Louisiana Personal Injury Lawyer Blog

In any workplace, an on-the-job injury can have serious repercussions, both medical and legal, for the injured employee and their employer. However, if the injured employee is a seaman, additional maritime laws and standards may apply when an injury occurs. For individuals working on ships, in shipyards, or in any industry covered by maritime law, knowledge of the protections and specific laws which apply in the event of injury is pivotal in order to be able to protect oneself.

The recent Louisiana First Circuit Court of Appeals case of Graham v. Offshore Specialty Fabricators, Inc. and Cashman Equipment Co. illustrates the importance of understanding the Jones Act, a federal law allowing seamen injured on the job to sue their employers, and claims alleging unseaworthiness of vessels. Graham was injured while working with a barge fleet on the Atchafalaya River near Morgan City, Louisiana. He and a co-worker were charged with the task of securing their employers deck barge. During this process, they needed to move other barges owned by Cashman Equipment Co. They crossed the deck of one such barge in order to reach and release the ship’s towline. Unbeknownst to the men, there were two large holes on the ship’s deck. Both men fell through one of the holes and both were seriously injured. Graham sued, and the lower court found in his favor. A jury awarded him damages. Both plaintiff and defendant appealed.

Graham brought his personal injury suit under the Jones Act. The Jones Act applies to any seaman who is injured or killed on the job and establishes his or her right to bring a civil action against an employer. The potential liability of the employer extends to all personal injuries sustained on the job, but the employee must prove negligence in order to recover. The duty of care owed by an employer under the Act is ordinary prudence. The ordinary prudence standard requires an employer to take reasonable care in maintaining a safe work environment under the circumstances particular to the case. To prove a claim of ordinary negligence, a claimant must prove that injury occurred and that the employer owed a duty to the injured, that the duty was breached, and that the breach caused the injury. The claimant must also show they themselves were exercising reasonable care in the course of their activities in order to recover. Graham presented evidence that the defendants were at fault for failing to properly maintain their ship deck. Based on this evidence, the appellate court held that the jury determination of damages on this issue should stand.

Graham also claimed unseaworthiness, citing the condition of the deck on the vessel which caused his injury. In maritime law, the owner of a ship has a duty to provide a seaworthy vessel. This duty is completely independent of the duty owed from an employer to an employee under the Jones Act. If the seaman making the allegation of unseaworthiness can prove that his injury was caused by the defective condition of the ship or its equipment, the employer is held strictly liable for the injury. Strict liability is applied without consideration of whether or not the employer exercised due care or was negligent. In other words, where the claimant can prove a violation to which strict liability attaches, the employer is held liable regardless of their actions. The claimant need only prove that the dangerous condition caused his injury in order to recover. The court in Graham’s case held he had sufficiently proven the condition of the ship caused his injury, and it held the jury’s damage award must stand.

If you or a loved one is employed in an industry covered by maritime law, it is imperative that you understand the often complex law which governs any injury that occurs on such a job. You need the services of an effective legal team to help you determine important issues such as whether you have a claim under the Jones Act. Contact the Berniard Law Firm online at laclaim.com and an attorney specializing personal injury will be able to assist you.

Continue reading "On-the-Job Injury at Sea: The Jones Act, Employer Negligence, and Claims for Unseaworthiness" »

When an unexpected personal injury occurs, the injured party may find the situation requires legal action. An injured person deserves to know where the money to pay for medical expenses, lost wages, and incidental expenses stemming from an injury will come from, and in many cases a legal claim can serve as a means to provide that knowledge. What many people thinking about initiating a claim for personal injury overlook is that the standards of the court in allocating fault for an injury may dictate the amount of recovery possible for an injured claimant.

Fault allocation can alter the amount of a damage award an injured party receives. The Louisiana Second Circuit Court of Appeal re-allocated percentages of fault that had been awarded by the lower court in the case of Matlock v. City of Shreveport . Matlock, a teacher and assistant softball coach, sued the City of Shreveport after she tripped and fell in a hole in the side walk on her way to softball practice at Cargill Park. Matlock twisted her ankle and suffered an avulsion fracture. After being cared for at a local hospital, she was instructed to follow up with an orthopedic specialist and to receive physical therapy.

Matlock sued the City of Shreveport for negligence in maintaining the sidewalk on which she was injured. The trial court awarded her damages and allocated 100% of the fault for the accident to the City. The City appealed the judgment arguing that the lower court’s fault allocation was inappropriate and that it should not be held 100% responsible for the plaintiff’s injuries.

Once a trial court has decided that there should be an award of damages in a negligence case, they must make determinations of allocation of fault. This means that the judge or jury in a case will decide what percentage of fault each party to the suit is responsible for. In the case of Matlock, the trial court found the plaintiff to be without fault in causing the accident so they allocated 100% of the fault to the defendant. This allocation determines how much of the final award each party is responsible for paying. For example, Matlock’s damage award was for $75,000, and the fault allocation of 100% means that the City of Shreveport is responsible for the entire amount.

In determinations of fault allocation, the trial court is given great discretion by the appellate court. This is because the trial court is able to hear all the evidence where the appellate court is confined to examining the record. The fault allocation of the trial court may be difficult to overcome because an appellant must prove that the trial court abused its discretion in making its determinations of apportionment of fault. In Matlock, the City of Shreveport argued that Matlock should have been given some percentage of fault because her accident could have been avoided if she had been watching the ground ahead of her as she made her way to softball practice. The appellate court agreed with the City and re-allocated the percentages of fault at 75% for the City and 25% for Matlock.

The appellate court cannot simply make its own determination of percentages of fault, it must keep the numbers within the discretion of the lower court. In this case, the majority of fault was given to the City and so the majority of the fault remained. The appellate court reduced the amount of Matlock’s damage award to $50,000, so with the new allocation of fault that award would be reduced by the 25% she was held at fault leaving the plaintiff with an award of $37,500.

Fault allocation can have an effect on the amount of damages you may receive when awarded damages for a personal injury claim. If you have sustained a personal injury caused by the negligence of another you need the services of an effective legal team to help you understand these important issues.

Continue reading "Complex Nature of the Allocation of Fault in Negligence Cases" »

Recently, Louisiana’s 2nd Circuit heard a civil suit in which the court examined the possible affirmative defenses for defendants of intentional tort cases when the actions of that defendant resulted from an aggressive plaintiff. In the case of Griffith v. Young, Mr. Young appealed the 26th district decision to grant Mr. Griffith a motion for partial summary judgment for his battery case against Mr. Young. After arriving at the plaintiff’s home, the defendant kicked down the plaintiff’s door and physically attacked him using a stun gun, which resulted in multiple injuries to the plaintiff. While these actions alone are shocking, the details are even more strange.

The defendant claimed that the attack stemmed from the plaintiff boasting about past sexual relations with the defendant’s wife and openly distributing provocative photos of her to others. The defendant claimed that the partial summary judgment was ruled in error because his behavior was the result of the plaintiff’s conduct. Further, he claimed that learning of the extramarital affair and the distribution of the pictures was enough provocation by the plaintiff to question the proportion of liability between the two parties, making summary judgment inappropriate. This appeal brings up questions about how liable an individual who is provoked to engage in a physical altercation is relative to the other participant, and how the law handles these “overly aggressive plaintiff” theories by defendants in intentional tort claims. We look at how the 2nd circuit views Louisiana’s current precedent on the issue.

One avenue found within the Louisiana courts, as discussed in Young, is the use of “provocation” as an affirmative defense. Louisiana jurisprudence follows a comparative fault principle for civil claims. Under such a principle, as enacted in La. C. C. art. 2323, the amount of damages recoverable by a plaintiff for any action resulting in injury or loss shall be made in proportion to the degree of fault attributable to that plaintiff. In an effort to promote such a doctrine, Louisiana no long utilizes the "aggressor doctrine." Under such a doctrine, a plaintiff would be unable to file a claim if it was determined that the plaintiff’s immediate actions sufficiently provoked the defendants attacked. The Louisiana Supreme Court in Landry v. Bellanger eliminated the use of the traditional "aggressor doctrine" and now allows defendants to assert a defense of provocation, utilizing comparative fault principles to proportion liability, when the plaintiff's actions toward the defendant or a third party immediately provoked the actions of the defendant. The more the plaintiff immediately provokes the defendant, the less liable the defendant would be for any attack that may follow. La. C. C. art. 2323(c) does create an exception to the provocation rule, where a defendant’s intentional tort that arose from a negligent plaintiff does not use the comparative proportionately reduction.

In addition, Louisiana still continues to allow defendants to claim “self-defense,” which operates as a privilege to committing the accused intentional tort. To prove self-defense, a defendant must show that there was a reasonably apparent threat to the defendant’s safety and the force employed cannot be excessive in degree or kind (See Landry v. Bellanger). In addition to proving all the elements of self-defense, the Louisiana’s 2nd circuit in Young also highlighted the requirement that the reasonably apparent threat of physical harm to the defendant must be immediate and does not apply if deadly force is involved.

Unfortunately for Mr. Young, the 2nd circuit determined that the evidence of infidelity by his wife and the plaintiff's attempt to spread pictures of her occurred over 20 months prior to the attack, and the failure to provide adequate evidence as to when Mr. Young learned of the plaintiff's conduct did not create the necessary immediate provocation needed to raise a legitimate issue of material fact, affirming the district court’s decision. Though such a defense did not work in the favor of Mr. Young, those involved in an intentional tort claim should be aware of their right to proportion liability when they feel they were adequately provoked by another or the right to claim self-defense when such an attack was done to prevent a reasonably apparent threat.

While the events in this case are extreme, the legal rhetoric and overall sentiments relating to an appeal and causation for a successful legal claim remain viable. The fact remains that the courts hold specific concepts all the more true, regardless of how distasteful they find the circumstances. By speaking to an attorney about your rights, anyone damaged in a manner similar can hopefully determine their legal options.

Continue reading "Battery Appeal from Wester Parish Examines Precedent for Intentional Torts" »

Under the Americans with Disabilities Act ("ADA"), disabled employees are protected from discriminatory treatment by their employers. The Act protects disabled employees from discrimination with regard to hiring, promotions, termination, compensation, training, and various other conditions of employment. Unfortunately, the Act's protection is limited - only "qualified employees" are protected from those employers covered under the Act.

For an employee to be successful against their employer for a violation of the ADA, the employee must establish the following elements. First, the employee must have a disability. Second, the employee must establish that they are a "qualified individual" able to perform the essential functions of the job, with or without reasonable accommodation. Lastly, the employee must establish that the employer discriminated against him or her because of the disability. Each of these requirements sound simple enough to meet; however, the U.S. courts have defined and interpreted each of the requirements even further.

"Disability" is a specific term of art. Not every "disability" or impairment, in the ordinary sense of the term, will qualify under the ADA. A "disability" is defined as A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; B) a record of such impairment; or C) being regarded as having such an impairment. Importantly, it is the first type of disability, i.e. one that substantially limits a major life activity, that has been extensively litigated upon.

The complexity of determining whether a disability substantially limits a major life activity is illustrated in a recent Fifth Circuit decision, Picard v. St. Tammany Parish Hospital. Picard, an employee of St. Tammany Parish Hospital, brought a claim against the hospital claiming they failed to make reasonable accommodations for her Charot-Marie Tooth disease ("CMT"). The plaintiff's case alleged CMT disease hindered Picard's ability to work as a transcriptionist, and as such, Picard requested a special computer program to help her transcribe work. The hospital declined to provide the program requested, but did offer other alternatives. Soon after, Picard quit her position with the hospital and filed suit, claiming a violation under the ADA.

Picard established that she had a disability - CMT disease; however, she failed to establish that the disease substantially limited a major life activity. Major life activities include performing manual tasks, walking, seeing, learning, working, and various other activities. Picard testified at trial that she had difficulty working, walking, and shopping. However, she failed to establish that her CMT disability substantially limited her major life activities. To determine whether a limitation is substantial, courts will consider 1) the nature and severity, 2) the duration, and 3) the short or long-term impact of the disability on the employee. The jury heard evidence that Picard could ameliorate the impact of her disability by concentrating, that she could still perform various functions of her job, and that she continued to excel in her position at the hospital. Based on this evidence, the jury concluded that Picard's disability did not substantially limit her work or other life activities.

The Picard case emphasizes the complexity and interpretation required of various vague terms within the ADA. Each claim brought under the American with Disabilities Act is determined on the facts alone. Violations of the American with Disabilities Act are viable claims; however, in order to navigate through the many complex layers successfully, it is advisable to obtain legal help.

Continue reading "The Difficulties Abound in a Discrimination Case Regarding the Disabled" »

Odd things happen in everyday life that, really, no preparation on the part of the victim could prevent. Often chalked up to coincidence or just 'dumb luck,' these events do, however, still have legal ramifications for the responsible party, regardless of how odd or unique the event. One case recently affirmed by the Third Court illustrates that no matter how unusual, a responsible party still is responsible for the damage caused.

The plaintiff, Randy Williams, filed suit against the Louisiana Corporation IESI after the company’s garbage truck caused neck and shoulder injury to Mr. Williams. On December 17 2003, Mr. Williams stopped the IESI owned garbage truck during its daily garbage pick-up to request the help of the garbage men. Mr. Williams was requesting the help of the men to get his garbage can to the curb. After the men provided him assistance, Mr. Williams went to the trunk of his car. Mr. Williams testified that he heard a snapping noise and was suddenly struck by the end of a cable wire. It was concluded that the top of the garbage truck had snagged on the end of the cable wire as the garbage men continued on their route after assisting Mr. Williams. After the IESI employee’s realized what had happened, they pulled the wire loose from the truck and informed Mr. Williams that they would send help to fix the cable wire. The trial court found the IESI to be 100% liable to Mr. Williams’ injuries, awarding him just over $50,000.00. The appellate court affirmed the trial court’s ruling, while bringing to light the standard needed by a plaintiff to succeed in the different factual and legal questions required to hold a person liable for negligence.

A prima facie case (or a case in which the evidence presented is sufficient for a judgment) of negligence rests on a plaintiff’s ability to show that a duty was owed to the plaintiff by the defendant, the defendant breached that duty, and actual damage resulted as a direct cause of that breach. IESI believed that the trial court incorrectly determined that Mr. Williams had successfully met this burden. IESI made three arguments to the 3rd Circuit, requesting a reversal of the trial court’s decision: (1) IESI claims the trial court erred in concluding that a flap on the top of the garbage truck was what snagged the cable box and caused the accident; (2) IESI claims the trial court erred in finding that Mr. Williams met his burden of proving that IESI breached its duty of care to Mr. Williams; and (3) IESI claims that the trial court erred in failing to consider the possibility that the injury was in part the fault of the cable company in failing to maintain the cable wire as required by Louisiana regulation.

IESI’s first argument was unsuccessful because it failed to show a clear error made by the trial court that the garbage truck’s flap was the cause of the snapped cable. The appellate court first determined that the argument presented was an attack of the factual conclusions made by the trial court. When reviewing questions of fact determined by the trial court, the appellate court follows the manifest error doctrine. As stated in Rosell v. ESCO, the manifest-error doctrine states that the appellate court is only to reverse a factual determination of the trial court if it finds that the conclusion was clearly wrong or manifestly erroneous. When dealing with witness testimony, Rosell stated that witness credibility demands great deference to the facts of the case; only the fact finder can be aware of the variation in demeanor and tone of voice that bear so heavily on the listener’s understanding and believe in what was said.

This entry will be continued tomorrow, featuring the court’s findings regarding Mr. Williams’ claims.

Trip and fall cases like that of Ms. Arlene Chambers represent a significant portion of civil cases in Louisiana and around the country. There are various issues of law to review when the defendant appeals a successful result. Ms. Chambers had won a judgment for her injuries against the small Louisiana Village of Moureauville. The Village appealed and was only slightly successful in getting the reduction in the award that they sought.

The events leading to this case occurred on a sidewalk controlled and maintained by the Village in April 2008. Ms. Chambers came upon a "ledge" in the sidewalk where two abutting pieces of the sidewalk were of differing altitudes. She tripped on this ledge and injured her right arm. Ms. Chambers sustained a "comminuted fracture of the radius." This injury resulted in several rounds of physical therapy that, while appearing at the time to be successful, were not a permanent solution to Ms. Chambers' nagging injuries. These injuries eventually spread to her shoulder due to the necessary immobilization of her arm caused by the initial injury.

Ms. Chambers was awarded $200,000.00 for past and future pain and suffering; $25,000.00 in hedonic damages; $54,148.00 in future wage loss; $46,616.17 in past medical expenses; $10,000.00 in future medical expenses; and $3,617.34 in past wage loss. The Village was found to be 100 percent at fault for the accident. Ms. Chambers was also awarded all costs and fees, including the fees necessary to pay experts to testify on her behalf.

On appeal, the majority of this award was kept intact. The standard of review for findings of a damages by a trial court is "manifest error." This means that if the trial court reasonably could have found in the way it did based on the record, the appellate court should not disturb the findings or award. The appellate court cannot argue that if they had been sitting at the trial level and hearing the case with the same record of testimony and evidence they would have decided the case differently. The manifest error standard is more deferential to the trial court than that. The case law dictates that an objective standard be used.

The appellate court in Ms. Chambers' case found manifest error in the assignment of 100 percent fault to the Village. The court pointed to Ms. Chambers' admission that she had noticed some irregularities in the sidewalk. This knowledge was enough for the appellate court to adjust the finding of comparative fault. When an appellate court finds manifest error on the part of the trial court it is authorized to set the fault to the highest possible level assessable to the defendant and the lowest possible level assessable to the plaintiff. In this case the appellate court determined that 90 percent was the highest degree of fault that could be allotted to the Village. Consequently, ten percent comparative fault was assessed to Ms. Chambers. Her awards were reduced to reflect this determination.

The only other finding of error on appeal was in the area of future earnings. This is always a somewhat controversial area as it is necessarily speculative. Any attempt to discern the future with certainty is destined to be at best incomplete. Ms. Chambers lost her award of loss of future earnings because she failed to provide evidence that could lead to the reasonable conclusion that she would actually lose any future earnings. Since the beginning of the trial not only had Ms. Chambers continued to work in her previous occupation but she had earned a merit-based promotion as well. The appellate court decided that any finding of loss of future wages was manifestly in error and eliminated this award.

The deference shown to trial courts is finite. There are very real and very reachable limits to how a trial court can find without being overturned. Ms. Arlene Chambers' awards went beyond the pale. The appellate system did its job and sorted out the manifest errors from the reasonable findings. This case is an example of exactly how the American justice system is supposed to work.

Continue reading "Reason and Error on Appeal in Trip and Fall Case" »

Due to the heavy demands on the court system, the Louisiana Code of Civil Procedure includes several provisions to ensure that litigants do not unduly delay the resolution of their disputes. One of these is the concept of abandonment, which refers to an excessive lapse of time without any forward progress in a case. Generally, the Code considers a case abandoned if "the parties fail to take any step in its prosecution or defense in the trial court for a period of three years." Any party or interested person can file an affidavit stating that "no step has been timely taken" in the case, at which time the trial court will dismiss the action by order that is served on the parties by the sheriff. A motion to set aside the dismissal may be filed in the trial court within 30 days of service.

The Louisiana Department of Transportation and Development (DOTD) sued the owner, lessee, insurer, and driver of a truck that struck an overpass on I-10 in Acadia Parish. The truck's owner, Oilfield Heavy Haulers, LLC (OHH), had leased the truck to Ace Transportation Co. Ace's employee, David Vincent, was driving the truck at the time that its oversized load collided with and damaged the overpass. On May 21, 2010, Ace filed a motion for dismissal asserting that no step had been timely taken in the prosecution or defense of the action for a period of three years since March 15, 2007; therefore, the suit had been abandoned and should be dismissed. The trial court signed an order of dimissal on May 24, 2010. On June 18, 2010, DOTD filed a motion to set aside the dismissal, which resulted in a hearing on September 27, 2010. The trial court refused to overturn the dismissal, and DOTD appealed, arguing that two actions taken in 2007 demonstrated that the suit had not been abandoned. First, on April 24, 2007, counsel for OHH scheduled a discovery conference and notified all parties. Then, on May 10, 2007, DOTD sent discovery responses to OHH. DOTD relied on La. Code Civ. P. Art. 561(B), which provides that “[a]ny formal discovery ... served on all parties ... shall be deemed to be a step in the prosecution or defense of an action.” The court disagreed on both points. It reasoned that the scheduling of the discovery conference, which was necessary because of the DOTD's delinquency in responding to OHH's discovery requests and was accomplished via letter between the parties' attorneys, was an "extrajudicial effort." As such, it was not “formal discovery” sufficient to constitute a “step in the prosecution of the action" under the Code. With regard to the second point, DOTD admitted that it “inadvertently failed to send a copy of its formal responses to counsel for the remaining defendants [other than OHH].” Accordingly, the court held that "the discovery responses were not sufficient to interrupt abandonment given the lack of service on all parties." It therefore affirmed the judgment of the trial court denying the DOTD's motion to set aside the order of dismissal.

On appeal, the DOTD characterized the trial court's ruling as an overly "strict and rigid interpretation” of the Code. Still, the court of appeal found that the "express requirements of the [Code] article itself and the jurisprudence interpreting" it mandated the trial court's--and its own--conclusion. The complexity of the Code reveals the importance of a plaintiff's retaining an experienced and skilled attorney who can confidently navigate the waters of litigation. Here, the DOTD lost the chance to recover for the damage to the I-10 overpass due to a procedural error--one that could have been avoided by closer attention to the Code and its requirements.

Continue reading "DODT Learns Abandonment Lesson the Hard Way in Acadia Parish Highway Accident" »

Louisiana jurisprudence recognizes the concept of the interlocutory appeal, which is an appeal of a ruling by the trial court before the verdict is ultimately rendered. An interlocutory appeal is available only for issues that would directly affect the trial's outcome or that would not be reviewable except by immediate appeal. Thus, not all interlocutory judgments made by a trial court are eligible for appeal. For instance, a trial court's judgment granting a party's motion for new trial is an interlocutory judgment that is ineligible for appeal because it does not decide the merits of the case. This very rule was at the center of the Third Circuit Court of Appeal's recent unpublished opinion in the case of Dauzat v. State of Louisiana, Department of Transportation and Development.

On March 10, 2008, Christine Dauzat boiled several batches of crawfish in a large, heavy pot on the patio of her home located in Avoyelles Parish. When she was finished cooking, Dauzat and her adult son carried the pot of still-boiling-hot water to the roadside ditch that ran the length of her property. While attempting to dump out the pot, Dauzat slipped on a ramp that crossed over the ditch. The hot water from the pot poured over her as she fell into the ditch, burning her severely. Dauzat sued the Department of Transportation and Development (DOTD) alleging that the ramp and ditch were located within the DOTD's right-of-way and that the DOTD failed to properly maintain the ramp. At trial, a jury returned a verdict finding Dauzat to be 100 percent at fault for the accident. Dauzat filed a motion for a new trial, which the trial judge granted after a hearing. Then the DOTD filed a suspensive appeal in the Third Circuit Court of Appeal that sought to delay the commencement of the new trial. Dauzat countered that the DOTD's appeal was improper "because a judgment granting a motion for new trial is an interlocutory judgment." The Third Circuit agreed: "The judgment granting [Dauzat's] motion for new trial does not decide the merits of this case and, thus, is interlocutory." Louisiana jurisprudence has expressly held that "a judgment granting a motion for a new trial is a non-appealable interlocutory judgment.” Thus, the court found that the trial court’s ruling was a "non-appealable, interlocutory ruling," and Dauzat was able to proceed with her new trial.

At the center of this judgment was the fact that the trial court's granting of a new trial did not directly resolve the ultimate issues in the case - whether the DOTD had a duty to maintain the ramp and ditch in front of Dauzat's property, and whether it failed to do so. The trial court's judgment simply permitted the matter to be brought before a second jury for resolution, and that ruling was therefore not appealable. The policy of limiting appeals is based on the preference of handling matters at the trial court level whenever possible, as the trial court offers the most direct means by which to resolve factual disputes.

Continue reading "Avoyelles Parish Cooking Accident Leads to Court's Review of Interlocutory Appeals " »

Under Louisiana jurisprudence, daycare workers and other temporary custodians of children are required to exercise the "highest degree of care" toward their charges. However, they are not "insurers of the children's safety" with unlimited responsibility. Rather, the law requires custodians to follow a standard of care that is appropriate for the age of the children and the particular circumstances. This duty does not require "individual supervision of each child at all times and places," when such level of attention is not warranted. If a child happens to sustain an injury while under the care of a daycare provider, courts apply the traditional "duty/risk" analysis to determine whether the provider met the applicable standard of care.

The recent case of Wade v. Miniworld Daycare turned on the court's analysis of whether the defendant daycare facility "failed to conform to the appropriate standard" of care. The action arose after Ta'Marrion Wade, who was two years, nine months at the time, fell and broke a tooth while running around the Monroe Miniworld Daycare Center's designated outdoor play area. The boy's mother, Kassandra Wade, filed suit against the daycare alleging negligent supervision. The trial court entered a verdict for Wade and awarded her damages; Miniworld
appealed. The Second Circuit Court of Appeal noted that the daycare unquestionably met the state's required standards for the ratio of caretakers to children at the facility. It also examined the record for evidence of the circumstances surrounding the incident: Ta'Marrion was engaged in a running game with his peers in the play area. The children were not "running crazy," and they did not "fight," "hit," "push," or engage in any other prohibited behavior that would have caused a worker to intervene. In fact, a teacher observed Ta'Marrion fall "face down" at one point, but he immediately "got up and started running ... some more." It wasn't until Ta'Marrion and the other children lined up to go indoors that the teacher noticed the child's missing tooth. Ta'Marrion appeared to be in no pain, so the teacher cleaned out his mouth, called Ms. Wade, and filled out an incident report. The court reasoned that "under [these] circumstances, defendant daycare was furnishing and maintaining adequate supervision." Further, while "daycare professionals have a duty to attempt to prevent ... injuries, sometimes it is impossible, as in the situation" described by Ta'Marrion's teacher. "Just because a child is injured while in the custody of a daycare does not mean that the daycare was acting negligently." Accordingly, the court concluded that the trial court "committed manifest error by finding the daycare liable," and reversed the judgment.

This result reflects the practicality inherent in the duty/risk analysis. Although it is reasonable for parents to demand a safe environment for their children while at daycare, Louisiana jurisprudence recognizes that it is impossible for caretakers to prevent every possible injury. If your child has been injured while at daycare, an experienced attorney can help you review the specific circumstances of the incident to determine how the duty-risk analysis would apply and counsel you on the likely outcome of a lawsuit.

Continue reading "Court Confirms: Daycare Center's Liability has Limits" »

The story behind Davis v. Foremost Dairies is a tale of a woman who could be considered at least slightly accident prone. Three different doctors weighed in on the probable cause of her main injury, a bulge in the disc between two of the vertebrae in her neck. In addition to the car accident with one of the defendants, she suffered a fall down some stairs and an incident in which an eight-year-old child grabbed her neck. The issue at hand was whether or not the accident with the defendant was the proximate cause of her permanent pain.

Proximate cause is a legal concept that most students of law find confusing at first. Proving that a defendant was the proximate cause of a plaintiff's injury is crucial to proving the overall claim. Palsgraf v. Long Island Railroad Co. is probably the most famous case laying out the legal definition of proximate cause. Chief Judge Benjamin Cardozo, later Justice Cardozo, wrote this often cited opinion. His decision, strongly dissented to by Judge William Andrews, deviates somewhat from what could be called the common sense definition of causation.

For those not familiar with the Palsgraf case, here is a brief explanation. This case dealt with a woman injured by a falling scale on a train platform that was knocked over by vibrations in that platform cause by fireworks. These fireworks exploded when two guards pushed and pulled a man carrying a non-descript package onto a departing train. The issue at hand was whether or not the men, who were in the employ of the train company at the time of the incident, were liable for Ms. Palsgraf's injuries. A traditional "but-for" analysis of this event would say that Ms. Palsgraf would not have been injured but for the acts of the railroad company's employees. The New York Court of Appeals reversed the New York Supreme Court and denied relief to the plaintiff. The court determined that the behavior of the train company employees was too remote from the resulting harm. The men were not considered the proximate cause of the plaintiff's injuries. How do courts determine the issue of causation in a modern context? The answer is very commonly expert medical testimony. Ms. Davis' case used the opinions of several of these medical experts.

Ms. Davis alleged, with at least the partial backing of three medical professionals, that her car accident was the proximate cause of her injuries. This allegation, once proven beyond a preponderance of the evidence, would entitle her to compensation for her injuries. "Preponderance of the evidence" may sound like a lofty standard but actually it simply means that something is more likely than not the case. The trial judge in Ms. Davis' case determined that it was more likely than not the case that Ms. Davis' injuries were proximately caused by the accident with the individual defendant. Since this was considered a factual finding, the trial judge's findings were given great deference on appeal.

The trial judge was called upon to weigh competing claims using far from conclusive evidence to determine the outcome of this case. The defense attempted to ruin Ms. Davis' credibility, as well. There were some allegations that she was addicted to prescription drugs. At least one of the doctors involved in this case testified that she exhibited signs of "doctor shopping" and other drug-seeking behavior. Despite all of the murkiness involved, the trial court determined that Ms. Davis' injuries were proximately caused by the accident with the defendant. Her award was reduced on appeal but not for lack of causation. The trial court's decision was not found to constitute "manifest error," which is required for overturning factual findings. The Court of Appeal for the Second Circuit affirmed the decision in respect to causation. The accident with the defendant was the proximate cause of her injuries. The individual defendant's employer was found to be vicariously liable for her injuries.

Continue reading "Causation- Moving Beyond the Blame Game in Ouachita" »

Roxane Montgomery was hired in October of 2001 as an assistant manager for a video store owned by C & C Self Enterprises, Inc. in Lake Charles. She was 41 years old. Five months later, on April 8, 2002, she was terminated.

Ms. Montgomery sued C & C Self Enterprises claiming that she was terminated because of her age. The Louisiana Age Discrimination Employment Act makes it unlawful for an employer to "fail or refuse to hire, or to discharge, any individual with respect to his compensation, or his terms, conditions, or privileges of employment because of the individual's age." Included in her claim that her employer violated LADEA, Ms. Montgomery alleged that she suffered "severe emotional distress resulting in physical complications due to her wrongful termination." C & C Self Enterprises answered by denying that Ms Montgomery was fired because of her age, but was instead fired because of her "inadequate job performance." They followed up their answer to the complaint by filing a motion for summary judgment. The trial court denied the motion for summary judgment and awarded the plaintiff $50,000.

Roxane Montgomery v. C & C Self Enterprises, Inc., was appealed to the Third Circuit Court of Appeals from the Fourteenth Judicial District Court of the Parish of Calcasieu. The purpose of this article is to identify and discuss the necessary elements of a successful age discrimination claim and to identify why the trial court erred when it denied C & C Self Enterprises' motion for summary judgement. The Third Circuit court looked at Federal case law to assist in making their decision because LADEA is "nearly identical" to the Federal statute prohibiting age discrimination: the court looked at the U.S. Supreme Court decision McDonnell Douglas v. Green 411 U.S. 792 (1973) because this decision "set forth the basic allocation of burdens and order of presentation of proof in an unemployment discrimination case."

ELEMENTS OF AN AGE DISCRIMINATION CLAIM

In this case and any case involving an age discrimination claim, the plaintiff has an initial burden to establish a prima facie case ("a case in which the evidence presented is sufficient for a judgment to be made unless the evidence is contested") of discrimination. To establish a prima facie case, the plaintiff "must show that: (1) she is in the protected age group between the ages of 40 and 70 years (2) her employment with the defendant was involuntarily terminated, and (3) she was qualified to perform the job she was employed to perform." By fulfilling these three requirements a plaintiff establishes a prima facie case, which results in the creation of "a presumption that the defendant unlawfully discriminated against the plaintiff."

In addition to the creation of this presumption, the defendant then is subjected to a burden of production: the defendant must produce evidence of a legitimate non-discriminatory reason for its actions. If the defendant succeeds in doing so, the presumption of discrimination ceases to exist. Also, if the defendant provides these reasons, the burden shifts again to the plaintiff. Now the plaintiff has to prove "by a preponderance of the evidence that the defendant's proffered reasons were merely 'pretext', or in other words, not the true reason for the alleged discrimination."

It is not enough for the plaintiff to prove that the defendant's reasons were pretext. The plaintiff must prove that "age must actually have played a role in the employers decision making process and had a determinative influence in the outcome." In other words age must have "motivated the employers decision."

To summarize, when residents like Ms Montgomery of Calcasieu Parish make a claim based on age discrimination, she first has to establish a prima facie case. If she does so, a presumption is created that the defendant has impermissibly discriminated against her. Next, the defendant must now give reasons for its conduct: reasons that are legitimate and non-discriminatory. Then the plaintiff has the opportunity to prove that the defendant's reasons are not the true reasons for the alleged discrimination. The plaintiff must prove that these reasons are pre-textual, and she must prove that her termination was caused by age discrimination.

This is the process for making an age discrimination claim. There were some issues in this process during the trial court phase of the present case. The Third Circuit identified some of the issues with the plaintiff's claim and concluded that the trial court erred in not granting summary judgement to the defendant.
SUMMARY JUDGMENT WAS APPROPRIATE AT TRAIL COURT LEVEL

Before summary judgment can be granted two requirements must be met 1) there must be no genuine issue of material fact 2) the moving party must be entitled to judgment as a matter of law. The trial court did not grant C & C Self Enterprises' motion for summary judgment. The Third Circuit reversed the trial court's decision. The Third Circuit opinion revealed that the trial court should have granted summary judgment.

Seemingly (the rhetoric of the opinion is not quite clear) the trial court's decision was based on the fact that the judge did not believe the reasons provided by C& C for the termination of Ms. Montgomery. The judge explained: " So as I understand it, if I find a prima facie case of unemployment; if I find that the employer was not truthful in the reason for termination, which I do in this case. I don't think they gave me a good reason or a truthful reason for terminating Ms. Montgomery..So I find for the Plaintiff, that she was terminated because of violation of the termination -- the law under 23:311 et seq."(LADEA). The Third Circuit concluded that the trial court erred in ruling for the "plaintiff based upon a finding of 'pretext' without evidence of an intentional act as required by law...It is not enough that the trial court simply disbelieves the employer's 'proffered reasons', the plaintiff must establish by preponderance of the evidence that age was the 'but for' reason the employer terminated the plaintiff, as opposed to merely a motivating factor."

