next post, we will begin our review of the court's analysis of the five certification requirements under the Louisiana Code.

In our most recent post, we began a review of the Third Circuit Court of Appeal's application of the law of the case doctrine in a lawsuit that followed an auto accident in Vernon Parish. The plaintiffs, in opposing UUT’s motion for summary judgment, argued that UUT's no-coverage arguments had previously been heard in a "peremptory exception of no right of action" filed by UUT which the trial court had denied. Both the Third Circuit and the Louisiana Supreme Court denied writs of appeal in that ruling; thus, the plaintiffs argued that the law of the case doctrine should "preclude UUT from re-litigating those same arguments" in the instant case. The plaintiffs also argued that the federal case cited by UUT offered "no precedential value in this state court action." UUT's reply asserted that the exceptions previously heard by the trial court "dealt with procedural, rather than substantive, matters," and were not properly before the trial court at the exceptions hearing. In sum, UUT argued that the trial court's rulings on the exceptions were interlocutory and therefore "subject to revision by the trial court at any time prior to rendition of final judgment." The trial court granted UUT's motion for summary judgment and dismissed all of the plaintiffs’ claims based on the finding that there was no coverage under the UUT policy. The plaintiffs appealed, arguing that UUT’s arguments had previously been heard and rejected in an earlier action (the peremptory exception) and therefore "the law of the case doctrine should have been applied because no new argument or evidence was produced by UUT."

The Third Circuit concluded that UUT showed that "the policy it issued to Olympic did not provide coverage for the plaintiffs’ claims." The truck Coronado wrecked was a vehicle leased from Olympic, and the UUT policy by its language excluded coverage for leased vehicles. Rather than refute UUT’s position on the merits, the plaintiffs simply "argued that the issue had already been litigated and that the trial court was bound to follow its earlier ruling." The court rejected that the law of the case doctrine applied. It noted that UUT did not raise coverage issues when it filed its exceptions in the trial court. Instead, "the plaintiffs brought up the issue of coverage in their opposition to UUT’s exceptions." In fact, UUT was not even made aware of the plaintiffs' position on coverage until the day of the hearing. "Clearly," the court concluded, "the issue of coverage under the UUT policy was not squarely before the trial court at the hearing on the exceptions." In the view of the court, "[t]he issues raised in the motion for summary judgment filed by UUT ... did not cause indefinite re-litigation of the same issue[s] as were raised in its [exceptions motion]." Accordingly, the court affirmed the trial court’s grant of summary judgment in favor of UUT.

The Willis case is a stark reminder to litigants that the rules of civil procedure in Louisiana can be extremely complex. Even when the disputed issue in a case (such as whether an auto insurance policy covers a particular driver) is fairly straightforward, a plaintiff can face a complicated path to a resolution without the counsel of an experienced attorney.

Continue reading ""Law of the Case" Doctrine, Part 2" »

Under the Louisiana Code of Civil Procedure, judgments are either interlocutory or final. A judgment that "determines the merits [of an issue] in whole or in part" is a final judgment, while a judgment that determines "only preliminary matters" is an interlocutory judgment. Generally speaking, final judgments can be appealed, but interlocutory judgments cannot unless there is a statutory exception that permits the appeal. See La.Code Civ.P. art. 2083. If a court renders a judgment that addresses fewer than all of the claims or that concerns fewer than all litigants in a case, that judgment is not final and may be revised by the court at any time prior to a final judgment. See La.Code Civ.P. art. 1915(B). With parallel reasoning, if a court of appeal denies a writ of appeal, thereby declining to exercise its supervisory oversight of a trial court, the court of appeal cannot affirm, reverse, or modify the judgment of the trial court. This means that "any language in the court of appeal’s ... writ denial purporting to find no error in the trial court’s ... ruling is without effect." See Bulot v. Intracoastal Tubular Services, Inc..

Related is the "law of the case doctrine." This principle pertains to:

"(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case." Petition of Sewerage & Water Bd. of New Orleans.

The doctrine is intended to avoid endless re-litigation of the same issue and to promote consistency of result in the same litigation. It also promotes efficiency by affording the parties a single opportunity to resolve the matter at issue.

The law of the case doctrine was reviewed by Louisiana's Third Circuit Court of Appeal in the recent case of Willis v. Gulf Coast Building Supply. The case centered on an auto accident on November 7, 2005. Steve Coronado was operating a tractor-trailer in Vernon Parish on behalf of his employer, Gulf Coast Building Supply, when he struck multiple vehicles. Six lawsuits were filed by various plaintiffs naming as defendants Coronado, Gulf Coast, Home State County Mutual Insurance Company, Gulf Coast's primary insurer, and Universal Underwriters of Texas Insurance Company (UUT), Gulf Coast's excess insurance carrier. UUT filed a motion for summary judgment seeking to have the plaintiffs’ claims dismissed because its policy did not cover their claims. The tractor trailer that Coronado was driving at the time of the accident was leased to Gulf Coast by Olympic International; the lease agreement specified that Gulf Coast was responsible for providing liability insurance and that Gulf Coast would name Olympic as an additional insured on its policy. UUT's policy covered Olympic, but Gulf Coast and Coronado were not named as insured parties. Also, no provision in the policy extended coverage to lessees of the named insured’s property. Therefore, UUT argued that its policy excluded coverage for the plaintiffs’ claims. To further support its position, UUT pointed the trial court to a decision rendered in a case arising out of the same accident that had been filed in federal court by a different plaintiff. In that matter, the federal court granted summary judgment in favor of UUT and dismissed the case on the basis that the UUT policy did not provide coverage for the claims. That decision was affirmed by the U.S. Court of Appeals, Fifth Circuit.

In a subsequent post, we'll examine the plaintiffs' response to UUT's motion and the court's judgment.

Continue reading "Exploring the "Law of the Case" Doctrine in Vernon Parish Car Accident Litigation" »

Under Louisiana jurisprudence, special damages are the category of damages that can be "established to a reasonable mathematical certainty." Myers v. Broussard. Special damages include awards for past and future lost earnings, since a plaintiff's forgone income can be numerically calculated by the court. Given the relatively high level of precision, "when a trier of fact assesses special damages, the discretion is more limited or narrower than the discretion to assess general damages," Eddy v. Litton, though the standard of review is still abuse of discretion. The plaintiff carries the burden to prove that he has suffered a loss of income to induce the court to award damages for lost wages in an amount that equals what the plaintiff would have likely earned if he had not been injured by the defendant and been able to work. In cases where there is "no basis for a precise mathematical calculation of the amount of lost earnings," the trial court may award a "reasonable" amount of damages. However, "to allow a plaintiff to recover damages for lost wages in the absence of independent support is highly speculative.” Turner v. Cleveland Trust Co.

The Third Circuit recently considered an automobile collision case in which the plaintiff was awarded damages for lost wages by the trial court. Lori Johnson claimed that, due to the injuries she sustained when her car was struck from behind by David St. Romaine on Highway 1 in Marksville, she was unable to perform her part-time weekend work as a farrier (horse-shoer). The trial court awarded Johnson $7,200 for loss of income, which St. Romaine appealed. The Third Circuit reviewed the trial record containing Johnson's testimony that she was unable support a horse's weight on her injured shoulder and therefore could not install the shoes. She estimated that she typically earned between $400 and $750 per month, but was unsure of the exact amount because it was a cash business and she did not keep records. Johnson also admitted that she did not report her income from the farrier business to the IRS. The court concluded that, "[a]lthough the uncorroborated testimony of the plaintiff can support a lost wage award, based on the facts of this case, we find that Johnson’s testimony regarding the lost wage claim is insufficient." In the court's view, Johnson's wage calculation was a mere "guesstimate" that could not support an award for foregone income. Thus, the court concluded that it was error for the trial court to award damages for lost wages based on only this speculative information, and reversed that part of the judgment.

This case reminds litigants that claims for special damages must be corroborated by some minimum amount proof. Although the court allows that a plaintiff's testimony alone can in some cases support a special damages award, the facts of each situation will weigh heavily on the court's decision process. Clearly, here, the Third Circuit did not approve of the trial court's treatment of Johnson's claim for wages, perhaps particularly because Johnson did not report her income as taxable.

Continue reading "The Plaintiff's Burden in Proving Special Damages" »

The Louisiana Court of Appeals rejected an appeal filed by Brenna Davis regarding her medical malpractice claim against the Women and Children’s Hospital Lake Charles and her doctor, Dr. Richard Shimer. Davis underwent a weight loss procedure known as a lap band surgery. Known in the medical industry to be a minimally invasive surgery, this procedure involves the doctor inserting an adjustable belt around the top section of the stomach to create a full feeling in the patient. Davis filed her claim in order to recover damages as a result of a sponge that had been left within her abdomen during the procedure despite the numerous counts required by the hospital’s procedure for surgery.

The district court awarded Davis $50,000 and apportioned fault equally between Dr. Shimer and the hospital. For a variety of reasons, Davis appealed that judgment, claiming that Dr. Shimer was not at fault in her claim and asking the courts to put full responsibility upon the hospital. In personal injuries law, the judge is responsible for distributing fault between the parties involved so that each one only pays for the damages he specifically caused. To prove medical malpractice against a Louisiana physician, the plaintiff must show the doctor lacked the knowledge and skill required by physicians in his specialty or failed to use reasonable care, and that the plaintiff suffered in a way that plaintiff would not have otherwise. The hospital’s procedure requires three separate sponge counts during different periods of the surgery. Not only does the surgical technician count the sponges, but a nurse oversees each of the counts.

So who is responsible for SpongeBob being left in Davis’ abdomen? The appeals court agreed with the lower district court in their ruling, following previous decisions holding that leaving sponges in patients is a breach of duty by the surgeon. But when a hospital affirmatively assigns that duty to multiple staff members (none of which are the surgeon) on what do the courts rely for creating such a duty for the surgeon? During most of the entire surgery, it wasn’t even possible for the surgeon to see the sponges since his field of view is limited and magnified. Two members of the surgical staff were responsible for counting the sponges on three separate occasions. The count is recorded on the white board at the beginning of the procedure. Therefore, both staff members counting could have double-checked their numbers on the white board at the end of the surgery.

The appeals court affirmed the district court’s judgment that the surgeon had breached his duty to Ms. Davis by negligently leaving one of the surgical sponges within her body. However, when considering Dr. Shimer’s fault, neither of the courts seemed to consider the numerous preventative measures the hospital had in place, instead following the “well-established jurisprudence” on the issue.

In all, a case of medical malpractice carries with it crucial requirements to have the matter handled properly by an attorney that closely identifies the legal possibilities at work. Whether apportioning responsibility or making sure that all of the diverse issue are handled properly for the correct financial restitution, hiring the proper legal representative can mean the difference in tens, if not hundreds, of thousands of financial settlement or judgment.

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!

It is not uncommon in casinos for patrons to become intoxicated to the point that they are unsuitable for public. For this reason, casinos implement security procedures to deal with intoxicated patrons. Most of these procedures involve cutting the patron off from alcohol and, in some cases, even removing the patron from the premises. Sometimes, however, intoxicated patrons who are confronted by casino security become unruly. In these situations, when patrons are forcibly removed from the establishment, the amount of force that can be justified in the removal becomes an issue.

In Miller v. L'Auberge Du Lac Casino, two intoxicated patrons were cut off from alcohol by casino security.Since the patrons were not allowed to gamble if they were unable to drink, the two patrons were asked to leave. When one of the patrons tried to take a picture with her cell phone in a photography prohibited area, a security guard took the phone away, resulting in a scuffle. Both patrons shouted profanities at the security guards and one patron grabbed a security guard by the neck, resulting in cuts and scrapes. In response, the security guard took the patron to the ground and handcuffed him.

The plaintiffs, the two patrons, took the confrontation to court, claiming that the security guards had used excessive force in the removal. The patron who was taken down claimed to have been punched in the face and that one of the security guards jumped up and down on his legs. Video shown at trial, however, showed no evidence of such conduct. Based on this video and expert testimony, the jury found for the defendants.

On appeal, the plaintiffs sought to have the jury's verdict set aside. However, when a case is being heard on appeal the court will not disturb the fact finder's ruling where there are conflicting testimonies. In these instances the court of appeals will only consider whether or not the fact finder's conclusion was reasonable, not whether that conclusion was right or wrong. The only way for an appellant to get around this manifest error standard is to seek de novo review. De novo review occurs when an appellate judge allows independent appellate determination of issues of fact or law, or both. Typically de novo review is only granted if the trial jury fails to follow the court's instructions or there is a clear error of fact or law. De novo review, therefore, is in essence a rehearing of the case before the appellate judge.

The plaintiffs in the Miller case sought de novo review on appeal. In deciding whether or not to grant such a review, the court of appeals looked to the evidence presented at trial. Review of the tape and testimony revealed that the jury's finding was reasonable, and was therefore not so erroneous to justify a de novo review.