The Third Circuit went further and claimed that "We find that the record does not permit a reasonable fact finder to conclude that the plaintiff proved the defendant terminated her employment because of her age." The trial court overweighed the importance of disbelieving the defendant's reasons for terminating Ms. Montgomery. "Because an employer's proffered reason is unpersuasive or even obviously contrived, does not necessarily establish that the plaintiff's assertion of age discrimination is correct." Also, the trial court "must believe that the plaintiff has proven its explanation of intentional discrimination." None of the reasons that Ms Montgomery gave for being fired were sufficient to "prove that the defendant acted with discriminatory animus in terminating her employment."

Perhaps even more importantly, the Third Circuit noticed that Ms Montgomery was hired and fired by the same person, who was also over 40 years old. They cited Proud v Stone (945 F.2d 796) for the following point: "in cases where the hirer and firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer...There is nothing in the record to rebut this inference." The ultimate conclusion reached: "There was no sufficient showing that the plaintiff's age actually played a role or had a determinative influence in the defendant's decision to terminate the plaintiff's employment."

Summary judgment could have been granted in this case because the plaintiff failed to satisfy the elements required by LADEA in establishing a successful age discrimination claim. Ms. Montgomery did not establish that the defendant's proffered reasons for her termination were pre-textual. Nor did she establish that there was a causal relationship between the defendant's reasons and her termination: a relationship that is required by the statute. Because Ms. Montgomery did not meet any of the legal elements required for an age discrimination claim, C & C Self Enterprises is entitled to judgement as a matter of law; and thus, summary judgment would have been appropriate.

An explosion at the Multi-Chem Corporation chemical plant, followed by a series of smaller ones, has led to an evacuation of the area's residents. Preliminary reports indicate that no injuries have taken place but it will take some time before a full understanding of the incident is known. The company, which creates oilfield product chemicals, still does not know the full details of the incident. That another explosion has taken place, with the Dow Hahnville incident still in recent memory, leads to a lot of questions regarding the safety standards and practices being utilized at these facilities.

The Associated Press reports that the incident, which appears to have first begun at 4 pm today, featured a significant explosion that could be heard from more than a mile away. The incident led to a one mile radius surrounding the plant being evacuated as all plant employees are accounted for. While the State Police say no one was injured in the incident, previous chemical releases have proven that only after some time are the full effects of an explosion known.

A Multi-Chem Group in Houston spokesman says that the company is still in its exploratory phase and will provide details when they are available. Information is still scarce at this time but we will update this blog as it is available.

Reports are coming in that an explosion has taken place at the New Iberia chemical plant, leading to an immediate evacuation of residents in the area and plant personnel.

More information will be provided as it becomes available.

After filing a lawsuit, plaintiffs are required to notify defendants of the impending suit so that they may defend and respond to the claim. Without notice that a lawsuit has been filed against them, defendants' due process rights may be violated if an unfavorable judgment is entered or rendered without their knowledge. The time frame for this requirement - commonly known as "service of process" - varies among state and federal jurisdictions. In Louisiana, plaintiffs have ninety days from filing a lawsuit to request service of process, which is known in Louisiana as “citation and service.” The lawsuit officially begins once a defendant receives citation and service because only then will a court have jurisdiction over all of the parties. If service is not completed within the statutory period, defendants may justifiably make a motion to dismiss the case. Plaintiffs, however, may be able to defeat a motion to dismiss if they can show good cause for being untimely with the requirement. This issue was recently before the Supreme Court of Louisiana in George Igbinoghene and Sebastian Busari v. St. Paul Travelers Ins. Co.

In the seminal case, Igbinoghene and Busari (hereinafter "plaintiffs") filed their petition in the parish of Orleans on May 18, 2007, but failed to request service within ninety days of the filing date. St. Paul Travelers Insurance Company (hereinafter "St. Paul") filed a motion to dismiss for insufficient service of process. The district court denied the motion and St. Paul appealed.

On appeal, the plaintiffs argued that denying the motion to dismiss was proper because good cause was shown for being untimely since they agreed to St. Paul's request to extend the time to file responsive pleadings. The Supreme Court found this argument unpersuasive given that such events occurred in 2008 and 2009, which were outside of the relevant period. Moreover, the Supreme Court stated that requesting an extension to file pleadings did not act as an express, written waiver of citation and service. In addition, the Supreme Court declared that St. Paul's knowledge of the suit did not make citation and service unnecessary. To support this assertion, the Supreme Court relied on Naquin v. Titan Indemnity Co., a Louisiana Fourth Circuit Court of Appeals case, which held that "defendant's actual knowledge of a legal action cannot supply the want of citation because proper citation is the foundation of all actions."

Accordingly, the Supreme Court reversed the decision of the lower court and granted St. Paul's motion to dismiss because it found that the district court erred in denying the motion. Igbinoghene and Busari v. St. Paul shows us that it is important to have competent representation that will successfully prepare for and fulfill the procedural requirements in bringing a lawsuit. As this case demonstrates, there are grave consequences, such as losing your case, if the lawsuit is challenged and dismissed on procedural grounds.

Continue reading "Louisiana Supreme Court Dismisses Plaintiffs' Case Based on Failing To Show Good Cause For Untimely Service of Process" »

According to the Louisiana Code of Criminal Procedure, a merchant may use reasonable force to detain a suspected shoplifter for questioning or arrest for up to an hour. La. Code Crim. P. Art. 215(A)(1). A merchant who acts under this provision is entitled to immunity from any civil actions arising out of the detention, provided he can show that he had reasonable cause to believe that the detained person committed theft; he did not use unreasonable force; the detention occurred on the store premises; and the detention did not last longer than 60 minutes. Freeman v. Kar Way, Inc.

The issue of the merchant's reasonableness was at the center of the recent case of Rhymes v. Winn-Dixie Louisiana, Inc. On the morning of December 24, 2007, Thomas Rhymes visited the Winn-Dixie grocery store in Abbeville to purchase some cough syrup. While shopping, Rhymes's blood sugar began to drop and he felt dizzy and weak. He slipped the cough syrup into his jacket pocket, grabbed several bags of honey buns, and made his way toward the checkout. A store manager intercepted Rhymes and demanded the products from his jacket pockets. The manager then told Rhymes to leave the premises but a moment later told him to stay, though Rhymes ignored this request and continued toward the door. The manager grabbed Rhymes by the neck and twisted his left arm behind his back. The manager attempted to hit Rhymes as they made their way to the back office but was stopped, mid-swing, by another store employee. When the police arrived, a different manager advised the officer to release Rhymes as the store did not wish to press charges. Rhymes filed suit for physical and mental injuries resulting from the incident. Winn-Dixie answered, denying that Rhymes was injured and asserting the merchant's detention privilege under the Louisiana Code. Winn-Dixie also filed a motion for summary judgment, which the trial court granted on May 20, 2010. Rhymes appealed.

The Third Circuit began its review with the well-established principle that summary judgment is appropriate only when there is "no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” Rhymes's argument on appeal was that a question of material fact "regarding whether the force used by the manager was reasonable" existed. Indeed, Rhymes argued that the store manager's actions were "beyond unreasonable." The court likened the analysis under the merchant statute to determining whether the force used by police officers in arresting criminal offenders is reasonable, for which the Louisiana Supreme Court has held:

“Whether the force used is reasonable depends upon the totality of the facts and circumstances in each case. A court must evaluate the officers’ actions against those of ordinary, prudent, and reasonable men placed in the same position as the officers and with the same knowledge as the officers.” Kyle v. City of New Orleans.

Although summary judgment can be a winning strategy for either party in litigation, its applicability is limited to the cases where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact." Typically, when an analysis of reasonableness is required, the facts of the case will be of critical importance and summary judgment inapplicable. The court's action here indicates that a fact-intensive analysis is needed by the trial court on remand.

Continue reading "Appellate Court Denies Summary Judgment in Store's Favor in Shoplifter Detention Case" »

Over the past two decades, America's working class has suffered the impact of exposure to asbestos. Before it was known that asbestos could lead to serious illness and death, people worked around the material without hesitation. Problems with exposure arise due to the fact that the fibers of asbestos, once inhaled, can have a very negative impact on your lungs and body. Those who have been exposed to asbestos can contract mesothelioma, a rare kind of cancer that can develop from the protective lining that covers many of the body's internal organs. It is an aggressive and deadly kind of cancer that has very little remedy; usually the best type of treatment is the keep the person as comfortable as possible. Even worse, mesothelioma can have the same symptoms of other diseases, so it can be misdiagnosed very easily and lead to significant delays in treatment. What's more, the symptoms of the disease do not appear right away. Because the impact of exposure may not become obvious for many years after exposure, people have the possibility of being diagnosed with something other than the disease and miss out on sorely needed medical attention. Because the disease manifests itself so late, it can easily go under the radar and get worse before anything can be done to resolve it.

In Louisiana, in the New Orleans Parish Civil District Courthouse, the family members of yet another victim of exposure to asbestos will have their day in court. The deceased, Phillip Graf, was exposed to asbestos for over 30 years and died a long, emotional and painful death. His family members are suing up to 29 different defendants in their lawsuits arising from his untimely and unfortunate death. Among the defendants is Metropolitan Life. In court documents, the claim states that the company is liable because it aided and abetted the negligence and the marketing of unreasonably dangerous asbestos containing products by such manufacturers. The plaintiffs in the case allege that these actions exhibit a specific type of negligence and lack of care that led to Mr. Graf's death. Moreover, Benjamin Moore & Co. is listed as the lead defendant. This is because it was the employer of Mr. Graf. This case helps illustrate that with matters such as this, a variety of companies both directly and indirectly involved in the exposure can be held accountable for the unfortunate circumstances their actions, or lack thereof, caused.

Losing a member of the family due to a disease is a hard process. However, if you or a loved one feel that you are being exposed to dangerous work environments while on the job, do not hesitate to call an attorney.

Continue reading "Thirty Years of Asbestos Exposure Leads to Death" »

The U.S. Court of Appeals, Fifth Circuit upheld a District Court ruling in early 2011 allowing a contractor out of a negligence suit following a tragic incident in which a young man was electrocuted while trimming trees. The Court held Defendant Contractor Camp Dresser & McKee, Inc. (CDM) did not have a duty to protect a subcontractor from injury and therefore could not be held negligent. Because there was no contract between the contractor and the tree service subcontractor, the Court held there was no principal-independent contractor relationship that would have formed a duty.

Chad Groover, an employee of Groover Tree Service (GTS), was operating an aerial lift and cutting trees on the morning of December 7, 2006, north of Slidell when the basket he was riding in made contact with an energized line. Groover's brother, Larry Groover, witnessed the electrocution. Chad Groover was severely injured at the scene and sadly died seven months later from complications. The family of the deceased brought a negligence action against several defendants, including the contractor CDM, a CDM worksite monitor, and CDM's insurers, Zurich American Insurance Company and ACE American Insurance Company. The suit alleged CDM's negligence caused Larry Groover to suffer mental anguish when he witnessed his brother's death.

Proving negligence requires proof that the negligent party owed a duty to the injured party. Duty implies a special relationship or can be established by law. The Defendants filed motions for summary judgment arguing they did not have a legal duty to protect Chad Groover from injury. Plaintiffs averred in a cross motion for partial summary judgment Defendants had a statutorily provided duty to have the power company de-energize the lines.

Summary judgment is appropriate if the the person claiming it shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. If the movant demonstrates the absence of a genuine issue of material fact the burden shifts to the non-movant to provide specific facts showing the existence of a genuine issue for trial. The issue as to whether a defendant owes a duty is a question of law. In deciding whether to impose a duty in a particular case, Louisiana courts examine whether the plaintiff has any law to support the claim that the defendant owed him a duty. Here, Plaintiffs provided no such law.

In their argument, Groover's side argued CDM was a principal and GTS was an independent contractor. Plaintiffs contended CDM had a duty to GTS because CDM controlled and expressly authorized the unsafe work practices that let to Chad Groover's death.

A principal, contractor relationship is in large measure determined by the terms of the contract between them. CDM and GTS did not have a contract. CDM's contract was with the Parish. GTS's contract was an oral one with another one of CDM's subcontractors. Under Louisiana law, a principal is not liable for the injuries resulting from the negligent acts of an independent contractor, unless the principal retained "operational control" over the contractor's work, expressly or impliedly approved the unsafe work practices, or the activity is ultra hazardous. Instantly, the Court held that the Plaintiffs side failed to provide evidence sufficient to show a principal-contractor relationship existed between the parties. Therefore, Defendant CDM owed no duty.

The Court also held the Louisiana Overhead Power Line Safety Act did not provide a statutory duty as the Act merely provides a means by which powerline operators and owners can hold individuals and companies liable for all damages, costs, or expenses incurred by the owner or operator as a result of contact with powerlines during the course of unauthorized work. Therefore, when doing work as a subcontractor it is important to ensure a valid contract exists between the parties.

If you have been injured on the job, hiring an attorney to discuss your rights is important. By hiring an attorney with experience and a thorough understanding of the law, you can protect your ability to recover for damages suffered.

Continue reading "Contractor Not Liable for Electrocution Death in St. Tammany Parish " »

The plaintiff in this case, Eileen Laday, was a passenger on a bus owned by the Lafayette City-Parish Consolidated Government. The bus had been donated to the City-Parish in the aftermath of Hurricane Katrina. When the bus was donated, it was missing a plexiglass shield that was designed to keep the bus door from coming into contact with passengers. As Ms. Laday sat in the front seat, the door opened and trapped her arm. She was not consistent about how long her arm was trapped.

Ms. Laday went to a doctor the next day, complaining of neck and shoulder pain radiating into her right arm. The doctor ordered an MRI, which showed degenerative cervical disc conditions as well as a disc herniation. She later saw an orthopedic surgeon, who recommended that she undergo surgery. As of the date of trial, she had not yet had the surgery, which was estimated to cost between $60,492.60 and $61,492.60.

The judge conducted a bench trial (where there is no jury) and ruled in favor of Ms. Laday because of the high standard of care imposed on common carries like operators of public buses. He awarded her $60,000 in general damages, $24,084.56 in past medical expenses, and $60,492.60 for future surgery costs to be placed into a reversionary trust under La.R.S. 13:5106, with interest to go to Ms. Laday.

Lafayette City-Parish appealed, claiming that the trial court was clearly wrong in believing Ms. Laday over its expert, who testified that the claimed contact between the bus door and Ms. Laday’s arm was a possible, but not probable, cause of the disc herniation. It also claimed that the court should have put the interest on the award for future medical expenses into the reversionary trust rather than giving it to Ms. Laday.

Ms. Laday, on the other hand, thought that the amount of general damages and medical expenses were abusively low, given that there were additional future medical expenses proven at trial, including follow-up visits for a year.

The Third Circuit Court of Appeal for the State of Louisiana considered the purpose of La.R.S. 13:5106, which was to assure that money for subsequent medical care was paid directly to a medical care provider because judgments against public entities have amounted to more than those entities are able to pay. The use of a reversionary trust ensures that a plaintiff will not take the money and use it for something else other than medical treatment. Considering the purpose of reversionary trusts, the appellate court ruled that any interest that accrued should also go into the trust rather than being paid out to the plaintiff.

The Third Circuit also found that there were follow-up medical appointments needed after the surgery, which the plaintiff had proven but the trial judge did not take into account when awarding future medical damages. The appellate court added those amounts back in, making the total amount $62,288.00 that should go into the trust.

Ms. Laday was ultimately awarded a higher amount for future medical expenses, but the money, along with the interest that would accrue on that money, would be placed in a trust to be paid directly to a doctor or other medical professional providing treatment. As a result of this award, she was able to pay for the back surgery she needed.

If you have been injured while riding on public transportation, you may be eligible for compensation from the operator of the vehicle.

Continue reading "Lafayette City-Parish Consolidated Government Ordered to Pay Damages, Costs to Injured Bus Passenger" »

In a prior post, we saw that the trial court is afforded considerable deference in the setting the amount of general damages in tort cases. More than 30 years ago, the Louisiana Supreme Court stated:

"[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration." Reck v. Stevens.

Against this formidable body of jurisprudence did the plaintiffs in the recent case of Andrus v. ACCC Insurance Co. appeal the trial court's award of general damages. On March 12, 2009, Terrence Andrus and Joseph Davis were driving on La. Highway 167 in St. Landry Parish. Jeri Ceasor rear-ended Andrus's car, after which Andrus and Davis, ("Plaintiffs") filed a suit for damages for injuries and property damage. The trial court found Ceasor to be at fault in the accident and awarded Plaintiffs general damages in the amount
of $1,500.00 each. The court also awarded the Plaintiffs special damages for medical costs in the amount of roughly $3,000 each. The Plaintiffs appealed the general damages award as "inadequate" for the Plaintiffs' "soft tissue" injuries that they sustained in the accident.

The Third Circuit Court of Appeal noted that "the evidence of record shows that the damage to the Andrus vehicle was minor," only "scratches and paint damage," and no deformity to the bumper. Both Plaintiffs complained of back pain following the accident, but for each it was only "minor" or, in the case of Davis, more "tightness" than pain. Both Plaintiffs were completely healed within three months after a series of chiropractic visits. During the trial, Andrus testified that the collision was just "a little jerk," while Davis characterized it as "nothing big." The court concluded, "we cannot say that an award of $1,500.00 in general damages to each of the Plaintiffs falls below 'that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances,'" and affirmed the trial court's award.

This case clearly reflects the view of the Louisiana Supreme Court that "an appellate court should rarely disturb an award of general damages." Indeed, the Plaintiffs pointed to no obvious reason by which the appellate court could conclude that the trial court's award was unreasonable. In the end, the Plaintiffs' appeal left them with an assessment of the costs of the action. While it is understandable for an injured plaintiff to want to maximize his recovery, a skilled attorney who understands the limits of the appellate court's role in adjusting damages can offer invaluable strategic guidance about whether to file an appeal.

Continue reading "Appellate Court Affirms Small General Damages Award in Minor St. Landry Parish Accident" »

On the evening of October 29, 2004, Jeanine Pryor, then 69, attended a football game between Barbe High School and New Iberia High School at Lloyd G. Porter Stadium in Iberia Parish. Pryor, who was there to see her grandson play, was recovering from hip surgery and required a cane to get around. She sat in the bleachers on the visitors' side of the stadium to be with the other fans of the Barbe High Bucs. The seat boards on the visitors' side bleachers were uniform and approximately eight inches apart in height, except that the space between the first and second seat boards had 18 inches between them. When Pryor first arrived, she realized she could not step up the distance between the first row and the second, so she "grabbed the second board and lay on her side so she could swing one leg up at a time." Then she stood up and was assisted by her daughter the rest of the way up the rows to her seat. At halftime, when Pryor descended the bleachers in order to visit the restroom, she attempted to simply step down the distance between the first and second seats, rather than use the same maneuver she had executed on the way up. In the process, she fell and was severely injured. Pryor filed suit against the New Iberia school board alleging that the bleachers were defective. After a bench trial, the district court entered a judgment for the school board, having determined under a risk/utility analysis that the condition of the bleachers was not unreasonably dangerous. Pryor appealed and the court of appeal reversed. It rejected the district court’s analysis, finding there was “no utility or social value in exposing visiting patrons to an eighteen-inch vertical differential between the seat boards in question.” The court apportioning 70 percent fault to the school board and 30 percent fault to Pryor, awarding her damages of over half a million dollars. The school board appealed.

The Louisiana Supreme Court recited the general rule that "the owner or custodian of property has a duty to keep the property in a reasonably safe condition," though the owner generally has "no duty to protect against an open and obvious hazard." It is the trial court's role to decide which risks are unreasonable based upon the facts and circumstances of each case, and review of its determination on appeal is subject to the manifest error standard. Louisiana courts have adopted a risk-utility balancing test for this analysis, which requires weighing four factors:

(1) the utility of the thing. Here, the court concluded, "it is undisputed that the bleachers serve a social utility purpose by providing seating for patrons of the stadium," and further, that "the eighteen-inch gap between the first and second seat is not a defect in the bleachers per se, but simply part of their design."

(2) the likelihood and magnitude of harm, which includes the obviousness of the dangerous condition. In this case, the court agreed with the district court's finding that Pryor was "aware of the gap."

(3) the cost of preventing or correcting the harm. In this circumstance, the court noted that Pryor "could have avoided the harm at no cost to her by choosing to sit on the [home team's] side of the stadium, where disability access ramps and handicap-accessible seating were provided."

(4) the nature of the plaintiff's activities in terms of its social utility, or whether it is dangerous by nature. "Obviously, the act of attending a high school football game carries a social utility, and is not inherently dangerous," the court concluded. However, it viewed Pryor's decision to site on the side of the stadium where no ramps or handicap-accessible seating were provided "effectively increased the risk to her, given
her physical impairment."

Based on this analysis, the court concluded that "the district court’s factual determination that the bleachers were not unreasonably dangerous is not clearly wrong," and found the court of appeal erred in reversing the district court’s judgment.

The Pryor case is another classic example of the risk-utility analysis applied by the courts when trying to balance the duty that property owners owe to visitors with the visitors' obligation to look out for their own safety. Particularly in the case of municipalities, state agencies, and other public entities, the court must apply a reasonableness standard to ensure that tax revenues are spent responsibly in light of the duty.

Continue reading "Court Rules High School Football Stadium Bleachers Are Not Unreasonably Dangerous" »

In previous posts on this blog, we have discussed the elements that the victim of a car accident must prove in order to recover from an at-fault driver. Whether the defendant's negligent conduct caused the accident and the victim's injuries is a question to be resolved by the fact-finder. This role is usually assumed by the jury, but can also be left to the judge in the case of a bench trial. Much deference is given to a fact-finder's decision on such issues: the appropriate standard for appellate review of factual determinations is the "manifest error/clearly wrong standard." This high standard means that an appellate court can set aside the trial court's factual determination only if it is "clearly wrong in light of the record reviewed in its entirety." In order to overturn a factual finding, the appellate court must make a two-part inquiry: (1) the court must find from a review of the trial record that no reasonable factual basis exists for the finding; and (2) the record must establish that the trial court's finding was clearly wrong. It is important to note that the appellate court is not merely asked to determine whether the trier of fact was objectively right or wrong; instead the court must decide if the factfinder’s conclusion was reasonable in light of the evidence. The Second Circuit Court of Appeal's opinion in the recent case of Hopkins v. Nola provides an example of an appellate court's application of this analysis to overturn a critical factual finding of the trial court.

On January 17, 2008, Sharnetta Hopkins was involved in a car accident with Brian Nola near the intersection of Desoto Street and Cole Avenue in Monroe, Louisiana. In her complaint, Hopkins alleged that the accident occurred when Nola struck her car after executing an illegal pass. Nola countered that he did nothing wrong, but was actually struck by Hopkins's car when she ran a stop sign. At the bench trial in March, 2010, the parties offered conflicting testimony on the incident. Also, Shawn Maynard, an officer with the Monroe Police Department who responded to the accident and issued Hopkins a citation for running the stop sign, offered testimony as to Hopkins's fault. Nevertheless, the trial court entered a judgment against Nola, awarding Hopkins damages after apportioning 80 percent of the fault to Nola. In its decision, the trial court noted that it effectively ignored Officer Maynard's testimony because he "did not take any photographs, diagram the location of any debris from the accident, and did not talk to all of the witnesses."

On appeal taken by Nola, the Second Circuit reviewed the trial record according to the manifest error standard. The court found that "the trial court committed reversible error in its wholesale dismissal of Officer Maynard’s testimony due to deficiencies in his investigation of the accident." The court reached this conclusion because "the trial court’s articulation in its written ruling of perceived deficiencies is unfounded."
Officer Maynard testified with reference to photos of the accident scene in a manner that was consistent with the accident report he filed immediately following his investigation. Hopkins "did not attempt to offer the written report or cross-examine the officer directly on its contents to show that his memory of the accident at trial differed from the report," or for that matter impugn Maynard's credibility in any way. Additionally, the trial court did not indicate its dismissal of Officer Maynard’s testimony was the result of a credibility assessment based on a finding of bias or untruthfulness. In fact, the evidence clearly supported Maynard's assessment of the situation but was inconsistent with Hopkins's summary of events. Accordingly, the court found that "the objective evidence so contradicts [Hopkins's] story that a reasonable factfinder would not credit that story. The ruling of the trial court was therefore clearly wrong and manifestly erroneous."

The Hopkins case speaks to the critical nature of a plaintiff's ability to establish facts that are consistent with her theory of recovery. As the Second Circuit noted in its opinion,

"Although deference to the factfinder should be accorded, because appellate courts have a constitutional duty to review both law and facts, they have the right and obligation to determine whether a trial court verdict is clearly wrong based on evidence, or clearly without evidentiary support... Therefore, it is not the case that a trial court’s factual determinations cannot ever, or hardly ever, be upset.”

Continue reading "Appellate Court Reverses Factually Unsupported Judgment in Car Wreck Case" »

Gleason v. Louisiana Dept. of Health and Hospitals is a Medical Malpractice case arising out of the unfortunate death of a 47-year-old severely mentally challenged man, Donnie Gleason. Donnie had been a resident of Northwest since December of 1974 and was nonverbal and incapable of self-medicating, arranging or monitoring his own medical assistance. On December 23, 2002, after two earlier unsuccessful attempts, Donnie was transported to Willis Knighton Medical Center ("Willis Knighton") in Bossier City, to undergo a routine CT scan and EEG after he suffered a seizure. When Donnie returned, he was lethargic and placed in the infirmary.

The documentation of his treatment there showed that Donnie had ingested a foreign object which caused a bowel impaction that precipitated Donnie’s fecal vomiting. Presumably due to his condition, Donnie was unable to expel the vomit and breathed some of the gastric content into his respiratory tract. At Willis Knighton, Donnie was placed on a ventilator in the intensive care unit and diagnosed with bowel obstruction, respiratory failure and aspiration pneumonia relating to the vomit aspiration. After a brief recovery, Donnie once again went into respiratory distressed, was placed on a ventilator, and passed. The staff were unable to revive him.

In Louisiana, medical malpractice complaints must first be filed with the Louisiana Patient’s Compensation Fund before a lawsuit may be commenced. That organization’s medical review panel ruled for the defendants in this action - Northwest (intermediate care facility) and Willis Knighton (hospital) and their doctors and physician’s assistants individually. The panel concluded that the evidence did not support the conclusion that Northwest failed to comply with the appropriate standard of care because they found no evidence that Donnie ingested a foreign object while there. After the panel ruling, Donnie’s family filed suit against Northwest and Willis Knighton. They alleged, among other things, that Northwest’s failure to properly supervise Donnie and his treatment and its failure to recognize the seriousness of his condition and the inadequacy of the monitoring of Donnie’s respiratory status.

To establish a claim for medical malpractice, a plaintiff must prove (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. The testimony of an expert is generally required to establish the applicable standard of care and whether that standard was breached, unless the negligence is so obvious that it can be inferred with expert guidance. Expert testimony is not required, but is typically relied upon to prove causation when its determination is not a matter of common knowledge.

Northwest filed a motion to be summarily dismissed from the case because Donnie’s family initially did not designate any expert and Donnie’s family asked for an extension, which the Court granted. Even after Donnie’s family submitted an unsigned affidavit from an experienced nurse, the Court granted Northwest’s motion on the ground that the affidavit was not enough to establish a breach of the duty of care.

After another adverse ruling, Donnie’s family appealed to the Court of Appeals (“COA”) seeking a new trial, arguing that the Court needed no additional information to determine causation. The COA found that a fact issue remained regarding Northwest’s duty to protect Donnie from the danger that could result from his access to an object which the circumstances indicate he may have swallowed, since Donnie was primarily in Northwest’s custody in the days leading up to the discovery of the object. Moreover, the COA thought the matter should proceed to trial since the causal link between the object’s impaction of Donnie’s bowels also still needed to be resolved.

Unfortunately, Donnie’s family’s attorneys initially failed to get their expert to sign her affidavit, which required much procedural maneuvers at considerable expense and at the risk of having the case thrown out altogether. All of these remedial steps also delayed what compensation may eventually come to Donnie’s family and cost them more in legal fees. Competent legal representation is invaluable in an area as technical and regulated as medical malpractice. The need for expert testimony and the sufficiency of claims making out an allegation of medical malpractice call for seasoned skills and a conscientious and personal touch.

The Louisiana Code of Civil Procedure generally affords the trial court wide discretion in assessing the costs of litigation to one or more of the parties. "Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against
any party, as it may consider equitable.” La. C.C.P. Art. 1920. The expenses that the court can tax as costs include the fees of the court clerk or sheriff, witness’ fees, costs of taking depositions, and the cost of photocopies of laws, regulations, medical reports, and hospital records used during the trial. So great is the trial court's discretion, in fact, that the trial court's assessment can be overturned only upon a showing of abuse of discretion.

As mentioned, though, there are limitations in the law to the trial court's authority. For instance, special provisions exist for allocating costs in workers' compensation cases as well as those involving a plaintiff who proceeds in forma pauperis (through a pauper's action). The recent case of Curry v. HealthSouth Rehabilitation Hospital illustrates that one path to reversible error on the part of the trial judge is running afoul of the special rules for impoverished plaintiffs.

Matha Curry, an elderly stroke survivor, visited the HealthSouth Rehabilitation Hospital in Homer, Louisiana on August 29, 2002 for physical therapy. While under the care of a nurse technician, Curry fell and fractured her arm in two places. She subsequently filed a pauper's suit against the hospital, which admitted fault for the accident. The trial court reviewed the depositions of Curry, the nurse technician, and two physicians. It awarded Curry $30,000 in general damages for pain and suffering and $3,199 in special damages for medical expenses. Court costs were assessed against the hospital. The court assessed the costs of one of the physician's depositions, to which Curry’s lawyer was late by three hours, against Curry. It also ordered the costs of the medical records used during the trial and the costs of the second physician's deposition to be shared equally between Curry and the hospital. Curry appealed, arguing that the trial court erred in assessing costs against her. The Second Circuit Court of Appeal noted that the Louisiana Code of Civil Procedure includes special rules for the waiver of costs for indigent plaintiffs. In sum, the Code provides that the defendant is liable for paying the impoverished plaintiff's costs if the plaintiff prevails. The hospital argued that the cost-sharing for one deposition and medical records was fair in light of Curry's last minute refusal, prior to the trial, to execute the settlement agreement that accompanied the settlement check that she deposited and was later forced to return. However, the court stated, "While we are sympathetic to the frustrations experienced by [the hospital] in its good-faith attempt to settle the matter, the [pauper] provisions ... are mandatory. The assessment of the costs ... against Curry was an abuse of discretion." Likewise, the court rejected the hospital's argument that the assessment of the costs of the deposition to which Curry's attorney arrived late was permissible as a penalty because "[t]he trial court never referred to it as a sanction." Accordingly, the court reversed the portion of the trial court's judgment that assessed costs against Curry and instead taxed all costs of the action to the hospital.

This case, while perhaps somewhat unusual in that it involved an impoverished plaintiff, is instructive on the issue of the costs of litigation. Especially in cases involving expert witnesses or significant documents, records, or other paperwork, ancillary costs can add up quickly. It is important for any plaintiff to understand the trial court's role in assessing costs so that a successful judgment is not unduly reduced by these expenses.

Continue reading "The Impoverished Plaintiff and the Assessment of Court Costs" »

As we have explored in numerous prior posts, a doctor or other healthcare provider owes his or her patient a duty to meet the standard of care applicable to the patient's situation. The failure to follow the standard of care points to the doctor's negligence which, in the case of the death of the patient, can give rise to a claim of "lost chance of survival" for the spouse or children of the deceased. In a lost chance of survival action, the plaintiff "does not have to shoulder the unreasonable burden of proving that the patient would have lived had proper treatment been
given." Rather, the plaintiff must establish by a preponderance of the evidence that the doctor's negligent conduct "denied the patient a chance of survival." In other words, a lost chance of survival claim will not be successful if the patient would have died anyway due to causes unrelated to the doctor's actions; the plaintiff must tie the doctor's negligence to the death of the decedent. Whether a plaintiff carries this burden is a question of fact reserved for the jury.

Third Circuit Court of Appeal recently reviewed a jury verdict on this question in the case of Skinner v. Christus St. Francis Cabrini Hospital. Robert Skinner was admitted to Christus Hospital in Alexandria on August 17, 2000 for an elective hemorrhoidectomy and partial sphincterotomy. He died the following morning after spending the night in the hospital. His wife, Pamela Skinner, filed suit against the hospital and Stephen Ford, the nurse who had charge of Mr. Skinner from 7:00 PM to 7:00 AM during the night of his stay. At the trial, various witnesses from the hospital explained that the surgery had gone well. The only reason Mr. Skinner stayed overnight was because of his high level of anxiety over the procedure. Mr. Skinner had a history of mental and physical problems, and was taking numerous prescription medications to address his depression, high blood pressure, high cholesterol, and heart burn. Several members of the hospital staff reviewed Mr. Skinner's medication list on separate occasions, and each time he neglected to mention that he had taken a particular antidepressant prior to coming to the hospital. In fact, the toxicology screening that was conducted as part of an autopsy revealed dangerously high levels of the drug in his system--a concentration which the medical experts in the case agreed was "known to kill." Nevertheless, the jury found that the evidence supported the conclusion that the hospital and Nurse Ford failed to properly monitor Mr. Skinner after the surgery, Therefore, the defendants "deviated from the appropriate standard of care in the medical treatment of Mr. Skinner," causing a lost chance of survival. The jury awarded Mrs. Skinner $250,000 in general damages. The defendants appealed, arguing that the jury erred in finding the plaintiff had carried her burden.

The Third Circuit reviewed the record at length and found that Nurse Ford and other hospital staff had properly checked Mr. Skinner's vital signs per the hospital's established schedule throughout the night. It also noted that Mr. Skinner was given several doses of pain medicine to provide him comfort after the surgery. These drugs were administered with the hospital staff's knowledge of the other medications Mr. Skinner had identified that he had taken. It was undisputed that no one at the hospital knew or could have known about the anti-depressant Mr. Skinner had taken but not revealed during several pre-op interviews. The autopsy further revealed that Mr. Skinner's death was caused by heart failure, which the defendants' experts linked to the exceedingly high level of the anti-depressant in his blood. One of the defendants' experts explained that death would have been sudden and without warning, such that an examination only 15 minutes prior to death would likely have revealed nothing unusual even to a careful and experienced practitioner. Another expert opined that "Mr. Skinner would have looked absolutely fine five minutes before he died." In light of this evidence, and Mrs. Skinner's "fail[ure] to produce a scintilla of evidence" that pointed to the hospital's negligence, the court concluded, "we are convinced that the jury manifestly erred in its determination that Christus Hospital/Nurse Ford’s negligence caused Mr. Skinner a lost chance of survival." Accordingly, the court vacated the trial court's judgment that awarded Mrs. Skinner $250,000 in general damages for the lost chance of survival.

The Skinner case, while tragic, offers a reminder to plaintiffs that their burden in a lost chance of survival action is not a light one. The theory of recovery can only be employed where a healthcare provider's negligence played a direct role in denying the decedent the treatment that could have saved his life. As the Skinner case demonstrates, healthcare providers are not held to a standard that requires them to respond to complications about which they could not have known or reasonably discovered.

Continue reading "Court Vacates Jury's Award in Rapides Parish Lost Chance of Survival Case" »

The plaintiff in this case, Suzanne Hammond, was the mother of Latousha Tillman and the grandmother of her stillborn child, Ladaizya Tillman. On March 31, 2004, Ms. Tillman arrived at the St. Francis Hospital emergency room complaining of pain, nausea, and vomiting. She was 25 years old and 23 weeks pregnant. Dr. Joiner treated her and found her heart rate, liver enzymes, and glucose to be elevated, with decreased kidney function. Ms. Tillman was then transferred to another hospital, where problems with her unborn child were discovered. The fetus was found to have no heartbeat and labor was induced 3 days later, on April 4, 2004.

After the birth, Ms. Tillman’s condition dramatically declined and she was placed on life support. She then went into a persistent vegetative state and was pronounced dead on January 24, 2005, after the medical staff was unable to resuscitate her. Ms. Hammond sued St. Francis and Dr. Joiner for a survival action and a wrongful death action with regard to her daughter, and a wrongful death lawsuit as to her stillborn granddaughter.

A survival action compensates the survivors for the damages suffered by a victim from the time of injury to the moment of his or her death. The cause of action is “inherited” – it belongs to the victim and is passed on at death. If there is even a tiny amount of evidence showing any pain of suffering by a victim before her death, damages are warranted.

A wrongful death action, on the other hand, compensates the beneficiaries, usually family members, for their own injuries which they suffer from the moment of the victim’s death on. The wrongful death action belongs to the survivors (in this case, Ms. Hammond), not the victim.

On January 20, 2006, Ms. Hammond filed a request for a medical review panel, alleging that St. Francis Hospital and Dr. Joiner had committed negligence. This was more than a year from the death of the stillborn child and more than a year after Dr. Joiner last treated Ms. Tillman. Under LSA-R.S. 9:5628, a plaintiff may bring a medical malpractice action within one year from the date of the alleged act or one year from the date of discovery, with a three-year total limit.

With respect to the survival claim as to Ms. Tillman, the trial court found that the claim had prescribed, that is, Ms. Hammond filed her claim too late. Article 3492 of LSA-C.C. clearly states that prescription runs against people who are absent or incompetent, including minors and interdicts (those who have been ruled incompetent to care for themselves). There is an exception for products liability cases, but that exception did not apply here.

Ms. Hammond tried to argue that the three-year limit applied, but did not show in the court-filed pleadings that there was some reason for her not to file within the one-year limit. Instead, she should have filed any survival action for Ms. Tillman within a year of the date of discovery of the malpractice, and any wrongful death action for the stillborn child within a year of the child’s death on April 1, 2004. It is the plaintiff’s burden to show that the time limits have not run, and in this case, Ms. Hammond did not state the date of discovery. Therefore, the survival claim with regard to Ms. Tillman and the wrongful death claim with regard to the stillborn child were dismissed.

The wrongful death action with regard to Ms. Tillman had not prescribed, however, because it arose on January 24, 2005, at Ms. Tillman’s death, and Ms. Hammond filed for a medical review panel on January 20, 2006. The case was affirmed and remanded for the wrongful death action with regard to Ms. Tillman to go forward.

Continue reading "Prescription Runs on Ouachita Parish Medical Malpractice and Wrongful Death Survival Action Claim" »

Louisiana law requires all motor vehicle liability insurance policies to extend coverage not only to the insured, but also to any other person with express or implied permission to drive the motor vehicle. Once the insured gives permission, coverage will be denied only if the driver deviates from the permissive use. Consequently, at issue in most lawsuits of this kind is whether the damages caused by the driver are covered by the policy.

A recent case involved Ellen Van, who was driving her car on McReight Street in the city of Bastrop on the same day that minor April Canada was driving a truck owned by the defendant, Steven Ferrell, her live-in boyfriend. April allegedly failed to stop at an intersection and collided with the Van's vehicle. Ellen and her husband, claiming that the collision caused injuries to her back and body, filed suit against Steven Ferrel and his insurer, Safeway Insurance Company of Louisiana. In Ellen T. Van and Ralph E. Van v. Steven Ferrell and Safeway Ins. Co., the lower court granted Safeway's motion for summary judgment on the basis of the affirmative defense of nonpermissive use. Safeway contended that April did not have permission to use the truck on the day in question, and, therefore, the damages caused by the accident were not covered by the policy.

On appeal, the plaintiffs challenged the lower court's determination that there was no genuine issue of material fact in the case. Specifically, the plaintiffs contested that April's implied permission from Ferrell to drive the truck on the day of the accident was an unresolved, material issue in the case. The Louisiana Second Circuit Court of Appeals, agreeing with the plaintiffs, reversed and remanded the lower court's judgment because the deposition testimony established that an issue remained in the case as to whether April had implied permission to drive Ferrell's truck.

Although Ferrell stated April did not have express permission to drive the truck, he conceded at the deposition that the keys and truck were at the house, which were readily accessible to April, and that he never explicitly told April she did not have permission to drive the truck. Moreover, Ferrell's mother Tracy, who also lived at the home, testified that April had occasionally driven the truck unaccompanied; however, she later stated that April only drove the truck with her or another licensed driver. Most significantly, April testified that she drove Ferrell's truck many times around the area where they lived with Ferrell and Tracy's permission. April further testified that since Tracy and Ferrell knew she had to report to work the day of the accident, she believed she had permission to drive the truck to town.

According to the appellate court, the trial court needed to resolve the credibility of the parties' accounts due to the inconsistent deposition testimony. Since a trial is the only appropriate legal forum to resolve issues in a case dependent on credibility determinations, the appellate court concluded that summary judgment was improper.

As this case demonstrates, it is important to have competent representation to successfully appeal an unfavorable judgment. The ability to challenge the court's rulings and force the proper judicial process is something a plaintiff, or defendant, needs to feel confident their attorney can handle.

Continue reading "Court of Appeals Rejects Insurance Company's Defense of Nonpermissive Use in Recent Case " »

In a ruling by the Third Circuit Court of Appeal for the State of Louisiana, the Louisiana Department of Wildlife and Fisheries (LDWF) and the Department of Transportation and Development (DOTD) were found jointly liable for $3.9 million to Vanna McManus and her children, the survivors of a man who drowned at Chivery Dam in Natchitoches Parish.

The deceased, Hugh McManus, was fishing with his friend Stanley Neal at the 70-year-old Chivery Dam in Mr. Neal’s boat. They pulled up close to the dam, killed the motor, and began throwing cast nets. The pair believed that the current in the nearby Saline Bayou would cause them to drift back downstream, but because of water coming over the dam and how close they were when they stopped, they were actually pulled toward the dam. The two men did not notice this until the boat bumped against the dam and began filling with water. The pair abandoned the boat without securing their life vests. Mr. Neal was able to make it to shore by walking on top of the dam, but Mr. McManus drowned. There were no warning signs posted anywhere near the dam announcing that approaching within a certain number of feet was dangerous.

A Natchitoches Parish jury found in favor of the plaintiffs and awarded them $3,880,965.95, with 25% of the fault allocated to LDWF (which owned the dam) and 75% to DOTD (which inspected and maintained the dam). The State of Louisiana appealed, claiming that the jury erred in finding that DOTD and LDWF were liable to the plaintiffs and that DOTD had a legal duty to warn of the alleged dangerous condition that caused Mr. McManus’ death. The jury also concluded that DOTD willfully or maliciously failed to warn against a dangerous condition under La. R.S. 9:2795 and that a dangerous condition existed at Chivery Dam at the time of the accident and that DOTD and/of LDWF had constructive notice of it.

In order to prove liability on the part of the state, the plaintiff has to show: 1) that there was a dangerous condition which presented an unreasonable risk of harm; 2) that the State had actual or constructive knowledge of the condition and enough time to take remedial action; 3) that the State had a duty to warn of the dangerous conditions; and 4) that the State was willful in its inaction. This last requirement overcomes the usual qualified immunity defense; La. R.S. 9:2795 states in part that an owner of land who permits someone else to use the land does not extend any assurance that the premises are safe for any purposes except for willful or malicious failure to warn against a dangerous condition. If the condition is obviously dangerous and would be clear to both the owner and a visitor, no duty exists to warn about the danger. If the unreasonably dangerous condition is not “open and obvious,” however, there is a duty to warn the plaintiffs of the danger.

Most of the jury’s findings that the State claimed were error were factual determinations, so the appellate court could not overturn them unless they were clearly wrong. It was clear that there was a reasonable basis for all of the jury’s findings, and the appellate court affirmed all of the trial court’s decisions.

In this case, there was testimony that there were at least two similar occurrences (without injuries) at the dam previous to this tragic incident. One incident involved Mr. McAlpine, a 28-year veteran enforcement agent for LDWF, who would have drowned had he not been able to grab a life preserver. He testified that someone who witnessed the accident had a similar experience and had seen several other accidents in the same area. Because Mr. McAlpine was and is a LDWF agent, LDWF can be said to have constructive knowledge of the unreasonably dangerous condition.

The plaintiffs’ expert witness, an engineer, testified that it was not possible to fix the condition and that the only alternative was to post warnings, buoys, or barricades that would have warned the plaintiffs. He pointed out that even the DOTD website states that the operator is required to correct or post warnings if there is a dangerous condition. He also testified that unless a person had training or experience with dams, there was no way to tell that the condition existed. The State did not refute the expert testimony. The evidence at the trial was enough to show that the State’s failure to post warning signs was willful, since they knew about the problem and had more than enough time to post signs.

Continue reading "Louisiana Department of Wildlife and Fisheries, Department of Transportation and Development Found Liable for Natchitoches Parish Drowning" »

From the Courts of Equity of the England of yore to Louisiana's Third Circuit, fairness is and has been for a long time an essential component of the law. Civil concepts of fairness still exist today, especially in Louisiana courts dedicated to making whole the victim of a crime.

Edward Signal, like many injury victims, acquired the right to sue at the time of his injury. This right is a commodity of sorts and can be bargained away in an agreement known as a release. Mr. Signal signed one of these agreements with BellSouth Telecommunications after a BellSouth employee, Jared Romero, struck Mr. Signal's vehicle on the on-ramp of Highway 90 from Willow Street in Lafayette. Mr. Signal received a check from BellSouth for the exact amount of the damage to his car. When he cashed this check, he failed to consider an important phrase in the letter that accompanied it. BellSouth indicated that this check was intended to be a "full and final settlement of [Mr. Signal's] claim." There was also language on the back of the check that indicated the check was for "property damages and/or bodily injury." After cashing the check, Mr. Signal discovered the check to not fully cover his damages and filed suit in this matter. In response, BellSouth raised the affirmative defense of res judicata claiming that Mr. Signal's claim was already settled.

The trial court determined that Mr. Signal, a 73-year-old man with a self-assessed third grade reading level, was not quite on even footing with the more sophisticated corporate defendant. In so concluding, the trial court found that Mr. Signal's behavior was reasonable. A reasonable man in his situation would assume that a check for the amount of damage to his car would not also be intended to cover personal damages. The State of Louisiana Court of Appeal, Third Circuit affirmed Mr. Signal's right to sue BellSouth for damages arising out of his personal injuries.

There were two essential values at stake in this case: 1) freedom of contract and 2) fairness. The corporate defendant, obviously having more resources and knowledge, was attempting to escape the full extent of its vicarious liability for the actions of its employee while on the job. Would this case have turned out the same if Mr. Signal were a corporate lawyer with a rich knowledge of the law surrounding contracts of adhesion and alternative dispute resolution? Probably not. Should it have? Fairness dictates that the outcome probably should be different.

Releases are an essential mechanism for both plaintiffs and defendants. They offer a kind of safety net for parties on each side of a dispute. A plaintiff exchanges his or her right to sue for the guarantee of some compensation while a defendant receives exemption from suit in exchange for a smaller payout. Both parties benefit if a fair bargain is struck. If one party is of considerably disparate sophistication, as was the case of Mr. Signal, then there is a fundamental, almost extreme aversion to such an agreement.

A potential plaintiff is fully capable of essentially selling his right to sue but should not be tricked by a potential defendant that outclasses him or her in almost all relevant parameters. This is a noble position summarized extremely poignantly by the trial court in this case. The court said flatly that "this is not acceptable to the Court" when referring to BellSouth apparently trying to take advantage of Mr. Signal's plight. This court and the Court of Appeal, Third Circuit struck a blow for fairness in reaching these conclusions. Decisions like this one and those cited within it enshrine a sense of fair play and justice that help protect future victims from unfair business practices.

Continue reading "Successful Appeal for Fairness in Iberia Parish Car Accident Payment" »

When a caller dials 911 to report an emergency, it is not uncommon for the operator to transfer the caller to the local service provider that is best suited to respond to the incident. For instance, a caller who reports an auto accident can expect to be connected with the nearest ambulance service. In the case of Willis v. Rapides Parish Communications District, the Third Circuit Court of Appeal examined the duty owed by an ambulance dispatcher when a transfer does not go through.

Johnny Willis was involved in a single-car accident on La. Hwy. 488 just outside of Oak Hill. The crash was discovered by a passer-by, Shirley Ponthieux, who called 911. The operator for the Rapides Parish Communications District (RPCD) answered her call, contacted the fire department, and then attempted to transfer her directly to Acadian Ambulance because of another incoming call. The operator did not think that taking the other call would affect the transfer, but in fact it failed and Ponthieux was cut off. Because of the phone confusion and because the fire department could not obtain a cellular signal to call Acadia Ambulance when it arrived on the scene, an ambulance did not arrive until approximately an hour later. Sadly, Mr. Willis died at the hospital. His wife, Carleen Willis, filed suit against RPCD and Acadian Ambulance. Her claim against Acadian cited its failure to "receive and respond to the emergency transmission" and that it "failed to establish and utilize a reliable communications system for the receipt of emergency transmissions." The trial judge granted Acadian Ambulance’s motion for summary judgment, holding that it does not owe a duty to an accident victim until it actually receives a call requesting ambulance service.

On appeal, Willis argued that Acadian Ambulance owed a duty to her husband to properly advise the RPCD of how to communicate with its dispatcher. Further, she cited a letter that Acadian had previously sent to the 911 office in Rankin County, Mississippi that explained the procedures that the 911 operators were to follow. Namely, an operator should remain on the line until Acadian Ambulance answered the call in order for the transfer to be completed, and further should briefly inform the Acadian Ambulance dispatcher of the nature of the call before disconnecting. The court disagreed that the lack of a similar letter to RPCD indicated Acadian's failure to exercise reasonable care. In fact, the court could point to "no statutory or jurisprudential principles that support the imposition of [a] duty" on Acadian Ambulance "to properly train the employees of the RPCD in the use of the RPCD equipment to communicate with Acadian Ambulance." Imposing such a duty, in the view of the court, would be inappropriate under the duty-risk analysis favored by the Louisiana Supreme Court. As soon as the Acadian dispatcher actually received a call that an ambulance was needed, he promptly sent one; this met the duty imposed under the law. Accordingly, the court affirmed the trial court's dismissal of Acadian Ambulance from the case.

As this appeal was taken following the trial court's dismissal of Acadian Ambulance from the case, it is not clear what resulted from her action against RPCD which presumably continued following this judgment. The court's decision to affirm the dismissal of Acadian Ambulance illustrates the flexibility of law to determine liability when speculation exists and demonstrates just how complex and difficult civil trials can be for plaintiffs and defendants alike.

Continue reading "Court Clarifies Duty of Ambulance Dispatcher in Dropped 911 Call" »

According to the Louisiana Code of Civil Procedure, a defendant can file an "exception of prematurity" to challenge whether the plaintiff's cause of action has "matured to
the point where it is ripe for judicial determination.” A classic (mis)application of the exception is found in the 1999 case, Steed v. St. Paul's United Methodist Church. In that case, the church's choir director sued the minister for sexual harassment. The minister filed a counter-claim for defamation, arguing that the choir director's false allegations damaged his reputation in the Monroe community. Before the appellate court, the choir director asserted that the minister's defamation claim was premature because the trial court had not yet entered a judgment declaring that her harassment allegations were false (truth being an absolute defense to defamation). However, because the choir director never filed an exception of prematurity in the trial court, she could not raise the issue on appeal. This is because, as a "dilatory" exception, it is waived if not specifically pled and a court cannot "supply an exception of prematurity on its own motion."

A similar failure to plead the exception plagued the plaintiff in the more recent case of Moreno v. Entergy Corp.. Daniel Moreno was badly shocked while working around overhead power lines in Jefferson Parish. Moreno sued Entergy Corporation, the owner of the power lines. Entergy filed a cross-claim against Moreno's employer, Stewart Interior Contractors, LLC. Entergy argued that, if it were found liable for Moreno's injuries, the Act would create a right of indemnity against Stewart because the contractor violated the Overhead Power Line Safety Act (the "Act") by working near the power lines without first contacting the owner of the lines (Entergy) and making the necessary safety arrangements. The trial court ruled against Entergy, finding that the Act "does not create an independent right of indemnity for damages incurred as a result of injuries suffered by third parties." When Entergy appealed this judgment, the Fifth Circuit Court of Appeal affirmed on the grounds of prematurity, though the exception had not been raised by any party. The Fifth Circuit declared that because no fault had yet been allocated to any party, no cause of action for indemnity had been created. The court entered an “exception of no cause of action on the basis of prematurity,” a judgment which had not been seen previously in Louisiana jurisprudence. Upon review, the Louisiana Supreme Court found that the Fifth Circuit erred as a matter of law in supplying the exception to prematurity on its own motion. "Although the court of appeal claimed it was entering an exception of no cause of action, the judgment was not truly based on the legal insufficiency of the allegations [for which it was permitted to raise an exception on its own accord]. It is clear that the court based its ruling solely on the theory that Entergy’s indemnity claim was not ripe for adjudication, which is properly raised only via dilatory exception." Accordingly, the court reversed the Fifth Circuit and remanded the case.

The complexity of dilatory exceptions like prematurity reinforces the importance of retaining a competent attorney in any legal action.

Continue reading "On Prematurity and a Plaintiff's Case for Damages" »

Over the course of the last century, products liability law has become more detailed and specific in terms of protecting consumers from injury caused by products. If a product is found to be defective, in most cases any sellers along the chain of sale can be held liable. This means that, from the manufacturers to the retailer, all parties can be held liable if damage is caused by a product. The reason for this trend in the law is to give the benefit of the doubt to the consumer because the consumer needs protection. Further, stricter laws force manufacturers to produce better products. If they know that a defective product could potentially results in a multi-million dollar law suit, they will make sure the products they produce are safe.

This protection is especially true as it pertains to young children. Because children have less experience in life, there is a higher chance that they can make a mistake which would be unreasonable to make if it were an adult. However, even the law does not extend such benefits fully to all actions by children and teenagers. In a recent case, Payne v. Gardner, the Louisiana Supreme Court identified a point at which even a teenager could not be protected.

In 2004, in Rapides Parish, Henry Goudeau was playing around an oil well pump. The oil well pumps on oil wells move back and forth like a pendulum. As Henry was playing around the oil well pump, he noticed the movement of the pump and decided to use the pump as a pendulum type swing for recreational purposes. Afer he jumped on the pump when it reached its highest point, his leg got caught in another part of the pump which unfortunately lead Henry to be seriously injured. Henry's mother decided to sue the manufacturer of the pump, Lufkin Industries. A serious battle arose as to whom the blame should fall upon. Should Lufkin have know that their pumps would be used as a ride? Should Henry have used better care in making a determination of whether it was safe to ride on the pump?

In situations like this there can be no simple answer. However, the determination must be made with insight into the facts that existed at the time, and their relation to the law. At the trial court level, the court agreed with Lufkin. On appeal, the appellate court reversed the trial court's decision. The case ultimately found its way to the Supreme Court. The products liablity act in Louisiana is as follows:

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

Although Henry was unlucky in his tragic accident and his ultimate case, one can never know who is legally to blame for an injury caused by a product or a machine.

Continue reading "Oil Pump Injury Demonstrates Limits of Liability for Child's Injury" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To win a case, a plaintiff must prove the elements of his or her legal claim, or cause of action. Each cause of action is comprised of certain required elements. For example, in a breach of contract claim, a plaintiff must prove the following elements: duty, breach, causation, and damages. In Louisiana, a resident can sue a municipality for failing to repair a defect in a public street or walkway. In a recent case, the Third Judicial District Court for the Parish of Union (“Court”) discussed the elements required to prevail in such a claim.

At issue in Carol Smithwick and Glenn Smithwick, Individually and as the Administrators of the Estate of the Minor Child, Carsen Smithwick v. City of Farmerville, Community Trust Bank, CTB Financial Corp. and First United Bank, was whether the plaintiffs proved that the City of Farmerville (“City”) had actual or constructive notice of a public way defect - an essential element of the cause of action. Plaintiff Carol Smithwick waited one afternoon for her son at a school bus stop, which encompassed an intersection between two city streets. Ms. Smithwick sustained injuries when she stepped onto the shoulder of one of the streets and tripped on a shallow depression. Seeking $6.2 million in damages, Ms. Smithwick claimed the injury to her right ankle from the fall caused a medical complication in her right knee.

In dismissing the suit, the trial court concluded that the plaintiffs could not prove that the City had constructive or actual notice of a defective condition even though the hole, which caused Ms. Smithwick's injuries, presented an unreasonable risk of harm. On appeal, the Court affirmed the trial court's judgment. According to the Court, a municipality will be held liable for injuries from a defect in the condition of a public way if it had actual or constructive notice of the defect. A municipality has actual notice of a defect or condition if one of its agents or employees had a duty to keep the area in good repair or to report defective or dangerous conditions. Constructive notice is proven if a plaintiff can show a defective condition existed for a considerable amount of time and reasonable diligence by the municipality would have resulted in its discovery.

The plaintiffs argued that the City had actual notice of the depression because one of its maintenance personnel, who trimmed the area at issue, stated at a deposition that he knew of the shallow depression. However, the hole described by the employee was in an area different from the location of the depression in question. The plaintiffs also argued that the City had constructive notice of the defect because the City's personnel trimmed and/or mowed the area during the growing season twice a month. However, the Court disagreed and found the argument speculative since the area had not been trimmed since 2004 and there was no evidence establishing that the hole existed since that time.

Accordingly, the Court concluded that the plaintiffs failed to show the City had actual or constructive notice of the defective condition. Moreover, the Court reasoned that throughout the school year, the area was used as a school bus stop and no other parent or child noticed or was injured by the depression.

Smithwick v. City of Farmerville illustrates how important it is to seek competent legal counsel to discuss whether you have a viable claim, which includes whether there is evidence proving each element of a cause of action. Our lawyers can help save you time and money.

Continue reading "Municipality Must Have Notice of a Defect in a Public Walkway to be Liable for Injuries " »

Unfortunate instances can occur when a wild animal is involved. The First Circuit Court of Appeal for the State of Louisiana ruled that defendants Mr. and Mrs. Rivett, who were sued in addition to their insurer, are not liable for the injuries sustained by the plaintiff when he was riding their horse. The plaintiff sued under an ordinary negligence claim under Article 2321 of the Civil Code of Louisiana (amended in 1996), which renders the owner of an animal liable for damage caused by the animal. For the owners of all animals except dogs, an ordinary negligence standard applies. For dogs, a strict liability standard was retained.

In order to recover under Article 2321, the plaintiff must prove by a preponderance of the evidence that (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element); and (5) actual damages (the damages element). If the plaintiff fails to show any of these elements, there is no liability. The First Circuit referred to this analysis as the duty/risk analysis.

On appeal, the plaintiff asserted that the trial court committed five legal errors. The First Circuit found that the trial court did err by not instructing the jury with the correct standard with which to evaluate the defendants’ conduct and therefore set aside the jury verdict finding for the defendants. The court reviewed the case de novo, without giving any weight to the factual findings of the incorrectly instructed jury as it usually would, and still found that the plaintiff had not been able to establish that the defendants were negligent for the injuries caused by the startled horse.

In this case, the defendants own four horses and keep them for recreational purposes. They had owned Breeze, the horse at issue, for approximately one year and had not experienced nor knew of any previous occasions when Breeze was uncontrollable. The evidence at trial was contradictory as to what the plaintiff told Mrs. Rivett about his previous riding experience and exactly when the horse began to run, against the plaintiff’s wishes. However, there was uncontradicted testimony by Mrs. Rivett that Breeze was the calmest of the four horses they owned and had never been uncontrollable or hard to handle. Mrs. Rivett rode Breeze frequently and never saw any indication that Breeze had a bad disposition or a mean spirit. In addition, an equine behavior expert examined Breeze and found nothing that would lead him to conclude that Breeze was uncontrollable or skittish.

Since the appellate court found that the plaintiff could not show that the Rivetts were negligent, it dismissed the plaintiff’s case and charged him with the costs of the appeal.

If you have been injured by an animal other than a dog, you must be able to show that the owner failed to comport with a duty of care. If you have been injured by a dog, the owner is strictly liable for the damage, and the standard the plaintiff must prove is not as high. Speaking with an attorney about this burden of proof, as well as financial compensation for harm suffered, is the best course of action when trying to remedy such an incident.

Continue reading "Pointe Coupee Parish Owners of Horse Not Liable For Injuries Sustained By Guest " »

In 1996, a group of plaintiffs filed a petition for damages against the city of Baton Rouge/Parish of East Baton Rouge alleging that the operation and maintenance of the North Wastewater Treatment Facility caused personal inconvenience, mental suffering, embarrassment, and personal injuries, threatening their health and safety, as well as damaged their land and property. The trial court awarded monetary damages to nineteen plaintiffs for stigma damages and added plaintiffs back who had been dismissed for no property interested, awarding damages for discomfort and inconvenience. However, in a 2009 decision (that can be found here: 2009CA1076), the Louisiana Court of Appeals reversed many of the damage awards based on errors of law.

On appeal, the Louisiana Court of Appeals considered whether the trial court erred because the prescriptive period had expired, erred in awarding damages out of the 1997 expansion of the plant, or erred calculating damage amounts. Under La.R.S.9:5624, the prescriptive period for public property damage claims like this one is two years. The court agreed with plaintiffs that the period did not lapse because the latest expansion of the sewage plant can be viewed as a new public work event - thus plaintiffs were only responsible to file suit within two years of the 1998 expansion, not within two years of the plant's original opening in 1960.

The trial court awarded damages under Article I Section 4 of the Louisiana Constitution, which provides that "property shall not be taken or damages by the state or its political subdivisions except for public purposes and with just compensation paid to the owner." The Louisiana Supreme Court has addressed inverse condemnations like this one in the past (where the state is not taking other's property, but rather damaging it through their own property) and noted that "Despite the legislative failure to provide a procedure to seek redress when property is damaged or taken without the proper exercise of eminent domain this Court has held that a cause of action must arise out of the self-executing nature of the constitutional command to pay just compensation." As such, individuals whose land is damaged by the government have constitutional redress.

The Supreme Court has also provided five elements that must be proven in such a case: (1) that the property rights are at issue; (2) that the act alleged to have caused damages was undertaken for public purposes; (3) that the acts of the government violate Civil Code articles 667 through 669; (4) that the government has engaged in excessive or abusive conduct and (5) that their property has either been physically damaged or has suffered "special damage peculiar to their particular property." The Supreme Court has also found that as long as the activities on State land do not exceed the level of causing claimant some inconvenience there can be no taking or damaging of the property right.
Basically, in a case like this one, proof of personal injury, physical damage to property, or the presence of excessive or abusive conduct must be made. Here, the Court of Appeals found that it was unclear whether the trial court applied the correct legal criteria. Plaintiffs suffered inconvenience, but inconvenience alone is not compensable. The Court found that several errors were made at the trial court level:

First, plaintiffs can only be compensated for damages sustained by expansion of the treatment plant that occurred in 1997 and 1998 because earlier claims had prescribed, and as such, damage for odors existent in 1995 were awarded in error. Additionally, the court can only award stigma damages if they resulted from the expansion of the sewage treatment plant. However, plaintiff's real estate expert concluded that the proximity of the treatment plant generally resulted in property damage ranging from 13,000 to 30,000 per home. The expert did not consider the effect of the expansion in particular. The expert testified that only one home was actually damaged by the expansion itself due to the fact that post-expansion his home was no longer directly across the street from a BREC park. Other damages were awarded in error.

Finally, damages were also awarded to a number of plaintiffs for discomfort and inconvenience during the 17 months of expansion itself. However, the evidence did not establish absusive or excessive conduct or any physical damage or personal injury. Ill effects of construction are unavoidable and generally not compensable.
As this case demonstrates, sometimes litigation can be a rollercoaster with claimant's fighting for a favorable ruling only to have it reversed and damages rescinded. Competent representation is crucial to fight all of the battles in the court case, through trial, appeal, and beyond.

Medical Malpractice Claims Against Public Sector Health Providers Must Be Submitted to a Medical Review Panel

The State of Louisiana Division of Administration, headquartered in Baton Rouge, requires that that medical malpractice claims against public sector health care providers must be processed through its administrative procedure, starting with the claim's submission to the Commissioner of Administration.

A request for a medical review panel must be in writing and contain:
- A request for the formation of a medical review panel.
- The name of the patient.
- The names of the claimants.
- The names of defendant state health care providers.
- The dates of the alleged malpractice.
- A brief description of the alleged malpractice as to each named defendant state health care provider.
- A brief description of alleged injuries

Once the claim has been filed, several time-sensitive procedures are triggered. First, the Commissioner of Administration to whom the claim is submitted has 30 days to complete the following:

- Confirm to the claimant that the claimant's complaint has been received.
- Determine whether the defendant is or is not a qualified public health care provider with State of Louisiana.
- Determine amount of filing fee owed or paid.

a. If filing fee not paid, acknowledge claimant, advise of qualifications, request payment of filing fees and diary for forty-five (45) days for money to be collected from claimant or affidavit or forma pauperis ruling.
b. If filing fee paid, acknowledge claimant and advise the Office of Risk Management in order for an attorney to be assigned to represent the defendant(s) and notify defendant(s).

- Notify all named defendants that a complaint has been filed as well as a request for the formation of a Medical Review Panel.

Then, before the claim can move forward, it must be presented to the medical review panel who generally has twelve (12) months after its chairman is selected to render an opinion on the claim. The parties determine the chairman from a list of five local attorneys submitted to the Commissioner of Administration by the Clerk of the Supreme Court. The Medical Review Panel also contains 3 physicians; each party selects one each and then those selected physicians select the third physician.

Once the Panel is formed, the parties may submit evidence and testimony for its consideration and can convene the panel at a mutually convenient time and place. Within 30 days, but in all events with 180 days after the last panel member is selected, it shall issue its expert opinion.

Costs

If the panel finds in favor of the Defendant(s) the Division of Administration shall pay the costs of the Medical Review Panel. If It holds in favor of the Claimant, he shall pay the costs. If, however, the panel finds that there is a material factual issue that needs resolution in court, the costs shall be split between the claimant and the Division of Administration.

The Claimant must pay a filing fee within forty-five days of the acknowledgment letter from the Commissioner - it is $100 per named defendant. But, this fee may be waived by either the submission of an affidavit by a physician certifying that the claim constitutes a breach or an in forma paureris ruling issued by a district court holding that the malpractice claim could properly be brought.

Submitting a claim for medical malpractice pursuant to this requirement and its procedures can be an intimidating prospect. In order to bring a successful claim, one really should seek expert advice from an attorney to navigate the often confusing and technical waters of this administrative process.

Continue reading "Medical Malpractice Claims Against Public Sector Health Providers Must Be Submitted to a Medical Review Panel" »

In the Parish of Acadia, the Third Circuit Court of Appeal decided a case that clarifies how punitive damage awards are to be applied to vicarious liability cases. In Bonnie Romero v. Clarendon America, Bonnie Romero (plaintiff) was hit by an 18 wheeler truck. The truck was driven by an employee of Stanford Trucking (Stanford). In their filing, the plaintiff argues that the truck was being driven within the scope of the truck driver's employment. Plaintiff also alleges that the driver was intoxicated at the time of the accident. Stanford asked the driver to submit to a drug and alcohol test following the accident. The driver refused to submit to the test and was subsequently fired. Plaintiff filed for summary judgment asking the court to award punitive damages against Stanford because it was vicariously liable for the driver's actions. Plaintiff also filed a motion to compel Stanford to submit to requests for discovery. Stanford cross-filed for summary judgment stating that it was not vicariously liable for punitive damages as a matter of law. The trial court granted Stanford's summary judgment and denied both of plaintiff's motions.

The Court started its discussion by stating that in Louisiana there is a strong public policy against punitive damages. Thus, in order for an award for punitive damages, the right must be clearly signified in a statute. Even if a statute created a right for punitive damages, it would be strictly construed by a court. As such, it is a matter of how Louisiana statutes are worded in order to determine whether a right for punitive damages exists in a vicarious liability case. Louisiana Civil Code Article 2315.4 states in pertinent part,

exemplary damages may be awarded upon proof that injuries on which the action is based were caused by wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.