The plaintiffs in Miller also sought judgment notwithstanding the verdict. A judgment notwithstanding the verdict occurs when a judge reverses a jury's verdict because there were insufficient facts to support the verdict or that the law was erroneously applied to the facts. Like a de novo review, the granting of a judgment notwithstanding the verdict is tied to the reasonableness of the jury's finding. However, in judgment notwithstanding the verdict, if no reasonable person could come to the conclusion of the jury, then the judgment is completely reversed without another hearing. The conflicting testimony in Miller's case allowed a reasonable person to come to the same conclusion as the jury. Therefore, the plaintiffs' movement for judgment notwithstanding the verdict was denied by the appellate court.

The decision to appeal a judgment is important and should not be taken lightly. Cases that are arbitrarily appealed create inefficiency within the court system and increase costs to both the state and plaintiffs. Therefore, if you are considering appealing a judgment it is important to consult an experienced attorney. If you find yourself in this situation please contact the Berniard Law Firm.

Previously on this blog, we have discussed at length the importance of filing a lawsuit within the period of time required by law. For medical malpractice actions, Louisiana statute

“sets forth two prescriptive limits within which to bring a medical malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three year limitation from the date of the alleged act, omission or neglect to bring such claims.” Campo v. Correa.

Determining the date of discovery is based on a test of reasonableness: “[p]rescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.” Constructive knowledge is considered whatever notice is sufficient to "excite attention and put the injured party on guard and call for inquiry.” However, even when the victim is entirely reasonable, it cannot be later than three years from the date of the original incident that the suit is filed.

Another topic we have often explored on this blog is the need for expert counsel to navigate the myriad of strategic and procedural challenges in litigation. This theme was evident in the recent case of Patin v. State of Louisiana. In 2006, Rita Patin sought treatment from Dr. Charles Norwood at the LSU Family Practice Center in Alexandria. During one or more visits in 2006, she believed that Dr. Norwood "administered inappropriate treatment which resulted in a stroke, heart attack, and other serious injuries." Patin sent a letter requesting a medical review panel to the Commissioner of Administration on December 11, 2009. The letter contained no details beyond her cursory allegation of wrongdoing by Dr. Norwood. LSU Center filed an exception of prescription in the district court. Patin, who represented herself, filed an answer that explained Dr. Norwood had “consistently mislead” her during telephone calls in 2008 in which he claimed her symptoms were a normal part of the healing process. The answer also alleged that Dr. Norwood administered excessive electromagnetic shocks which caused a stroke and heart attack. However, the answer included "nothing about when Patin became aware that she may have been the victim of malpractice." She did not indicate when she experienced the stroke and heart attack, or when she discovered that these conditions were related to Dr. Norwood's treatment. As a result, the court concluded that "Patin submitted no sufficient evidence upon which the ... court could determine whether her actions/inactions were reasonable." Thus, the Third Circuit upheld the trial court's judgment granting an exception of prescription in favor of LSU Center.

Continue reading "Self-Represented Plaintiff Waits Too Long to File Medical Malpractice Action " »

Everyone expects adequate, timely, and complete care from medical professionals in hospitals. However, unfortunately, 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. The Tallulah, Louisiana resident, 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. A hospital can be sued for its own negligence (such as failure to keep its facilities clean), or under a theory of vicarious liability, in which a plaintiff alleges that the hospital is liable for the negligence of one of its doctors. Of course, a medical malpractice action can be extended to any health care provider, including dentists, nurses, hospital workers, physical therapists, radiologists, and more.

Louisiana revised statute 9:2794 provides the statutory language laying out the plaintiff's burden for a general malpractice action:

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. If you feel you were the victim of inadequate medical care, picking experts that will be able to assist in winning your case is critical.

In Louisiana, medical malpractice suits like Mr. Scarbourough's can be brought against either qualified health care providers, or non qualified health care providers. There will be a cap on liability of $100,000 for what is referred to as a QHCP, but there will be no cap on a NQHCP. A QHCP has paid into a state insurance fund called the Patient Compensation Fund and, as such, limits their own liability. This difference is critical, as any medical malpractice actions brought against a qualified health care provider must first go to a panel consisting of three doctors and one non-voting attorney. This panel determines whether the evidence in a case like Mr. Scarborough's (assuming a qualified health care provider) demonstrate that a doctor or hospital failed to meet a given standard of care. The decision of the panel is treated like that of an expert's testimony and may be used during court proceedings.

Nuances such as these are important to understand, especially in the technical field of medical malpractice. The term "medical malpractice" is so broad, and includes things such as a doctor's failure to take adequate medical history, failure to prescribe correct medications, and other negligent acts or omissions by a health care provider that leads to an injury.

Continue reading "Inadequate Medical Care and the Legal Ramifications Capable of Causing Life-Changing Problems" »

Early in the morning of August 25, 2006, Angela Brignac visited a McDonald's in Baton Rouge. While she was stopped at the drive-thru's menu board, her car was struck from the rear by a truck operated by Brian Mumphrey. The collision occurred because Mumphrey's foot slipped off the brake pedal when he bent down to retrieve his wallet from the truck's floor. Brignac did not call the police, but did exchange information with Mumphrey. She then ordered breakfast and went on her way. Later that evening, after Brignac went home and discussed the accident with her boyfriend, she called the police to report the accident and went to the hospital to be examined.

Approximately a year later, Brignac filed a lawsuit against Mumphrey and Farm Bureau, his insurance carrier. Brignac's complaint alleged injuries to her right shoulder, back, neck, head, mouth, and jaw as a result of the collision. The trial court awarded Brignac $3,587 in damages for past medical expenses she incurred treating her jaw injury. It also awarded her general damages in the amount of $6,000, but denied her claims for past and future medical expenses for her shoulder injury. Brignac appealed this judgment, arguing that the trial court erred in failing to award medical expenses related to her shoulder injury. Brignac alleged that she had consistently complained of right shoulder pain from the date of the accident. She testified at trial that she reported both shoulder and jaw pain in the emergency room on the evening of the accident, but the shoulder issue was not documented in the ER records which were completed by both the ER doctor and the triage nurse. The first documented complaint of shoulder pain did not come until six weeks after the accident when Brignac was seen by Dr. Johnston who diagnosed her with a strained rotator cuff. Johnston prescribed pain medications, physical therapy, and exercise, and also administered cortisone injections in Brignac's shoulder. He testified at trial that while he believed Brignac's shoulder injury was related to the car wreck, his opinion was "based on history and what she tells me solely." Brignac did not follow Dr. Johnson's physical therapy recommendations and was eventually discharged as a patient from the therapy center for failing to show up for appointments. The First Circuit observed that "the trial court was not convinced that Ms. Brignac proved that her shoulder injury was related to the accident." And, after reviewing the record, the court could not say that the trial court's factual determination on causation was "manifestly erroneous or clearly wrong." The court held,

"Noting other possible causes for Ms. Brignac's shoulder injury, including the repeated lifting of her child, and considering the lapse of time between the accident and Ms. Brignac first seeking treatment for the shoulder problem, the [trial] court was not convinced that Ms. Brignac proved that her shoulder injury was related to the accident. We find no manifest error in this conclusion."

The court's conclusion reveals an important fact that all accident victims should keep in mind: in order to recover fully for an injury, it should be well documented by a medical professional. Ideally, the initial report of injury would be made immediately following the accident. Also, the courts generally take a dim view of plaintiffs who do not follow medical advice related to the treatment of an injury, so careful adherence to a doctor's orders is essential to maximizing the financial recovery.

Continue reading "Plaintiff Learns Painful Lesson About Treating Injuries Without Delay " »

On August 7, 2002, James Wilson was driving his car southbound on Essen Lane in Baton Rouge. When he attempted to make a left turn onto the on-ramp for I-10, Wilson pulled into the path of an oncoming car driven by Barbara White northbound on Essen. The crash left Wilson with serious injuries. Following the incident, Wilson filed suit against the Louisiana Department of Transportation and Development ("DOTD"). His complaint alleged that the DOTD negligently installed lane delineators on Essen Lane at the intersection with I-10; Wilson's negligence theory was based on his assertion that the lane delineators blocked drivers' view of oncoming traffic. Wilson asserted that the DOTD's negligence caused his accident because he couldn't see White's car when he attempted to turn onto I-10. After a trial the jury returned a verdict in favor of the DOTD. It found that the DOTD was not negligent and that its installation of lane delineators did not cause the accident. Wilson filed a motion requesting a JNOV which was denied by the trial court. Wilson then appealed on the basis that the jury's verdict was not supported by the evidence.

The First Circuit began it analysis with a recitation of the standard of review for a challenge based on the jury's alleged manifest error. Because the determination of negligence is a factual one, an appellate court must apply a two part test to reverse the jury's finding. Part one involves the appellate court's deciding that a "reasonable factual basis" does not exist in the record for the jury's finding; part two requires the appellate court to determine that the record establishes that the jury's finding is "clearly wrong." Additionally, when
factual findings are based upon the jury's weighing of witness credibility, "great deference" must be given its decision. The rule of thumb is that where there are two or more permissible views of the evidence, the jury's choice between them cannot be manifestly erroneous.

The court, in reviewing the record, discovered that conflicting witness testimony was presented at trial. The most significant point of divergence between the witnesses' testimony concerned the presence of traffic in the northbound left-turn lane of Essen Lane which would have blocked Wilson's view of oncoming northbound traffic regardless of the lane delineators. Wilson himself testified that there were no cars in the northbound turn lane. However, an eyewitness to the accident testified that there were several cars in the lane, a fact he was certain of because he had to navigate around them when he entered the intersection to assist Wilson and White following the crash. There was also some dispute among the witnesses' testimony about whether the lane delineators' location obstructed the view of traffic. White asserted that she had no trouble seeing southbound traffic over the delineators, but the police officer who responded to the scene testified that, based on his experience with other crashes at the same location, he considered the lane delineators a hazard and the intersection unreasonably dangerous.

The court, after a "careful review of the evidence contained in the record," found that a "reasonable factual basis for the jury finding that DOTD was not negligent" did in fact exist in the record. Further, the court could not conclude that the jury was clearly wrong: "The jury was faced with conflicting views of the evidence regarding whether a person sitting in a vehicle in the southbound left turn lane could see ... cars in the northbound lanes and clearly chose to believe the testimony that either [Wilson's] view was not obstructed or was obstructed by cars in the northbound left turn lane." Accordingly, the court affirmed the trial court's judgment and assessed costs to Wilson.

The particularly high obstacle to overturning a jury's fact-findings on appeal reflects the preference for factual disputes to be settled at the trial level rather than by an appellate court. Arguably, the jury has the best opportunity to consider all the evidence, including witness temperament and appearance, when resolving factual disputes. It is essential for a party who encounters an unfavorable jury verdict to retain experienced counsel before filing an appeal that is premised on a jury's commitment of manifest error, given the high level of deference afforded the jury.

Continue reading "Court Explores Standard of Review in Baton Rouge Car Wreck Case" »

The Bailey case, as discussed, was determined based upon the precedent set forth by the Louisiana Supreme Court in Bulot v. Intracoastal Tubular Services, Inc. The focus here is on two causes of action, Whether a plaintiff can file both, and receive punitive damages for, a wrongful death and survivorship cause of action.

The Plaintiffs in Bulot were two families who sued the defendant oil refinery for wrongful death and survival. The District Court granted summary judgment, meaning there were no genuine issues of material fact, in favor of the defendant as to one family's wrongful death action and its claim for punitive damages in its survival action. The Court also granted the defendant's exception of no right of action as to punitive damages for the second family's wrongful death action.

Each family had a family member that died after being exposed to radioactive waste. One family alleged that the deceased had worked for a company that engaged in the cleaning of oilfield tubing and pipes. He died of pancreatic cancer in 1999, allegedly as a result of exposure to radioactive waste while employed by the company. The second family's family member died while La. Civ. Code Ann. art. 2315.3 ('the statute') was in effect (between 1984 and 1996). The statute provided that punitive damages may be awarded, in addition to general and special damages, if it is proved by the plaintiff that the sustained injuries were caused by the defendant's "wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances."

In order to establish when a tort cause of action accrued in an occupational disease case like this, the plaintiff must present evidence that the exposures were significant and that such exposures later resulted in the manifestation of damages, in this case disease. In short, the exposures must be "significant and continuous."

The Appeals Court reversed the grant of summary judgment as to the first family's claim for punitive damages in its survival action, as it found there existed genuine issues of material fact as to whether the family's deceased relative's exposures to radioactive material on the jobsite from 1984 to 1992 resulted in his developing cancer. The Court affirmed the grant of summary judgment as to the family's wrongful death claim, however, because the deceased did not die while the statute was in effect. In addition, the Court affirmed the exception of no right of action for the second family's claim for punitive damages in its wrongful death claim. The Court determined that damages pursuant to the statute could not exist as a component of a wrongful death action because the law in effect at the time of death is the law that applies in wrongful death actions.

Although both causes of action arise from a common tort, survival and wrongful death actions are separate and distinct. Each arises at a different time and provudes for damage awards for different injuries and losses. A survival action exists simultaneously with the tort and transmits to the beneficiaries (decendents) upon the victim's death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death. A wrongful death action arises once the victim has died and it compensates the beneficiaries for their own injuries which they suffer from the moment of the victim's death and after. The statute limits a survivor's recovery to damages actually suffered as a result of the deceased's death, and cannot recover punitive damages as a result.

A claim for damages pursuant to the statute cannot exist as a component of a wrongful death action, as a wrongful death action is limited to compensatory damages for the victim's own injuries. Punitive damages may be awarded, if it is proved that the plaintiff's injuries, were caused by the defendant's disregard for public safety, but the statute provides for the survivors of the original tort victim to recover all damages for injury to that person, his property or otherwise, caused by the offense.

Continue reading "Louisiana Wrongful Death and Punitive Damages Award in Oil Refinery Release (Part II)" »

The Bailey v. Exxon Mobil Corporation case finds its conclusion based on the precedent set forth in Bulot v. Intracoastal Tubular Services. The focus is on the application of a statute, and differentiating events that take place prior to the statute's enactment, and how the Court will analyze events that continuously occur which began before the enactment of the statute and continue after its enactment.

The issue before the Court in Bailey is whether the plaintiffs’ claims for punitive damages in a wrongful death action are precluded by Bulot. The plaintiffs in Bailey alleged that either they or their decedents were exposed to naturally occurring radioactive material at over 600 pipe yards throughout Louisiana, six other states, and overseas, through their work with, or with a subsidiary of, the Exxon Mobile Corporation. They also alleged they were entitled to punitive damages under former Louisiana Civil Code Article 2315.3.

Punitive damages are intended to reform or deter the defendant and others from engaging in similar conduct to that which formed the basis of the lawsuit. Punitive damages are not intended to compensate the plaintiff, however, the plaintiff often receives most if not all of the punitive damages award. The Court states that the statute in question, La. C.C. art. 2315.3, effective September 3, 1984 and repealed April 16, 1996, provided for punitive damages "if it [were] proved that plaintiff’s injuries were caused by the defendant’s wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances." The court in Bulot states that "punitive damages cannot be recovered by way of a wrongful death action. The right to a punitive award is a different kind of right or legally enforceable claim than the right to compensatory damages. As such, a claim for damages pursuant to La. Civ. Code Ann. art. 2315.3 cannot exist as a component of a wrongful death action, as that is limited to compensatory damages for the survivor's (victim's) own injuries."

In Bailey, the defendants filed numerous exceptions, including peremptory exceptions of no cause of action for punitive damages for plaintiffs’ wrongful death claims based on the Court of Appeal of Louisiana, Fourth Circuit's holding in Bulot v. Intracoastal Tubular Services, Inc. The District Court sustained the defendants’ exceptions of no cause of action for punitive damages in a wrongful death case.

In Bulot, the widow and children of a deceased employee brought survival and wrongful death actions against his employer. They alleged that the deceased’s cancer was the result of occupational exposure to radioactive waste while cleaning oilfield pipes. The District Court granted the employer’s motion for summary judgment on the punitive damages claims. His widow and children then appealed to the Court of Appeal where it was held that there were genuine issues of material fact which precluded summary judgment on the punitive damages claim in the survival action. The Court of Appeal also held that punitive damages could not be recovered through a wrongful death action. Thus, according to Bulot, the plaintiffs in Bailey are precluded from recovering punitive damages in a wrongful death action.

For a further discussion of Bulot v. Intracoastal Tubular Services, Inc. please continue reading Part II of this post. If, however, you feel as though you have read all you need and have questions or need expert advice in a potential wrongful death claim of your own, then please do not hesitate to contact the Berniard Law Firm.

Not all employees furthering a vessel's mission are seamen. They can provide short-term or even land-based support. If so, they aren't seamen under the federal Jones Act. Whether Kerry Becnel was a seaman when he was injured was the issue considered in Becnel v. Chet Morrison, Inc., No. 2010-CA-1411 (La. Ct. App. 4 Cir. 8/31/11). The court of appeal reversed the St. Bernard 34th Judicial District Court and sent the case back for trial.

In the U.S. Supreme Court case of Chandris, Inc. v. Latsis, the first question to determine whether an employee is a seaman is simple: did the employee "contribute[ ] to the function of the vessel or accomplishment of its mission." Becnel did contribute. He worked 17-hour days in preparing meals, cooking food, and cleaning. He sustained injuries when he fell off a barge at the end of one of those long working days. The parties did not dispute that Becnel met this test.

The second part of the Chandris test is harder: "whether that employee had a connection to a vessel in navigation which was substantial both in terms of duration and nature." Two questions arise. Did the employee have a connection to a vessel in navigation? Was that connection substantial in its duration and nature.

Did Becnel have a connection to a vessel? The barge owner, Chet Morrison Contractors, Inc. (CMC), argued that Becnel did. Becnel's employer, Coastal Catering, L.L.C. and its insurer State National Insurance Co. (SNIC) argued that Becnel did not because Coastal randomly assigned Becnel to its customers. Becnel's assignments, Coastal said, were more often fixed platforms than boats. But this means of employment does not prevent one from being a Jones Act seaman. Seaman status cannot be defeated merely because someone in the future could be assigned a non-seaman role or "could have been assigned to other work locations." What matters is that the person is "continuously subjected to the perils of the sea and engaged in classical seaman's work."

Becnel was "a day-cook/steward and a night cook" with his employer, Coastal, which served a number of customers. Becnel had worked for 153 days at seven different job sites, including five of Coastal's customers. These customers included dive boats, drilling ships, and fixed platforms. But, CMC said Becnel always worked on an identifiable fleet of vessels, and Becnel said all of his assignments were part of a CMC project. The court of appeal found these facts did not result in a clear answer to whether Becnel was connected with a vessel. It could not be resolved on summary judgment.

Did Becnel have a substantial connection in duration and nature with a vessel? The ordinary case in the U.S. Fifth Circuit requires at least 30% of one's time in service of a vessel in navigation to qualify as a Jones Act seaman. Circumstances may justify a lesser percentage of time. The parties disputed how to compute Becnel's percentage of service. Coastal and SNIC argued that Becnel was not a seaman because he worked less than 30% of his time on CMC vessels. But, CMC said that Becnel met the test when considering all his assignments with Coastal.

The court looked at the evidence on either side of the argument. By Coastal's tally, Becnel had worked for 153 days on seven jobs for periods ranging from seven days to 52 days. Within those 153 days, 64 were spent on fixed platforms and 35 were on CMC barges. Coastal and SNIC argued that 35 days was only 23% of Becnel's time in service, and that wasn't enough to qualify as a seaman. One witness also doubted that CMC owned the quarters barge where Becnel worked. Others had testified, instead, that Becnel had always worked on barges or vessels of some type.

The discrepancy could be resolved only by weighing of evidence and determining the credibility of witnesses. Those things are matters for a trial court, not an appellate court that does not see the witnesses. The court of appeal determined that Becnel's seaman status could be decided only by the district court.

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 "Trial Necessary to Determine Jones Act Applicability (Part 2)" »

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.

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.

Continue reading "Baton Rouge Pedestrian Strike Reminds Drivers of Duty to Keep a Lookout" »

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.

Louisiana law reflects the state legislature's interest in protecting the health and safety of residents of rental property. For instance, landlords are required to warrant that a house is "suitable for the purpose for which it was leased" and that it is "free of vices or defects that prevent its use for that purpose." La. C.C. art. 2696. The warranty extends even to problems that are not personally known to the landlord, though there is an obligation on the part of tenants to report any unsafe conditions. La. C.C. art. 2697. Some limited waivers of this warranty are permitted, but only by "clear and unambiguous language that is brought to the
attention of the lessee." La. C.C. art. 2699. So strong is the state's intent to protect tenants that the law imposes strict liability on a landlord for damages that arise from defects to the property. To prevail against a landlord, the tenant must only prove that the landlord had control over the thing that caused injury; the thing that caused injury suffered from a condition that created an "unreasonable risk of harm"; and that the condition caused the tenant's injury. In fact, the landlord's liability is based entirely on his status as the landlord, not his personal fault. Thus, a landlord's "lack of knowledge regarding a [particular] defect is inconsequential."

A case that recently came before the Second Circuit Court of Appeal demonstrates the operation of this statutory warranty. In 2000, Antonio Wells, Sr. signed a lease to rent a house on Julia Avenue in Bossier City from William Norris. Wells's family, who lived with him in the house, included his wife, Amanda, and three children: Amber, Antinio Jr., and Arquisia. When the family moved in, several electrical outlets were not working. Wells and his wife got into the habit of using extension cords to power lights and other appliances in the home that were not located near working outlets. Discovered later was the fact that many of the 20-amp fuses in the home's fuse panel had been replaced with 30-amp fuses to prevent overloads; this caused excessive heat to build up in the circuits. Around lunch time on July 1, 2001, the house caught fire when an air conditioner overloaded a circuit with an altered fuse and ignited. The Bossier City Fire Department responded and extinguished the fire, but, tragically, not before Arquisia was killed and both Amber Antonio Jr. were severely injured. Wells filed suit against the landlord, Norris, in June of 2002. Wells alleged that Norris was strictly liable for the damages sustained by him and his family in the fire. A trial was held in March, 2010 in which the trial judge, without oral or written reasoning, ruled in favor of Wells and awarded $207,572.79 in damages. Norris appealed.

Norris's primary argument on appeal was that the trial judge misapplied the Louisiana code related to landlord liability. He pointed to the provision in Wells's lease that required him to "keep and maintain the House and appurtenances in good and sanitary condition and repair during the term of this Lease.” Norris argued that this language was "clear and unequivocal" and therefore served as a waiver of strict liability on his part under La. C.C. art. 2699. The court disagreed. In its view, Wells’s agreement to “maintain the house in good repair” did not "equate to his assumption of responsibility for the condition" of the entire premises. In addition, the court found that "no language existed anywhere [in the lease] amounting to a clear and unambiguous waiver of the warranty against vices and defects." Accordingly, the court upheld the trial judge's award of damages to the Wells family.

A number of the cases we have examined on this blog have turned on the language of a controlling document, such as an insurance policy. Although the court's reading of the lease in the Wells case turned out favorably for the Wells family, it would not be difficult to imagine another, similar case where a landlord had inserted a provision that was sufficiently "clear and unequivocal" to waive his liability for life-endangering defects in the property.

Continue reading "Bossier City House Fire Tragedy Prompts Court's Review of Landlord's Duty to Tenants " »

Our previous post discussed the various principles of contract law at work in the Mendoza case, which can be viewed here. This case involved a dispute between an injured worker's employer and another company with which that employer had a contract. A provision of this contract provided for indemnification, the assuming by one entity of the liability of another.

Companies often assume the liabilities of other entities with which they hold contracts. This is seen as a cost of doing business. Indemnification makes up part of or the entirety of the consideration for some corporate contracts. Contracting away your liability can be extremely valuable. The dispute in this case was when the contract actually became effective. The court used various principles discussed in its opinion and the previous post on this topic to determine that the trial court was correct in denying summary judgment to one party and granting it to the other. Mid South, Mr. Mendoza's employer, was to be indemnified and held blameless by EXCO as per their 2008 agreement.

In general, this dispute really came down to an issue of timing. The two companies in question signed an agreement in December 2008. The incident that created Mr. Mendoza's cause of action occurred in October 2007. He filed suit in August of 2008. Mid South did not file an answer to the complaint until July of 2009. After this filing Mid South demanded defense from EXCO; this defense was promptly denied. Mid South again attempted to illicit indemnification and defense from EXCO in September 2009 based on a 2004 contract that Mid South held with Anadarko, a company whose interests were subsequently absorbed by EXCO. EXCO did not respond until after Mid South filed a cross-claim against EXCO. EXCO filed an exception and answer in April 2010 along with a motion for summary judgment. In July 2010, Mid South filed its cross-motion for summary judgment. The former motion for summary judgment was denied and the latter granted in August of 2010. When the trial court denied EXCO's motion to designate the judgment as appealable, EXCO sought aid from a higher court. The Court of Appeal for the Second Circuit of Louisiana granted EXCO's writ application but ultimately sided with the trial court.

The crux of the appellate court's decision was its interpretation of the "Effective Date" provision of the contract which indicated that the agreement was in full force and effect "on the date first above written or on the date on which CONTRACTOR (Mid South) first commenced the performance of any services for COMPANY (EXCO) or first provided goods, equipment or facilities to COMPANY, whichever first occurred, and even though this Agreement may not then have been reduced to writing." There was conflict among the parties whether this clause or the type-written date "December 16, 2008" should take precedence. The court determined after its de novo review of the trial court record that EXCO should have known that it was assuming liability for events earlier than December 16, 2008 because it drafted the 2008 Agreement. EXCO also alleged error because the type-written date was not given precedence over the pre-printed contract language. The court found this allegation to be without merit. The "Effective Date" provision of the contract was drafted with the potential of the occurrence of a situation like this one in mind. It specifically contemplates an incident like Mr. Mendoza's in its language. It was the opinion of the appellate court he phrase "December 16, 2008" being type-written was not as important as influential as the type-written provisions in the precedential cases making up the common law in this area.