Thus, this statute makes clear that when the driver of a vehicle causes an accident due to the driver's intoxication, a right of punitive damages may exist. At this juncture, it is essential to discuss the motives and policy behind punitive damages. Compensatory damages exist to make a person whole. Whether the damages are for injuries, lost wages, mental distress, or any other such variety, the ultimate purpose is to place the person who is injured in the position they would be in if that accident did not happen. The purpose of the punitive damage award, on the other hand, is to punish the person liable for the accident. In cases where the action of the liable party are egregious, or in the case of Article 2315.4 "wanton or reckless", the judicial system steps in to make the person whole, and punish the liable party to discourage such action in the future.

Louisiana Civil Code Article 2320 covers vicarious liability, and states in pertinent part, "In the above cases, responsibility only attaches when the masters or employers, teachers, or artisans might have prevented the act which caused the damage, and have not done it." Plaintiff never alleged either that Stanford was the cause of driver's intoxication, or that Stanford could have prevented the driver's intoxication, but did not do so. In fact, the facts of the case showed that after the accident occurred, Stanford required the driver to submit to a drug and alcohol test, and after the driver refused, he was terminated. The Court referred to a string of cases that held that those who supplied alcohol to drivers who subsequently were involved in automobile accidents were not held liable for punitive damages. The reason was that as Article 2315.4 clearly states, it is the driver of the vehicle who is liable for punitive damages because of the choice of driving while intoxicated. No statute clearly states that the provider of alcohol is vicariously liable for punitive damages, or that an employer can be liable based on the facts of the case. Thus, based on Louisiana's stated policy against punitive damages, Stanford was not held liable for punitive damages in this case.

It is not always clear what rights and claims a plaintiff may have after an accident. Sometimes the law is not so clearly set out that immediate determinations can be made regarding what a plaintiff should expect out of litigation. On many occasions it may take litigation to discover that a plaintiff has more or less claims than originally thought. Legal advice can make the journey after any accident easier to encounter. Solid and competent legal advice can help protect plaintiff rights and enlighten plaintiffs on what types of damages they may attain.

Continue reading "Louisiana Court of Appeal Clarifies Application of Punitive Damage Award" »

The appellate process in the American judicial system is an important aspect of rights afforded to parties in a litigation. The determinations made at the trial court level are usually left unchanged. The factual analysis of the trial court is left unchanged except under extreme circumstances. It would take a fundamental error on the part of the trial judge to be reversed on a factual matter. Even more protected is the credibility determinations made by the trial judge. The reason for this is that trial judges are usually the only ones who are present to view the body language and tone of voice of any witness on the stand. Further, the trial judge is usually the one who is the best equipped to make appropriate credibility determinations due to experience. An appellate court would have to find the factual and credibility determinations made by a trial judge to be wholly unsupported by the evidence in order to overturn a trial court determination. Louisiana law states that a court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Regarding credibility determinations, the law in Louisiana states that where testimony conflicts, an appellate court should not disturb the factual findings of the trial court because it feels that its evaluations and inferences are more reasonable.

Shakeya Johnson v. The City of Shreveport, is a recent case that outlines the process by which an appellate court can review a trial court's determination. On July 4th, 2007, in the city of Shreveport, Shakeya Johnson (plaintiff) was driving down Creswell avenue. As she approached the intersection with Marshall street, where the intersection on her road was regulated by a red traffic light, a police officer was headed towards the same intersection from Marshall street, where his road was regulated by a yellow traffic light. This meant that, at the intersectio,n Shakeya was supposed to make a complete stop as if she were at a stop sign. Instead of doing this, she ran the into the intersection and into the passenger side of the police officer's vehicle. After the accident, she filed suit claiming that the police officer was at fault for the accident and was liable for lost wages and medical expenses incurred due to the accident. Further, Shakeya's mother, Shirley, was also a plaintiff because she was the owner of the vehicle and claimed that the officer was liable for damage to her property. The trial court found, based on the evidence at hand, that the evidence available indicated that Shakeya was at fault for the accident.

The facts used by the trial court were based on photos that showed that Shakeya's side of the intersection was regulated by a red light. Thus, she had the responsibility to stop at the intersection. Further, photos showed that the officer's passenger side was hit, which indicated that the officer was well in the intersection by the time Shakeya got there. At trial, there was contradiction from the plaintiff's witnesses as to whether there was a fifth passenger in the vehicle that Shakeya was driving that night. This led the judge to make a credibility determination of plaintiff's witnesses that was also used in the trial judge's ultimate determination. The issue on appeal is whether the trial court's findings were reasonable under the evidence presented at trial. It was clear to the appellate court that the factual and credibility determinations made by the trial court were reasonable. Thus, the appellate court upheld the trial court's determination.

While this case went against the plaintiff, in the event that another party were responsible, a skilled attorney would be able to provide the representation necessary to receive the ruling you deserve. If you have been the victim of reckless driving, or have been hurt in any type of accident, you should seek legal and medical advice immediately. Speaking to an attorney can help inform you of your rights.

Continue reading "Accident Involving Police Car Tests Appellate Court Ruling Basis" »

Car accidents occur every day, and the first question that is usually asked is who was at fault for the accident. This determination is not easy, however, a Louisiana second circuit court of appeal's case explored fault in order to allocate liability to the parties respectively. In Gentry v. State Farm, the Court held that both parties were at fault, the defendants were found to be 75% at fault, while the plaintiff, Gentry, was 25% at fault. The court came to this conclusion after looking at both drivers duties while driving, analyzing whether the drivers breached their duties, looking into the rules of the road, determining whether the duties of the road were breached, and looking at the duties that were found to be breached by each driver in order to find the ultimate percentages of fault in order to allocate damages. Thus, it is not always an either/or situation (one party may not be wholly responsible for the car accident) but, rather, partially responsible, so the analysis takes on a more in depth review of the circumstances that existed at the time of the accident.

An appellate court must give great deference to the allocation of fault determined by the trier of fact. Consequently, the allocation of fault may be determined within an acceptable range and any allocation by the fact finder, or trial court within that range, cannot be clearly wrong. The only way an appellate court may disturb the trial court's fault determination is if the apportionment of fault is clearly wrong, allowing the appellate court, only then, to disturb the trial court's award. Here, both parties were seeking a finding of 100% fault for the opposing party, asking the appellate court to reverse the apportionment determination found by the trial court in order to dismiss the percentages of fault that were initially determined. If the trial court's determination of fault is found to be clearly wrong, the appellate court is then permitted to adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court's discretion.

After reviewing both party's evidence put forward at the trial court level, the appellate court determined that manifest error existed in the record, and allowed for a reframing of liability findings, but only to the minimum extent to achieve reasonableness. So, it is not unheard of for appellate courts to find error of fault determinations held at the trial level, if the trier of fact proves to be clearly wrong, the appellate court may proceed to adjust accordingly.

In the instant case, each side requested the appellate court to assess the other party with 100% fault. But, after reviewing the facts, the appellate court determined they were each at fault at varying percentages. The car accident involved a son driving his father down the right lane of West Bern Kouns four lane highway. At the same time, leaving his plumber and pipefitter's school, the plaintiff apparently came to a stop before entering the highway. It was at this point that the accident occurred, with the defendant's vehicle crashing into the plaintiff's. Here is where the facts become complicated; the defendants stated that the plaintiff pulled his vehicle out in front of them, causing the accident. However, the plaintiff states that as a result of his injuries incurred from the accident, he could not recall anything except stopping before the crash. The accident report assessed the plaintiff's inattentiveness as a cause of the accident, although no one was formally cited with a violation. Also, a witness, who was behind the plaintiff when the accident occurred, stated that the defendant's care traveling at 60-65 miles per hour, struck the plaintiff, and that he never saw the plaintiff's brake lights go out before the crash. This would indicate that the plaintiff did not pull his vehicle out in front of the defendants as they maintained. However, the fact that the plaintiff could not recall any specifics in relation to the accident may have hurt his case. The defendants on the other hand, were determined to have had the right of way and high quality evidence, including:

- The father and son's testimony,
- The accident report's finding that the plaintiff's inattentiveness was a cause of the accident, and
- the witnesses admission that he was unsure whether or not the plaintiff was intruding on the highway or not at the time of the crash.

The appellate court concluded that manifest error was in the record, and permitted them to reframe the liability findings, but only to the minimum extent to achieve reasonableness. The ultimate determination was the plaintiff at 75% fault, and the defendant to be 25% at fault, with costs of court to be assesses on the same basis. The strong evidential support the defendant's offered outweighed and ultimately helped them reduce the fault determination initially made by the trial court.

Fault is not something that can be determined in an "all or nothing," type fashion. Rather, it is a careful weighing of the facts in order to determine how each party may have added to the ultimate fault, the car accident. Both parties here put forth evidence to support their side; however, one the defendant's evidence simply outweighed the plaintiff's. Thus, the appellate court, after reviewing the record, determined that the initial fault determination was clearly wrong, and reallocated the fault percentages to better illustrate the evidentiary findings. Thus, fault is a step by step analysis that requires exploring each piece of the puzzle in order to accurately assess who is at fault, and for how much.

Previously on this blog, we have looked at a variety of cases involving premises liability. Most have centered on an injury that occurs when the plaintiff visits a store or other commercial enterprise; in those cases, the defendant faces a heightened "merchant" standard of care under state statute, namely La. R.S. 9:2800.6. This post will add to the discussion by reviewing a recent case in which the First Circuit Court of Appeal considered the premises liability standard applicable to a hospital in a trip-and-fall case.

On August 14, 2007, Marion Terrance visited the cafeteria at the Baton Rouge General Medical Center. Terrance allegedly slipped on the mat in front of the ice machine that had become soaked with water. She injured her groin and lower back in the resulting fall. Terrance filed suit against the hospital alleging negligence due to the "unreasonably dangerous foreign substance" on the floor (water) and that the hospital had failed to clean it up. The hospital denied that the fall occurred at all and argued that it had no knowledge of any foreign substance on the floor. Conflicting testimony was presented during the bench trial. The cafeteria supervisor, upon being informed of Terrance's fall by another employee, immediately inspected the floor around the ice machine and found a dry mat and no spilled water. She also reported that the fall would have occurred just shortly after her most recent routine floor inspection, during which no water was noted. In fact, hospital employees had never noticed any water dripping from the ice machine. Nevertheless, the trial judge entered judgment in favor of Terrance and awarded her $26,910 in damages. The trial court's decision rested on the "unreasonable condition" that existed around the ice machine that caused Terrance to slip and fall. The hospital appealed, arguing that there was no evidence that an unreasonably dangerous condition existed at the time of Terrance's injury.

The First Circuit Court of Appeal began its analysis by establishing that hospitals are not covered by the merchant standard for premises liability contained in La. R.S. 9:2800.6. Instead, general negligence theory would apply. Under this standard, a hospital owes a duty to its visitors to "exercise reasonable care for their safety," but the duty owed is less than that required of a defendant engaged in a commercial enterprise. The court explained that once Terrance made her allegation that she slipped, fell, and injured herself because of a foreign substance on the hospital's premises, the burden then shifted to the hospital to show that it "acted reasonably to discover and correct the dangerous condition reasonably anticipated." The court noted the dispute at trial over the existence of a wet floor at all, but did not find any error in the trial court's factual finding that the water did, in fact, exist and that it caused Terrance to fall. However, the court did take issue with the trial court's immediate award of damages to Terrance without permitting the hospital to attempt to rebut the presumption of negligence:

"The trial court should have analyzed and considered whether the hospital acted reasonably to discover and correct the dangerous condition that it could have reasonably anticipated near the ice machine in the cafeteria... If the trial court had properly considered the hospital burden, a different outcome should have been rendered in this case."

This case points up the distinction in Louisiana jurisprudence between profit-seeking businesses and (presumably non-profit) community service providers like hospitals. The former, which exist primarily to "sell goods, foods, wares, or merchandise," are subject to a heightened duty to keep their premises in a safe condition for all customers and other visitors. The latter are evaluated under simple negligence standards.

Continue reading "Baton Rouge General Medical Center Slip-and-Fall Case Confirms Hospital's Premises Liability Standard" »

The level of care required of medical practitioners is very high. This is because people put their trust, and sometimes their lives and well being in the hands of a doctor or surgeon. The level of care is high because we must attain the very best from the people who perform the most delicate and important tasks the affect our lives. This is true of doctors, lawyers, and anyone else who has the position of a fiduciary. When the level of care falls below the bare minimum, the result can be disastrous. In a recent case, Ronald and Peggy Bianchi v. Dr. Ernesto Kufoy, the Third Circuit Louisiana Court of Appeal had to decide whether damages done to a patient were a result of the doctor's negligence or were an acceptable outcome of the procedure.

On October 30, 2002, Mr. Bianchi went to Dr. Kufoy for a cataract surgery and the implantation of an artificial lens in the right eye. The lining of the old lens was to remain intact so as to allow the placement of the new artificial lens on that lining. However, during the surgery, the old lining was torn out. It was found that this could occur without any negligence. Another artificial lens was used due to this complication, and it was not argued that anything had occurred during this setback that amounted to medical negligence. When Mr. Bianchi returned for his post surgery check-up, he complained of pain in his right eye. Dr. Kufoy checked the eye, but did not investigate the cause of the pain and the resulting loss of eye sight. Over the course of the next few days, Mr. Bianchi's eye pain increased. When he came to see Dr. Kufoy next, Dr. Kufoy diagnosed him with a form of glaucoma and referred him to a specialist. By the time he went to the first specialist, Dr. Jeff Lanier, Biachi had only light perception in his right eye. This was one step above total blindness. Dr. Lanier disagreed with Dr. Kufoy's glaucoma diagnosis, and found that there was a hemorrhage in the choroid, which likely began during the initial surgery. The second specialist drained the hemorrhage.

At trial, the jury found that Dr. Kufoy's actions were lower than the level of care required by his profession. The jury also found that there were clear damages to Mr. and Mrs. Bianchi. In a medical malpractice case, the plaintiff has two levels of burden. First, plaintiff must prove by preponderance of the evidence that the doctor's treatment fell below the standard of care required for the profession. Second, the plaintiff must prove that the sub-par standard of care resulted in the injury. The jury based its determination that there was no causation shown on the fact that there was contradicting evidence. The Appellate Court cited to the standards it was using to judge the jury's determination:

When different medical procedures are involved, the defendant is liable not only for harm resulting from his substandard treatment, but for subsequent treatment that seeks to resolve the original harm. Under the appropriate standard of review, we do not consider only so much of the evidence as will uphold or undermine the judgment, but rather the whole of the evidence with an eye to determining whether the judgment is plainly wrong.

The plaintiff does not necessarily have to show that all the damage was as a direct result of the doctor's negligence. Rather, what can be shown is that due to Dr. Kufoy's negligent treatment, there was a loss of a chance of a better medical outcome. Based on the record, when Mr. Bianchi came in for his post-surgery check-up, Dr. Kufoy's failure, on multiple occasions, to diagnose the cause of the eye pain and loss of vision resulted in a much more dire situation by the time Mr. Bianchi received treatment by specialists. The trial court focused on actions taken by Dr. Kufoy at the time of surgery and found that none of the actions by themselves amounted to negligence. However, the record must be viewed in its totality, which shows that the post-op steps taken by Dr. Kufoy were insufficient under reasonable standards of care, which resulted in a loss of a chance of a better medical outcome. The Appellate Court reversed the decision of the jury.

If you feel you have received substandard medical care that has resulted in pain or aggravation of prior symptoms, your first course of action should be to seek a second opinion of a medical specialist. Your second court of action should be to seek legal advice.

Continue reading "Duty of Care Doctors Owe their Patients and Medical Malpractice" »

In a very recent Louisiana Court of Appeals Case, the Court took a rare action to uphold summary judgment when considering whether the lead vehicle in multi car pileup was negligent. The Court found the lead driver, Martin Lopez, was not negligent because he acted with ordinary care. This idea of ordinary care is extremely important

The accident in question occurred in Shreveport, Louisiana. Adam Parisy was driving north on I-49 with 3 passengers. He exited on a high rise ramp that curved over I-49 to Highway 3132, behind a freightliner driven by Lopez. The turbocharger on the 18 wheeler exploded, engulfing the area in smoke. Lopez pulled the liner over, unaware of any collission. Parisy stopped at the top of the ramp because he couldn't see and was rear ended by another drive, who was also rear ended.

Parisy and two of his passengers were seriously injured. Several separate lawsuits were filed, including against Lopez, his insurer, and his employer, which were dismissed via summary judgment.

Under the Sudden Emergency Doctrine, someone who finds themselves in imminent peril, without time to consider all the circumstances or the best steps to take to avoid danger, is not guilty of negligene if he fails to adopt which subsequently appears to be the better method of action, unless the emergency is brought by his own negligence.
Here, plaintiffs argue that the second driver's truck slammed into their vehicle and drove it into Lopez's rig. Because the collision was so severe, they remember only seeing smoke and stopping. The plaintiffs also allege that there are questions of fact as to whether Lopez stopped his vehicle after the turbocharger blew. However, they have no direct testimony to support the theory and only offer proof of a scratch on Parisy's vehicle that was not there before. Lopez's testimony that he did not stop is corroborated by the other two drivers. Additionally, the police report does not indicate there was a collision between Parisy's vehicle and Lopez's truck.

The plaintiffs also argue that Lopez was negligent because his truck caused the smoke and white out. However, the record shows that the turbocharger had been replaced two months before the blowout - there was no advanced warning that the new turbocharger would malfunction and everything indicates that Lopez and his employer exercised ordinary care. It is also argued that Lopez acted negligently in his reaction to the blowout. Lopez was faced with loss of power and visibility and had to make an instance decision, which he did, to put the vehicle and neutral and coast it to a safe location. Now that we are far removed from the accident, the plaintiff's suggest this was not the best course of action, however, Lopez acted with ordinary care in attempting to remove the danger by getting off the ramp.

If you have been in an accident and believe another driver's negligence was to blame, it is important you have an attorney with enough experience to know whether the Sudden Emergency Doctrine or some other law applies that may negatively impact your ability to be successful in your case. One of our talented lawyers would be happy to answer any questions you might have.

Regular readers of this blog are no doubt aware that the Louisiana Medical Malpractice Act requires that all "claims against healthcare providers be reviewed or 'filtered' through a medical review panel before proceeding to any other court." Also, medical malpractice suits are subject to a period of prescription -- that is, the action must be filed within a certain period of time following the incident. La. R.S. 9:5628 establishes that this time period is one year from the negligent act or the date of its discovery, with the added limitation that the discovery extension is inapplicable after three years. State statute also specifically addresses how the medical review panel's review of the case affects the prescriptive period. According to La. R.S. 40:1299.47(B), the running of the prescriptive period is suspended by the medical review panel's proceedings until the panel's decision is communicated to the plaintiff. In effect, the time required by the panel to review the case and issue a finding does not "count against" the plaintiff when determining the latest point at which the law permits him or her to file suit.

The plaintiff in the recent case of Blake v. Maley saw the dismissal of her suit due to her failure to file the action before the prescription period expired. Beverly Blake filed a request for a medical review panel on June 2, 2004. The request alleged medical malpractice against Dr. Warren Maley and the Willis Knighton Medical Center in Dr. Maley's misdiagnosis of a fatal drug reaction suffered by her husband, Barry, who died on January 31, 2004. The medical review panel rendered a unanimous decision in favor of the defendants on May 15, 2007 and mailed the decision letter to Blake on May 25, 2007. Blake filed suit on November 3, 2009. In response to Dr. Maley's subsequently filing an exception of prescription due to the delay, Blake responded that she was mentally incapable of filing the claim in a timely manner because she was severely depressed during the month of July, 2009. The trial court granted Dr. Maley’s exception and dismissed Blake's suit. On appeal, the Second Circuit noted that Blake "concede[d] that the date of the alleged malpractice occurred on June 22, 2003, when Barry Blake received the drug" that caused the fatal reaction. Thus, Blake's request for medical review by the panel was timely, and her "cause of action was suspended by the medical review panel proceedings until the mailing of the opinion on May 27, 2007." After that date, the court calculated, Blake had 90 days plus the additional 20 days left on her original one-year period to file her suit. Yet, Blake filed her suit on November 3, 2009, "nearly two years after the prescriptive period for filing suit had tolled and more than six years after Blake’s stated date of the act of malpractice." Blake's argument for additional tolling due to her mental condition did not move the court. Observing that Civil Code Article 3468 provides that "[p]rescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation," the court determined that no statutory exception was available and that, accordingly, Blake's "claims have clearly prescribed."

The Blake case demonstrates the courts' strict adherence to the timing requirements contained in Louisiana's prescription statutes. While a widow's state of depression following the death of her spouse is entirely understandable, it is critical to remember that the law demands swift action on the part of plaintiffs to initiate a lawsuit in medical malpractice cases.

Continue reading "Court Discusses Prescriptive Period in Medical Malpractice Case" »

Many families in America have had to move their loved ones into a nursing home. Whether the reason is that they don't have the room to care for the elder, they don't have the time or money to provide adequate care, or their elder wishes to be in the nursing home, the decision to send them to a nursing home is a difficult one. Families may be concerned about the level and amount of care their elders receive at the nursing home. Continuous stories of abuse at nursing homes may also be a cause of concern for families. Nursing homes are given a high level of trust in the care of their patrons. When this level of trust is broken, the results can be horrific and unacceptable. The law provides for levels of care that nursing homes and medical practitioners have to live by. Once these levels of care are ignored, the law steps in to provide relief for families.

In Braud v. Woodland Village, LLC, the issue was whether the trial court instructed the jury to view the case under the right legal standard. Mr. Braud was diagnosed with Alzheimer's disease and Pick's dementia. This combination of diseases left Mr. Braud with many issues including an eating disorder and a higher chance of heart attack. Mr. Braud was moved to Woodland Village nursing home (Woodland). After his arrival at Woodland, Mr. Braud began showing signs of aggression towards staff. He was prescribed anti-psychotic medication as part of his treatment. After some time, Mrs. Braud reported to her husband's physician that Mr. Braud seemed very zombie-like. The physician instructed the Woodland staff that they were to check on Mr. Braud every 15 minutes for signs of distress. This was carried on for some time. The method used to check on Mr. Braud was to look through the window into his room to observe whether he was under any distress. The Woodland staff were never instructed to enter the room to check close-up. On September 2, 2004, after a 45 minute period of no Woodland staff checking on Mr. Braud, he was found to be unresponsive. Woodland staff called paramedics who arrived to the scene to find that Mr. Braud was likely dead for at least an hour before their arrival from a heart attack. At no point did any member of the Woodland staff attempt CPR on Mr. Braud. Mr. Braud's family (collectively "plaintiff") filed suit against Woodland for wrongful death and were awarded an amount of $1,650,000. After trial, defendants argued that (1) there was no harm from alleged medication errors (2) there was no evidence that Mr. Braud could be resuscitated (3) the award of $1,650,000 was far above the $500,000 statutory amount (4) there was no evidence that Woodland caused the heart attack and (5) evidence presented proved, at most, that there was a loss of chance of life, not that there was wrongful death. Woodland lost on all of these claims except that the amount of damages was reduced to $500,000. Woodland appealed the decision stating that the trial court's refusal to include jury instructions for the "loss of a chance of survival" claim was a grounds to reverse the jury decision. The plaintiff appealed the decision to reduce the damages to $500,000.

In Louisiana, pursuant to LA.Rev. Stat. Section 9:2794(A), to find medical malpractice, the plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician's alleged negligence and the plaintiff's injuries resulting therefrom. The standard attributed to the physician is the standard used in Louisiana, based on the type of field, locale, and community in which the physician or medical practitioner practices. Further, in order for an appellate court to overturn a fact-finder's decision, a two-prong test is used to analyze the result. First, the appellate court must find from the record that a reasonable factual basis does not exist for the finding in the trial court. Second, the court must further determine that the record established that the finding is manifestly erroneous.

The Appellate Court found that the record did not contain evidence sufficient enough to find a reasonable basis for it. Throughout the testimony, every expert refuted the idea that any action taken on the part of the Woodland caused Mr. Braud's heart attack. Even the expert for plaintiff determined that no medication administered, or medication withheld led to Mr. Braud's heart attack. Another expert stated that the heart attack was likely the result of the Pick's dementia. Pick's dementia leaves the victim with an eating disorder, which at Mr. Braud's age could lead to significant damage to the body. Further, there was no action taken by any Woodland employee that caused Mr. Braud to have the heart attack. At most, not following the physician's order of checking on Mr. Braud every 15 minutes, in addition to not performing CPR after calling the paramedics was negligence that allows for a claim of loss of a chance of survival. The issue was, as argued by Woodland, that the trial court did not instruct the jury as to the "loss of a chance of survival" claim. The burden of proof of both the wrongful death claim and the loss of a chance of survival claim are the same. The plaintiff must prove that there was a chance of survival and that this chance was lost due to defendant's negligence. Since the trial court did not instruct the jury as to this claim, this impacted the determination of the jury, which amounted to legal error. For these reasons, the appellate court sent the case back to the trial court at which time the jury should be instructed on the loss of a chance of survival claim.

It may be a harsh decision to reverse a win for a family that lost a loved one. It is clear that there is a chance that Woodland was liable to plaintiff. The Court's decision reminds us that there was more than one claim upon which plaintiff could have based its legal theory. The Court won a battle on behalf of the legal system by emphasizing that even if a defendant is liable, the defendant will not be liable for a claim for which it is not responsible. The correct legal standards should be applied to defendants to ensure the proper determination of justice. If you or a loved one have been injured due to the negligence of a physician or medical practitioner, it is essential that you seek immediate legal advice. As Braud v. Woodland Village, LLC. demonstrates, there are many legal theories upon which your rights are protected.

Continue reading "Court Dissects Nursing Home Wrongful Death Case" »

In June 2010, the First Circuit of the State of Louisiana Court of Appeal reversed and remanded the case of Lena Hebert et al. v. Plaquemine Caring, L.L.C. due to a legal error committed by the Eighteenth Judicial District Court for Iberville Parish. This legal error proved to be a compelling element to the case and demonstrates why a competent attorney is highly important, especially in the case of a loss of a family member or other personal injury element.

The plaintiffs in this case are the survivors of the deceased, Mr. Morgan Hebert. He suffered a fractured hip from falling, but had a heart attack before he was able to undergo surgery. Upon leaving the hospital, Mr. Hebert was discharged to a long-term skilled nursing facility owned by the defendants, Plaquemine Caring, L.L.C. At the time Mr. Hebert was admitted to the nursing facility, he had been diagnosed with several serious conditions, which required him to be dependent upon a ventilator. On October 19, 2001, his family members found him cold and nonresponsive. They notified the staff at once and Mr. Hebert was pronounced dead from respiratory failure, cerebrovascular accident, and cervical neuropathy.

Mr. Hebert’s surviving spouse and children alleged that the defendants’ fault and negligence caused Mr. Hebert’s loss of a chance of survival. After a bench trial, the judge granted the defendant’s oral motion for involuntary dismissal, finding that plaintiffs had not established that a breach of the standard of care was a cause of Mr. Hebert’s death. The First Circuit Court of Appeal reversed and remanded because the trial court used the incorrect legal standard in granting defendant’s motion.

In a lost chance of survival case, the plaintiff does not have to prove that the patient would have lived had proper treatment been given. Rather, the plaintiff has to establish by a preponderance of the evidence that 1) a chance of survival existed in the first place and 2) the defendant’s negligent conduct denied the patient a chance of survival that he or she had before the defendant’s conduct. The defendant’s conduct does not need to be the only cause of death, but the conduct must have increased the risk of harm. The plaintiff can recover even when it is more likely than not that the patient would have died due to a pre-existing condition. In addition, the plaintiff does not have to show that the defendant’s actions led to Mr. Hebert’s death to a “medical degree of certainty.”

At trial, a plaintiffs’ expert testified that Mr. Hebert’s vital signs indicated that he was in distress in the hours leading up to his death. There had been inconsistencies in Mr. Hebert’s chart that were corroborated by sworn testimony by the nursing staff as well as a lack of proper recordkeeping, which meant that no problematic patterns were recorded that might have alerted staff. Another doctor, who was not qualified as an expert witness, testified that Mr. Hebert was in frail health at the time of admission to the nursing facility and that patients with Mr. Hebert’s symptoms commonly experience “sudden death episodes.”

The First Circuit acknowledged that the evidence was not strong, but because an involuntary dismissal in a bench trial is like a directed verdict in a jury trial, the plaintiff must have offered no evidence to support its claims and the facts presented so strongly supported the defendant’s position that no reasonable person could have reached a contrary verdict. Because that was not the case here, the First Circuit reversed and remanded for further proceedings.

In Louisiana, there are certain steps that need to be taken in order to file a case for medical malpractice. In order to get a case to trial, a plaintiff must first submit a malpractice petition to a medical review board. The board reviews the facts surrounding a case and compares health care providers with a basic standard of care required for those practitioners in the locale in which they practice. If the board decides in favor of the defendants, the plaintiff can take the case to a judicial proceeding. A civil case in Louisiana must be filed or settled within a year.

This is the basic fall-back provision of how long a case can remain in effect. The legislature has the authority to add to this period for certain causes of action, in certain circumstances. For example, a medical malpractice claim must usually be filed within one year from the negligent treatment. However, if the plaintiff did not know that the medical malpractice occurred, the plaintiff can file within one year of discovering the malpractice. In any case, no claim can be filed more than three years after the alleged negligent treatment. Thus, even if the negligent treatment is not discoverable until four years have gone by, the plaintiff will be out of luck and the time for filing the suit will have expired.

The medical review board takes a great deal of time to make a decision. Thus, while the review board is making a determination, the one year prescription period is stopped to allow the board to make its decision without taking away the plaintiff's time to bring a case. However, once the review board has made a decision, the plaintiff only has 90 days plus any additional time left over from the one year prescription period to file a claim.

In Beverley Blake v. Dr. Warren Maley, a Louisiana court discussed how these different time frames interlock. Mrs. Blake brought a suit on her behalf and on behalf of her two children due to alleged malpractice by Dr. Maley, when the doctor was treating her husband. As a result of alleged mismanagement of medical treatment, Mr. Blake suffered amputated fingers, feet, and hands. Mrs. Blake brought the matter before the board on June 2, 2004. The alleged malpractice occurred on June 22, 2003. At this point, Mrs. Blake brought the matter before the review board in a timely matter. The board made its decision on March 15, 2007, unanimously ruling in favor of all defendants. On November 3, 2009, Mrs. Blake filed suit against Dr. Maley in court. She stated that the review panel did not make an informed decision and that she was still entitled to file her case before court. She claimed that after her husband died, and after the board made its determination, she fell into an extreme depression and was unable to make determinations. She argued that she had three total years to file her suit. However, in Louisiana, in order to get three years to file a medical malpractice claim, a party must not know, and should not be able to know, that malpractice occurred until a later date than when the malpractice occurred. Mrs. Blake never alleged that she was unaware that malpractice occurred. In fact, her taking the case to the medical board showed that she believed that there had been negligence. Therefore, this argument did not work.

She further argued that since she was in a state of depression she had no idea what was going on. She argued that the one year time period should be stalled during the period when she had fallen into a state of depression. Louisiana law states,"Prescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation." There is no law in Louisiana that excuses a violation of the prescriptive period due to depression. The period continues to run regardless of the plaintiff's mindset.

Mrs. Blake was unfortunate because she lost her legal representation right before she fell into a state of depression. She failed to hire new legal counsel and had thus let the prescriptive period expire without a fight. Acquiring legal counsel gives a party an objective non-emotional partner in a law suit. Even if the party is depressed, sad, or angry, competent legal counsel will remain objective and committed to finding a solution to a problem.

Continue reading "Disastrous Results for Plaintiffs that Wait Too Long to File Suit" »

The Court of Appeals of Louisiana, Third Circuit, recently held the Medical Malpractice Act’s (MMA) award limitation unconstitutional when applied in violation of the Equal Protection clause of the 1974 Louisiana State Constitution. In Oliver v. Magnolia Clinic, a minor child was treated by a nurse practitioner who failed to identify tell-tale signs of neuroblastoma, a form of childhood cancer originating in the nerve tissue, and failed to refer the child for more specialized care in a timely manner. The matter was originally tried before a jury, which returned a verdict against the nurse practitioner in favor of the child's family, for $6,000,000.00 in general damages. The MMA's $500,000.00 award cap would have severely limited this verdict, to one-twelfth of the jury’s award. Plaintiffs filed a Petition for Declaratory Relief asserting the MMA is unconstitutional. The plaintiffs made a number of claims that the MMA cap violates the Louisiana State Constitution, including an argument based on the equal protection guarantee of La.Const. art. I, § 3. Because the court found the “equal protection” argument had merit, it did not address the other constitutional challenges raised by the plaintiffs.

The Louisiana Supreme Court made clear in Everett v. Goldman that unless a fundamental right is impacted or a separate or suspect classification is created, the legislature is constitutionally free to limit damage recoveries or to grant immunities from suit so long as it articulates a rational basis for the discriminatory treatment reasonably related to the governmental interest sought to be advanced. The Supreme Court has also held that the right of malpractice victims to sue for damages caused them by medical professionals does not involve a fundamental constitutional right, and requires only rational basis review. However, because the MMA, on its face, discriminates between classes of people based on physical attributes, the Louisiana Supreme Court held in Sibley II that the State must articulate more than a “rational basis” for the cap in cases involving severely or catastrophically injured victims of malpractice to avoid Article 1, §3’s constitutional bar to its enforcement.

In this case, the minor child is a severely injured victim of malpractice. She was injured as a baby and she will endure a lifetime of devastating and debilitating effects on her capacity to perform even basic human functions. The State failed to present evidence to the contrary. Thus, on appeal, the Court decided that “there simply is no rational reason why the most severely injured malpractice victims should be singled out to pay for special relief for a nurse practitioner who operated in derogation of her statutorily mandated duties.” The Court also concluded that “the cap, to the extent it includes nurse practitioners within its ambit, violates the equal protection guarantees of the Louisiana Constitution and La.R.S. 40:1299.41(A)(1), and, thus, is unconstitutional.” The Court reinstated the jury's award of damages to the plaintiffs.