A court's interpretation of a contract can make a crucial difference to the parties involved. EXCO tried to get out of a contract that it had drafted itself. This is a difficult position from which to argue. Almost all of the interpretation tools that a court may use will caution against giving undue deference to the drafter of the contract. Companies must strive to write contracts containing language by which they intend to be bound. Courts must strive to fairly and equitably interpret contracts but they do not have to interpret them according to unexpressed intentions for which the contracts contain no basis.

Continue reading "Second Circuit Case Demonstrates Importance of Proper Contracts" »

A well-written contract can not only solve most problems, it can prevent most problems from becoming problems in the first place. For a contract to have its maximum problem eliminating effect, however, all parties to the contract must agree as to what it mean. Contract law is filled with cases that could have been avoided if the entities involved had simply expressed their terms more clearly or asked the right questions before, during and after the drafting of the contract. While this ambiguity may be intentional by one side or both in the event they think a benefit can be attained, the truth is the best contract is often the one where both parties are simply looking to achieve the main goal fairly. Those instances where ambiguity dominates, however, cause problems. The case of Mendoza v. Grey Wolf Drilling Co., discussed in an earlier post, is one such case.

The Mendoza case was two-fold. It involved questions as to whether and when one company assumed liability for another company. Several contract law principles were implicated in this dispute from which this opinion resulted. Contracts get drafted under the assumption that the parties have reached an agreement. This alleged agreement is nowhere to be found when there is a dispute over the meaning of a contract. When adverse parties give contradictory interpretations of the same contract language a suit often ensues. It is because of the relative frequency of this occurrence that the courts have come up with various rules for interpreting contracts when the parties themselves cannot.

The Court of Appeal for the Second Circuit of Louisiana applied Texas contract law in this case. This was due to an agreement between the parties which was most likely part of the contract itself; there was no dispute over this portion of the contract. For guidance, Texas law contains several well-established principles for evaluating disputed contracts:

First and foremost when interpreting the true meaning of a contract comes the intent of the parties. The parties to the contract presumably know best about what the contract was intended to accomplish and how. This cannot be the only factor in the analysis because when there is a dispute about the meaning of the contract, the parties likely had different intentions in entering into said contract.

The language of the contract is also important. Words can have a myriad of meanings in various different contexts. Courts seek to give the words in a contract one meaning that best suits the occasion. Texas courts seek to "harmonize and effectuate" all of the provisions of a contract. This aim towards harmony is shared in many jurisdictions. Disjointed and unwieldy interpretations of contracts serve none well and only exacerbate disagreements between contracting parties. Courts must seek to interpret the contract as a cohesive document in order to best achieve the ends of the parties. The signatories signed the entire contract so it follows that no portion of the contract was meant to be meaningless.

Theoretically, and in common practice, a court should not edit a contract under Texas law but must seek to enforce the contract as it is written. If a court was free to delete or add provisions to a contract it would be exponentially easier for that court to come to a conclusion as to what the contract was supposed to mean. Despite this added ease, the parties to that contract would be robbed of the contract that they intended. They agreed to the words on the pages of the contract, regardless of their current dispute, at one time. A court must come to a conclusion based on the language that was actually included within a contract, not the language that a court thinks, feels or believes should be included.

It might seem like it would not have to be expressed that a court should seek to avoid a construction for a contract that is "unreasonable, oppressive, inequitable or absurd" but the Texas Court of Appeals made it official. The law of contracts is, at its core, a law of fairness and equity. All language in a contract is supposed to be given its normal grammatical meaning unless otherwise stated in the contract. This too may seem like a meaningless pleasantry that should not bear expressing but in a world where jargon and technical terms are becoming increasingly common, words do not always mean the same thing. One particularly amusing contract dispute once arose out of the meaning of the word "chicken" for purposes of a contract for the sale of certain poultry products.

Our next entry will conclude coverage on this Mendoza principle as well as fleshing out the need for close review of contract provisions and stipulations.

Continue reading "Texas Contract Law Informs Second Circuit Decision" »

The Louisiana Supreme Court recently clarified rules of service of a medical malpractice lawsuit against State of Louisiana officials. The Court's conclusion recognizes that some notice requirements are more flexible than others. The case is also a warning about difficulties in knowing whether all parties to a lawsuit receive proper service of the opposing claim.

Whitley v. State Board of Supervisors of Louisiana State University Agricultural Mechanical College, ex rel. Medical Center of Louisiana at New Orleans-University Campus, No. 2011-CC-0040 (La. 7/1/11) resulted from medical care to Regina Whitley after she had been injured in an automobile accident when five months pregnant. She later delivered a stillborn infant. Whitley sued the hospital located in New Orleans for medical malpractice regarding its care of her and her unborn child.

Whitley's lawsuit was timely served on the Chairman of the University's Board of Supervisors. Two and a half years later, Whitley's lawyer faxed a copy of the citation and petition to the Attorney General (AG) and the Office of Risk Management (ORM). The University sought to have the case dismissed because it argued that the AG and ORM did not receive timely service. The argument failed at trial court and the court of appeals.

The Court explained that service to State officials is unusually complicated. Two statutes are involved, and the effect between the two was unclear. Louisiana courts had made different conclusions about the effects of the statutes. State defendants had recently begun to regularly use these statutes to argue lack of service.

La. R.S. 13:5107(A) permits lawsuits filed against a State agency to be served on the AG or proper officer or person "and on the department, board, commission, or agency head or person." The court admitted that this is a confusing statute. However, the use of the word "may" is permissive, and the use of the term "or" indicates alternatives. In effect, the statute specifies service may be made on the defendant government and its legal counsel. The statute does not require that service be made. A few paragraphs down, La. R.S. 13:5107(D) requires that failure to serve the State agency as a party within 90 days shall result in dismissal. This requirement, the Court said, means that La. R.S. 13:5107(A) could be read in two ways, including required dismissal. The Court considered such a result too harsh and against a policy favoring the maintenance of actions. Because Whitley had properly notified the University, the University knew about the case and had the opportunity to obtain a lawyer. She had complied with the statute.

In contrast, La. R.S. 39:1538 requires claims against the State "shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107." The Court said that this statute applied, but the University could not get the case dismissed based on it. The statute did not incorporate all the requirements and penalties of La. R.S. 13:5107 or the Code of Civil Procedure. All the statute requires is that "the AG, the ORM, and the department head" receive notice of tort actions. It does not specify a time, and it does not authorize dismissal for failure to effect service under the statute. Whitley's subsequent fax to the AG and ORM was, therefore, sufficient.

The Court's decision is just but not the only conclusion that could have been made about the statutes. La. R.S. 13:5107 requires service within 90 days from naming the state as a party, and if service is not made, the state "shall be dismissed," as long as proper motion for dismissal is made under the Code of Civil Procedure. The Court made an equitable choice based on the typical policy to avoid harsh results. After all, a State official knew about the lawsuit, so the State knew. Without the interpretation in this case, one could have anticipated such an error of service would result in dismissal. Similarly, although the Court is correct that La. R.S. 39:1538 does not mention dismissal as a penalty, one could have read the statute as supplemental to the prohibitions in La. R.S. 13:5107(D). Poor legislative drafting justifies the Court's interpretation. The results are not entirely consistent with the text of the statutes and rules, but the Court's decision clears away potential traps for the unwary.

This case demonstrates the complexities of properly serving parties. La. C.C.P. art. 1201(A) warns that citation and service of the citation "are essential in all civil actions. . . . Without them all proceedings are absolutely null." The applicable statutes in Whitley were not user friendly. Failure to properly serve opponents can result in dismissal. Therefore, it is crucial to make sure that all parties that need to know about the lawsuit receive service on a timely basis. It is for these questions that a lawyer is an investment to ensure that one's case gets heard and resolved on the merits.

Continue reading "Supreme Court Finds Sufficient Service in New Orleans MedMal Case" »

At times accidents on bodies of water are governed by a unique set of federal laws called admiralty laws. The court will thus apply admiralty law as opposed to federal or state law. This law of the water plays an important part in the administration of justice in Louisiana because of the great amount of water-based industries operating out of the state, and the high potential for lawsuits to occur within these industries.

Whether or not admiralty law can or need be applied can be very important to cases because the different set of laws can actually change a party’s rights. For example, under admiralty law if you make a Rule 9(h) declaration designating your maritime claims as claims governed by admiralty jurisdiction, then there is no right to a jury trial, even where you could get a jury trial under state or federal law.

The application of admiralty law was recently at issue in the case Apache v. GlobalSantaFe Drilling Company. In this case, a mobile offshore drilling unit, owned by GlobalSantaFe, collided with an offshore oil and gas production platform, owned in part by Apache Corporation. Apache sued GlobalSantaFe to recover the damages caused to the platform. Apache asserted that the suit could be under both admiralty law and federal law.

Even though both parties requested a jury trial for the suit, GlobalSantaFe later decided it did not want a jury trial. Thus, GlobalSantaFe attempted to strike the requests for a jury trial by arguing that Apache had made a Rule 9(h) declaration, designating the claim for admiralty jurisdiction and losing the right to a jury trial.

Despite the fact that Apache had asserted the claim under both admiralty and federal law, the parties later stipulated to the fact that: “Apache did not make a 9(h) declaration.” In situations where it is not clear whether a party made a 9(h) declaration, courts look to the totality of the circumstances, considering, for example, whether the claim is viable under any other sector of law.

Here, not only is the claim viable under federal law, but the parties also stipulated to the fact that Apache did not make a 9(h) declaration. When a party stipulates to a fact it has made a formal concession. Thus, GlobalSantaFe is bound by its stipulation, and cannot strike the requests for a jury trial on the basis of Apache making a 9(h) declaration.

Timing is everything in civil litigation. The difference of a day or two can determine whether a suit is timely or not timely, meaning if the court will even hear the case being filed. As such, the difference between a suit that is timely and one that is not timely can make the difference between a plaintiff receiving full compensation for their claims and a plaintiff (or his or her surviving family members) receiving nothing.

Mr. Jerry Bozeman dedicated his life to protecting others from fire-related disasters. Sadly, while carrying out his duties he was exposed to asbestos due to improperly built and maintained facilities. As a result of the City of Shreveport failing to protect their employees, including Mr. Bozeman, from the hazardous material in the fire station where he spent a great deal of time, the loyal fireman suffered from asbestos,-related mesothelioma. Mr. Bozeman's two children, Corey Bozeman and Matthew Bozeman, brought suit under theories of negligence and strict liability under a claim of wrongful death in addition to survival benefits.

The primary issue before the Court of Appeal for the Second Circuit State of Louisiana on appeal was whether the case was actually able to be appealed to the First Judicial District Court for the Parish of Caddo, Louisiana. There was some contention as to whether the plaintiff could appeal the trial court's granting of the City's exception of no cause of action as to the plaintiffs' wrongful death claims and non-intentional torts. The City was denied motion for summary judgment and its request for another exception to intentional tort claims and executive officer liability; the plaintiffs did not want to appeal these parts of the trial court's judgment.

Under Louisiana law, an appeal cannot be taken from a partial final judgment until it has been designated as a final judgment. This means that a court must designate a partial final judgment in order for an appeal on that ruling to be made. The appellants, the plaintiffs at trial, urged the appellate court to consider their appeal timely. The appeal came less than two weeks after the partial final judgment was certified by a court as a final judgment. This was well within the time that a plaintiff has to appeal a final judgment and, as such, the appellants won their appeal.

Since the appellants were successful in arguing that they in fact had the right to appeal the decision because it was final, the appellate court also had to weigh their case on the merits. The appellate court determined that the trial court has erred in not revising the grant of an exception of no cause of action to the City of Shreveport. Specifically, the appeals court ruled that the lower court failed to match a superseding Supreme Court decision that directly impacted the case.

While the trial court made its initial decision in 2007 based on a 2005 holding by the Supreme Court, this higher court ruling was specifically abrogated. As such, the appellate court in this case determined that holding that decision not to apply retroactively would be unfair to the appellants and ruled in their favor.

Mesothelioma and asbestos litigation is a constantly evolving area of the law. The trial court's decision was not incorrect at the time it was initially rendered due to the fact the Supreme Court is considered to be the overarching law of the land. However, due to the fact that the law changed during the time that the partial final judgment was not an entirely final judgment, a change in ruling took place. When this decision was replaced with a newer one, the lower court's decision both could and should have been changed to comply with the most recent Supreme Court ruling. Because the trial court failed to change its ruling when appropriate, it was found to be in error. You can read more about the case here.

If you or a loved one is suffering from mesothelioma or a loved one has died from mesothelioma, you may be entitled to benefits and awards. Contacting an attorney is crucial to preserve your legal rights before the timing no longer allows it.

Continue reading "Fireman's Survivors File in Time in Shreveport" »

Louisiana crawfish are farmed in rice ponds and, beginning in 1999-2000, farm raised crawfish crop allegedly suffered a dramatic decline caused by the pesticide ICON. The pesticide, manufactured and sold by Bayer CropScience L.P., coated the rice seed used in the rice ponds. The plaintiffs resell the crawfish or process them for tail meat and claimed that they suffered economic loss when ICON rice drastically reduced the number of crawfish they could buy and process.