The legislative purpose underlying enactment of the MMA’s all-inclusive monetary and non-monetary $500,000 award cap in Louisiana was to assure available and affordable malpractice insurance for healthcare providers. The state of Louisiana has a relatively high rate of medical malpractice reports. Louisiana is responsible for 1.3% of all medical malpractice payment reports made against physicians in the United States, a rate higher than over half of the states in the country. This high rate of malpractice indicates that patients should be particularly concerned that they receive the best medical care from their doctors.

A patient is owed the same standard of care regardless of whether the doctor or nurse practitioner has medical malpractice insurance. To have a viable claim for medical malpractice a patient must demonstrate the applicable standard of care, often determined by expert testimony, and that the doctor breached that standard of care as to the patient. The standard of care is a legal term meaning the degree of knowledge or skill possessed or ordinarily exercised by physicians licensed to practice in the state of Louisiana, and practicing in a similar community under similar circumstances. After the standard of care is established the patient must show the care giver failed to provide that level of care. If the doctor's failure to provide adequate care was the cause of the patient's injury, it is likely to be malpractice.

If a patient thinks they may have been the victim of medical malpractice, they have one year to file a claim. A medical malpractice action for injury or death 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. If the claim is not filed within one year of the discovery of the injury, it is barred by the statute of limitations, and may not be filed. It is of paramount importance to file a claim within the statutory period in order to seek relief for death or injury from medical malpractice.

Continue reading "Understanding Medical Malpractice and Legal Caps to Awards" »

Certain legal rights are transferable. If you owe a debt to some entity, upon your death, there is a chance that the entity will have some rights to your estate in order to satisfy your debt. Another example of a transferable right is a right of survival. If the victim in any circumstance has this right, upon the victim's death, the right would be transferable to the victim's family. The concept is relatively easy to understand but the situation gets complicated when the potential rights belong to an unborn fetus.

Throughout the country, different states have different interpretations of when a fetus becomes a person, and this has a big impact on what rights attach to protect the fetus. In Louisiana, the legislature has decided that an unborn fetus can in fact have rights against other persons or entities. However, Louisiana Civil Code article 26, which discusses a fetus' rights, has some important limitations:

An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for actions resulting from its wrongful death.

The Louisiana Supreme Court discussed if survival rights attach to an unborn fetus, stating that fetuses can gain rights. However, for most circumstances, the rights attach only if the fetus is born alive. The Court stated that survival action attaches to someone's life. However, under Louisiana law a fetus that is born dead, is considered to never have existed at all. Even though the fetus gained the right to a survival action, because a stillborn fetus is considered to never have existed at all, the survival action, which attaches to a life, is extinguished.

In a recent case, Cari Long v. North Oaks Medical Center, the issue of survival action came up again. Ms. Long was involved in a car accident. She was pinned as a result of the accident. After emergency services arrived, she was taken to North Oaks Medical Center. The ER doctor and nurse contacted her obstetrician because she was pregnant. At the hospital, the heartrate of the baby was recorded at 120 beats per minute. After being taken out of ER, the doctor found that the fetus did not have a heart rate. Subsequently, the fetus was delivered as a stillborn. Ms. Long filed suit and as one of her causes of action, she claimed a survival action on behalf of the baby. All defendants filed exception claiming that there was no survival cause of action on behalf of the baby that was transferred to the parents. Based on Louisiana Civil Code article 26 and the Supreme Court ruling discussed above, there was no basis for the survival action. Under the current law there is no recourse in this type of circumstance. Only by legislative action can a survival action attach for a stillborn fetus.

While this matter is undoubtedly unfortunate and all parties involve wish that things did not go the way they did. However, the case also illustrates how complex the law can be and the ever-changing nature of some claims. Codified law can be extremely important and having an attorney that understands rights as provided by the state is significant in any matter.

Continue reading "Transferable Rights and How They Pertain to a Lost Pregnancy" »

Medical malpractice cases often turn on whether the plaintiff can establish that the health care provider breached the standard of care. Louisiana's Medical Malpractice Act governs the conduct of health care professionals and mandates that the standard of care owed is that of the average member of the profession under similar circumstances. For the Act to apply, the defendant must be a qualified health care provider. Determining if this is a provider, and if the plaintiff has rights, are two of the most important factors that hiring a competent attorney can help guarantee when filing a case.

At issue in Ruby "Nell" Coleman vs. La Terre Physical Therapy, Inc., D/B/A Terrebonne Physical Therapy Clinic and Donald P. Kinnard, P.T., was the standard of care owed to patients of physical therapists. The plaintiff, Ruby Coleman, attended physical therapy with the defendants following a total knee replacement. Mrs. Coleman sustained injuries to her left knee during physical therapy exercises on a Continuous Passive Range of Motion machine. After it was discovered that Mrs. Coleman sustained a fracture to her knee, she underwent surgery. Afterwards, Coleman filed suit against the defendants, alleging that her injuries were caused by physical therapist Mr. Kinnard's failure to obtain a complete medical history, which would have revealed she suffered from severe osteoporosis. In her suit, Coleman claimed that if Kinnard had done so, he would have administered a safer method of physical therapy. The defendants filed a motion for summary judgment, arguing that Coleman did not show the treatment fell below the applicable standard of care.

The trial court granted the defendants' motion for summary judgment on the grounds that expert witness testimony supported the conclusion that the applicable standard of care was not breached. The plaintiff appealed, but the Louisiana Court of Appeal, First Circuit, affirmed the decision of the lower court. The Court cited Boudreaux v. Panger, in which the Louisiana Supreme Court held that a chiropractor, although not subject to the Medical Malpractice Act, is judged by the standard of his or her profession and, therefore, general negligence is not available as a basis of recovery. Therefore, Mrs. Coleman could not prove the elements of general negligence (i.e., duty, breach, causation, and damages) but was required to show that Mr. Kinnard failed to act in accordance with the standard of care practiced by his peers in the same locality under similar circumstances.

Mrs. Coleman's expert witness testified that if Kinnard utilized a safer method of physical therapy, such as the passive manual stretch, sustaining a fracture to her femur was still possible. Since Coleman was unable to show that failing to obtain a complete medical history caused her harm, the appellate court concluded that the defendants were entitled to summary judgment as a matter of law.

This case demonstrates the importance of consulting an attorney who is knowledgeable of the appropriate standard of care in medical malpractice cases. Since plaintiffs have the burden of proving a breach occurred, filing a lawsuit without knowing your chances of prevailing might cost you considerable time and resources. Our experienced attorneys will be able to recommend the best course of action to take in a given case.

It is well settled in Louisiana law that "a tortfeasor takes his victim as he finds him and when a defendant’s tortious conduct aggravates a pre-existing condition, the defendant must compensate the victim for the full extent of the aggravation." Lasha v. Olin Corp. In other words, when a person injures another, that person is responsible for all damages he caused the victim, even if the victim's own unusual susceptibility contributed to the extent of the damages. This does not mean, however, that the injured plaintiff is relieved from the standard requirement of tying the damages he suffered to the defendant's negligent action.

The Third Circuit Court of Appeal recently explored this concept in the case of Downing v. Miller. On October 15, 2007, Carolann Downing was involved in a car accident with John Miller in Lafayette. The incident occurred when Miller pulled out of a restaurant parking lot onto Congress Street and crashed into Downing's vehicle. Downing did not suffer any physical injuries, but the experience aggravated her pre-existing bi-polar anxiety and obsessive-compulsive mental disorders. At trial, the parties stipulated Miller's liability for the accident; the only issue in dispute was the amount of damages. Downing testified that she experienced mania followed by depression after the accident. Her symptoms included loss of sleep, loss of appetite, racing thoughts, nervousness, agitation, and anger. Thereafter, she became depressed and was unable to care for herself: she did not leave the house but instead stayed in bed and slept most of the time. However, on cross examination, Downing acknowledged that during her life she commonly experienced “periods of ups and downs” and that the episode following the accident with Miller was consistent with other "down" periods she had suffered in the past. Downing offered the testimony of Dr. Bob Winston, her treating physician, who confirmed that the accident exacerbated her mental issues. Dr. Winston further offered a summary of the behaviors Downing exhibited in the five-month period following the wreck, which he attributed to the stress she experienced in the event. Essentially, however, Dr. Winston's summary showed that Downing steadily improved over time. The trial court awarded Downing $7,500 in damages. Dowling appealed, arguing that the trial court's award was so low as to be "clearly wrong."

As we have covered previously on this blog, the trial court enjoys "great discretion" in setting damages awards, and an appellate court may disturb a trial court's award only on the showing of a clear abuse of discretion. Wainwright v. Fontenot. Although Dowling argued that the trial court abused its discretion in not fully taking into account the accident's role in exacerbating her mental disorders, the Third Circuit found sufficient evidence that the trial court's decision was well-grounded on the evidence presented at trial. For example, the court noted that Dr. Winston observed an increase in symptoms when Dowling's aunt passed away and also on an occasion when she was nervous about an upcoming visit with her son. The trial court determined that Dowling's response to the accident was similar to other aggravations triggered by ordinary events in her life; therefore, the accident did not cause an unusual result for Dowling for which she was entitled to a higher amount of compensation. The Third Circuit agreed with this reasoning in light of the evidence of Dowling's mental health history and affirmed the award.

The lesson from the Dowling case is that, although a negligent defendant is responsible for all damages he causes the plainitiff -- even those damages that arise out of a unique condition -- the defendant must demonstrate that any compensible consequence is directly linked the the defendant's conduct. In this case, Dowling did obtain some level of damages for her mental suffering following the accident, but the evidence she presented did not demonstrate that the trial court erroneously arrived at the amount. By hiring a skilled attorney who can help work at presenting proper evidence, contact one of our expert attorneys today.

Continue reading "Lafayette Car Wreck Leads Court to Explore the Role of Plaintiff's Pre-Existing Condition in Assessing Damages" »

The tort of intentional infliction of emotional distress, as we have previously explored, occurs when the defendant purposefully engages in extreme or outrageous conduct with the goal of seriously upsetting the plaintiff. A different case is the scenario involving the plaintiff's mental distress that results from the defendant's negligent conduct. Commonly, a plaintiff can successfully recover for a claim of negligent infliction of mental distress when the distress arises out of a physical injury that is related to the defendant's negligence. Without physical injury, however, a plaintiff is far less likely to recover. The case of Taylor v. Novartis Crop Protection, Inc. provides an example.

On the evening of July 18, 1999, Novartis Crop Protection Corporation's facility in St. Gabriel released industrial ammonia into the air for approximately 15 minutes. Following the release, several hundred individuals who were present in or owned property around the St. Gabriel area filed a suit for damages against Novartis. The complaint alleged that as a result of the chemical release, the plaintiffs suffered "burning eyes, itching, burning skin, breathing difficulties, dizziness, nausea, diarrhea, headaches, anxiety, and fear for their physical well being." The complaint also stated that the incident caused considerable fear, anguish, discomfort, and inconvenience to the people in the communities" surrounding the Novartis facility. Novartis filed a motion for dismissal for those plaintiffs who were located outside of the "zone of danger" agreed upon by experts from both sides and who therefore could not have been exposed to the ammonia. The affected plaintiffs responded that their claim was not for physical exposure but for "mental anguish, emotional distress, inconvenience, and fear and fright." The trial court entered a judgment dismissing all plaintiffs who were outside of the "zone of danger," and those plainitiffs appealed.

In its analysis, the First Circuit Court of Appeal reaffirmed that under Louisiana law "a defendant will not be held liable for [damages] where its conduct was merely negligent and caused only mental or emotional disturbance unaccompanied by physical injury." The narrow exception to this rule is where the plaintiff can demonstrate "special circumstances," which must be "more than minimal inconvenience worry." The court noted that the only special circumstances cited by the plaintiffs was a prior release of ammonia that occurred in 1999 and which required the evacuation of a school. But the court concluded that the prior incident did not rise to the level of "special circumstances" as required by Louisiana jurisprudence. (Examples of sufficient circumstances from case law include the negligent transmission of an erroneous message about a loved one's death; the mishandling of corpses; and damaging property while being observed by the plaintiff. See Moresi v. State for further discussion.) Further, the court noted that the plaintiffs failed to offer any evidence to show they had "suffered from genuine and serious mental distress." Accordingly, the court affirmed the trial court's judgment dismissing the plaintiffs whose claims included only mental distress.

This case further reinforces the fact that courts generally look unfavorably upon claims for mental or emotional distress when there is no physical manifestation of the injury. This may be due to the fact that mental harm is difficult to measure, as well as the potential for false claims.

Continue reading "Court Turns Away Plaintiffs' Mental Distress Claims After Chemical Release in St. Gabriel" »

Asbestos-related illnesses have impacted many families throughout the nation. The impact of asbestos exposure can lead to serious terminal illnesses. Partly as a response to such illnesses, the federal government created the Longshore and Harbor Worker's Compensation Act (LHWCA). The act provides injury and occupational-disease protection for those who work on the navigable waters of the United States.

In the past, the Louisana shoreline was home to many companies that were involved with the direct use of asbestos. Those individuals who were impacted by the use of asbestos in such areas are potentially protected by the LHWCA. The act provides for a set of procedures that must be fulfilled prior to any case reaching a court of law. At first, an Administrative Law Judge (ALJ) reviews the facts of the case and decides whether the LHWCA provides relief for any party. If this decision is appealed, it will go to the Benefits Review Board (BRB), which will have to conclude whether the ALJ's order was supported by substantial evidence on the record as a whole and is in accordance with the law. After this stage, if the decision of the BRB is challenged, the case will find its way into court.

In a recent decision by the United States Court of Appeals, Fifth Circuit, in Louisana Insurance Guaranty Association Baton Rouge Marine Contractors Inc. vs. Director Office of Worker Compensation, the process through which claims under the LHWCA proceed is clearly outlined. Plaintiff in the case worked on the Lousiana shoreline from 1965 to 1977. During the 60's he worked directly with asbestos by unloading bags of asbestos. From 1970 to 1977 plaintiff worked on cranes for the same company. This position did not require direct contact with asbestos. However, he worked in and had to continuously walk through warehouses where asbestos was dealt with and stored. During the plaintiff's employment, the company that he worked for was insured by Employers' National. It provided insurance coverage from 1972 until 1982. However, it was declared insolvent and placed in receivership in 1994. Louisiana Insurance Guarantee Association (LIGA) appeared in its place as a substitute party in this proceeding.

Based on the facts provided, the ALJ granted relief under LHWCA. The BRB, then found the ALJ's decision to be supported by substantial evidence. The insurance company appealed the decision to the fifth circuit. The case is broken down into factual questions and legal questions. The fifth circuits only job was to correct errors of law and make sure that the BRB did not substitute its interpretation of the factual issues for those of the ALJ. The first factual issue in the case was whether LIGA was subject to the LHWCA's last employer rule. LIGA argued that plaintiff could not have been injured by asbestos exposure after 1970 when he moved from working directly with asbestos, to working on the cranes. The Court held that the ALJ had sufficient evidence to determine that plaintiff was indeed exposed to asbestos due to the storage of asbestos in warehouses in which he worked in and walked through. Second, defendants argued that plaintiff was not forced to retire because of any asbestos related injury. Plaintiff testified that he had trouble walking up and down stairs and that the asbestos injuries and sickness are at least in part the cause of his retirement. The Court stated,"the ALJ as sole factfinder is entitled to consider all credibility inferences and [his selection] among inferences is conclusive if supported by evidence and the law." The BRB explained in its review that,"if the claimant's work related injury played a role in causing his retirement, the retirement is involuntary." The Court decided that since both determinations were made within the bounds of law and the evidence provided, the decision made by the ALJ, that plaintiff was involuntarily forced to retire due to asbestos exposure, should stand. Third, plaintiff was granted the status of total disability. Under the LHWCA, to establish a prima facie case claimant must show that he is unable to return to his regular or usual employment. Thus, the question posed is not whether any claimant can work anywhere else or do anything else, the question is whether the claimant can continue to do the same or similar things as he or she did prior to the disease or injury. Since the plaintiff testified that he had a hard time walking up and down stairs, there was sufficient evidence that plaintiff had total disability as defined under the act.

The legal issue in the case was whether LIGA should be held liable for the insurance that was provided by Employers' National, which was declared insolvent. The "last responsible employer" rule was a policy decision on the part of the acts administrators. Eventually, it was judicially adopted by courts. Under the act, insurance liability would fall onto the shoulders of Employers' National. Employers' National insured plaintiff's employer during the last years of his employment. Under Louisiana law, the law responsible employer rule would also subject the last insurer. The rule applies to Employers' National, and in turn to LIGA, as a substitute party in this case. Thus, under the law, and Federal law as applied in Louisiana, LIGA is liable to plaintiff for his injuries and medical expenses.

Although, nothing can take away the pain and anguish associated with a debilitating disease or the loss of a loved one, there are law that were created to protect those who have been impacted by disease associated with asbestos. It is essential that if you or a loved one have been injured due to asbestos exposure, you should contact an attorney who may be able to help. Laws like the LHWCA have been enacted to help people in such difficult and trying time.

Continue reading "Legal Remedy for People With Mesothelioma Due to Asbestos Exposure " »

During the course of litigation, one of the tools used by lawyers and the legal system to weed out weak cases is to file for summary judgment. The basic premise of summary judgment is to call the other side to provide solid evidence of their claim. The moving party, the party filing the summary judgment, tells the adverse side that they need to demonstrate to the judge that they can actually prove all the elements required to win the case. This does not mean that they need to show that they can win the case, it just means that they need to show that all the evidence they have acquired at least allows them to bring forth a feasible case on all necessary elements of their claim or defense. If the adverse party is unable to factually prove the elements of their claim, the Court grants smmary judgment by stating that their is "no genuine issue as to material fact."

In Christine Comeaux vs Debbie Lemmons, the State of Louisiana Court of Appeal, Third Circuit, worked its way through the law of summary judgment to decide whether summary judgment was properly granted at the trial court level. The plaintiff was an employee of Giddy-Up-N-GO Lounge (Lounge) in Rayne, LA. After her shift, she remained at her place of work as a patron. During the course of the time she was there, another patron fell into plaintiff causing her to fall and break her leg. She sued the Lounge stating that the Lounge (1) Failed to monitor the consumption of its patrons (2) allowed patrons to dance in inappropriate conditions (3) encouraged reckless behavior (4) allowed the number of patrons to exceed maximum capacity and (5) failed to do and see all things necessary to ensure her saftey during her time as a patron.

During her deposition, plaintiff clearly stated that she was unsure and unaware of whether the patron who fell into her was intoxicated. Further, she admitted that she did not know whether the Lounge was beyond full capacity during the incident that broke her leg. Furthermore, she stated that although there were times when people receieved DWIs after leaving the Lounge, she had no facts to support her proposition that the Lounge was acting irresponsibly on the day of the accident. Her claim, that the Lounge was responsible for the actions of its drunk patrons, falls under the civil law of "dram shop liability." States that adhere to this type of liabilty state different conditions in which those who provide alcohol, either at parties, or for sale, can be held liable for the actions of those who become drunk from the alcohol. In Louisiana, the statute La.Rs.9:2800.1 speaks to the legislatures view on dram shop liability. The statute states that liability for actions that cause damage or injury will be on those who do the drinking, not on those that provide alcohol, if the person receiving the alcohol is of legal age to consume it.

Summary judgment is granted if pleadings, depositions, answers to interrogatories, and admissions on file, together with affadavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. Further, La.Code.Civ.P.art 966(C)(2) states that the burden remains on the moving party. However, if the moving party is not responsible for the burden of proof at trial, all the movant has to do is show that there is factual support lacking for one or more of the adverse party's essential elements. If after this is shown, the adverse party fails to bring forth evidence that provides the needed factual support, there is no genuine issue as to material fact, and summary judgment should be granted. In this case, during her deposition, plaintiff negated her own pleadings. She stated that she did not know whether the patron who fell into her was actually drunk, that she did not know whether the number of patrons were beyond maximum capacity, and that she did not know whether any person was allowed to go home by driving drunk. In either case, the law as it stands concerning dram shop liability exposes on the person who does the drinking to liability. After defendant brought forth the motion for summary judgment, plaintiff was unable to fulfill her burden on providing facts to show that all elements could at least be proven. Therefore, the Court of Appeal upheld the decision of the trial court.

It is essential that if you have a claim, or your think you have a claim, you should seek the advice of legal counsel as soon as possible so that time does not run out on your ability to take any kind of action on your claim.

Continue reading "Louisiana Court Sets Out Requirements for Summary Judgment" »

It is well-settled in Louisiana jurisprudence that an injured party has a duty to mitigate damages. In other words, a victim is required to make reasonable efforts to minimize the extent of injury or damage that results from a tortfeasor's actions, even though the actions may be negligent or wrongful. The idea is that a plaintiff cannot just "sit idly by" while his situation becomes worse if there is something he could do to stop or lessen the damage. A plaintiff, however, is not required to make extraordinary efforts or to do what is unreasonable or impractical to minimize the damages. Instead, the efforts need only pass the test of being consistent with common sense.

For a defendant to invoke the defense of the plaintiff's failure to mitigate damages, the defendant must meet the burden of showing that: (1) the plaintiff's conduct after the injury was unreasonable; and (2) that the plaintiff's unreasonable conduct resulted in the aggravation the his harm. In light of the standard of reasonableness on the part of the plaintiff's duty to mitigate, this is not a simple burden for a defendant to carry. The recent case of Britt v. City of Shreveport offers a look at the Second Circuit Court of Appeal's treatment of this issue. On August 5, 2003, Carolyn Britt was driving her Chevy Astro van on Thornhill Street in Shreveport. The street was partially blocked by a crew of City employees that was trimming a roadside tree. One of the employees signaled to Britt to proceed through the area. As she drove through, a tree massive limb fell and landed on top of her vehicle. Britt suffered multiple injuries to her head, neck, shoulders, lower back, and legs, but did not immediately go to the hospital. Instead, she called her daughter to pick her up from the scene.

More than a week later, Britt sought treatment from a chiropractor who saw her over the course of the next six months. Although her condition improved, Britt continued to experience back pain, so the chiropractor referred her for an MRI. Britt refused the MRI but instead over the next year serially consulted four physicians whose recommendations she routinely ignored. After being told by the last physician that she was not a candidate for surgery, Britt visited a neurosurgeon in November of 2004. The neurosurgeon recommended surgery to correct her back problems. Britt then was examined by a physical therapist who suggested a physical therapy rehabilitation program to follow the surgery. Britt never underwent the surgery or enrolled in the therapy program. Instead, she filed a petition against the City of Shreveport to recover damages resulting from personal injuries, including pain and suffering, medical expenses, lost wages, loss of earning capacity, and loss of enjoyment in life. The City did not dispute its fault in the accident, so following a trial on the quantum of damages the court awarded Britt $371,963.96 in general and special damages. This amount included an unspecified reduction based on Britt's failure to seek and follow proper medical treatment following the accident. The City appealed, arguing that the trial court's award did not accuratly reflect that, had Britt submitted to the recommended treatments and physical therapy regimen, she would have substantially increased her chances of not needing surgery at all. In addition, the City argued that the trial court erred in determining that Britt was justified in refusing to undergo surgery because she would have been required to pay for the procedure out of her own pocket.

The court, mindful of the requirement for a plaintiff to mitigate damages, noted that a plaintiff's "recovery will not be limited because of a refusal to undergo medical treatment that holds little promise for successful recovery." Jacobs v. New Orleans Public Service. The court explained, "the expense and inconvenience of treatment are also proper considerations in determining the reasonableness of a person's refusal to submit to treatment." The court noted that the trial court properly considered Britt's lack of financial means to pay for the recommended physical therapy or surgery, the latter totaling an estimated $50,000. Nevertheless, the trial court found that without the surgery, Britt would never recover from her injuries, and so the failure to undertake the surgery was contrary to Britt's duty to make reasonable efforts to mitigate damages. This was reflected in the amount of damages awarded Britt by the trial court. The Second Circuit found no abuse of discretion on the part of the trial court in this decision, and affirmed its award of damages.

The Britt case shows the value of consulting an attorney as soon as possible following an accident. Given the duty for an injured plaintiff to mitigate damages, it is prudent to discuss possible treatment options with a lawyer as part of the process of deciding the best course of action to take. As this case demonstrates, a plaintiff's damages award will be reduced if the court finds this duty has not been met.

Continue reading "Plaintiff's Failure to Mitigate Damages in Shreveport Accident Results in Reduction of Damages Award " »

Accidents are a common occurrence for automobile drivers. In fact, in 2009, there were 73,900 injuries caused by automobile accidents in the state of Louisiana. However, when one is injured in such an accident, liability is often difficult to assign. In other words, it takes a fact-finder to determine who is at fault for the accident and who is liable for damages incurred by any injured party. In a recent Louisiana court case, a passing motorist was found to be 100% liable for injuries sustained by an individual while the other motorist involved in the accident was not liable for payment of any damages.

On August 18, 1999, William Boyd was injured in a motor vehicle accident that occurred on Louisiana Highway 14 in Jefferson Davis Parish. Boyd, who was an inmate assigned to highway clean-up at the time of the accident, was a passenger in the prison van driven by Joseph Deville. A sixteen-foot trailer, used to carry tools and supplies needed for the work detail was attached to the rear of the prison van; also, a dump truck followed the van. The driver of the prison van was in search of a clear spot on Highway 14 to pull over and allow the inmates to eat lunch. Mr. Deville located a clear, shady spot on the left of the Highway and, as the prison van began to exit to the left, a passing car driven by Rosalinda Broussard hit the rear left side of the van. As a result of the accident, Mr. Boyd sustained injuries and brought suit against Mr. Deville, Wackenhut prison facility, Ms. Broussard and the insurance companies for the parties. Before trial, Mr. Boyd settled his claims against Ms. Broussard and her insurer. However, he proceeded with his claims against the three remaining defendants arguing that Mr. Deville began to make his left turn well after Ms. Broussard began her passing maneuver. In the bench trial, the trial judge found Ms. Broussard to be 100% liable for the injuries and dismissed the case against the other defendants. This decision was upheld by the Court of Appeals.

In order to reverse a trial court's findings, "a reasonable factual basis [must] not exist for the finding of the trial court" and "the record establishes that the finding is not clearly wrong." Otherwise, the decision would be reversed. When imposing liability for an automobile accident, a plaintiff must establish that the defendant owed a duty to the plaintiff to exercise reasonable care while driving on the road and that duty was breached by failing to act like the average reasonably motorist. This failure must have proximately caused the plaintiff's damages. While duty and breach are questions of law and determined by the court, causation and damages are questions left for the fact-finder to determine. In Louisiana, courts have found that allocating fault "is not an exact science nor is it a search for a precise ration. Instead, the courts must determine if the "allocated fault falls within a certain range that does not violate the manifest error rule. While finding that Mr. Deville was not at fault for the accident, the court quoted a Louisiana statute, which provides specific instruction for motorists in the left lane attempting to pass other vehicles, entitled "Limitations for passing on the left." Since Ms. Broussard did not comply with this statute and Mr. Deville used his turn signal and began to turn before Ms. Broussard began her passing maneuver, she was found to be solely responsible for the accident.

In personal injury suits, it is the responsibility of attorneys to maximize the amount of damages the injured plaintiff may recover or to minimize the liability of the defendant. Thus, it is crucial that an individual involved in such a lawsuit consult a seasoned attorney, such as those from Berniard Law Firm, to assist them with their claims.

Continue reading "Passing Poses Problems: Automobile Accident Liability for Passing Vehicles on the Roadways" »

In numerous prior posts, we have explored how critical expert testimony often is in determining the outcome of a negligence trial. Although experts can play a pivotal role in helping a plaintiff build his case, they do present some limitations. Typically, expert witnesses are required to render an opinion based on the information that they or someone else (e.g., a police officer) gathered after the fact; this can mean that not all useful evidence is available, and may call for some level of educated speculation. Also, practically speaking, it can be expensive for a plaintiff to retain the services of an expert, especially when the value of the claim is not particularly substantial. It follows then that often a plaintiff must rely on non-expert, or "lay," witnesses at trial. Commonly, lay witnesses are recruited bystanders who happened to observe the incident which gave rise to the plaintiff's claim. Although lay witnesses are somewhat limited in the types of opinions they can offer in testimony, their input is often extremely valuable for a plaintiff.

In the recent case Mitchell v. Roy, the Louisiana Court of Appeals examined the handling of important lay witness testimony by the trial court. In March of 2008, Darion Mitchell, age 10, was riding his bicycle on 8th Avenue between 9th and 10th Streets in Lake Charles when he veered into the path of a Chevrolet minivan driven by Albert Roy, Jr. Mitchell, who was not wearing a helmet, was thrown onto the hood of the van and struck the windshield. He was transported by ambulance to Christus St. Patrick's Hospital where he underwent a series of tests that revealed he suffered some minor soft tissue swelling but no brkoen bones. Mitchell was diagnosed with a head injury and scalp lacerations, and he received stitches before being discharged from the hospital later the same day. Within a few months, Mitchell's mother filed suit against Roy, alleging that Roy had negligently caused the accident by driving in excess of the posted speed limit, by failing to keep a proper lookout, and by failing to take care to avoid the collision. A bench trial was held. One of Mitchell's key witnesses was Angela Dodd, a neighborhood resident who happened to be sitting on her front porch at the time the accident occurred. Dodd offered testimony about the speed of Roy's van: she estimated that Roy was driving between 35 and 40 MPH. This estimate was based on Dodd's prior experience operating her own vehicle "at various speeds" and the fact that Roy's vehicle "kicked up dust" on the street as it approached Mitchell. The trial resulted in a finding that Roy's negligence was the sole cause of the collision, a verdict in Mitchell's favor, and an award of damages. Roy appealed, citing as error, among other things, the trial court's allowing Dodd to offer a lay opinion as to the speed of Roy's vehicle.

The Third Circuit addressed this enumeration of error by first reviewing the standard in Louisiana for assessing the admissibility of a lay witness's opinion testimony. The state Code of Evidence in Article 701 provides that such testimony is limited to opinions which are (1) rationally based on the perception of the witness; and (2) helpful to a clear understanding of her testimony or the determination of a fact in issue. Put another way, a lay witness is permitted to draw reasonable inferences from her personal observations, so long as she also explains what those observations were. As a general rule, when reviewing a trial court's admission of lay opinion testimony, an appellate court must ask whether the testimony was an improper speculative opinion or simply an inference drawn from the witness's observations and, if erroneously admitted, whether the testimony was so prejudicial as to constitute error that should be reversed. The court noted that in overruling Roy's objections to Dodd's testimony, the trial court stated that it would "take into consideration that [Dodd] is not an expert on speed" and that it would consider her opinion "in the context of just a lay impression." After reviewing the record of Dodd's "compelling" testimony about what she observed and how she arrived at her speed estimate, the court determined it was "satisfied that the trial court properly allowed Dodd to testify as to the inferences she drew based upon her personal observations, [and] that the trial court gave the proper weight to Dodd's opinion testimony." Furthermore, the court deemed the opinion, even if admitted in error, insufficiently prejudicial to Roy so as to warrant reversal.

The Mitchell case demonstrates Louisiana's reasonable approach to the admission of lay witness opinions during a trial. It's almost unavoidable that witnesses will include some type of opinion in the testimony they provide--this is simply the nature of the role of a person called to court to explain what she saw. It is up to the trial judge to weigh the potential harm to the other party when allowing a lay witness to offer an opinion, and to ensure that the opinion is based solidly on facts the witness personally observed. Naturally, an experienced trial attorney is invaluable to a plaintiff in identifying appropriate witnesses whose testimony will meet these requirements and help build the case.

Continue reading "Lake Charles Bicycle Accident Case Leads Court to Review Role of Lay Witness Testimony" »

Hotel owners, like other hospitality business operators, have a general duty to exercise reasonable care for the safety and security of their guests. The duty extends to protecting guests from harm caused by other guests and visitors to the premises. This does not mean that hotels are liable for any injury or loss that a guest suffers--generally, the victim must show that the hotel (through the actions of its employees) was negligent before the hotel faces liability. To help protect against this exposure, hotel owners typically buy liability insurance policies to cover the property in the event of a problem. However, these insurance policies frequently include substantial limitations. In particular, many policies exclude coverage for any injuries that arise from the service of alcoholic beverages on the premises. Other exclusions include denying coverage for physical assaults. In Piligra v. America's Best Value Inn, Inc., No. 10-254 (La. App. 3d Cir. 2010), the court examined--and upheld--this very type of coverage exclusion.

Susana Piligra visited the nightclub inside the America's Best Value Inn hotel where she consumed an excessive amount of alcohol and passed out. An employee of the hotel took Piligra up to a room on the second floor and, on the way, they came upon an unknown male who helped get Piligra to the room. The hotel employee left Piligra in the room with the unknown male. When Piligra's friend later went to check on her, the friend opened the door to find the unknown male "climbing off her with his pants down." Piligra went to a local hospital where it was determined that she was apparently raped by the unknown male while she was unconscious. Piligra filed suit against the hotel and its liability insurance carrier, Evanston Insurance Company, alleging that the hotel negligently transported her to a room without her consent and failed to attend to her in a responsible manner given her condition. Evanston filed a motion for summary judgment based on the exclusions contained in the hotel's policy. The trial court granted Evanston's motion, and both Piligra and the hotel appealed.

The Third Circuit reviewed that an "insurance policy is interpreted like any other contract," and that "[i]nsurance companies are permitted to limit coverage through policy exclusions as long as the limitations do not conflict with statutory provisions or public policy." Ledbetter v. Concord Gen. Corp., 665 So.2d 1166 (1996). With those principles in mind, the court examined the policy Evanston issued to the hotel and found a provision that clearly excluded coverage for any claim arising out of "assault and/or battery." The court noted that "Louisiana courts have upheld [limitations] similar to the Evanston policy [limitations] that preclude coverage for assault and battery, including rape." Thus, the court reasoned, "[b]ecause rape is a battery and because the assault and battery exclusion in the Evanston policy is unambiguous, we find that the exclusion is applicable and precludes coverage for Ms. Piligra's injuries." Accordingly, the court affirmed the decision of the trial court to dismiss Evanston Insurance Company from the suit.

This case brings to light one of the major challenges that plaintiffs can face when seeking to recover damages. Even assuming Piligra is successful in establishing the hotel's negligence (a question not addressed in this appeal), without an insurance policy to cover Piligra's award, the hotel may not have sufficient liquid assets available to satisfy the judgment. And although it may be possible for the hotel to sell off assets to raise the funds, that process would add considerable delay to Piligra's ultimate recovery. An experienced trial attorney is an invaluable resource for a plaintiff through every step of the litigation process, including collecting a damages award.

Continue reading "Court Upholds Exclusion Clause in Hotelier's Insurance Policy Following Rape of Guest " »

In late 2010, the Court of Appeal of Louisiana, Fourth Circuit, shed some light on how the sale of a company may impact claims made by employees against the successor company in Pichon v. Asbestos Defendants AG. The plaintiffs in the case were the wife and children of the deceased Mr. Pichon. The plaintiffs alleged that Mr. Pichon was exposed to asbestos between 1955 and 2004. Mr. Pichon died in 2006 from Mesothelioma and Lung Cancer, which the plaintiffs argue was as a result of his exposure to asbestos. One of the defendants in the case was Detroit Diesel Corporation (DDC). DDC filed for summary judgment stating that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law. The Court broke its discussion down into two time periods: (1) Pre-1988 exposure by Mr. Pichon, before the creation of DDC, under which plaintiffs argued that DDC is liable under the theory of successor liability and (2) Post-1988, after the creation of DDC, under which plaintiffs argued that Mr. Pichon was exposed to asbestos as a result of DDC manufacturing.

In 1970, GM merged its Diesel Division with its Allision Division to create the Detroit Diesel-Allision Division. This division manufactured marine engines at Halter Marine. In 1988 GM and Penske formed DDC as a joint venture. Subsequently, DDC purchased the assets of most of the division that produced the marine engines. The sales agreement between DDC and GM stated that DDC would not be liable for GM's conduct or for claims relating to products manufactured, distributed, or sold by GM prior to closing. The Court stated that there were three ways in which a successor company could be held liable for the actions of the selling company: (1) When the successor company clearly assumed the liability or obligations (2) When the buying company was merely a continuation of the selling company or (3) Where is it found that the transaction occurred only to avoid liability. The Court stated that it was clear that DDC expressly denied any pre-sale liability for the actions of GM. However, the plaintiffs argued that DDC's liability was as a result of test number two, namely that DDC was a continuation of GM's Diesel-Allision Division.

In response to plaintiffs argument concerning the second test for successor liability, the Court cited to a U.S. Supreme Court case that held that successor liability could be found on the basis of the buying company being a mere continuation of the selling corporation where the sale was for all of the company's assets. The issue for the plaintiffs in this case was that DDC clearly did not purchase all of GM's assets. Further, DDC did not even purchase all of GM's assets concerning manufacturing of marine engines. DDC only purchase those assets relating to the Redford Operations. Because the plaintiffs were unable to provide evidence that DDC purchased all of GM's assets, the Court granted DDC's summary judgment on this claim and plaintiffs thus lost on this point.

The Court next turned to the claim that Mr. Pichon was exposed to asbestos after the creation of DDC. DDC provided the Court with evidence that GM had put in place a policy in 1980 that called for the eventual elimination of the use of asbestos. Further, DDC provided the Court with evidence that the use of asbestos by GM was completely eliminated by 1987, prior to the creation of DDC. DDC argued that there was no evidence that there was a continuation of the use of asbestos after the creation of DDC. The plaintiffs put forth evidence showing that there was a gasket specification sheet from 1986 that called for the use of asbestos. The plaintiffs argued that since there was no evidence of a gasket specification sheet subsequent to 1986 that showed that asbestos was not used, that it should be assumed that the use of asbestos continued post-1986 and into the period after DDC was created. The Court held that the indirect evidence provided by the plaintiffs did not negate the direct evidence provided by DDC that showed that there was a policy implementation and eventual phase out of the use of asbestos prior to the creation of DDC. The Court granted DDC's motion for summary judgment and the plaintiffs lost on this point as well.

The Pichon case is a good example of the precautions that workers should take in the workplace. If you have worked in an environment where asbestos was used, it is imperative that you seek medical and legal advice. If you work in any environment in which you deal with hazardous chemicals or materials you should frequently visit your doctor to make sure that you remain healthy. If the company for which you work is being bought, or is purchasing another company, or its division, you should seek legal advice as to how your rights will be impacted by the sale. Further, if you or a loved one suspects they have been exposed to asbestos, consulting with an attorney about their legal rights is a must.

In a post earlier this week, we reviewed the Third Circuit's treatment of a medical malpractice case that arose from a double knee replacement surgery. In addition to her enumeration of error about the faulty opinion returned by the state medical review panel, the plaintiff, Margie McGlothlin, also asserted there was no "reasonable factual basis" for the jury's conclusion that the hospital was not liable for her injuries. As part of its de novo review, the court examined the record for details on the two incidents that McGlothlin pointed to as the cause of her kneecap dislocation. The first involved her transfer between a wheelchair and her hospital bed at the rehabilitation center during which a nursing assistant, working without help, dropped McGlothlin. The other incident similarly involved a nursing assistant--again working unaided--who dropped McGlothlin as she was transferring to the restroom. The court reviewed the applicable standard of care for these situations:

The transfer from wheelchair to either bed or toilet of a bilateral knee replacement patient weighing almost 300 pounds requires at least two people assisting in the transfer together with the use of a gait belt.

Whether the hospital employees breached that standard of care, and whether that breach caused McGlothlin's injury, are questions of fact usually left to the jury. The second incident, in particular, involved several factual discrepancies. McGlothlin testified that, after she fell while attempting to make her way to the bathroom, she immediately called for her doctor, explained what happened, and submitted to an x-ray which revealed the dislocation of her kneecap. The nursing assistant caring for McGlothlin during this time, however, denied that the restroom incident occurred at all and maintained that McGlothlin never suffered injuries of any kind. The hospital further argued that McGlothlin's kneecap became dislocated as a result of activities during rehabilitation and without any negligence on the part of hospital employees. In reviewing the account of McGlothlin's progress, the court found no evidence of a "traumatic event" during therapy that could have caused the injury. However, the report did make note of McGlothlin's increased pain in her left knee and a corresponding reduction in recommended exercise by her therapist. Ultimately, the court found that McGlothlin's allegations had "credibility." Reviewing the entire record, the court concluded that McGlothlin carried her burden of establishing that during the restroom transfer, the nursing assistant breached the duty of the care, and that this breach resulted in an injury to McGlothlin's left knee. Accordingly, after considering the appropriate level of damages, the court reversed the trial court's judgment dismissing McGlothlin's claims and rendered judgment in her favor and against Christus St. Patrick Hospital. The court awarded McGlothlin the statutory maximum of $500,000.00 in damages, plus $62,341.29 in past medical costs and the expenses of reasonable future medical treatment.

This rare course of action by the Third Circuit -- to reverse a jury verdict and substitute its own judgment following a de novo review, demonstrates the extremely high level of influence the medical review panel can have on the outcome of a trial. And in a case such as this one, where the review panel reached conclusions beyond those it was legally permitted to entertain, the prejudicial effect on the jury's analysis is striking. Accordingly, in order to preserve the integrity of the tort process, the appellate court felt obligated to correct the jury's inappropriate decision that resulted from the trial court's error in handling the panel opinion. The McGlothlin case shows how critical a persistent, zealous attorney can be for an injured plaintiff.

Continue reading "Lawsuit Over Double Knee Surgery and Subsequent Injury Leads to Ruling Demonstrating MedMal Complexity - Part 2" »

Previously in this blog we have examined a number of cases involving medical malpractice claims. One common thread in these cases is the involvement of the state's medical review panel. This is because claims brought against healthcare providers under the Louisiana Medical Malpractice Act must be reviewed by a medical review panel before proceeding to court. The panel is made up of three doctors and one attorney. The panel's purpose is limited: its authorized by statute only to determine whether the evidence supports the plaintiff's allegation that the defendant healthcare provider failed to observe appropriate standard of care in the plaintiff's treatment and, if the standard was not met, whether the failure contributed to the plaintiff's injury. The panel is specifically prohibited from rendering conclusions about issues of material fact that do not require on an expert opinion. The panel's report, which it issues in writing, is considered an expert opinion which, though not conclusive, is admissible in any subsequent legal action.

In this post, the first of two on the case of McGlothlin v. Christus St. Patrick Hospital, we will explore the Third Circuit's treatment of the trial court's erroneous admission of the medical review panel's faulty opinion. The facts are as follows: In 1999, after nearly a decade of suffering with osteoarthritis, Margie McGlothlin checked into Christus St. Patrick Hospital in Lake Charles for a double total knee replacement. The surgery was successful, and McGlothlin's initial recovery uneventful. Three days after the procedure, McGlothlin was transferred from the main hospital to the rehabilitation wing. While there, McGlothlin alleged that she fell and injured her left knee on two separate occasions when the nursing assistants who were attempting to transfer her did so without assistance. McGlothlin, claiming that these falls caused the dislocation of her knee cap, first submitted her claim for damages to a medical review panel as required by the Louisiana Medical Malpractice Act. The panel rejected McGlothlin's claim, and she filed suit. During the trial, the parties did not dispute that McGlothlin sustained a kneecap dislocation while under the care of the hospital and that the standard of care for moving a double knee replacement patient requires the assistance of more than one trained attendant. But the hospital denied that either of the two falling events alleged by McGlothlin occurred at all and instead suggested that her dislocated kneecap resulted from physical therapy (a risk with all knee replacement procedures). Following a three-day trial, the jury returned a verdict for Christus St. Patrick's, and McGlothlin appealed.

One enumeration of error offered by McGlothlin centered on the trial court's admission of an edited version of the medical review panel's report. The editing resulted from McGlothlin's objecting during the trial to the hospital's attempt to introduce the report into evidence. McGlothlin argued that the report contained non-expert conclusions of issues of material fact, which violated the limited authority granted to the panel by state law. Specifically, the panel determined that there was "no violation of the applicable standard of care without even stating what that standard of care was. Instead, the panel's written reasons addressed only the factual conflicts raised by the information" presented by the parties. In an effort to preserve as much of the panel's report as possible, the trial court redacted from the report the panel's conclusion as well as part of the last sentence, which stated "but we feel that the versions of both of the incidents by the patient and her family appear to have numerous inconsistencies." The Third Circuit stated, "a clear reading of what remains of the medical review panel's opinion establishes to the reader that the underlying dispute was factual and not legal." Furthermore, one of the hospital's trial witnesses was an orthopedic surgeon who served as a member of the medical review panel. Although the trial court ruled that the witness could not, during testimony, state what the panel's (redacted) conclusion was, the witness "made it clear in his testimony that his opinion and that of the panel were based on factual findings." Thus, despite the trial court's attempt to shield the report's impermissible conclusions from the jury, its members were "fully informed" about how the panel's opinion was reached and that it had concluded the hospital did not violate the standard of care. The court held that the trial court's improper admission of the medical review panel's redacted opinion and the surgeon's direct testimony about the inner workings of the panel "tainted the integrity of the trial." Accordingly, the court determined that a de novo review of the record was required.

In a subsequent post, we will look at the court's analysis of McGlothlin's enumeration of error that there was no "reasonable factual basis" for the jury's conclusion that the hospital was free of liability.

Mesothelioma, also known as asbestos cancer, is cancer of the mesothelium, and is usually found on or around the lungs an individual has had prolonged exposure to asbestos in their homes or at work. Although the disease has become easier to detect in recent years, asbestos manufacturers have actually been sued by victims who have contracted the disease since as early as the 1920s and there is evidence that people were getting sick as early as the end of the 19th century.

Despite this long history, and high profile cases that have gone as far as the Supreme Court with nearly a billion dollars in compensation paid out, no Federal laws have been passed to delineate the compensation available to victims. The sad reality is that many suffering patients end up not getting the compensation they truly deserve due to the lack of regulation and confusion over what victims are entitled. This would seem to be an obvious case of injustice and is an unfortunate reality as working men and women simply cannot afford to aggressively pursue legal action against corporations, especially those that may have closed decades before.

The link between meso and asbestos was officially proven in the 1960s when scientists confirmed the presence of the disease in over 30 people who had been exposed to asbestos in South Africa. In 1962 mine workers were discovered who had mesothelioma and the condition was proven to cause cancer. Once workers are diagnosed with mesothelioma they can no longer work. This is just one reason why they must be properly compensated by their employers for their lost wages. Employers my be hesitant to pay damages; the reality is they could have provided the proper protective equipment to their workers that would have allowed them to work safely with asbestos and remain disease free. The question then significant to many is how you can tell if a person has contracted mesothelioma?

There are several symptoms that should be seen as a red flag (these symptoms are very similar to those for other conditions, including lung cancer). Keep in mind that these symptoms may not surface for years after asbestos exposure:

1. Shortness of breath - from fluid caught between the lungs and chest wall.
2. Chest pains - also caused by fluid. The pain will be felt under the rib cage and may be accompanied by coughing.
3. Weight loss.
4. Abdominal pain or swelling resulted from fluid building up in the abdomen.
5. Bowel obstruction caused by either fluid or tumors that have formed in the abdominal region.
6. Anemia - due to mesotheliomas affect on the tissue lining the lungs and chest cavity (the pleura).
7. Blood clotting - although this is only seen in severe cases.
8. Trouble swallowing - that occurs if the cancer has metastasized from the mesothelioma to other parts of the body.
9. Swelling in the neck or face - this also occurs if the cancer has spread.

If you are at risk for mesothelioma because you have worked with asbestos in the recent or distant past, and you experience any of these symptoms, it is vital that you contact your doctor right away for treatment. With good legal assistance, those struck with mesothelioma can get the compensation they need and deserve. After all, people who have been injured because of the negligence of their employers deserve some sort of financial support from the legal system. If you are diagnosed you may also benefit from legal assistance. Please feel free to contact us and an attorney experienced in mesothelioma litigation will be happy to talk to you about your case.

According to state law, the Louisiana Department of Transportation and Development (DOTD) has a duty to maintain the public highways in a condition that is reasonably safe for drivers exercising care and reasonable prudence, and even for those who are slightly exceeding the speed limit or who are momentarily inattentive. Ferrouillet v. State ex rel. DOTD. If the DOTD is aware of a defect in the roadway that cannot be immediately corrected, it must provide adequate warnings of the danger. The warnings should be "sufficient to alert the ordinary, reasonable motorist, based on considerations of probable volume of traffic, the character of the road, and the use reasonably to be anticipated." Generally, in order for the DOTD to be held liable for damages, injuries, or death on a roadway, the plaintiff must prove: (1) that the thing that caused the damage was in the DOTD's control; (2) that the thing that caused the damage amounted to a defect that presented an unreasonable risk of harm; and (3) that the defect was the actual cause of the plaintiff's damages. It is well settled, however, that the DOTD's duty "does not extend to protect motorists against harm which would not have occurred but for their grossly negligent operation of a motor vehicle." The tragic case of Lyncker v. Design Engineering, Inc. provides an illustration of this point.

During the afternoon of September 15, 2004, William Lyncker consumed a substantial quantity of of beer as he made preparations to his home, boats, and business equipment for the arrival of Hurricane Ivan in New Orleans. Around 8:00 PM, Lyncker decided to drive to a family member's restaurant to help with hurricane preparations there. The route to the restaurant would take him eastbound on Highway 90, which had earlier that day been closed by the DOTD approximately three miles east of the intersection with Highway 11 due to the installation of a floodgate in anticipation of the rising waters. Lyncker made his way toward Highway 90 on Highway 11 where, upon encountering a barricade, he drove off the road and over an earthen levee to avoid it. Lyncker continued toward the intersection with Highway 90 when he came upon additional warning signs and more barricades. Nevertheless, Lyncker turned onto Highway 90 and drove at speeds approaching 75 MPH. Lyncker did not slow down when he approached the caution-lit steel barricades that the DOTD had installed in front of the floodgate. In fact, Lyncker struck the barricades without even applying his brakes, and one of the barricades became trapped under Lyncker's truck. Still, Lyncker continued speeding towards the Highway 90 floodgate as the barricade dragged beneath his truck. Lyncker's truck was discovered crashed into the floodgate, which had collapsed. Lyncker was killed in the collision, and subsequent toxicology reports showed that Lyncker had a blood alcohol concentration of 0.21 percent (the legal limit is 0.08 percent) at the time of the accident.

Lyncker's family filed a wrongful death action against Design Engineering, Inc., the Orleans Parish Levee District, and the DOTD alleging negligence in the construction and maintenance of the floodgate, as well as failure to warn. The DOTD filed a motion for summary judgment based on the Louisiana Code Section that provides immunity when a driver sustains damages or death while driving under the influence of alcoholic beverages or drugs and is over 25 percent negligent. La. Rev. Stat. ß 9:2798.4. The district court granted the motion, finding that "any reasonable fact finder would be compelled to find [Lyncker] in excess of twenty-five percent negligent." On appeal, the Fourth Circuit noted that "since Mr. Lyncker crashed through the lighted barriers while heavily intoxicated and without slowing down, in this case, no warnings may have been enough to prevent the accident." The court agreed with the district court's finding that there was no issue of fact over Lyncker's being at least 25 percent at fault and further concluded that "Lyncker's intoxication is the sole and proximate cause of his fatal accident." Accordingly, the court upheld the district court's granting of summary judgment to DOTD under the immunity statute.

Lyncker's unfortunate situation demonstrates the law's effort to compare the relative fault of the parties when it is possible that more than one person's negligence caused an accident. In this case, it was not even necessary for the court to examine the potential negligence on the part of the DOTD because the court felt, as a matter of law, that Lyncker was at least a quarter responsible for this sad outcome due to his heavily intoxicated driving; under the Louisiana statute, this finding was the only one necessary to provide the DOTD immunity for the plainitiffs' claims.

Continue reading "Drunk Driver's Claim Against the Louisiana Department of Transportation Fails Under the "Gross Negligence" Exception" »

On the day after Thanksgiving in 2003, plaintiff Nicol Hannie's vehicle was struck by another vehicle driven by defendant Ray Guidry in LaFayette, Louisiana. Due to the holiday shopping sales offered that day, traffic was very heavy. Hannie, who had just finished eating at a restaurant, attempted to make a left hand turn onto a five lane roadway. The middle lane of the roadway was a turning lane. Because traffic was completely backed up in the two travel lanes immediately closest to Hannie, several cars in those lanes graciously created a space for Hannie to traverse and waved him through. As Hannie cautiously passed through the space created in the immediate two lanes, he inched onto the turning lane to complete his left hand turn. However, as soon as he began to pass through the turning lane in order to merge onto the distant travel lanes, he was struck by Guidry, who was allegedly using the turning lane as a passing lane and also traveling at a high rate of speed.

At trial, the district court agreed that Guidry was impermissibly using the turning lane as a passing lane. They reached this conclusion by noting that Guidry's intended turn-off was nearly 700 feet away from the scene of the collision, and he could have stayed in the inside travel lane several hundred feet further before entering the turning lane. Furthermore, the high rate of speed Guidry was driving, as witnessed by others, tended to show that Guidry may have been impatient and did not want to remain in the travel lanes before commencing his left handed turn in the turn lane. Accordingly, the district court held Guidry to be 100% at fault for Hannie's resulting injuries.

Dissatisfied with the verdict, Guidry appealed to the Third Circuit Court of Appeals of Louisiana. Guidry denied all fault and contended the Court of Appeals should review the district court's finding under a de novo standard of review.

De Novo is a Latin expression that means "anew." When a litigant asks an appellate court to review a district court's findings de novo, that litigant is asking the appellate court to completely disregard the district court's legal conclusions, and to instead apply its own findings based on the record before it. Because the district court is the fact-finding court, the appellate court typically must defer to the district court's evidentiary and testimonial findings, unless those factual findings were clearly wrong. However, an appellate court does not have to defer to the district court on questions of law.

In Louisiana, an appellate court may review a lower court's legal conclusions de novo only if the district court's legal error was prejudicial. A legal error is prejudicial if it "materially affects the outcome of the trial court's fact finding process and deprives a party of substantial rights."
In the instant case, Guidry argued that the district court applied an impermissible legal standard by enunciating a two-car-length rule for the execution of a left turn in a center turn lane. Guidry argued that this two-car standard was not based on any existing legal standard and was created out of whole cloth by the district court.

While the Third Circuit Court of Appeals agreed that the two-car standard was a misstatement of law insomuch as no such brightline rule previously existed, it concluded the underlying general idea that a car should only travel a limited distance in a turning lane to be legally sound. Moreover, the reviewing court found that even if the two-car standard constituted legal error, it still would not have prejudiced Guidry. Witnesses reported Guidry operating his vehicle in an "erratic" manner, at speeds "way too fast for the turning lane." Consequently, Guidry was nevertheless operating his vehicle in a negligent manner at the time of the collision, supplying an alternative basis for the district court's conclusion that he was 100% at fault. Accordingly, the appellate court affirmed the verdict in favor of Hannie.

As Hannie v. Guidry shows, a case is never fully resolved until an appellate court has denied a request for or reviewed an appeal. It is thus important to be aware of which review standards an appellate court must apply.

Continue reading "Hannie v. Guidry Spells Out Standards for DeNovo Appeal " »

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

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

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

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

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

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

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

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

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

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

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

West Monroe, a city of some fifteen thousand people, has seen an increase in the number of collisions between trains and cars over the last two years. One person has been killed and four injured in such accidents, three of which occurred in 2010 and two of which occurred at the Plum Street railroad crossing.

The City of West Monroe, the Department of Transportation and Development (DODT), and the Kansas City Southern Railroad Company are responsible for maintaining these railroad crossings. As a result of the increase in accidents, they have collectively decided to close two railroad crossings, at South Second and Plum Street. Although they initially planned to close the Trenton Street Underpass, the city decided to keep it open due to the inconvenience to traffic.

In addition to closing two intersections, the city and railroad company plan to upgrade all other railroad crossings within city limits. These upgrades will consist of adding new warning devices and cutting back any vegetation that might obscure drivers' views. They might also involve lowering the speed of passing trains and increasing the trains' use of their horns.

Municipalities and railroad companies have a duty to maintain safe railroad crossings based on the Federal Railroad Safety Act and supplementary state legislation. This duty applies equally to both the municipalities and railroad companies; a railroad intersection is as much a street as it is a railroad. As such, victims of accidents at railroad crossings may collect damages from both the municipality and the railroad company, the two of whom may sort things out between themselves after paying for the harm to the victim.

The importance of this duty, relative to the other duties which fall on municipalities and railroad companies, becomes readily apparent with a brief look at statistics. There are over two hundred thousand railroad crossings in this country, which cause over twelve thousand car accidents each year. Of these twelve thousand car accidents, more than fifteen hundred involve fatalities and more than seven thousand involve serious injuries.

Despite the dangers of railroad crossings, there is no hard and fast definition of what is and what is not a safe railroad crossing. Rather, the safety of a crossing, or the negligence of a municipality or railroad company, is determined by the circumstances of the particular crossing. For instance, no single train speed limit is per se negligent, unless an ordinance or statute makes it so. However, any such speed may be negligent if, under the circumstances, reasonable prudence calls for a slower speed. The same is true of vegetation obscuring the view of the tracks, the amount of traffic crossing the tracks, and the existence of warning signals. An area which is lightly traveled, by cars or by trains, requires fewer warning signals and allows more vegetation and train speed than an area which is heavily traveled.

A spike in the number of accidents, as has occurred in West Monroe, may be evidence that the railroad crossings have become unsafe because the circumstances under which they are used has changed. If West Monroe or the Kansas City Southern Railroad Company failed to remove vegetation over the last few years, resulting in an increasingly obscured view of oncoming trains, they may have turned an otherwise safe crossing into a liability. Likewise, if the city or railroad company failed to adjust train speed or failed to place more warning signs in response to an increase in traffic, they may have allowed a potentially safe crossing to become a liability.

The decision to upgrade the crossing does not, in itself, increase the municipality's or the railroad company's potential liability. Neither would deciding to upgrade an intersection and then failing to do so. This is because selecting a crossing for upgrade does not make drivers think that the particular crossing is safer than they otherwise would. Because plans to upgrade a railroad crossing do not create a perception of safety, they do not cause more drivers to use the crossing than otherwise would. As such, planned upgrades are not the proximate cause of accidents.

The City of West Monroe, DODT, and Kansas City Southern Railroad Company are liable for the state of their railroad intersections not because they have decided to upgrade them, but because they must upgrade them so urgently. Cities and railroad companies across Louisiana which maintain hazardous railroad crossings should learn from West Monroe. Public safety demands that they upgrade their facilities without the prompting of a spike in fatalities or a wrongful death lawsuit.

In Louisiana, a tort suit must be filed within a certain period of time after the incident occurs. This is called the "prescriptive period," and serves several purposes. It puts the defendant on notice within a reasonable period of time that a plaintiff has a possible claim against him and thereby allows him to preserve evidence that may be required for trial. It also supports the state's efforts to resolve legal disputes in a timely manner. The prescriptive period for a specific tort is set by statute. For product liability cases, the Louisiana Products Liability Act "establishes the exclusive theories of liability for manufacturers for damage caused by their products" and creates a one-year prescriptive period for claims that "commences to run from the day injury or damage is sustained." See LA. CIV. CODE Art. 3492.

Filing a lawsuit even one day past the expiration of the prescriptive period can prove fatal to a plaintiff's effort. For example, Carter v. Matrixx Initiatives, Inc., No. 09-31134 (5th Cir. 2010) involved a plaintiff who filed her lawsuit just six days too late and was barred from recovering. On February 23, 2007, Ruth Carter of Livingston Parish used Zicam No Drip Liquid Nasal Gel Cold Remedy and immediately experienced excruciating burning pain in her nose. By the next day, she lost her sense of smell and sense of taste. The pain was so severe that Carter was unable to work and told her employer that she believed the Zicam had caused the burn when she called in sick. Carter sought medical treatment from her primary care physician who did not confirm the cause of her injury but referred her to a radiography center for further examination. During the imaging appointment on May 7, 2007, Carter told the technician about her suspicions about the Zicam. The technician responded that she had received an e-mail communication warning "to be on the lookout for [the same kind of] problem with Zicam." Carter filed suit against Matrixx Initiatives, Inc, the maker of Zicam, on February 29, 2008 in Louisiana state court. The case was removed to federal court where the Louisiana Products Liability Act was to be applied by the court. Matrixx then filed a motion for summary judgment seeking a dismissal, arguing that because Carter's suit was filed six days after the expiration of Louisiana's one-year prescriptive period for product liability suits, Carter's action should be barred. The district court granted Matrixx's motion on this ground, and Carter appealed.

In her appeal, Carter argued that the doctrine of contra non valentem should apply. Under this doctrine, the running of the prescriptive period is suspended "until the facts necessary to state a cause of action are known or reasonably knowable to the plaintiff." The idea is that the plaintiff is not penalized for failing to act until she has "actual or constructive notice of the [tort], the resulting injury, and the causal connection between the two or that the plaintiff's lack of such knowledge was willful, negligent or unreasonable." See Sharkey v. Sterling Drug, Inc., 600 So. 2d 7013 (La. App. 1st Cir. 1992). In effect, Carter's position was that not until her conversation with the radiography technician on May 7, 2007 did she become aware that the Zicam caused her injury and, accordingly, the prescriptive period should not have begun running until that date. The Fifth Circuit rejected this argument. The court found that it was "apparent that Carter first sustained the injury that allegedly resulted from her use of Zicam on February 23, 2007 and that she had actual knowledge of pain and sensory loss on that same day." The court noted that "from the very outset, Carter suspected and attributed her injury to Zicam, and she never wavered in that belief." In the court's view, Carter "indisputably" had both the belief that Zicam caused her injury and a reasonable basis for seeking to hold its manufacturer responsible "on February 24 at the latest." Therefore, the prescriptive period "began running on February 23 (February 24 at the latest)," and so Carter's filing of her lawsuit "was at least five days late." The court affirmed the lower court's dismissal of Carter's claims.

The Carter case is a stark example of how strictly courts enforce the prescriptive periods established by the legislature. If you have been injured by a defective or dangerous product, it is critical to seek legal help immediately so you do not lose your opportunity to file a suit and obtain the recovery you deserve. An experienced trial lawyer will determine the prescriptive period that applies to your case and help you file an action before the window closes permanently.

Continue reading "Louisiana Products Liability Act Requires Swift Action by Plaintiffs " »

Faulty Jury Instructions in Iberville Parish Accident Result in De Novo Review by Appellate Court

On the afternoon of June 20, 2005, Jesse Brooks, an operating engineer who worked for Industrial Plant Maintenance in St. Gabriel, was driving a backhoe along the shoulder of La. Highway 30. Brooks was followed by his coworker, Steve Harris, in another vehicle. As Brooks approached a driveway that connected with the highway, the backhoe hit a depression and rolled over on its right side. Harris immediately approached the backhoe, where he found Brooks unconscious in the cab. Brooks died shortly thereafter. Brooks's widow, Lola, filed a wrongful death action against the State of Louisiana through the Department of Transportation and Development (DOTD). At trial, the jury found the DOTD negligent in maintaining the shoulder of the highway, returned a verdict for Mrs. Brooks, and awarded her approximately $812,000 in damages.

The DOTD appealed, alleging several errors on the trial court's part. Among them was an improper jury instruction. Under Louisiana law, the trial judge is required to instruct jurors on the law applicable to the issues submitted to them to decide. La. C.C.P. Art. 1792(B). The jury charge "must correctly state the law and be based on evidence adduced at trial... Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues." LeBlanc v. Landry, 21 So.3d 353, 358-359 (La. App. 1st Cir. 2009). If the trial judge "omits an applicable, essential legal principle, [the] instruction does not adequately set forth the law applicable to the issues to be decided by the jury and may constitute reversible error" which is remedied by a de novo review of the jury's findings by the appellate court. Leblanc, 21 So.3d at 358-359; see also Picou v. Ferrara, 483 So.2d 915 (La. 1986).

In its appeal, the DOTD argued that the trial judge incorrectly instructed the jury on the DOTD's duty to maintain and repair its roadways and shoulders and by citing La. R.S. 32:299(A)(2), a statute that permits the operation of farm vehicles on shoulders of public roads. The court agreed that this charge was erroneous, noting that no evidence presented during the trial established that the backhoe was being used as farm equipment. Instead, the court reasoned, the trial judge should have instructed the jury on two other statutes which provide that "a vehicle shall be driven upon the right half of the roadway," and that "a vehicle shall be driven as nearly as practicable entirely within a single lane." La. R.S. 32:71; La. R.S. 32:79. Since the jury was instructed on the wrong law, the court believed the inaccurate instructions misled the jury in evaluating Brooks's own conduct leading up to the incident. The court found the instructions contained a "plain and fundamental error" that "probably contributed to the jury's finding that Mr. Brooks was not negligent in the operation of the backhoe."

Having reached this conclusion, the court conducted a de novo review of the issue of whether Brooks's conduct amounted to contributory negligence. Because he "violated Louisiana law by traveling on the shoulder rather than within the travel lane of the roadway," the court determined that Brooks's conduct was negligent and assessed him 20 percent of the fault in the accident. The court amended the trial court's judgment and reduced Mrs. Brooks's damages award to approximately $650,000.

This case illustrates the critical importance of jury instructions. While in most cases an appellate court is entitled to disturb a trial court's findings only in the case of the trial court's abuse of discretion, a faulty jury charge like the one in the Brooks case can authorize the appellate court to review the evidence and decide the matter as if for the very first time. Although a trial judge is under no obligation to give any specific jury instructions favored by either party (see Leblanc, 21 So.3d at 358), an effective strategy for a plaintiff is to submit to the court suggested instructions as a way of guiding the judge's proper selection of charges. Taking a proactive approach with jury instructions is one way that an experienced trial attorney can help a plaintiff recover the damages he or she deserves--and ensure that the award stands fast on appeal.

Continue reading "Faulty Jury Instructions in Iberville Parish Accident Result in De Novo Review by Appellate Court" »

After having faced a significant heart-related scare and receiving a stent implant, many patients are now facing a rather unbelievable reality: it has been discovered that doctors across the nation have been performing unnecessary surgical procedures in order to financially benefit. Doctors, implanting the device intended to unblock clogged heart vessels, are now accused of recommending the procedure in order to bill private and government health insurers for unnecessary medical procedures. A stent is essentially a mesh tube that is inserted most commonly inside the heart and then expanded, using a small balloon to open blocked arteries that prevent blood flow to heart muscle. Despite the fact that stents are a medical breakthrough, it seems as though many individuals are having these devices implanted without having any need for them. While some might believe this does not have any significant drawbacks, the reality is that the procedure implanting them, and the devices themselves, expose patients to a risk of future medical complications due to the fact they have an unnecessary foreign device inserted into their body.

As a result of these discoveries, numerous doctors all over the United States are currently being investigated or indicted, even sentenced to prison for performing unnecessary procedures on individuals. The main criminal charge these medical professionals face is health care fraud. Many times, this situation would go unnoticed if it were not for the hundreds of patient complaints pouring into the hospital boards, motivating investigations into why the doctors have performed so many of these specific procedures on individuals. One investigation of Dr. Mark Midei, of Maryland, led the Maryland Medical Board to hold that Medei was involved in "gross overutilization of health care services... and willfully making a false report or record in the practice of medicine." One statistic in particular leads some to believe that Dr. Midei is not alone in this practice: the number of stent procedures has almost tripled within the past ten years. What's more, the number of patients receiving this type of implant has increased steadily every year since 1993, and continues to rise.

Additionally, in Lafayette, Louisiana, in 2009, Dr. Mehmood Petel, formerly of Our Lady of Lourdes Hospital and Lafayette General Hospital in Louisiana, was convicted of 51 counts of fraudulent medical procedures and received the maximum sentence of ten years in a federal state penitentiary. Over 75 patients charged Dr. Patel with fraud and of performing unnecessary heart stent procedures on them. Testifying experts, as well as the Department of Justice, revealed that the majority of the patients who received such implant had little or no disease. Patel was also found to have falsified patient symptoms in medical records, including specific symptoms such as heart pain. The amount of money that Patel billed insurers was astronomical; between 1999-2003, Patel billed Medicare and provate insurance companies more than $3 million, pocketing more than $500,000.