As crawfish buyers and processors, the plaintiffs asserted that they played "an essential and necessary role in the creation, preservation and perpetuation" of the Louisiana crawfish industry. In fact, they supported this contention with evidence indicating that, among other things, they create a market for all "peeler" crawfish, sell bait to crawfish farmers and provide loans to crawfish farmers. Plaintiffs filed suit in federal court and, on appeal, the Court analyzed whether a third party could recover for their economic losses.

The "economic-loss rule" bars recovery in tort when a party suffers economic loss unaccompanied by harm to his own person or property in most jurisdictions. However, Louisiana courts have adopted a modified version of the "economic-loss" rule. Louisiana courts adhere to the traditional rule but use policy considerations to determine the reach of the rule. The courts consider if there is an "ease of association" between the "rule of conduct, the risk of injury and the loss sought to be recovered." This inquiry is done on a case-by-case basis. Additionally, in such negligence cases, the court applies a duty-risk analysis in determining whether or not to impose liability. In order to prevail under the duty-risk analysis, the plaintiff must show that (1) the defendant had a responsibility to conform his conduct to a specific standard, (2) the defendant failed to adhere to that standard, (3) the defendant's conduct actually caused the plaintiff's injuries, (4) the defendant's conduct was the legal cause of the plaintiff's injuries and (5) actual damages.

In the case at hand, the Court held that the ease of association between the damaged crawfish and the plaintiff's economic loss was too attenuated since the plaintiffs did not possess an enforceable right to the crawfish. Also, the Court disagreed with the plaintiff's assertion that they were entitled to recover because of the symbiotic relationship between the Buyers/Processor and the crawfish farmers since the analysis is not based solely on foreseeability. Finally, despite the fact that the defendant's negligence cause severely affected crawfish farmers in the industry, a plaintiff's right to recovery is not related to the economic harm caused by the defendant's conduct.

This case highlights the complex analysis Louisiana courts apply in third party recovery claims. It requires balancing the need to impose responsibility on the tortfeasor for damages for an indeterminate time to an indeterminate class and the need to limit such liability. Thus, any individual or company involved in this type of litigation should consult seasoned attorneys, such as those at the Berniard Law Firm to assist with claims and help minimize liability or maximize the amount of damages.

Car accidents are never pleasant, but when an accident is worsened by construction debris left on the side of the road, the outcome can be disastrous. Once the pain and suffering has subsided, the question needs to be asked, who’s responsible? Do we look to the construction company, or do we simply chock it up to the terrible luck of the drivers? More importantly, how does the state play into this accident, and when is it the responsibility of the state department to compensate for injuries resulting from construction debris? The 3rd Circuit Court of Appeals addressed those issues in the case of Thibodeaux v. Comeaux.

Jennifer Thibodeaux, the plaintiff in this case, was injured in a car accident off of Highway 190 in St. Landry parish. As Ms. Thibodeaux began to cross to the next lane, her car collided with another vehicle driven by Mr. Bill Comeaux. The collision caused Ms. Thibodeaux to lose control of her vehicle and travel off the highway, where her vehicle slammed into a large cement block and other debris on the shoulder of the highway. The cement and debris had been placed there during on-site construction by a contracted construction company, Gilchrist Constriction, hired by the defendant, Louisiana’s Department of Transportation and Development (DOTD). Ms. Thibodeaux was ejected from her car and sustained multiple injuries, including spinal fractures, lower jaw fractures, and a lacerated spleen. Among the others involved, Ms. Thibodeaux filed a claim against the DOTD for their responsibility in the accident. At the conclusion of the trial, the jury found that the debris and cement left at the site were the sole responsibility of Gilchrist Constriction, and not the responsibility of the DOTD. Therefore, the court found that the debris and cement created an unreasonable risk of harm and Gilchrist was 40% responsible (with the other 60% of liability ordered to Ms. Thibodeaux herself).

Ms. Thibodeaux’s appeal contends that the trial court erred in finding the cement and debris was not an unreasonable risk of harm caused by DOTD. The assignment of DOTD as responsible for the debris and cement questions the distinction between a factual and legal determination. For legal determinations, as stated in Becker v. Dean, the appellate court must review, de novo, the proper legal analysis to render a judgment on the merits. The appellate court looked to determine whether the factual determination by the trial was actually a legal determination that required a different form of review.

In its review, the appellate court found that the trial court’s determination that Gilchrist created an unreasonable risk, but not the DOTD, was a legal error that should have been viewed in light of the court’s unreasonable risk of harm criterion. The DOTD, as stated in Forbes v. Cockerham, has a legal responsibility to maintain the state’s roadways and highways. The court in Forbes stated that the DOTD has a legal duty to maintain the shoulders of the public roads as well, so as to maintain reasonable safety for the operation of the roads and to prevent any unreasonable risk that may occur. Therefore, the appellate court maintained that the DOTD is not responsible for all accidents on Louisiana road ways and highways, but may be responsible if it is determined that an unreasonable risk of harm existed at the time of the accident. What the trial court failed to realize, and the appellate court considered in its decision, is that the case of Woods v. State determined that the DOTD’s duty to maintain the roadways and highways in a reasonably safe condition is non-delegable. The appellate court determined that if Gilchrist was found to be liable for the unreasonable risk of harm caused by the debris and cement, then it would be legally incorrect to determine that the DOTD was not also liable for that harm.

The appellate court agreed with the court that the debris and cement did create an unreasonable risk of harm to the drivers of the road and reversed the trial court’s decision as to the DOTD’s liability. The debris was determined to hold no social utility in its presence on the shoulder of the road, and the likely harm caused by the debris was enough to consider it unreasonable to be left as it was. Once liability was established, the appellate court determined that the DOTD was to be responsible for 50% of Gilchrist’s damage order (20% liable to the overall award in damages). The court determined that, while it was the DOTD‘s responsibility to prevent unreasonable harm, Gilchrist did have some obligation to inform the DOTD of the possible dangers inherent to the debris on the shoulder of the road.

The DOTD had a duty to maintain a reasonably safe roadway and highway system, and now takes some of the responsibility in Ms. Thibodeaux’s accident. Ms. Thibodeaux’s case highlights the immense responsibility on the DOTD to protect the drivers of Louisiana by maintaining a reasonably safe roadway system, away from any unreasonable risk of harm. When the DOTD fails to meet that responsibility, significant injuries are a realistic and unsettling possibility.

Injuries to yourself or a loved one should not be taken lightly. If you believe that an injury was the result of some defect, you should consult with a lawyer, as you might be entitled to compensation.

Continue reading "St. Landry Parish Accident Results in Reversal and DOTD Responsibility" »

One of the first things that must be determined in a potential medical malpractice claim is whether the statute of limitations bars the claim. An otherwise legitimate malpractice lawsuit may be invalid simply because the injured party waited too long to file the claim. In the State of Louisiana, the statutory period in which a claim must be filed is referred to as the "prescriptive period." If a case is "prescribed", it is beyond the statutory period. Louisiana statutory law (La. R.S. 9:5628(A)) states that malpractice suits must be filed "within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission or neglect."

In a recent Louisiana Court of Appeals Case, Amos v. Crouch, the court addressed the issue of what constitutes "discovery" of the alleged negligent act or omission. In the Amos case, Dr. Crouch, a Jackson Parish general surgeon, diagnosed a patient with severe hemorrhoids when in fact the patient had colorectal cancer. After receiving the hemorrhoids diagnosis from Dr. Crouch, the patient decided to see another doctor for a second opinion. After a brief examination, the second doctor ordered tests that ultimately revealed the colorectal cancer. The Court of Appeals concluded that it was at the time of his cancer diagnosis that the statutory period began to run. The Court declared, "Prescription begins when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort." It is important to note that knowledge only refers to "such information that ought to put the alleged victim on inquiry." Therefore, in certain circumstances, a correct diagnosis from a second physician can equate to "discovery" of the doctor's negligent act, triggering the prescriptive period.

However, the court refused to treat a correct secondary diagnosis as a per se reasonable belief that the original doctor committed malpractice. Instead, the court declared, "it depends on the particular circumstances of each case." But, the Amos case does infer that a correct secondary diagnosis, although not conclusive, acts as strong evidence toward proving that a reasonable person would have discovered the possibility of malpractice at that time.

Of course, a secondary diagnosis that proves a previous diagnosis to be erroneous does not necessarily equate to malpractice. It is certainly possible for doctors to maintain their duty of care while reaching an ultimately erroneous diagnosis. Even so, there is always the possibility that an erroneous diagnosis may have been caused by negligence. Therefore, it is important for all patients to be weary of the short prescriptive period in Louisiana (one year), and to understand that a correct secondary diagnosis may start the clock on the one year timer. Therefore, if you believe you may have been the victim of medical malpractice, your best chance of compensation is to contact an attorney as soon as possible to ensure the statute of limitations does not expire.

Continue reading "Statute of Limitations on Medical Malpractice Claims in Louisiana: Information Every Patient Should Know " »

With the vast criticisms that surround medical malpractice cases, it is no wonder why many keep a close eye on these types of cases. While it is very rare for an appellate court to do so, once in a blue moon an appellate decision will overturn a jury verdict of a medical malpractice judgment. Patten v. Gayle is one of those cases in which the plaintiff appeals the court’s verdict that malpractice occurred, but resulted in no injury and thus awarded no damages.

The plaintiff, Ms. Charlotte Patten, was the patient of her OB-GYN, Dr. Christopher Gayle, the defendant. Dr. Gayle had scheduled Ms. Patten for a laparoscopic evaluation after Ms. Patten complained of severe pain that was believed to be related to an abdominal hysterectomy she received from Dr. Gayle in 1997. In performing the procedure, Dr. Gayle placed multiple operative trocars (a medical instrument used to gain access into the abdominal cavity) throughout the abdominal area in order to insert a laparoscope, which enabled Dr. Gayle to see within Ms. Patten’s abdominal cavity. While performing the procedure, Dr. Gayle moved the trocars to gain better visibility of Ms. Patten’s abdominal cavity, and inadvertently punctured Ms. Patten’s abdomen. Initially, Dr. Gayle did not believe that the abdomen cavity had been compromised, but after further investigation later in the procedure, Dr. Gayle discovered that the trocars had penetrated through Ms. Patten’s small bowel. The result of the injury required Dr. Gayle to have the hospital’s general surgeon perform an emergency surgery on Ms. Patten to correct the error. In addition, feculent material was found to have leaked into Ms. Patten’s abdominal cavity a few days after the surgery had been completed, resulting in an abdominal infection known as peritonitis and pneumonia. After her recovery, Ms. Patten filed a medical malpractice suit against, among other individuals, Dr. Gayle. The jury determined that Dr. Gayle had in fact deviated from the required standard of care and had committed malpractice, but found that his actions did not result in the injuries sustained to Ms. Patten and awarded no damages. Ms. Patten appealed stating that the jury manifestly erred in finding a lack of causation between Ms. Patten’s injuries and Dr. Gayle’s malpractice.

In medical malpractice cases, the appellate courts apply the manifest error standard of review when ruling on issues of causation. The manifest error standard, as stated in Johnson v. Morehouse General Hospital, mandates that an appellate court may not overturn a trial court’s ruling, unless it is determined that the court’s factual determination is clearly wrong or manifestly erroneous. The court in Johnson states that it is not enough that the appellate court disagree with the trial court’s decision, it must find that there is no reasonable factual basis for the trial court’s conclusion. The court in Lovelace v. Giddens requires the appellate courts to pay close attention to medical malpractice cases when it comes to conclusions of causation, as great deference must be given when medical experts make differing conclusions as to medical causation.

While the appellate court affirmed the trial court’s conclusions about the causation of Mr. Gayle’s performance, the court did reverse the finding that the injuries to Ms. Patten’s bowel and the time and expense of its repair were not related to Dr. Gayle’s negligence. The appellate court determined that additional costs were directly incurred because of Dr. Gayle’s puncturing of Ms. Patten’s bowel. The appellate court explained that Ms. Patten’s placement under anesthetic gases for a longer period of time to repair the punctured bowel, for instance, was a direct result of the negligently punctured bowel. Such additional costs would not have occurred had Dr. Gayle properly performed the procedure, concluding that the trial court’s decision that no causation existed between some of the injury and Dr. Gayle’s negligence was manifestly erroneous. Because of the conflicting testimony from medical experts, the lack of damages awarded for the post-surgery illnesses sustained by Ms. Patten was not reversed. Based on the direct medical expenses to the repair of Ms. Patten’s bowel and some pain and suffering related to her injury, the appellate court awarded just over $14,000 in damages.

The small amount of damages awarded to Ms. Patten as a result of her appeal highlights the very difficult and technical nature of medical malpractice cases. Full of medical jargon and expert testimony, it is a rarity that one would see a reversal in judgment for such a case as Ms. Patten’s. However, medical accidents do happen, and it is always important to consult a lawyer if you believe to be the victim of any medical procedure believed to have gone wrong.