In order to prove health care fraud, a certain set of facts need to be proven. Specifically, to convict a "defendant of health care fraud, the government has to prove beyond a reasonable doubt that he knowingly and willfully executed, or attempted to execute: a scheme or artifice --

(1.) To defraud any health care benefit program; or

(2.) To obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program in connection with the delivery of or payment for health care benefits, items, or services."
(United States v. Refert, 519 F.3d 752, 758 (8 Cir. 2008).

The issue many courts are facing is that the Medical Review Boards have expressed the desire to handle these situations themselves, absent the legal system. This presents patients with the dilemma of communicating what they have gone through and not receiving adequate compensation or justice at the end of the day. In fact, many Medical Review Boards feel that peer review solves any potential problems such as the unnecessary heart stent procedures. However, it has not been until recently that the sting procedures were investigated and/or prosecuted. The New York Times recently reported that stents are a profitable, big business within the medical field — manufacturers such as Johnson & Johnson (who are currently facing legal problems over their recalled hip implant devices) sold over $3 billion worth of stents last year alone. That number has steadily increased along with the incomes of the Doctor's who consistently utilize them.

If a person has had a heart stent implanted within the last ten years, exploration into their medical history and condition may be necessary. The old adage, "It is better to be safe than sorry," may be applied to individual's going through this situation. Instead of experiencing the fear that the heart stent may not have been necessary, allow a legal representative to explore the situation and clarify what is going on. However, they do not have to rely on the Medical Review Boards alone, having legal representation may help to protect their rights as well as ease a stressful situation into a manageable one.

Continue reading "Heart Stent Procedures Done Without any Need" »

Substantial Jury Award Upheld in Jeep Accident

Recently, the 4th Circuit Court of Appeals upheld a substantial jury award to a Louisiana couple whose unborn son was tragically injured after their Jeep Grand Cherokee reversed and hit the expecting mother, pinning her against a brick column. This injury, sustained by the mother, resulted in the baby being born with permanent brain damage. Unfortunately, the child survived less than a month, when the couple decided to remove him from life support. This traumatic event is claimed to be the result of DaimlerChrysler's defective design of the Jeep Grand Cherokee. The couple was awarded $5.08 million in 2008, which Daimler Chrysler recently attempted to appeal; however, the state appeals court affirmed the jury award. Critics have alleged that the award was excessive, and that the couple did not prove that the car's design was actually defective in order to be awarded such an amount. However, their complaint was not the first in regards to the "Park to reverse" problem that year Jeep Cherokee was experiencing.

Analysis of the time line of the case has given rise to speculation that the jury award should not have been upheld. The accident initially occurred on May 21, 1999, and the fatally injured baby was taken off of life support on June 7, 1999. The couple filed their petition against DaimlerChrysler on November 30, 2001, after being informed by a Los Angeles Times reporter that their experience was not unique and that numerous investigations into Jeep Grand Cherokees had been made due to a "Park to Reverse" problem. The matter went to trial on March 31, 2008 and on April 10, 2008 the jury awarded the couple $5.08 million. Following the decision, DaimlerChrysler appealed. The company argued that the trial court erred in not finding that the couple's case had prescribed, as it was filed two and half years after the date of the accident. Further, the company alleged that the trial court abused its discretion in admitting expert testimony and other evidence that allowed the jury to find a defective product and causation. The state appeals court went through DaimlerChrysler's allegations one by one and consistently held the company to be at fault.

To start with, DaimlerChrysler alleged that the case should have not been allowed to be heard, since the couple filed their petition over two years past the date of the initial injury. The court recognized that "prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong...but rather, prescription begins to run against a claimant when he obtains actual or constructive knowledge of facts indicating a cause of action." (Guillott v. DaimlerChrysler No. 2008-CA-1485 (9/24, 2010)). The court reasoned that the husband had no reason to suspect anything other than misfortune in regards to the Jeep reversing into his wife; there was nothing to indicate that the vehicle had a defective design which caused such an event. Further, the couple was never put on notice or told about the issues surrounding problems relating to the Jeep Cherokee. The manufacturer never took action to notify the couple of these problems even though, on June 9, 1999, only a matter of days after the couple's son was taken off life support, the company's local counselor faxed a copy of the couple's accident to Chrysler headquarters. These facts led the 4th Circuit to hold that prescription had not run and the couple had filed their petition against the company in a timely fashion.

Secondly, DaimlerChrysler argued that expert testimony regarding the design of the Jeep Cherokee should not have been admitted. However, the court held that a trial judge has wide discretion in whom to allow and not allow to testify, and as such, it will not be disturbed by an appellate court unless it is clearly erroneous. What is interesting is that when the expert did testify in regards to the vehicles design, he declared that the Research Testing Center that tests the cars for operation before they are mass produced and sold found that the 93-98 Jeep Grand Cherokee had "unintended powered reverse found to occur only when the transmission was not shifted into gated park..." This in fact, is what most likely occurred to the couple on that fateful day when their unborn son was fatally injured.

Thus, contrary to many critics of this recent decision, the 4th Circuit's decision follows the rules of law operating over such legal issues. The couple never had any reason to know of or believe that their vehicle had a design defect that would cause such a tragic event. Further, the company never informed them of the numerous complaints regarding the dangerous issue; the only reason the couple found out about the issues was due to a newspaper reporter who called informing them that they were not alone in experiencing such a traumatic event. Thus, the couple filed the petition against the company shortly after they learned of the Jeep Grand Cherokee problem. Further, the expert testimony was allowed by the trial court, and the judge in such instances is allowed wide discretion to allow in what they deem reasonable for the case. The expert testimony revealed that the company had test results that demonstrated the vehicle's potential problem; however, they failed to resolve such issue. Thus, on appeal, the court held that the trial court's jury verdict was appropriate, not because the event was so horrendous that they blindly awarded such an amount, but rather, because the law supports such a finding and as such, it has been upheld.

If you find yourself in an accident and believe that a flaw with the car or parts therein may have caused the problem, contact an attorney immediately. By doing so you can begin moving quickly to make sure your case is handled properly and efficiently in order to get the justice and compensation you deserve.

The Berniard Law Firm is proud to announce the release of an innovative new iPhone application that can be considered a must-have for individuals in the Gulf Coast. With extensive versatility and options including multiple contact points for our attorneys, as well as consistent site updates that will keep you informed of legal developments as they become available. Released October 26, we recommend everyone download the application in order to stay abreast of a variety of issues that relate to them.

In the works for some time, and with an update already planned, the Berniard Law Firm iPhone app puts law matters that are important to Louisiana residents in the palm of their hands. Constantly refreshing, with updates relating to our website, this application is an effort by our firm to allow our friends and clients quick access and up-to-date information for their daily lives. Whether using the application to send our firm a legal question or to call our offices, we strongly encourage anyone that wants an attorney and a wealth of legal information at your fingertips.

Specifically, the Berniard Law Firm Injury Attorney iPhone App provides users
- Entry page to record important details in the event of an accident
- Minimal size installed (only 3.1 MBs)
- Practice area explanations
- Quick jumps to consistently updated blogs
- Fast contact information to speak with an attorney

One feature that is extremely important and valuable in the Berniard Injury Attorney App is the entry page. Composed of data input fields that target inherently important details of an accident, using this portion of the application can help you make sure you record all of the necessary information at a time in which it maybe be difficult to remember. Providing an easy, step-by-step accident guide, this application can even include a picture with the information report with a simple tap.

For more information on how to download this application, or to discuss your legal rights regarding an issue that you are facing currently, contact our offices today. The Berniard Law Firm would happily discuss with you what opportunities you may have within the realm of the law, as well as give you a free consultation in regards to how we can best get you the justice you deserve.

To download the application, click here.

Louisiana residents are becoming increasingly concerned about the drywall in their homes, which might be leaking toxins and other contaminants into the bedrooms and throughout the house depending on the manufacturer. Drywall consists of panels made of gypsum plaster pressed between two thick sheets of paper. The panels are used to make interior walls and ceilings. This is frightening for people who live in contaminated homes because of the proximity to possible toxins and poisons: literally they are just a few inches away from deadly poisons.

Many Louisiana residents have filed complaints in court about the drywall over the past few years. These lawsuits were pressed by those looking to recover the money it would cost to replace their drywall with a safer version. Since this process involves major construction, the costs are high and these people rightfully felt like they should not have to pay for unknowingly being exposed to contaminants by the manufacturer.

Because of the dangers involved, and the damage caused to fixtures and elements of the home, many are wondering how they may find out if they are living in a contaminated home. Those who suspect they have the drywall in their homes should be on the look out for health symptoms amongst their family that include runny nose, difficulty breathing, and headaches. If you or any of your family members are exhibiting these symptoms, be sure to contact an experienced attorney today. It is imperative that you act now while the courts are dealing with other cases like yours.

In the past couple months, attorneys and individuals throughout Louisiana were unsure as to how the courts would resolve this matter. Fortunately for those exposed to the defective drywall, the recent Louisiana federal district court decision is good news: a partial settlement has been reached in a class action lawsuit dealing with the defective Chinese drywall installed in homes between 2004 and 2008.

Under the settlement, the manufacturer of the drywall, Knauf Plasterboard Tianjin, will fund a program to replace drywall in about 300 homes throughout the South, including many homes in Louisiana. Many expect another 3,000 homes to receive similar help. Included in the costs will be relocation expenses and any damages to appliances and wiring which occurred as a result of the defective drywall. If you have discovered Chinese drywall in your home, it is not too late to take action to receive the compensation you deserve. The agreed to settlement will undoubtedly provide a guide for how future legal actions will be handled, meaning you might still be able to be compensated for the injuries you and your family have suffered.

Continue reading "Chinese Drywall News a Welcome Sign for Those With Toxic Sheetrock in their Home" »

On October 18, 2007, Kalencia Young and her passenger, Ashley Newsome, both pregnant, were driving on DeSiard Street toward Renwick Street in Monroe. At the same time, Gerald Adams was driving toward the intersection, which was controlled by a traffic light, on Renwick Street. The two vehicles collided when Adams's pickup truck struck the passenger side of Young's car.

Officer Tobyn Berry of the Monroe Police Department responded to the scene. He questioned both drivers and inspected the traffic light to determine that it was working normally. Berry also questioned two witnesses to the accident. One of the witnesses claimed that he saw Adams talking on his cell phone at the time of the crash and alleged that the traffic light was red for Adams as he approached the interestion. Officer Berry issued Adams a citation for failing to observe the traffic signal. Both Young and Newsome were taken to the St. Francis Hospital by ambulance and were released a short time later.

Young and Newsome sued Adams for the injuries they sustained in the crash. At the trial, Officer Berry's deposition and accident report were entered into evidence. Both Young and Newsome testified, agreeing on few details except that they had a green light at the intersection. In response, Adams testified that he had the green light as he approached the intersection, and denied talking on his cell phone at the time of the accident. The trial court rendered judgment for Adams, finding his testimony to be "more credible than the entirety of the plaintiffs' case." Young and Newsome filed a motion for a new trial so they could subpoena the two witnesses from the scene. The witnesses failed to appear during the second trial, and the court once again rendered judgment in Adams's favor.

Young and Newsome appealed, arguing that the trial court's ruling was "manifestly erroneous on the evidence presented since it accepted the uncorroborated testimony of Adams and failed to give any weight to the corroborated testimony of ... the plaintiffs." The Second Circuit reviewed the manifest error standard, noting that

"A trier of fact's decision to hold the testimony of one of two or more witnesses more credible does not constitute manifest error. Where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Rosell v. Esco, 549 So. 2d 840 (La. 1989).

The Young case illustrates the critical role the trial court plays in evaluating the credibility of witnesses. The resolution of this matter turned almost entirely on the parties' testimony which was in direct conflict on most points. Clearly, the "variations in demeanor and tone of voice" of the parties impacted the judge's understanding and belief in what was said. Rosell, 549 So. 2d at 840. Given that an appellate court must defer to the trial court's judgment about witness credibility except in the most extreme cases, it is essential that a plaintiff thoroughly prepare for trial in order to capitalize on the opportunity to establish credibility with the court.

Continue reading "Ouachita Parish Car Wreck Shows Trial Court's Role in Settling "He Said/She Said" Arguments" »

In Pearl River on July 9, an 18-wheel truck blew out a tire and crossed over into oncoming traffic killing four people. The accident at the Louisiana/Mississippi state line occurred when the driver of the semi was driving northbound on I-59 and lost control of the vehicle after the tire blew out. The semi crossed the center median, and in what state police describe as an almost head on collision, the semi collided into a Dodge Ram pickup and led to both vehicles sliding off the road. While all four individuals in the truck were killed, the driver of the semi suffered minor to moderate injuries. The driver of the semi was from Montgomery, Texas and the four passengers in the Dodge Ram pickup were from Carriere, Mississippi. For his part in the accident, the driver of the semi was charged with careless operation and four counts of negligent homicide.

It is important to know that while negligent homicide is a criminal charge, suit may also be filed under a wrongful death cause of action for the four victims that were killed in the accident. Historically under common law, wrongful death was not available and only criminal law was an option. Under statutory law however, a person can be held responsible in civil court in addition to criminal court for wrongful death. Wrongful death statutes provide a legal remedy for wrongfully causing the death of another human being. The applicable Louisiana Civil Code wrongful death statute is under Book 3, Title 5, Chapter 3, Article 2315.2 and states, "If a person dies due to the fault of another, suit may be brought [...] to recover damages which they sustained as a result of the death."

In civil court, the basis for wrongful death is negligence. In a case of negligence, the plaintiff must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the actual and proximate cause of the injury, and damages. If a claim is brought in negligence, the driver is held to a "reasonable person" standard of care. The question to ask is, "Would a reasonable person behave this way under the same or similar circumstances?"

A finding of negligence in this matter requires an attorney to investigate whether the the accident was due to the driver's negligent operation of his vehicle, or whether the semi driver negligently maintained or inspected the vehicle. Investigation of negligently maintaining the vehicle requires that the cars are examined and that the evidence is preserved.

If the driver is not found to be negligent, the plaintiff may also have a products liability claim for the tire blowout. Under a products liability cause of action, the focus is on the supplier's liability for a product that caused physical harm to a person or to property. For products liability the same injury may be brought on several theories including intentional torts, negligence, strict liability, or liability based on breach of an express or implied warranty.

Claims may also be filed for property damage that was sustained by the vehicles involved in the accident. Property damage is recoverable in negligence. The damages that are recoverable in negligence cases are compensatory rather than punitive.

Although the parties in this accident were from Texas and Mississippi, the fact that the accident occurred in Louisiana will allow a lawsuit to be brought in Louisiana court.

Continue reading "Fatal Collision in Pearl River Illustrates Elements of Semi-Truck Negligence" »

Under Louisiana law, a motion for summary judgment is a procedural device that allows a court to resolve a case without a full trial when there is no "genuine issue of material fact" to be decided. See Duncan v. USAA Insurance Co., 950 So.2d 544 (La. 2006). A "genuine issue of material fact" is a matter about which reasonable people could disagree. This kind of decision is left to the jury to decide (or, in the case of a bench trial, the trial judge). If, based on the evidence, reasonable people could reach only one conclusion about an issue, there is no need for a jury to resolve it. A fact is "material" when it relates to an essential element of a plaintiff's theory of recovery. A motion for summary judgment can be filed by either the plaintiff or defendant (the "movant"). The initial burden of proof rests with the mover to show that based on the pleadings, depositions, interrogatories, and affidavits, no genuine issue of material fact exists in the case. If the movant makes this initial showing, the burden then shifts to the other party to present evidence that shows that a material fact issue actually does exist; in the absence of this evidence, the court can grant the motion. See Hutchinson v. Knights of Columbus, 866 So.2d 228 (La. 2004).

Typically, the questions of a defendant's negligence or a plaintiff's contributory negligence are issues of fact and are therefore not appropriate for summary judgment. Freeman v. Teague, 862 So.2d 371 (La. App. 2d Cir. 2003). However, in the event that reasonable minds cannot differ, these matters can be resolved by summary judgment. For instance, in the case of Pruitt v. Nale, No. 45,483-CA (La. App. 2d Cir. 2010), the plaintiff employed a motion for summary judgment both to recover damages from the defendant and to dispute the defendant's allegation of contributory negligence.

On March 9, 2007, Tiffany Pruitt, then 19, was driving her father's pickup truck eastbound on East Jefferson Avenue in Bastrop, Louisiana. Glenn Nale was also driving in the same direction of travel on Jefferson Avenue. He was behind the wheel of a log-hauling tractor-trailer. At the intersection with South Franklin Street, both Pruitt and Nale stopped at the red light, with Pruitt in the center lane of travel and Nale in the designated left-turn lane. When Nale began making a left turn onto South Franklin Street, the logs protruding from the rear of his trailer swung into the center lane and slammed into Pruitt's truck. At least one of the logs shattered the driver's side window and entered the cab of the truck, severely injuring Pruitt.

In 2008, Pruitt and her parents filed a complaint against Nale for damages, which Nale answered and asserted comparative negligence on Pruitt's part. Pruitt then filed a motion for summary judgment. A hearing on the motion was held on March 31, 2009 and the trial court rendered a judgment in favor of Pruitt, finding that Nale was 100 percent at fault for the accident. The court relied on a state law that requires drivers to ensure they can safely execute a turn before making it, which Nale clearly failed to do. The court further concluded that the evidence showed that Pruitt could not have been at fault: after the traffic light turned green, "she drove off at a normal speed, [Nale's] truck right ahead of her turned and the logs came in front of her truck for just a second or two, but long enough for contact to be made. She was not at fault if she ran into the logs." Nale appealed, arguing that the trial court erred in granting the motion for summary judgment on the issue of liability "because there were material factual disputes as to whether [Nale was] negligent and whether ... Pruitt was comparatively at fault" for following Nale's truck too closely.

The court reviewed the affidavits of the parties, several eye-witnesses, and the police officer who investigated the scene, as well as the other evidence in the record. It disagreed with Nale's allegation that Pruitt followed his truck too closely. The court noted that Nale did not dispute that Pruitt's vehicle remained entirely within its lane of travel at all times leading up to the impact, and dismissed Nale's contention that because his truck somewhat encroached into Pruitt's lane as he began to make the turn, Pruitt should have anticipated that the logs would strike her truck. Thus, the court concluded that the evidence did not create an issue of fact about whether Pruitt negligently "rear-ended the protruding logs on the truck," and affirmed the trial court's granting of summary judgment.

The Pruitt case shows how critical a thoroughly crafted record is to a successful motion for summary judgment. Even though summary judgment is more often used by defendants than plaintiffs, and even though issues of negligence and comparative fault are rarely determined by summary judgment, Pruitt was successful in her motion because the record contained enough details about the incident that Nale was unable to convincingly suggest any alternative explanations for what happened. Drafting strategic pleadings, securing effective affidavits from witnesses, and conducting thorough discovery are all essential elements of a summary judgment victory, and are all tasks that benefit from the experience of an expert trial attorney who understands the process.

Continue reading "Summary Judgment in a Car Accident: the Complexities and Value of Police Reports/Record" »

Under Louisiana law, a motion for summary judgment is a procedural device that allows a court to resolve a case without a full trial when there is no "genuine issue of material fact" to be decided. See Duncan v. USAA Insurance Co., 950 So.2d 544 (La. 2006). A "genuine issue of material fact" is a matter about which reasonable people could disagree. This kind of decision is left to the jury to decide (or, in the case of a bench trial, the trial judge). If, based on the evidence, reasonable people could reach only one conclusion about an issue, there is no need for a jury to resolve it. A fact is "material" when it relates to an essential element of a plaintiff's theory of recovery. A motion for summary judgment can be filed by either the plaintiff or defendant (the "movant"). The initial burden of proof rests with the mover to show that based on the pleadings, depositions, interrogatories, and affidavits, no genuine issue of material fact exists in the case. If the movant makes this initial showing, the burden then shifts to the other party to present evidence that shows that a material fact issue actually does exist; in the absence of this evidence, the court can grant the motion. See Hutchinson v. Knights of Columbus, 866 So.2d 228 (La. 2004).

Typically, the questions of a defendant's negligence or a plaintiff's contributory negligence are issues of fact and are therefore not appropriate for summary judgment. Freeman v. Teague, 862 So.2d 371 (La. App. 2d Cir. 2003). However, in the event that reasonable minds cannot differ, these matters can be resolved by summary judgment. For instance, in the case of Pruitt v. Nale, No. 45,483-CA (La. App. 2d Cir. 2010), the plaintiff employed a motion for summary judgment both to recover damages from the defendant and to dispute the defendant's allegation of contributory negligence.

On March 9, 2007, Tiffany Pruitt, then 19, was driving her father's pickup truck eastbound on East Jefferson Avenue in Bastrop, Louisiana. Glenn Nale was also driving in the same direction of travel on Jefferson Avenue. He was behind the wheel of a log-hauling tractor-trailer. At the intersection with South Franklin Street, both Pruitt and Nale stopped at the red light, with Pruitt in the center lane of travel and Nale in the designated left-turn lane. When Nale began making a left turn onto South Franklin Street, the logs protruding from the rear of his trailer swung into the center lane and slammed into Pruitt's truck. At least one of the logs shattered the driver's side window and entered the cab of the truck, severely injuring Pruitt.

In 2008, Pruitt and her parents filed a complaint against Nale for damages, which Nale answered and asserted comparative negligence on Pruitt's part. Pruitt then filed a motion for summary judgment. A hearing on the motion was held on March 31, 2009 and the trial court rendered a judgment in favor of Pruitt, finding that Nale was 100 percent at fault for the accident. The court relied on a state law that requires drivers to ensure they can safely execute a turn before making it, which Nale clearly failed to do. The court further concluded that the evidence showed that Pruitt could not have been at fault: after the traffic light turned green, "she drove off at a normal speed, [Nale's] truck right ahead of her turned and the logs came in front of her truck for just a second or two, but long enough for contact to be made. She was not at fault if she ran into the logs." Nale appealed, arguing that the trial court erred in granting the motion for summary judgment on the issue of liability "because there were material factual disputes as to whether [Nale was] negligent and whether ... Pruitt was comparatively at fault" for following Nale's truck too closely.

The court reviewed the affidavits of the parties, several eye-witnesses, and the police officer who investigated the scene, as well as the other evidence in the record. It disagreed with Nale's allegation that Pruitt followed his truck too closely. The court noted that Nale did not dispute that Pruitt's vehicle remained entirely within its lane of travel at all times leading up to the impact, and dismissed Nale's contention that because his truck somewhat encroached into Pruitt's lane as he began to make the turn, Pruitt should have anticipated that the logs would strike her truck. Thus, the court concluded that the evidence did not create an issue of fact about whether Pruitt negligently "rear-ended the protruding logs on the truck," and affirmed the trial court's granting of summary judgment.

The Pruitt case shows how critical a thoroughly crafted record is to a successful motion for summary judgment. Even though summary judgment is more often used by defendants than plaintiffs, and even though issues of negligence and comparative fault are rarely determined by summary judgment, Pruitt was successful in her motion because the record contained enough details about the incident that Nale was unable to convincingly suggest any alternative explanations for what happened. Drafting strategic pleadings, securing effective affidavits from witnesses, and conducting thorough discovery are all essential elements of a summary judgment victory, and are all tasks that benefit from the experience of an expert trial attorney who understands the process.

Continue reading "Motion for Summary Judgment Can Be Winning Strategy for Plaintiff " »

On July 24th in Lincoln Parish, two trucks collided on I-20 leaving one dead and several injured. While traveling east on I-20, a Chevy Suburban attempted to pass a GMC truck hauling a livestock trailer. The Chevy Suburban swerved right hitting the GMC truck and both vehicles ran off the road. The vehicles struck the tree line, the Chevy Suburban striking several trees before stopping. The front-seat passenger of the Chevy Suburban was pronounced dead at the scene. Two backseat passengers suffered minor injuries, and the 16-year-old driver of the Chevy Suburban was in critical condition. The driver and passenger of the GMC truck sustained moderate injuries. Three cows in the livestock trailer died in the crash.

It is unclear whether the accident was due to a mechanical defect, driver error, or another cause. Louisiana State Police say that impaired driving is not a likely cause of the accident, but they are awaiting routine toxicology tests to make the final determination. All passengers were wearing seatbelts, and so far no citations have been issued.

The determination of whether the accident is due to a mechanical defect or driver error is critical to determine the claims to file and the parties to bring a lawsuit against. An attorney hired by an injured party may investigate whether the owner of the vehicle negligently maintained the vehicle. To establish negligence, the attorney must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the actual and proximate cause of the injury, and damages. Investigation of negligently maintaining the vehicle requires that the cars are examined and that the evidence is preserved.

The plaintiff may also have a claim for damages under the theory of products liability. Under a products liability cause of action, the focus is on the supplier's liability for a product that caused physical harm to a person or to property. For products liability the same injury may be brought on several theories including intentional torts, negligence, strict liability, or liability based on breach of an express or implied warranty.

As the accident report indicated, driver error may have caused the accident. If a claim is brought in negligence, the driver is held to a "reasonable person" standard of care. The question placed before the court in these cases is "Would a reasonable person behave this way under the same or similar circumstances?" In this case, the driver of the vehicle was 16 years old. Minors are held to the reasonable person standard of care of a person of similar age, intelligence, and experience. However, when minors engage in adult activities, such as driving vehicles, the child is held to the same standard as an adult.

It is also possible that a lawsuit may be filed under a wrongful death cause of action for the front seat passenger that was killed in the accident. Wrongful death statutes provide a legal remedy for wrongfully causing the death of another human being. The applicable Louisiana Civil Code wrongful death statute is under Book 3, Title 5, Chapter 3, Article 2315.2 and states, "If a person dies due to the fault of another, suit may be brought [...] to recover damages which they sustained as a result of the death." Negligence claims may also be brought on behalf of the injured passengers.

Claims may also be filed for property damage that was sustained by the vehicles, the damaged treeline, and the cows that were killed. Property damage is recoverable in negligence, with the recoverable damages in negligence cases remaining compensatory rather than punitive.

If you are involved in an accident, remember that you will need an experienced and knowledgeable attorney to represent you in order to navigate the complexity of the claims to file so that you are compensated for your injuries.

Continue reading "Lincoln Parish Truck Crash Demonstrates Need for Attorney Assistance " »

Asbestos was once used to make many common products including insulation, roofing materials, automobile brake pads, and other household and commercial goods. Beginning in the mid-1960s, asbestos was also regularly used as an additive for drilling mud in well-drilling operations by the petroleum industry. Drilling mud is used while drilling oil and gas wells to help clear debris out of the well and to help cool the drill bit. Various substances are often added to the drilling mud to adjust its thickness and fire retardant properties. Many of these, including lead, arsenic, and chromium, are toxic. Asbestos provided superior fire resistance and helped to improve the mud's consistency. Unfortunately, we now know that asbestos is linked to several types of cancer and other health problems.

The use of asbestos in drilling mud has been eliminated today; however, when it was first prohibited by the U.S. government, some petroleum companies apparently took the position that the federal ban did not apply to their offshore oil rigs or inland drilling barges. Thus, asbestos products may have been used in these environments even as late as the mid-1980s. Many drilling workers can recall working with a flaky, white additive that was packaged in 50-pound bags and mixed into the drilling mud in the mud shack. No proper breathing protection was provided to the workers who handled the mud additives, so many of these workers routinely inhaled pure asbestos fibers while mixing in the additives. Other oilfield workers such as roughnecks, mud engineers, and shaker hands also were likely exposed to asbestos on a regular basis during this timeframe. Even spouses and children of drilling workers were at risk of exposure if the workers came home with asbestos fibers clinging to their clothing.

Asbestos fibers are known to cause or increase the risk of many forms of cancer. The danger is highest among smokers, who face a substantially increased incidence of lung cancer. Studies have also shown a connection between asbestos exposure and gastrointestinal cancer, colorectal cancer, and a heightened risk for cancers of the throat, kidneys, esophagus, and other organs. Exposure is also linked to inflammation of the lungs, known as asbestosis, as well as pleural disease, which is inflammation of the tissue layers that line the lungs.

It is common for workers who have been exposed to asbestos to go for years before symptoms start to appear. Usually, early signs of exposure include shortness of breath and chest pain. A doctor can test for asbestos-related damage by using a stethoscope to listen for the characteristic sounds of the disease in the lungs. Xñrays or even more accurate CT scans can provide visual confirmation of exposure and the resulting damage.

Although a drilling worker's exposure may have happened years ago, the chemical companies that manufactured the asbestos and the oil companies who exposed their workers to the asbestos may still face liability today. Workers who were exposed to asbestos while working with gas or oil on an oil rig, oil platform, or other structure may qualify for compensation under maritime law. If you worked in a drilling operation in the 60s, 70s, or 80s and believe you may have been exposed to asbestos, you should contact an attorney who can inform you of your rights without delay.

Continue reading "Oil Rig Drilling Mud a Source of Asbestos Exposure for Workers in the Petroleum Industry" »

Car accidents oftentimes are not simple, clear-cut events that lend a clear idea of who was right and who was wrong. Instead, many times it is left to a court to decide what the circumstances were that led to the collision and the amount of responsibility each party had for it occurring. As a result, because no court is perfect, individuals who have been harmed due to another party's acts are left out in the cold because they could not prove their case. However, each year new technology comes out that provides a better opportunity for plaintiffs, and their attorneys, to prove their case and receive the compensation they deserve.

One firm, Advanced Research and Technology (ART) Corporation, works with the very technology required to prove cases. Utilizing Finite Element Analysis (FEA), commonly referred to as computer simulations, the company provides compelling engineering evidence to explain the cause of a crash-related case. FEA's due this by calculating the kinematics of the investigated accident (speeds, relative motion, different parts of accident) and structural analysis (where the cars collided and relevant stresses, strains, failures, energy displacements, etc.). By analyzing this information, FEA can help plaintiffs win cases related to auto and motorcycle crashes, airbag and seatbelt related problems, structural analysis relating to accidents or blasts, slip and fall cases, fuel tank and pipeline pressure analysis and a variety of others.

FEA simulations are widely recognized by the engineering community as a reliable and advanced tool for solving structural dynamics, crash, blast and impact-related matters. Automotive companies often use FEA for car testing in the same way that highway safety systems are designed using the technology. The reliability of FEA comes down to the simulator being able to develop accurate formulations or equations to explain how the millions of small elements involved in a collision react when variables are at a certain set. Because of its ability to determine how a car will behave in a collision and the effects of a collision, technology experts are able to move backwards and determine what variables were in place to lead to the results suffered.

Being able to go backwards and determine the cause is crucial in cases where the alleged cause of the problem/accident has been removed from the scene. For example, should a faulty guardrail cause a fatality, a simulation may be required should that guardrail be removed along with the wreckage of the cars and be discarded. What's more, the simulations done and formulas executed by the computer are not something easily, or affordably, done by hand. What's more, there are a plethora of court cases where FEA techniques were used as evidence in a court. This admissibility, coupled with the cost-effective manner it can determine an accident (often 20% of the cost of a single crash test), makes this technology incredibly important.

Technology like the one described above is a key component of complex litigation and it is important that you hire an attorney willing to use state of the art techniques to help prove your case. To speak to an attorney about how to best prove your car collision case, call our offices today. For more information on this technology, head to www.artengineer.com.

A power failure at Chalmette Refining LLC has led to a thin layer of white powder descending upon Southeast Louisiana, raising concerns about the toxicity and potential harm that could emerge from exposure. Citing a power failure for the reason that up to one ton of catalyst were released into the air and falling down atop cars, homes, businesses and other property, the company has attempted to assure the public that safety is not a concern. However, the care that the refinery recommends during clean-up tells a much different story.

Spreading across the communities of Arabi and New Orleans' lower ninth ward, the powder used for refinery processes resembled simple dust or powdered sugar and alarmed many during a time in which little to no information can cause significant panic. Taking place on September 6th, many in these communities are left wondering just why chemical releases keep happening and what is being done to prevent them from happening.

Louisiana's Department of Environmental Quality (DEQ), already investigating the unapproved release of catalyst, has notified the public that, after photographic any and all damage the powder has caused to their property, they can move forward with clean-up. Yet, in their required notice to the DEQ, the Chalmette refinery warned that gloves and safety glasses should be used when cleaning up the material. St. Bernard Parish Fire Chief Thomas Stone warned that the powder could be an irritant to individuals with respiratory problems and that the powder should be cleaned in order to prevent extended exposure.

This is not the first time that Southeast Louisiana has found itself on the receiving end of chemical releases. Aside from the BP oil spill that released hundreds of thousands of gallons of oil into the Gulf, the July 7th, 2009, release of ethyl acrylate by Dow in Hahnville led to hundreds of complaints related to health problems of individuals living or working in the area. While no legal outcome has come from this matter, it is important that people in Louisiana understand the unacceptable nature, both legally and in terms of common responsibility, for these incidences to be occurring and requires significant action on the part of the Department of Environmental Quality.

As was already noted, individuals who find the powder on their homes or property should photograph this in order to preserve record of the event. What's more, any individual who has suffered health problems related to exposure should contact a legal expert immediately to find out their rights due to this incident.

In November of 2005, Shane Kerry checked into the ER at West Calcasieu Cameron Hospital in Sulphur, Louisiana after fracturing the heel bone in his right foot. Kerry was examined by Dr. Charles Pearson, who discharged him later in the day with instructions to report for a follow-up at the LSU Medical Center in Shreveport the following week. As he was being transported back to his home, Kerry detoured to another ER, this time at the Christus St. Frances Cabrini Hospital in Alexandria. There, Kerry underwent surgery on his heel by a podiatric specialist. In September of 2008 Kerry filed a suit against Dr. Pearson, alleging that as a result of "delay, negligence, and deviations from the standard of care" on Dr. Pearson's part, he suffered "extreme disability, loss of sensation, and tissue necrosis with loss of muscle, tendon, skin, and subcutaneous tissue" around his heel. Kerry argued in his complaint that Dr. Pearson was negligent in failing to immediately decompress his foot, perform surgery, call in an orthopaedic surgeon, or arrange for his immediate transport to a hospital willing to properly treat him.

According to Louisiana procedure in medical malpractice cases, Kerry's complaint was submitted to a state medical review panel. On June 5, 2009, the panel returned a unanimous opinion that "the evidence [did] not support the conclusion that [Dr. Pearson] failed to comply with the appropriate standard of care as charged in the complaint." Accordingly, Dr. Pearson filed a motion for summary judgment with the trial court, requesting that the suit be dismissed on the grounds that Kerry could not establish that Dr. Pearson had failed to meet the applicable standard of care in his treatment of Kerry's foot.