Previously on this blog, we have explored a number of cases where a party has faced defeat in court because of the failure to follow a procedural rule in litigation. Louisiana's rules of civil procedure are designed to require a timely commencement to a suit and to ensure that the suit is then adjudicated in an expedient manner. Similar rules apply to the procedure for summary judgments. Motions either for or in opposition to summary judgments may be accompanied by affidavits (in fact, in some cases, affidavits are required). An affidavit must be filed no later than eight days prior to the hearing on the motion. La. C.C.P. art. 966(B). A party's failure to observe this time requirement will result in the court's excluding the affidavit from consideration. As the plaintiff in Sims v. Hawkins-Sheppard learned, such a failure can result in a dismissal of the case when the affidavit is critical to opposing summary judgment.

On May 22, 2009, Rebecca Sims sued Dr. Tonya Hawkins-Sheppard alleging medical malpractice after Sims's son was severely injured and disfigured during delivery at the Glenwood Regional Medical Center in Ouachita Parish. During the discovery phase, Hawkins-Sheppard requested the identity of any medical expert who could support Sims's claim of malpractice. Sims responded that she had not consulted a medical expert, and Hawkins-Sheppard filed a motion for summary judgment. A hearing on the motion was set for May 4, 2010. Sims requested, and was granted, a continuance of the hearing until July 7, 2010. Sims then filed an opposition to summary judgment that included an unsigned physician’s affidavit. Sims's lawyer stated that the unsigned affidavit would be replaced with a valid affidavit before the scheduled hearing on the motion. No such substitution was made. On the day of the hearing, Sims explained to the trial judge that she had fired her lawyer and was seeking new counsel. Sims suggested that she had been misled by her attorney. Refusing to permit further delay, the judge went ahead with the hearing and then granted Hawkins-Sheppard's motion for summary judgment. Sims appealed. The Second Circuit found that the trial court had abused its discretion in failing to permit Sims a reasonable amount of time to find new counsel and to substitute the unsigned affidavit with a valid, signed version. Hawkins-Sheppard then appealed to the Supreme Court of Louisiana, which reached a different result. "[W]e find no abuse of the trial court’s discretion in this case," the supreme court stated. "[Sims] failed to show 'good cause' under La. C.C.P. art. 966(B) why she should have been given additional time to file an opposing affidavit." Consequently, the court concluded, there was no genuine
issue to the material fact that Sims was unable to prove that Hawkins-Sheppard breached the standard of care. A medical malpractice action is one that, on summary judgment, requires a valid affidavit containing a medical expert's opinion on the issue of the doctor's breach of duty. Had Sims's motion been accompanied by a valid affidavit, she could have avoided the trial court's grant of summary judgment. Thus, the court reversed the Court of Appeal and affirmed the trial court's grant of summary judgment in favor of Hawkins-Sheppard.

The result in this case, though it may appear harsh to the plaintiff, points up the seriousness with which the Louisiana courts take the rules of civil procedure. For any plaintiff, retaining experienced and competent counsel is essential to ensuring that the case is not lost due to the failure to observe deadlines or the violation of some other procedural rule.

Continue reading "Ouachita Parish Medical Malpractice Case Reminds Litigants of the Importance of Meeting Litigation Deadlines" »

In order for a court to have jurisdiction over a person, proper service of process must be employed, giving legal notice to the party of the suit and enabling them to timely prepare in anticipation of the suit. If proper service is not performed, a court may not have jurisdiction over such person. In a recent Louisiana Supreme Court case, the requirements of proper service were explored in order to determine whether the proper steps were employed. proper service of process is one of the most important parts of a law suit, without proper service, the defendant may not be forced to participate in the case. Thus, the importance of proper service cannot be emphasized enough.

The case at issue involves the plaintiff, who fax-filed suit against several defendants, including the State of Louisiana, through the Department of Transportation and Development (DOTD), seeking to recover damages arising from an automobile accident. In the plaintiffs petition, requested service on DOTD though the attorney general was made. The issue became whether the plaintiff's service of process was insufficient based on the fact that he did not request service on the secretary of DOTD. Citing to Louisiana Revised Statute 13:5107(A) which provides in part:

"In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person..."

The plaintiff has 90 days from filing the complaint, to properly serve the named defendant(s). Here, the defendant argues that the plaintiff failed to request proper service within 90 days of the filing of his suit pursuant to La. R.S. 13:5107(A), entitling DOTD to the dismissal of the plaintiffs claims. the issue is whether or not litigation involving two state agencies requires double service, i.e., service on the agency head and the attorney general. The appellate court relied on jurisprudential interpretation to dismiss the plaintiffs claim, stating that the interpretation of LSA-R.S. 13:5107 mandates service of citation on the state agency must be made upon the attorney general and on the agency head for the department against whom the action is filed. However, upon the Louisiana Supreme Court's grant of supervisory writ, the court specifically explored whether an actual "double service" was indeed required. The Court held that a double request for service is not necessary. Clearly, the plaintiff's request for service on the attorney general alone satisifed the service requirements of LSA-R.S. 13:5107(A). This is supported by LSA-R.S. 39:1538 which neither imposes a time constraint on the service required by the plaintiff nor provides for dismissal for the failure to effectuate service. In fact, the plaintiff's failure to request service on the department head and the office of risk management within 90 days of commencement of his action did not entitle DOTD to the dismissal of his claims against it. Since there are no time periods set forth nor a requirement for dismissal, the Louisiana Supreme Court held that the incomplete service can be cured by the plaintiff simply requesting and obtaining service of process on DOTD's secretary and the office of risk management, and the appellate court had erred in failing to allow him the opportuity to so do.

In summary, proper service is monumentally important in allowing a case to go forward against a specific defendant. If proper service is not effectuated the complaint may not be heard. However, if the plaintiff has properly served named defendants according to the revised Statutes, than his complaint may not be dismissed for a mere technicality that requires him to further serve specific parties within a state agency. As a result, a plaintiff who properly does perform service on the "main" defendants as named in the revised statutes will be permitted to remedy the incomplete service by permitting extra time to obtain service on the additional enumerated parties.

Gambling is one of the many recreational activities that the state of Louisiana has to offer. One of the more popular ways to gamble in Louisiana, is on the river boat casinos. However, in a recent Louisiana Third Circuit Court of Appeal decision, the court explored whether or not incidents such as personal injury that occur on these river boat casinos qualify under maritime law as a result of being "in navigation." This issue presents an interesting dilemma in classification, especially after the Louisiana legislature in 2001 amended the gambling laws so as to prohibit gambling boats in Lake Charles from conducting cruises or excursions. Thus, the question becomes: are these river boat casinos in navigation and thus governed by maritime law?

The facts of the case include a young woman who visited a river boat casino on Lake Charles to enjoy gambling in addition to the complimentary food and drinks. However, she became intoxicated and at 4 a.m., she fell from a stairway onto the ground below, suffering serious injuries. According to protocall, her blood alcohol content was measured at 0.33%. Initially, the young woman pursued damages under Louisiana law, however, Louisiana Revised Statute 9:2800.1 provides:

"The legislature finds and declares that the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person."

In an effort to circumvent Louisiana's statute prohibiting liability in the case of an intoxicated individual, the young woman alleged that her cause of action was instead, controlled by federal maritime law which contains no similar provision barring the type of claims she was asserting. Her reasoning for alleging a federal maritime claim, was that her fall occurred on a permanently moored floating casino, a watercraft she contends is a vessel in navigation for purposes of general maritime law. The trial court did not explore the definition of "navigation," nor the actual status of the casino, but instead, agreed, finding the plaintiff's claims did fall within admiralty jurisdiction. It was not until the defendant river boat casino company files an appeal that the actual status of the boat was taken into consideration and explored.

Whether or not a boat is in navigation depends on the services the boat provides and the duties the boat performs. As such, in Stewart v. Dutra, the Supreme Court discussed the distinction drawn by the general maritime law between watercraft that are permanently affixed to the shore or resting on the ocean floor and those that are temporarily stationed in a particular location. The record reflects that the Lake Charles river boat casino was prohibited from conducting cruises or excursions after the Louisiana legislature enacted La. R.S. 2765. Since that time period, the river boat casino has been docked and has not conducted any cruises. Further, the boat itself was fitted with four winches, each holding steel cables to permanently secure the vessel to the dock. The utilities servicing the boat, including electricity, water, telephone, sewer, cable, and surveillance were attached to the vessel from land-based sources. Additionally, since the restrictions were set in place prohibiting river boat casinos mobility, the crew of the river boat has been significantly reduced, in fact the captain of the boat was no longer responsible for any navigational duties. To support the contention that this river boat is indeed "out of navigation," the Fifth Circuit held in De LaRosa v. St. Charles Gaming Co., that the very same gambling boat at issue in the present case, was not a vessel for purposes of admiralty jurisdiction. The Appellate court dismissed the young woman's claim, citing to the federal jurisprudence interpretation on maritime jurisdictional rules and definitions as applied to similar boats and circumstances. Therefore, her claim was not based in general maritime jurisdiction and would have to be governed by Louisiana statutes, which ultimately will deny her damages as a result of her blood alcohol content.

In summary, boats have to be in navigation in order to qualify for general maritime jurisdiction. The numerous river boat casinos that are located throughout Southeast Louisiana may fall outside the definition of a "vessel in navigation." A boat cannot be permanently attached to the shore, or moored for extended periods of time and still qualify as being "in navigation." Thus, the river boat casino would not be governed by federal maritime law, instead, they are out of navigation and are governed by the rules and statutes of Louisiana.

When making a legal claim against a person or entity, time is of the essence. Prescription bars certain legal actions after a specified time period. If the specified time period has lapsed, the action is thereafter prohibited. The Fifth Circuit recently explored the issue of prescription, demonstrating how prescription operates to effectively bar actions if they are not timely brought.

The facts of the case are disturbing; the plaintiffs alleged that they were sexually abused by a Roman Catholic priest who was ordained by the Catholic Church. The complaint alleges very serious accusations of abuse. However, abuse turned out not to be the dispositive issue, rather, prescription was the focal point for the Fifth Circuit. Specifically, the Fifth Circuit had to determine whether the suit, based on molestation allegations that occurred over twenty-five years ago, was timely under Louisiana law. It was uncontested that the plaintiff's claims had indeed expired and that they were as a result, barred, unless prescription was tolled under the Louisiana law doctrine of "contra non valentem." This is an exception that was judicially created to statutory prescription, it applies only in exceptional circumstances. In particular, the Louisiana Supreme Court in Eastin v. Entergy Corp., held that the "prescriptive period commences on the date the injured party discovers or should have discovered the facts upon which his cause of action is based" if contra non valentem applies. The plaintiffs alleged that exceptional circumstances were present, as a result of their memories of the abuse they suffered being repressed, preventing them from knowing about their cause of action. However, depositions that the plaintiff gave showed otherwise. Rather, the plaintiffs unequivocally stated that they actively remembered the abuse after it occurred. Thus, their memories were not repressed and the concept of contra non valentem would not apply. Prescription would instead, govern the issue.

The plaintiffs thereafter contended that they should have the opportunity to obtain additional evidence on the subject of their repressed memories and would obtain an affidavit from a professor of psychology that would support their contentions. This affidavit would be used to rebut the defendant's Rule 56 summary judgment motion, such motions are generally favored and should be liberally granted, but the plaintiffs must demonstrate two things. First, they must demonstrate why they need additional discovery and second, how the additonal discovery will likely create a genuine issue of material fact. Thus, even if the plaintiffs were granted additional time to obtain the affidavit in their support, it would not suffice to defeat a summary judgment motion. The plaintiffs already admitted in their depositions that they could remember the abuse right after each encounter, thus, the affidavit would not help defeat summary judgment since they already have demonstrated a lack of exceptional circumstances to qualify for prescriptive tolling.

In summary, time is exceedingly important in being able to bring a legal action against another person or entity. If the specified time period has lapsed, the action will be barred. However, under the legal concept of contra non valvalentem, an exception may be made and the time period may be extended if exceptional circumstances exist. However, the plaintiffs defeated the exception when they admitted that they never repressed the memories of the abuse, thus, the exception would not apply to them. As a result, even as horrific as the abuse may have been, their lawsuit was dismissed.

Continue reading "Time is of the Essence When Understanding Prescription and Timing of a Case" »

Numerous prior posts on this blog have examined Louisiana's system for helping plaintiffs who have been the victim of medical malpractice. Although the state's medical review panel is in place to screen potential claims before they get to court, a plaintiff must still rely on competent legal counsel to see the case to resolution. So important is the lawyer's role that the courts have consistently held that when a litigant loses his day in court solely due to his attorney's negligence, strictly enforcing a technical rule should not result in the miscarriage of justice. This principle was recently relied upon by the Second Circuit Court of Appeal in the case of Sims v. Hawkins-Sheppard to avoid an unjust outcome for the plaintiff.

Rebecca Sims was admitted to the maternity ward of the Glenwood Regional Medical Center in Ouachita Parish on April 2, 2007 for the delivery of her baby. She requested a delivery by Caesarean section due to complications she experienced with her first child. Sims's doctor, Tonya Hawkins-Sheppard, nevertheless decided to perform a surgical vaginal delivery
with the use of forceps. Sims's baby suffered permanent eye injuries from the use of the forceps, and Sims herself suffered injuries that required a hysterectomy. Sims submitted her claim to the state's medical review panel. She alleged that she was heavily medicated and in great pain, and therefore did not give consent for the delivery as performed by Dr. Hawkins-Sheppard; further, Sims asserted that Dr. Hawkins-Sheppard breached the applicable standard of care in the delivery of her baby. After receiving the review panel's opinion that Dr. Hawkins-Sheppard did meet the standard of care, Sims filed a lawsuit. Dr. Hawkins-Sheppard filed a motion for summary judgment when Sims's counsel responded to discovery requests with a statement that Sims did not have a medical expert who could offer an opinion. Sims's counsel then filed a memorandum in opposition to the motion for summary judgment which contained an unsigned physician’s affidavit. Sims's lawyer assured both Sims and the court that the unsigned affidavit would be replaced with a valid affidavit before the scheduled hearing on the motion. But Sims's lawyer failed to obtain the signed affidavit because he did not present it to the physician, Dr. Kimberly Hess, before she left for vacation out of state. Sims learned of this only the day before the hearing, at which time she fired her attorney. At the hearing, Sims explained the situation to the court but the judge refused to grant a continuance so she could obtain new counsel. Instead, the court granted the motion for summary judgment. Sims found new counsel about a month later, who immediately filed an appeal of the court's granting of summary judgment for Dr. Hawkins-Sheppard.

The Second Circuit noted that under La. C.C.P. art. 966(B), affidavits to oppose a motion for summary judgment must be filed eight days prior to the hearing on the motion, which Sims's original counsel clearly failed to do. However, "the trial judge retains great discretion regarding the time of filing. The court shall give the adverse party additional time to file a response, including opposing affidavits, if good cause is shown." Furthermore, it is entirely within the trial judge's discretion to "continue the hearing to enable compliance with the eight day filing requirement." Citing the principle for ensuring the proper carriage of justice, the court noted that Sims was not aware of her attorney’s failure to obtain a valid affidavit and that, even though the doctor would have been able to correct the problem simply by signing the affidavit, the trial court "rendered judgment..., closing its doors to a trial on the merits of [Sims's] case." Yet, it is the court's duty "to permit litigants all reasonable opportunity to place before a court all facts bearing on the issues involved." The court concluded:

"When weighing the options of giving a litigant, who was misled by her attorney, more time to obtain the necessary documents that are, based on the record, easily attainable versus shutting the doors to litigation, we find that the trial court abused [its] discretion... The trial court should have allowed [Sims] a reasonable amount of time to obtain new counsel and secure the signature of Dr. Hess rather than cutting off [Sims] at the summary judgment phase, which was a clear and direct result of her being misled and deceived by her former counsel."

Thus, the court reversed the trial judge’s grant of summary judgment and remanded the case to the trial court for further proceedings.

One cannot help but sympathize with a plaintiff whose physician inflicts serious injuries to her and her baby and who then encounters an astonishingly ineffective lawyer. Although Sims presumably will have her day in court following the Second Circuit's decision, other plaintiffs may not be so fortunate if they put their trust in an attorney who is not experienced in medical malpractice litigation.

Continue reading "Ouachita Parish Medical Malpractice Case Reveals Second Circuit's Interest in Allowing Plaintiffs Their Day in Court" »

In the event that a landowner plans to do any form of significant work on an area of land, whether cosmetic, such as landscaping, or extensive, the work should be preceded by the contracting of one qualified and certified to inspect the property and physically mark the location of utility cables upon it. This is to prevent damage to the utility cables, and to prevent the costs of repair to the companies which own the cables. Such action invokes the Louisiana Damage Prevention Act - Louisiana Underground Utilities and Facilities Damage Prevention Law.

An incident central to the MCI Communications Services, Inc. v. Hagan case was noted at causing a $20,000 a minute loss to the utility company for every minute the cable was out of commission. It thus seems rational that the possible negligence and/or trespass in damaging the cable, property owned by a utility company, can cause significant troubles, even if it occurs within the property of the landowner.

The most substantial part involved in this case is the determination of what the definition of trespass and negligence is when a landowner affects the transposed property of the utility company. Without a doubt, a landowner has the right to be on and use the land, but the utility company also has been given the right by law to continue to leave its utility cable in/on the land and continue using it, and retains this right even if the contract for use of the land was made with a previous landowner. If a servitude is involved with having the utility cable in/on the land, then there is a possible claim for Trespass to Land in conjunction with a negligence claim. However, if there is not a servitude, and only a right to continue to use the utility cable on the land exists, then the recourse if damage occurs would be Trespass to Chattels, for damage to personal property, not Trespass to Land, as attempted in this case.

The intent question is one of strict liability, whether the only intent needed is the intent to perform the action, in this case intentionally using the backhoe, and a result, damaging the utility cable, occurred. More succinctly, the aforementioned case notes a trespass is "an unlawful physical invasion of property in the possession of another and the only intent required is the trespasser's intent to perform the act which constitutes the trespass." Thus, "an individual need only refrain from taking intentional action that results in harm to another." However, the Louisiana Supreme Court has yet to rule on the intent standard in regard to claims of trespass to underground cables, and hence, the issue at hand. The Certified Question for the Louisiana Supreme Court is:

"Is the proposed jury instruction in this case, which states that "[a] Defendant may be held liable for an inadvertent trespass resulting from an intentional act," a correct statement of Louisiana law when the trespass at issue is the severing of an underground cable located on property owned by one of the alleged trespassers, and the property is not subject to a servitude by the owners of the underground cable but only to the contractual right to keep it, as an existing cable, underneath the property?"

The ruling by the Louisiana Supreme Court will not only impact a landowner, but the contractors and excavators who will more commonly perform the excavations, and are more likely to cause damage to underground utility cables. This could also bring up further issues in agency, for if it was to be found that an individual who caused the resulting damage was acting as an agent of another, the principal, then the principal would incur the legal wrath of the utility companies.

Though the Supreme Court of Louisiana has yet to rule on this Certification Question, as to the standard of intent for trespass in this situation, contact the Berniard Law Firm for further information regarding the outcome of this case, for clarification of the Louisiana Damage Prevention Act, and for assistance in determining if your property is subject to similar issues.

The ABA (American Bar Association) has called upon lawyers and non-lawyers alike to submit blogs from across the internet as exceptional examples of legal advice and content. With content about the law ranging widely across the internet, the ABA recognizes the value of those blogs that wish to educate the public about a wide range of issues as examples of how attorneys can help bring an understanding of public policy to the masses.

Through a form, located here, ABA members and/or the public can nominate the efforts of attorneys whose work helps explain the complexities that the law has to offer. While the competition prevents bloggers from nominating themselves, the ABA has requested that the work of their peers be showcased. Due by September 9th, blog suggestions can cover any topic of the law, whether maritime, personal injury, civil or criminal in nature. This possibility of diversity makes the Top 100 list all the more interesting because of the wide variety of content the selected are sure to cover.

If you know of a blog that wishes to discuss legal issues of interest to lawyers (and perhaps those outside of the field), click here to fill out the ABA's form. Limited to 500 words, nominations should explain why the blog, obviously, deserves to be included in the list as well as its value as a whole. Nominated sites should avoid the regurgitation of content from other sites (copy and pasted quotes of news items, etc.), showing that the main focus of the content is original discussion of those issues of law that affect professionals as well as the public.

We will undoubtedly be checking out this list as it is sure to contain content that is of interest not only to residents of Louisiana but across the country. For a directory of 'blawgs,' as categorized by the American Bar Association, you can click here to tour the spectrum of content available by state or topic.

This blog was started as an effort to not only showcase the knowledge of our law firm but to also provide people, whether residents of New Orleans, Louisiana, the Gulf Coast, or throughout the country, a resource that explains how the law is important to their everyday lives. Blogging is a powerful tool not only in the legal profession but as a medium of empowering people who may not realize that an instance of tragedy or harm comes with it legal recourse. We hope that the content we have provided over time has helped people find an answer to legal issues or simply gain a little bit of knowledge about how this country's system of law works. This is said not to shill for a nomination to the aforementioned contest but, instead, to note that this ABA-sponsored contest highlights something we feel strongly about, that being the power of legal blogs.

We hope you continue to enjoy your weekend and will have new content available Monday.

Recently we explored the Third Circuit Court of Appeal's discussion of the legal cause of a tragic natural gas explosion at the Jones residence in Opelousas Parish. Another of Centerpoint's assignments of error on appeal, the last that we'll review from the case, was that the jury incorrectly apportioned fault; the jury assigned 50 percent of the fault to Centerpoint and 50 percent to Carl Jones, Sr. Centerpoint argued that Jones should have been assessed "at least ninety percent of the fault in causing the explosion and fire." The review of fault allocation by an appellate court is based on the "manifestly erroneous" standard. That is, the court must allow the jury's apportionment to stand unless it is clearly wrong.

The court began its review of Centerpoint's argument by focusing on the trial testimony of several of its witnesses. All expressed that the company "clearly recognizes the inherently dangerous nature of its product and has developed numerous measures designed to prevent explosions and fires, such as occurred in this litigation." One witness, the company's former Operations Manager for the state of Louisiana, testified that the procedures for
disconnecting gas service are "based on the inherently dangerous nature of" natural gas and are designed to "protect people from their own ignorance." He further expressed the view that Centerpoint has "an obligation to take every reasonable step to prevent its customers from tampering with its natural gas supply system." The court equated the risk of "catastrophic consequences" created by Centerpoint's conduct to Jones's action in reconnecting the gas supply. Had either party "not breached the applicable duties imposed upon them," reasoned the court, the accident would not have happened. Nevertheless, when comparing their relative conduct, the court concluded that "Centerpoint Energy’s fault far exceeds that of Mr. Jones." It considered Centerpoint to be the "superior actor" in the incident who failed--even in light of the gas industry's general awareness that "customers will attempt to steal gas"--to engage in a "rather simple task" that was designed to "prevent exactly the result which occurred." Thus, the court could "not find that the jury was manifestly erroneous or clearly wrong in apportioning fault equally" between Centerpoint and Jones.

The jury verdict in this case seems to strike a balance between the need for a utility company to prevent natural gas accidents and its inability to prevent all attempts at gas theft by customers. In fact, the court suggested that Centerpoint's fault was actually greater than Jones's, though it could not find error on the jury's part that would allow it substitute its own judgment and increase its share of the fault. Undoubtedly, the jury would have reached a different result if Centerpoint had followed its own procedure in shutting off and securing the gas line and Jones had nevertheless managed to turn the valve back on. Ultimately in the case, the court rejected all of Centerpoint's assignments of error and affirmed the jury's verdict in its entirety.

Continue reading "Opelousas Parish Natural Gas Explosion, Part 3: Assigning Fault" »

In our prior post, we observed the Third Circuit Court of Appeal's finding that the jury correctly held that Centerpoint Energy failed to meet its duty of properly securing the natural gas line and valve when it disconnected service at the Jones residence in Opelousas Parish. Establishing the duty owed by Centerpoint was one of several elements of the duty-risk analysis that Jones was required to establish in order to prevail. Another element that we will now consider is that of causation. Centerpoint argued that its failure to properly shut off and secure the gas supply was not the legal cause of the injuries sustained by the Jones family. Instead, in Centerpoint's view, Jones's "reconnection of the gas service constituted intervening conduct that was not only grossly negligent, intentional, and criminal, but also not foreseeable." Under Louisiana law, an intervening act will relieve the original tortfeasor of liability if it
“superseded the original negligence and alone produced the injury.” Adams v. Rhodia, Inc. However, if the intervening act is foreseeable to the original tortfeasor, it is considered to be "within the scope of the original tortfeasor's negligence." In short, Centerpoint argued it could not possibly have foreseen Jones's attempt to reconnect his gas line and, therefore, its failure to properly secure the line was irrelevant once Jones acted to steal the gas.

The court, however, found that Centerpoint's position was "defeated" by the testimony of its own wtinesses. One employee, the company's Operations Supervisor, explained that the security mechanisms were necessary because it was "common sense that people will try to steal natural gas after their supply has been cut off." Another, Centerpoint’s former Operations Manager for Louisiana, stated that the locking mechanisms were required because "people do not always understand the dangers associated with natural gas." Also, an expert in the field of natural gas operations testified that Centerpoint should have "no illusions" about the potential for people to steal natural gas. The court found that "Jones’s actions in leaving an uncapped gas line open in the house, breaking the plastic locking device and stealing natural gas, and negligently leaving the natural gas running into the house all night, are exactly the unsafe acts that Centerpoint Energy’s duty to properly terminate service is designed to prevent." Thus, it concluded, the jury's finding that Jones’s conduct was foreseeable was well supported, and it correctly determined that Centerpoint could not rely on Jones's intervening criminal act to relieve it of all responsibility for the explosion.

In a third and final post, we will revisit this case to review Centerpoint's argument on appeal that the jury erred in its apportionment of fault between it and Jones.

Continue reading "Opelousas Parish Natural Gas Explosion, Part 2: Determining Causation" »

On May 7, 2003, Centerpoint Energy disconnected the natural gas service at the house of Carl Jones, Sr. and his family because they were past due on an outstanding balance. A short time later, Jones and his son removed the gas stove from the kitchen and replaced it with an electric model. Unfortunately, Jones forgot to cap the gas line before installing the new stove. Late in the evening of June 15, 2004, after having been without a functioning water heater since the disconnection, Jones reconnected the gas line. He did so because he was expecting guests the following day and wished to have a supply of hot water that did not require stove-top heating. To make the reconnection, Jones used a wrench to snap off the red plastic locking device that the Centerpoint technician had installed on the line when he closed the valve. Unable to re-light his water heater, Jones assumed no gas was flowing and went to bed. By morning, the house was filled with gas, and as the family arose several large fireballs erupted. Jones, his wife, and their four children were severely injured in the explosion. Jones sued Centerpoint seeking to recover for his and his family's injuries. A trial was held in July, 2010. After the judge denied Centerpoint's motion for a directed verdict, a jury apportioned half of the fault to Centerpoint and half to Jones and awarded substantial sums to Jones's family members for their injuries. Centerpoint appealed, arguing, among other things, that the trial court erred in permitting the case to go to the jury at all. In Centerpoint's view, its duty to reasonably disconnect gas service for non-payment did not extend to protecting Jones against the explosion caused "by [his] subsequent negligent, intentional, criminal and then grossly negligent conduct."

An appeal of a trial court's denial of a motion for a directed verdict requires the appellate court's de novo review because such a motion can be granted "only if the facts and inferences are so overwhelmingly in favor of the moving party that the court finds that reasonable men could not arrive at a contrary verdict.” The Third Circuit began its analysis by noting that "[t]o prevail in their personal injury suit, the plaintiffs bore the burden of establishing that Centerpoint Energy was at fault in causing the accident, using a duty-risk analysis." Centerpoint argued that Jones failed to meet this burden, in part, because he could not establish that the utility did not conform to the appropriate standard of care when shutting off the gas supply. The court found two sources for the scope of duty imputed to Centerpoint. First, Louisiana case law takes the position that it is

"common knowledge ... that natural gas, being highly flammable and explosive in nature, is an inherently dangerous instrumentality. Those who handle and distribute it are charged with that degree of care commensurate with its dangerous character for the protection of the public from any foreseeable injury." Giordano v. Rheem Manufacturing Co..

In addition, the Code of Federal Regulations provides for three options for "acceptable compliance" when disconnecting natural gas service: (1) the valve that is closed to prevent the flow of gas to the customer must be securely locked; (2) a mechanical device or fitting that will prevent the flow of gas must be installed in the service line or in the meter; or (3) the customer’s piping must be physically disconnected
from the gas supply and the open pipe ends sealed. 49 C.F.R. 192.727(d). In this case, the Centerpoint technician installed an easily circumvented, red plastic locking device on the valve, but, in contravention to Centerpoint's own clear policy, did not install a "blind plate" within the meter that would have blocked the flow of gas even if the valve were to be re-opened. The court, after reviewing extensive expert witness testimony concerning the industry standards for preventing unauthorized tampering with a shut-off gas line, concluded: "reasonable men could find that installing the plastic locking device was not sufficient to comply with the standard of care, that Centerpoint Energy’s technician did not properly install a blind plate on the meter, and, therefore, Centerpoint Energy did not
comply with the applicable standard of care." Thus, the court determined that the jury's verdict, so far as it pertained to the element of Centerpoint's duty, was supported.

In a subsequent post, we will revisit this case to review the court's analysis of Centerpoint's argument concerning the causation element of the duty-risk analysis.

Continue reading "Opelousas Parish Natural Gas Explosion, Part 1: Exploring the Utility Company's Duty " »

If a company manufactures a defective product, and an individual is injured by that product, the manufacturer may be liable for the damages suffered by the product-user. The product, be it a cleaning supply or an automobile part, or any number of different items found in everyday life, bears an element of responsibility of reliability and worthiness when it is delivered by a manufacturer. When that responsibility is breeched, legal remedy is available.

As the Fifth Circuit described in the seminal case of Matthews v. Remington Arms Co., in order for an injured party to win an action against a product manufacturer, that party must prove: (1) that the party, or another "person or entity" was using the product in a manner reasonably anticipated by the manufacturer; (2) that an aspect of the product directly caused the damage(s) claimed; "(3) the product was 'unreasonably dangerous' either in construction, design, or warning; and (4) the characteristic rendering the product unreasonably dangerous either 'exist[ed] at the time the product left the control of its manufacturer or result[ed] from a reasonably anticipated alteration or modification of the product.'”

If a party can show that a product, used in a way reasonably anticipated, could harm a product-user, the manufacturer may have a legal duty to design its product in a manner which would avoid such harm. As explained by the Fifth Circuit, a reasonably anticipated use is a "use or handling of a product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.” If it can be shown that a product was misused and that misuse resulted in the damages claimed by the product-user, then that user cannot collect against the manufacturer for his or her damages.

In the Matthews case, the plaintiff had borrowed a Model 710 rifle from another individual. The manufacturer designed the rifle to be fired with a bolt-assembly pin in place. Warnings were included in the rifle manual stating that the rifle should not be fired without the required pin. According to the Fifth Circuit, the defendant rifle manufacturer had not received any reports, prior to this lawsuit being filed, of its Model 710 rifle being fired without the required bolt-assembly pin. The Fifth Circuit found that someone had removed the bolt-assembly pin, and when the bolt-assembly pin was removed from the rifle in question and was not reinstalled, the rifle's bolt head did not lock with the rifle's barrel when later used by the plaintiff. This resulted in an uncontained explosion which caused the plaintiff's injuries.

In the proceedings below, the trial court had found that the plaintiff's injuries were not caused because the pin was defective, but rather because it had been removed from the rifle. The trial court also determined that the pin had been manufactured according to the applicable specifications. Therefore, the main issue before the Fifth Circuit in Matthews was whether or not it was fair of the trial court to find that the plaintiff had fired the rifle after the bolt-assembly pin had been removed and not reinstalled, as opposed to the plaintiff simply firing the rifle. The Fifth Circuit focused on whether or not the plaintiff had used the rifle in a manner reasonably anticipated by the rifle manufacturer to determine if the rifle manufacturer had a duty to the injured plaintiff, in this case, to design its rifle in such a way as to prevent the harm caused. After reviewing the case, and determining that the pin was missing at the time the plaintiff fired the rifle, the Fifth Circuit agreed with the trial court's finding that the defendant rifle manufacturer should not have expected that someone would fire its Model 710 rifle after its bolt-assembly pin had been removed and not reinstalled. The Fifth Circuit found that the pin could have been removed by the plaintiff or another individual.

As this case demonstrates, cases involving defective products hinge on the facts. Although the court found that the user in this case was the ultimate cause of the damages he suffered, there are many instances where products malfunction through no error on the part of the user.

Continue reading "Fifth Circuit Finds Rifle Manufacturer "Not Liable" for Injuries Sustained After Rifle Firing Resulted in Uncontained Explosion" »

The use of asbestos in products such as concrete, bricks, pipes, and other building materials has made way for a large amount of litigation on asbestos-related diseases and deaths. This litigation can help victims of the chemical and their families find some sort of meaning and relief from the toxic material. Litigation on asbestos, however, is very difficult both because the asbestos-related damages did not result from a single, identifiable act, and because it is not only the companies that produced the asbestos which are guilty- it is also those that used and marketed it.

A recent case contains both of these difficulties. Phillip Graf was exposed to asbestos for a period of 30 years while working in several jobs including metal works and drywall. Such extended exposure to such toxic material places one at risk of contracting mesothelioma, a rare form of cancer. Graf suffered from mesothelioma and later died from the disease. His family, Beatrice, Doryk, and Paulette Graf are suing in response to his death. They have named 29 defendants in the case, including Benjamin Moore & Co. and Metropolitan Life. The Graf family claims that the defendants are not only guilty of designing, manufacturing, packaging, transporting, and selling asbestos products, but also aiding and abetting the marketing of asbestos products.

In a traditional personal injury case, the damage results from a single act, but in asbestos cases such as Phillip Graf’s, the damages occurred over periods as long as 30 years or longer. What is worse, typically problems that result from asbestos exposure take years to show. Mesothelioma itself is impossible to detect early on and its symptoms are similar to other diseases, so patients are frequently misdiagnosed. All of this makes it very difficult for plaintiffs to prove that their health problems resulted from asbestos exposure and then link that asbestos exposure to the actions of the defendants. In the Graf case, the Graf family will have to show that the suffering and death Phillip Graf endured from his mesothelioma was caused by asbestos exposure, and that the named defendants caused that exposure.

In one case of asbestos exposure a large amount of defendants may be guilty based upon their involvement in the asbestos use. Unfortunately, an employee cannot typically sue and employer for asbestos exposure because of the Louisiana Workers Compensation Act which requires that such injuries be addressed through workers compensation, not tort suits. As a result, it is important to find other theories of liability on which a victim can sue.

The easiest potential defendant is the building owners, if they are different from the employer. In Phillip Graf’s case, this would be the person or corporation which owned the building in which he was exposed to asbestos. Building owners are strictly liable for damages caused by asbestos on their property.

In the past, most litigation on asbestos focused on the companies that produced asbestos products. However, because of asbestos-related suits, many of these companies have since gone bankrupt. Some plaintiffs have attempted to draw even further chains of causality, suing manufacturers of products used in conjunction with other manufacturers’ asbestos products, such as the manufacturers of pumps and valves. Whether these companies can be liable for failure to warn of asbestos-related hazards in products made by others is still in contention. No matter the theory of liability, as we have illustrated before, to be liable the defendant’s conduct must be a substantial factor in the harm. Thus, for example, for Metropolitan Life, the Graf family will have to show that the company’s aiding and abetting of the marketing and negligence related to asbestos products was a substantial factor in Phillip Graf’s contraction of mesothelioma.

As cases such as Graf’s show, with the many liability strategies and the problems that arise over the timing of exposure and the development of the disease, litigation in asbestos cases can become extremely complicated. In order to fully protect and preserve your rights in an asbestos case, you need to be sure to retain an attorney who is familiar with the many complexities of asbestos cases.

Continue reading "Asbestos Cases Always Difficult, Involve Negligence and Diverse Defendant Groups" »

July 4th, though best known as an occasion for grilling out, visiting the beach or lake, and watching the fireworks, is unfortunately also notorious for its high incidence of accidents and injuries. Many incidents, especially vehicle and boat accidents, are related to alcohol use. The Louisiana Highway Safety Commission recently announced that more than 87 state and local law enforcement agencies work overtime throughout the holiday weekend. Many of the agencies will be participating in the state's "Over the Limit, Under Arrest" campaign that aims to keep impaired drivers off the road. The Commission reports that the number of highway deaths has dropped significantly over the past few years: 16 people were killed on Louisiana highways over the Fourth of July holiday in 2007, and only two fatalities occurred last year.

Despite this positive trend and the stepped-up efforts by law enforcement, patriotic celebrants throughout Louisiana may still find themselves in dangerous situations over these holiday weekends. When calamity should strike, the parties involved may turn to the courts to resolve their dispute; the resolution will likely involve the court's application of negligence. The theory contains four basic elements that a plaintiff must show in order to recover from a defendant. First, a plaintiff must establish that the defendant owed him or her a duty. This is generally a straightforward matter, as all members of society have a responsibility to exercise reasonable care toward others; this duty takes such common sense forms as requiring users of fireworks to point bottle rockets away from bystanders or drivers to operate their vehicles in a safe manner. Driving a car or piloting a boat or jet ski while under the influence of alcohol or drugs is a clear violation of this duty. A person who fails to observe the obligation of safety and engages in conduct that poses an unreasonable risk of harm to others is said to breach this duty. This second element of negligence must be tied to the plaintiff's injury by way of the third element, causation. That is, the defendant's breach of duty must have resulted in the plaintiff's injury. A defendant is responsible only for the consequences that are directly linked to his or her misconduct.

The final element, harm, requires the plaintiff to prove that he or she suffered a loss. The court can award two kinds of damages to compensate the plaintiff for his losses: special and general. Special damages are those which are easily quantifiable, such as medical expenses, lost wages, or property repair costs. General damages cover intangible losses, such as pain and suffering. Trial courts are afforded great latitude in assessing general damage awards, which can potentially expose defendants to staggering liability.

The Insurance Institute for Highway Safety reports that the Fourth of July is the single day of the year with the highest rate of car crash deaths nationwide, with the second-highest rate occurring on July 3. This serves as a reminder how every holiday comes with it poor decisions and that people should, more than anything, remember to keep their family's safety a priority, on and off the highway. Additionally, any injury should receive both medical and legal attention lest a person's health, and rights, be violated due to rash decisions.

All of us here at the Berniard Law Firm hope that all of our readers enjoyed a happy and safe Independence Day, as well as an enjoyable shortened work week!