In support of his motion, Dr. Pearson included the written opinion of the medical review panel, the affidavits of two doctors who sat on the review panel and who held licenses to practice emergency medicine in Louisiana, the medical records from Kerry's visit to the ER at West Calcasieu Cameron Hospital, and the discharge summary prepared by the podiatry specialist who treated Kerry at Cabrini Hospital. In his response, Kerry offered the affidavits of his mother and brother, both of whom suggested that there were clear indications that Kerry was in dire need of surgery when he entered the West Calcasieu Cameron ER, but that Dr. Pearson refused to perform it because Kerry lacked health insurance and couldn't afford the procedure. Kerry also attacked the accuracy medical records from his stay at that hospital, alleging that Dr. Pearson prepared them and that they did not reflect the severity of his injury. The trial court granted Dr. Pearson's motion and dismissed Kerry's claim because it "did not find that the submissions at th[at] point [were] adequate to establish a genuine issue of material fact as to the burden that is required under the unique specialization of medical malpractice." Kerry appealed.

The Third Circuit Court of Appeals reviewed the state of medical malpractice law in Louisiana:

"Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony." Samaha v. Rau, 977 So.2d at 884 (La. 2008).

In examining the record, the court concluded that the trial court was correct in holding that Kerry failed to offer sufficient evidence to establish that, during a trial, he would be able to prove that Dr. Pearson was negligent. The court's decision rested heavily on the fact that Kerry was unable to produce any expert testimony to support his negligence theory. Thus, the court concluded that Pearson's motion for summary judgment was properly granted, and affirmed the decision.

This case is yet another in a line of examples demonstrating the uniqueness and complexity of medical malpractice lawsuits. The testimony of an expert witness is absolutely essential for establishing the standard of care and explaining how a doctor failed to meet it. Even in cases of so-called obvious negligence, a plaintiff's case is nearly always made stronger by the opinion of a qualified expert. Here, Kerry was not even able to tell his story to a jury because he had expert to rely on to back up his theory of negligence.

Continue reading "Calcasieu Parish Medical Malpractice Case Shows Complexities of Delays, Negligence" »

Lamar Richardson of Joyce brought an action against his employer, Kansas City Southern (KCS) Railway Company, for injuries he claims to have sustained on May 14, 1990 when he was working on a maintenance crew. While clearing debris off train tracks, Richardson was cutting limbs from a large willow tree on the track at mile post 149.8 in Winn Parish and claims he was struck with a large limb and injured.

Richardson sued KCS under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq for medical expenses, mental anguish, and lost wages that resulted from the alleged injury. He contended that his employer failed to provide a safe workplace and was negligent in not adequately supervising the clearing of trees or training personnel in how to cut trees. Richardson claimed his injuries kept him from working and eventually led to a need for cervical disc surgery. The case went to trial in 1994 and 1995. Judgment was entered in June 1998 in Richardson’s favor and he was awarded medical expenses of $3,869.75, general damages of $150,000, and lost wages of $525,435.00. The major contention presented during the trial was Richardson’s report that he visited the emergency room Jackson Parish Hospital on May 15th after the pain in his neck intensified. Hospital records do not confirm the report but rather show he visited the ER three days prior to his alleged injury on May 11, 1990 where he complained of, among other things, neck pain that had lasted about a week. The emergency room had no record of a visit on May 15. Richardson claimed that he drove his son to a basketball event in Hammond on May 11 and therefore could not have gone to the emergency room. Witnesses at trial corroborated his testimony and the jury found his account more convincing than the hospital records which Richardson claimed had been made in error.

KCS appealed, and in their April 1, 1999 decision, the Louisiana Court of Appeals reversed. The court found that the Richardson failed to show that the date in the hospital records was inaccurate and that the idea that the records were created in error is implausible and not supported. The court also found that Richardson’s claim that he was treated by a particular doctor and nurse when he visited the hospital on May 15th was impossible given the testimony of those individuals. Finally, Richardson made no claim that the hospital intentionally falsified medical records or provide a motive for them to do so. The court found the hospital records to be accurate and reliable. Medical records are typically considered to be inherently reliable given that health care providers rely on them in making life and death decisions. As such, the plaintiff sought medical treatment for neck pain prior to his alleged injury and was not entitled to damages from his employer.

The FELA is a federal law specifically geared at protecting railroad workers who are exposed to additional inherent risks due to the nature of their job. FELA was designed to provide a statutory federal negligence action for railroad employee and are their exclusive remedy for workplace injuries. On appeal, a court will not reverse an FELA case unless they find complete absence of probative fact to support the fact-finder (jury) conclusions.

This case demonstrates how fact intensive workplace injury cases can be. As here, courts sometimes deal with the difficult decision of whose account of an accident is correct given conflicting testimony or medical records. If you have been injured at work it is vital that your attorney be willing to put forth the effort needed to ensure facts are presented clearly and effectively. This requires extensive case preparation, witness selection, and the use of expert testimony if needed.

Continue reading "Louisiana Workplace Injury Judgment in Favor of Joyce Man Reversed " »

As discussed in the last post on the topic of traffic accident reconstruction, experts can play a pivotal role in the outcome of a case. Many accident victims can benefit from the opinion of reconstruction experts in establishing the at-fault party in a crash. Key to achieving this result is officially qualifying the reconstruction expert in the eyes of the court. Though a person may represent himself as qualified to analyze traffic accidents and offer an opinion on its cause, it may be quite another matter for the court to accept the opinion and permit the jury to consider the expert’s testimony.

The case Wilson v. Woods, 163 F.3d 935 (5th Cir. 1999) helps to explain the trial court’s role in evaluating the qualifications of a self-proclaimed accident reconstruction expert. The case arose out of an automobile accident in which the defendant, driving a tractor-trailer, collided with the defendant’s car at an intersection in Yazoo City, Miss. The plaintiff claimed that the defendant was negligent because at the time of the crash he was operating his truck at a speed in excess of the posted limit of 55 MPH. In support of this theory, the plaintiff sought during her jury trial to qualify her witness, Mr. Rosenhan, as an expert in accident reconstruction. Rosenhan was to testify that, based upon his review of the police’s accident report, he calculated that the defendant’s truck was traveling 63 MPH at the time of the collision. The defendant objected, arguing that Rosenhan was not qualified to render an expert opinion on the crash. After substantial analysis, the district (trial) court refused to qualify Rosenhan as an expert witness and did not allow the jury to hear his testimony. When the jury returned a verdict for the defendant after the plaintiff could not otherwise prove her speeding theory and establish the defendant’s negligence, the plaintiff appealed on the issue of the trial court’s exclusion of Rosenhan’s testimony.

The appellate court recalled its prior decisions establishing that district courts are given "wide latitude in determining the admissibility of expert testimony, and the discretion of the trial judge ... will not be disturbed on appeal unless manifestly erroneous." Watkins v. Telsmith, Inc. 121 F.3d 984, 988 (5th Cir.1997). It also referenced the Supreme Court decision of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in which the Court instructed district courts to function as gatekeepers and permit only reliable and relevant expert testimony to be presented to the jury. When the appellate court considered the matter of Rosenhan’s expertise as analyzed by the district court, it found he had earned both a bachelor of science degree and a master of science degree in mechanical engineering, but he didn’t complete his doctorate degree. Rosenhan taught courses in mechanical engineering and industrial engineering at various colleges and vocational schools.During his 25-year consulting career, Rosenhan’s work focused on fire reconstruction and investigation; however, he testified that he had only recently changed his specialty to car accident reconstruction.

The appellate court further considered that the defendant’s counsel questioned Rosenhan and established that:

- although Rosenhan taught college level courses, he never held professorial rank; - he never taught an accident reconstruction course or any other course that involved automobile accident reconstruction; - he had no degree or certification in accident reconstruction (but he was enrolled in a correspondence course from the Northwestern Traffic Institute); - he had not completed the requirements for certification by the Association of Accident Reconstructionists; and, - although he had testified in various cases, one court had refused to qualify him as an expert in vehicle accident reconstruction based on his lack of qualifications.

Finally, the appellate court noted that the district court judge personally questioned Rosenhan and ascertained that he:

- had never conducted any studies or experiments in the field of accident reconstruction; - did not take any measurements or collect any data from the accident scene in this case; - did not examine the tires or other mechanical parts involved in the accident; - based his calculations on publicly accessible data published by the National Highway Transportation Safety Administration; and, - was unable to show that his training or experience as a mechanical engineer gave him expertise in the field of accident reconstruction that was distinguishable from training received by other mechanical engineers.

Based on all of these facts, the appellate court found that Rosenhan’s expertise in the area of accident reconstruction was “legitimately in doubt” and that the district court, therefore, “appropriately exercised its gatekeeping responsibility and did not abuse its discretion in refusing to qualify the witness” and permit him to testify for the jury. The appellate court affirmed the jury verdict for the defendant.

The Wilson case illustrates the importance of ensuring that an accident reconstruction expert’s qualifications will be accepted by the court so that the expert’s testimony will be heard by the jury. This is especially true in situations like this one where the expert’s opinion is absolutely critical to the victim’s recovery. If you have been injured in a car accident, you need a lawyer who not only knows the law, but also knows who you can rely on for expert testimony to win your case and get the recovery you deserve.

Continue reading "Choose Your Traffic Accident Reconstruction Expert Carefully When Suing For Car Accident" »

In 2010 the St. Landry Sheriff's Department welcomed a traffic accident reconstruction expert among its team as Captain Brian Hundley successfully completed a course on accident investigation and reconstruction. Especially in fatal accidents or in cases where there are no eye-witnesses, car crash experts can play a pivotal role in determining the most probable explanation for how the accident occurred.

In an investigation, a crash reconstruction expert must rely heavily on evidence gathered by the police at the accident scene. Although the expert can consider a variety of physical evidence, including the road layout and traffic markings, tire skid marks, and the damaged vehicles themselves that remain after the occurrence of the crash, much of the expert’s analysis must be based on observations made after the event. For this reason, it is critical that police officers who respond to an accident scene are extremely diligent in preserving and recording evidence once the medical needs of the victims are addressed.

The reconstruction expert will review photographs of the roadway and vehicles and obtain detailed measurements of the site in order to create a diagram of the situation. This diagram is important for establishing the vehicles’ positions both before and after the impact.

The expert will also observe the various environmental factors that can influence the safe operation of vehicles. Common roadway factors include the surface material of the road, the slope of the lane, traffic signals and signage, the curve of the road, the presence of guard rails or other barriers, proximity to bridges, tunnels, or other structures, objects that impede the view of oncoming traffic, and whether the road itself has been properly maintained. Hazards such as potholes, pavement cracks, and debris can substantially impact roadway safety, and government authorities are required to observe certain standards aimed at reducing these dangers. Weather is also a major factor in motor accidents, and so the expert will look for this information on the police report and will also attempt to confirm the police officer’s observations by consulting local weather reports. Similarly, lighting (or the lack of it) plays a significant role in night-time collisions, and the expert will take note of any street lamps or other sources of illumination at or around the scene to confirm the information in the police report.

The crash expert’s advanced knowledge of physics and mathematics is applied to all the physical evidence he or she can gather. In addition, the expert will review and analyze all eye-witness statements taken by the police and, when possible, speak directly to witnesses to confirm their observations. The expert may also check the drivers’ motor vehicle records for evidence of inexperience or violation history in an effort to reach a conclusion about how the accident occurred.

Although many traffic accident reconstruction experts like Captain Hundley work for local law enforcement departments, some are also available in the private market to support car crash victims and their attorneys in lawsuits against negligent drivers. An expert’s opinion can dramatically influence the outcome of a case, particularly when the expert can establish credibility with the jury and serve as a resource for explaining complex matters related to the physics of the crash.

A reconstruction expert is of little value to a victim, however, if the expert cannot substantiate his or her education, credentials and experience for the court. In the next post on this topic, we will explore the role of the trial court in evaluating the qualifications of these experts, and highlight the reasons it is critical that accident victims work with an attorney who understands what to look for when hiring one of these experts.

Continue reading "St. Landry Parish Car Crash Expert's Duties Help Police Understand How Accidents Happen" »

Policy makers have expressed doubt multiple times this year about whether enough is being done to protect the millions of drivers on the road. The recent Toyota recall of a multitude of cars with defective parts is a clear illustration of product liability and the measures to which a manufacturer is liable for problems with their items.

Representative Darrell Issa of California, the leading Republican on the Committee, complained during the hearings held regarding the automobile issues that Toyota knew about sticking gas pedal problems and improperly placed floor mats for years and delayed addressing the problems on cars sold outside of Japan.

Although the exact cause of the safety lapses is undetermined at this point, politicians have their own theories, as expressed at back-to-back congressional hearings just a few days. Business Week, for example, reports that John Mica, a Republican Congressmen from Florida, believes Toyota saved millions of dollars in 2007 by knowingly delaying a recall over unintended acceleration matters.

Despite the Department of Transportation and Toyota are taking steps to ensure those driving recalled vehicles get the problems corrected, accidents have undoubtedly occurred as a result of faulty car parts. Some of the blame may fall on the National High Traffic Safety Administration ("NHTSA"). The Shreveport Times reported that Democratic Representative Edolphus Towns of New York noted that the NHTSA

"failed to follow through aggressively on thousands of complaints dating back a decade about sudden acceleration in Toyota vehicles."

According to a recent ABC News report, court documents from a class-action lawsuit against that has been filed against Toyota claim that the company is in possession of documents that show that the automaker documented confirmed cases of sudden acceleration without driver error as many as 7 years ago. Other alleged company documents show that Toyota has been able to recreate instances of sudden acceleration, again without driver error, within the last year.

The documents are referred to in a revised complaint that has been filed against Toyota in U.S. District Court for Southern California. In the suit, forty Toyota owners claim that sudden acceleration problems has caused them financial harm by reducing the resale value of their cars. The suit claims that, "Toyota failed to disclose that its own technicians often replicated sudden acceleration events without driver error."

In a 2003 document quoted in the complaint, a technician reported a sudden acceleration incident where he found a "mis-synchronism between engine speed and throttle position movement." The technician requested immediate action to correct the dangerous problem. Another document, from 2005, involved a Toyota dealership report that states that a dealer verified two separate acceleration incidents with a Toyota Sequoia. A 2003 report described what was called a "surge event," despite no trouble code on a scan tool. According to consumer safety experts, many of the sudden acceleration problems could be resulting from a defect in Toyota's electronic throttle control systems. The company has repeatedly denied that the vehicles have electronic problems.

This lawsuit was filed amidst reports that the National Highway Traffic Safety Administration was preventing the release of information that proved that the acceleration problems actually did result from driver error, and implied that drivers mistakenly pushed the wrong pedal. The lawsuit fights back against these reports and claims that Toyota has acted recklessly in their strategy to deal with the complaints---blaming all of the problems on driver error.

While this particular lawsuit has claimed that defective Toyotas led to financial harm for owners in the form of decreased resale value, Toyota is also facing lawsuits from people who have been injured during acceleration incidents. Recovery in those suits will depend on being able to prove Toyota's liability for injuries one of four ways:

1. Negligence-If Toyota acted negligently in the manufacturing of their products and did not take reasonable care when they should have they can be held liable. The negligence could have occurred through using defective parts or improper assembly techniques if they added up to dangerous or malfunctioning products. If it can be proven that Toyota knew about problems and did not correct them, they undoubtedly acted below the appropriate standard of care in the manufacture of their products.

2. Breach of warranty-If Toyota sold vehicles to customers and did not uphold claims or promises made about their products they can be held liable. If Toyota has made claims about safety or promises about correcting acceleration problems that were not corrected, warranties may have been breached.

3. False Advertising- If Toyota ads led customers to believe that their products are safer then they actually are or distracted them from inherent risks in using the vehicles they can be held liable. If Toyota advertising promised no acceleration problems or that they have been corrected and they were not, they could be held liable here.

4. Strict Liability-Strict liability will exist here if Toyota, as the manufacturer or seller of a defective product, is found responsible for all injuries that occur from the use of the product. Victims in this case must show that the vehicles were defective and the defect caused the injury. If this is proven, liability exists regardless of a finding of fault on Toyota's part.

If you drive a Toyota car or truck and were injured or otherwise negatively affected by an acceleration problem you may be able to recover damages. Please contact an attorney experienced with product defect cases as soon as possible to ensure that each of the proper steps are taken to increase your chances of recovery.

Several prior posts have examined the critical role that expert witnesses can play in a personal injury lawsuit. The Peoples v. Fred's Stores of Tennessee, Inc., No. 09-1270 (Ct. App. of La., 3d Cir. 2010) case offers a similar example of how expert testimony can be invaluable to a plaintiff. (For a brief background on this case, please see Part 1 of this post series.)

In addition to the dispute over notice, Fred's Store's appeal also challenged the trial judge's admission of testimony by Peoples's expert witness, Michael Frenzel. Frenzel was a board-certified safety professional who owned a company that offered safety program mangement services. At the time of the trial, he had 35 years of experience in the safety field. Prior to the trial, Frenzel reviewed the accident report, photos of the accident scene, and a diagram of the store. He also personally visited the Fred's Store in Tioga to view the premises. Frenzel testified that the two gazebo boxes that Peoples tripped over "amounted to a trip hazard that presented an unacceptable level of risk to Fred's customers." He explained that, regardless of their precise location, two boxes laying flat on the floor would pose a risk to a customer entering the store given that the customer's attention would likely be drawn to the other merchandise. This was especially the case, according to Frenzel, because the boxes were white in color and had a low profile against the white background of the floor. Frenzel further referenced the "universal, industry-wide standard minimum height recommended for floor displays to prevent tripping hazards," and even identified a section in the store's own safety manual that addressed tripping hazards. Finally, Frenzel testified that in his opinion Peoples "did nothing wrong," and that "only Fred's could have taken corrective action in this situation."

Fred's Store sought to exclude Frenzel's damning testimony on the basis that he was not an eyewitness to the fall and therefore could not contribute to the resolution of any issues of fact. Also, Fred's Store argued that expert testimony is not necessary in a trip and fall case. The Court of Appeals cited Louisiana Code of Evidence Article 702, which provides:

"[i]f scientific, technical, or other specialized knowledge will assist the trier of fact [here, the judge] to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

Furthermore, the Louisiana Supreme Court has made it clear that "a trial judge has wide discretion in determining whether to allow a witness to testify as an expert, and his judgment will not be disturbed by an appellate court unless it is clearly erroneous." Mistich v. Volkswagen of Germany, Inc., 666 So.2d 1073, 1079 (La. 1996). Accordingly, the Appeals Court was

"convinced that the trial court did not abuse its wide discretion in allowing Mr. Frenzel to testify as an expert, given his extensive experience in the field of safety and his thorough preparation with regard to this case. Clearly, his testimony 'assist[ed] the trier of fact to understand the evidence' and 'to determine a fact in issue.'"

The testimony and, in particular, the opinions put forth by Frenzel proved extremely helpful to Peoples in winning her case. Frenzel would not have been able to offer those opinions had he not been qualified by the trial judge as an expert. A successful expert witness qualification depends not only on the witness's own education and experience, but also on the lawyer's ability to properly present the witness's credentials to the court. If you have been injured due to unsafe conditions at a store or other place of business, speak to an attorney who has solid experience in the strategies of personal injury litigation.

Continue reading "Tioga Slip and Fall Case Study Part 2: The Importance of Expert Witnesses" »

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With respect to the issue of consent obtained by Dr. Humphries, the Court of Appeals finds that the first form signed by Mr. Price should be presumed valid under Louisiana law, and Mr. Price's statement that he did not read the form does not defeat the presumption. The only way Mr. Price could have overcome the presumption would be if he was able to establish several factors: 1) The existence of a material risk that the physician must disclose, 2) The failure of the physician to inform the patient of this risk, 3) The realization of the risk, and 4) A connection between the failure to inform and the realization of the risk.

With respect to the consent issue, previous courts have held that appellate courts should focus on the duty of a doctor to provide material information to a patient according to the circumstances of the particular case. As long as the trial court has acted reasonably, their findings should not be reversed even if the appellate court would have weighed the evidence differently. Even though there is conflicting testimony, the evidence establishes that Mr. Price did receive specific information about the possibility of removing polyps immediately after they were discovered during his procedure. In addition, three of the four expert witnesses found that Dr. Humphries met the applicable standard of care in obtaining consent. As such, the Court of Appeals finds no manifest error worthy of overturning the jury's findings.

With respect to Dr. Bride, even though he himself did not obtain consent from Mr. Price (aside from supposed verbal consent just prior to the procedure), under La.R.S. 40:1299.40(C) other forms of consent are allowed when the patient is provided with general information about a procedure and risks. Mr. Price received a handout indicating that if polyps were found they might be removed. In addition, Mr. Price was informed that if Dr. Humphries found polyps he would have Dr. Bride remove them. In addition, the wording of the second form signed by Mr. Price makes Dr. Bride an "authorized physician" to perform a polypectomy because Dr. Bride is an associate of Dr. Humphries who performed the additional procedure as necessary. As such, the jury did not manifestly err in concluding it was more likely than not that Mr. Price consented to the polypectomy being performed by Dr. Bride if polyps were found. As such, the Court of Appeals affirms the jury's findings in all respects.

For any medical procedure, a doctor or other practitioner is required to obtain "informed consent" from the patient. Essentially, this means that, except in certain emergency situations, a doctor is not permitted to perform any medical procedures that the patient has not authorized him to perform. Louisiana law outlines three ways for a doctor to get proper consent from a patient. First, the patient can acknowledge in a handwritten document that he or she had been informed of "The nature and purpose of the procedure" and of its "known risks," and that he or she had the opportunity to have any questions "answered in a satisfactory manner." La. R.S. 40:1299.40(A). Such consent is presumed under the law to be valid unless there is proof that the consent was given because the doctor misrepresented material facts.

The second option for obtaining consent requires the same elements as the first, with the exception that it does not have to be in writing. However, verbal consent is not given a presumption of valididty, but instead must be proved "according to the rules of evidence in ordinary cases." La. R.S. 40:1299.40(C). The third and final option requires a doctor to disclose to the patient the list of risks for the proposed treatment that is maintained by the Louisiana Medical Disclosure Panel (LMDP). "Consent to medical care that appears on the [LMDP's] list requiring disclosure shall be considered effective under [Louisiana law] if it is given in writing, [and] signed by the patient... and a competent witness. La. R.S. 40:1299.40(E). The LMDP offers a form for this purpose, the execution of which creates a "rebuttable presumption" that the consent is valid, provided that the doctor who will actually perform the treatment is the one who gives the required disclosure.

The issue of informed consent was at the center of the case Price v. ERBE USA, Inc., No. CA 09-1076 (La. Ct. App. 3d Cir, 2010). The plaintiff, James J. Price, visited the St. Patrick Hospital in Lake Charles on January 17, 2002, where he was scheduled for a colonoscopy procedure with Dr. Charles Humphries. During the procedure, Dr. Humphries found several polyps in Price's colon, at which point he brought in Dr. Francis Bride, a gastroenterologist, to remove them. Dr. Bride's surgical tool malfunctioned during the removal of one of the polyps, which resulted in an inadvertent burn to the wall of Price's colon. Dr. Bride conducted extensive tests to detect a colon perforation and concluded none had occurred. Still, Dr. Bride ordered Price to remain in the hospital for an extended period that day for more monitoring, after which he released Price to go home. The next day, Price began to experience symptoms of a perforation. He returned to the emergency room at St. Patrick's, and two days later underwent surgery to repair the perforation. Price later filed suit against Dr. Humphries and Dr. Bride, alleging a lack of consent for the polypectomy. At trial, a jury found for the doctors, and Price appealed.

The Court of Appeals reviewed the evidence presented at trial concerning Price's consent to the colonoscopy. It noted that on January 4, 2002, Price received a pamphlet from Dr. Humphries which included specific information that polyps could be removed if discovered during the colonoscopy procedure. The pamphlet further discussed that removal carried several risks, including perforation of the colon wall. Price also signed two forms, which were witnessed by a nurse, on the morning of the procedure certifying that he was aware of the risks. The court concluded based on this evidence that the jury did not err in determining that Dr. Humphries had obtained informed consent of the third type under Louisiana statute (per La. R.S. 40:1299.40(E)) from Price.

As for whether Dr. Bride obtained the necessary consent, the court acknowledged that Dr. Bride certainly did not personally obtain consent from Price to perform a polypectomy, as he was uninvolved in the procedure until Dr. Humphries found the polyps. However, the court again turned to the pamphlet provided by Dr. Humphries on January 4, 2002, noting that it indicated polyps might be removed upon discovery as part of the colonoscopy procedure. Furthermore, Dr. Humphries testified at trial that he verbally informed Price on two occasions that if he discovered polyps during the procedure, he would bring in Dr. Bride to remove them. Finally, the court found that the consent form signed by Price permitted Dr. Bride to remove the polyps by its language because Dr. Bride was a physician "authorized" to perform the necessary procedure by Dr. Humphries. Accordingly, the court found no error on the part of the jury in concluding that Dr. Humphries obtained consent from Price for the polypectomy.

Although Price was not successful in his suit against Drs. Humphries and Bride, the case illustrates the importance that Louisiana law places on the obligation of doctors to obtain informed consent from their patients. The law seeks to protect patients from unnecessary or unwanted medical procedures, while permitting doctors to take action when needed to save a life or ease suffering. Ultimately, doctors have a responsibility to ensure their patients are knowledegable about and comfortable with any procedure they propose, and the failure to meet this responsibility can give rise to a negligence claim.

This case will be followed up with another analysis to help illustrate the specific technicalities involved in the matter, as well as how patients can best prevent getting a procedure they do not wish or can pursue litigation if a problem occurs.

According to a recent article in Baton Rouge's Times Picayune, drivers who fall asleep at the wheel and cause an accident could be in more trouble than ever before. Earlier this month a Committee of the Louisiana State Legislature approved a bill that would create the new crime of involuntary vehicular homicide.

A Galiano couple who lost their son in an accident caused by a driver who fell asleep at the wheel provided tearful testimony leading up to the unanimous vote in favor of House Bill 628 in the Committee on the Administration of Criminal Justice. The next step for the bill will be debate on the House floor.

Tina and Anthony "T-Boy" Charpentier lost their 33 year old son when a truck driver fell asleep at the wheel. Anthony doesn't think the bill is tough enough but hopes it will at least make guilty drivers think about what they have done.

Under the legislation, involuntary vehicular homicide is defined as:

The killing of a human being by someone who fails to maintain control of a boat, car, truck, or any aircraft, watercraft or motor vehicle by falling asleep whether or not the offender has the intent to cause death or great bodily harm.

The penalty for involuntary vehicular homicide includes up to 250 hours of community service, a lesser penalty than the up to five year jail sentence sought in an earlier proposed version of the legislation. According to Ellis "Pete" Adams of the Louisiana District Attorneys Association said that DAs may have trouble proving that a driver was asleep at the wheel if the bill is passed. Unlike proving violation of a law against intoxicated driving, proving sleepy driving does not happen via a blood or breathalyzer test. Most likely, prosecutors will need rely on witness testimony about how much a particular driver slept leading up to the accident and whether or not they have a propensity to drive while sleepy.

Every state and the federal government currently aim to cut down on these kinds of accidents by regulating commercial drivers' hours of services and restricting how long truck drivers can be on the road. If this law passes, however, it will be the first law that could affect how long private drivers can be on the road.

Currently, New Jersey is the only state with a "drowsy driver law." Many like the Charpentier's, would like Louisiana to be added to that list in hopes to cut down on the number of accidents attributed to drivers who fall asleep while driving. According to data from the Louisiana Highway Safety Commission, in the last three years there have been more than 4800 accidents attributed to drivers who were asleep or blacked out on Louisiana roads, 27 of which ended in fatalities. The problem stretches nationally as well. A 2002 survey of the National Sleep Foundation reported that nearly 2 in 10 drivers said they had actually fallen asleep at the wheel in the past year.

The civil implications are obvious with a new crime being introduced by the legislature. Families who lose a loved one due to someone falling asleep at the wheel may now have a stronger case given the new criminal penalty. A finding of guilt in criminal court can have strong implications on a civil suit that could follow. What's more, civil lawsuits can be difficult to navigate if an attorney does not have a lot of experience. Whether in employing technical experts who can carefully outline the complex events that took place on that tragic day or using various technologies to best represent your interest, our firm has the experience you need to prosecute any matter of case you might find yourself hampered by.

A fire broke out in 2008 within the Denham Springs, Louisiana, home of Thomas and Janice Campbell that laid devastation to the house and left the couple looking for answers. The fire investigator determined the fire's cause was a defective range in the Campbell's kitchen. The investigator determined the burners were off and the fire broke out when the control panel experienced a short. The Campbell's had an expert assess the damage as well and received the same conclusion. Because of this assessment, the Campbell's brought a lawsuit against manufacturer of the range, General Electric, alleging product defect had led to the destruction of their home. GE countered in court, moving for summary judgment against the use of the Campbell's expert witness as well as moving for summary judgment against the use of a construction/composition claim.

If you have been a victim of an injury from a defective product, you should know that there are three different ways that you can prove the product is defective. These ways of proving fault attempt to encompass the process that a product undergoes and includes a variety of manners in which faulty conduct on the part of the delivery chain led to the disaster. By expanding the manner in which fault may be determined, the law not only gives more option to those injured by a product but also keeps a victim from suing anyone who came into contact with the good in hopes of compensation.

First, a product may have a manufacturing defect. A manufacturing defect occurs when a product becomes unreasonably dangerous by an error in the manufacturing process or the materials used in its creation, assembly, or construction. Therefore, if your electric range caused a fire because the materials used to create the product were below standard, this would be a "manufacturing defect." In Louisiana, these defects are called "construction or composition" defects.

Second, a product may be defective due to poor design. This type of defect is known as a design defect. Unlike a manufacturing defect where a single product is defective, a design defect involves an error in a whole line of products. A product may found to have a design defect under the "Consumer Expectation Test." This test requires that the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.

Lastly, a product may have a marketing or warning defect. A manufacturer may be liable for failing to provide adequate warnings of the dangers associated with the product or how to avoid injury.

Louisiana Products Liability Act Protects Victims
The Louisiana Products Liability Act, codified in the Louisiana Revised Statute Section 2800.51 et seq. Under the act, a victim may establish a case against a manufacturer of a defective product by showing that they suffered damage that was proximately caused by a characteristic of the manufacturer's unreasonably dangerous product during a reasonably anticipated use of the product.

In order to establish that the product was "unreasonably dangerous," a victim must show that the product was unreasonably dangerous in its construction, composition, design, or inadequate warning. A plaintiff may show that the product was "unreasonably dangerous" by showing that:

"at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from the otherwise identical products manufactured by the same manufacturer."

The Campbell's were successful in their preliminary motion as the court failed to side with GE regarding their requests for summary judgment against the claims of product defect and the use of an expert witness. This case also demonstrates the importance of an expert witness in trial as, in this case, they can support the finding of a local fire marshall or other blame assessment and be important in winning a case in court.

If you have been injured because of a dangerous product, get help now. Contact the Berniard Law Firm by calling 1-866-574-8005.

On May 7, 2010, the Donaldsonville community was saddened when 20 year-old Ryan Johnson was killed in a car accident when his car flipped after he collided with a semi-truck on LA 70. While this loss is tragic, it is also a reminder that accidents involving semi trucks should be treated differently that regular car accidents and usually require assistance from an attorney who has experience resolving these cases.

In a typical fender bender with another car, an attorney may not be required. After the collision, both drivers make sure they don't have any injuries, call the paramedics if needed, exchange contact and insurance information, have the police make a report if necessary, and they settle the cost of damages through their insurance companies. Often in these situations, especially in small communities, the drivers know each other and can easily call the other if they need any additional information that they didn't get immediately after the accident. It is a fairly straight-forward process.

Accidents between a car and a semi truck are different and require the driver of the car to be informed and consult an attorney soon after the accident. Truck drivers haul cargo across the country for a living. When they are involved in an accident, you are not just dealing with the other driver, but the company they work for. Trucking companies have similar liability insurance as the average driver; however, these companies are better equipped to handle accidents because they have already prepared for this situation. Trucking companies also have attorneys working to protect their assets that may only work on these types of cases. Trucking companies and their insurance providers are both business and have the goal of giving you the least amount of money for your settlement. It is important that you have someone fighting equally as hard on your side.

Since truck driving is an occupation, truck driving companies are required to ensure that their drivers meet specific obligations. First, professional truck drivers are required to have a specialized truck driving license and have the training, knowledge, and experience to safely drive their massive vehicles. Second, there are laws that limit the number of hours a driver can be on the road each day. These laws attempt to prevent the number of accidents that are caused by fatigue. Your attorney will request a copy of the driver's log book to see if they were complying with this law. Third, trucking companies are required to properly maintain their vehicles and maintain a record of when their trucks are services. Your attorney will request a copy of the service records for the truck involved in the accident to see if the trucking company contributed to the accident by not performing the required maintenance. Semi trucks are also equipped with Electronic Control Module (ECM) devices similar to "black boxes" on airplanes. The ECM device can provide information like how fast the truck was traveling when the accident occurred. It is imperative to have this information preserved; therefore your attorney needs to request it soon after the accident. The sooner you hire an attorney, the sooner they can request these records, and the less likely it is that these records will be lost or misplaced.

Given that a semi truck is as much as 25 times bigger than the average car and can weigh over 80,000 pounds, it is imperative that your collision be closely inspected by a legal expert. In doing so, an individual can have claims of negligence, traffic violations, comparative fault and a wide variety of other avenues examined. By limiting the amount of time between the accident and an investigation, evidence is more readily available. What's more, an attorney will often employ an expert of these types of accidents who can help testify and explain what happened in the unfortunate event. In having a lawyer set to all of these various legal mechanisms, the victim of an accident can focus on other issues and allow their legal representative to do all the legwork for them. Whether by pursuing a more fair settlement than the extremely low one offered by the insurer or taking the trucking company to court, hiring an attorney is the best option when facing the daunting task of achieving justice for such an accident.

Almost every person who is admitted at a hospital has had to deal with a nurse at some point. Nurses, like doctors, are responsible for providing medical care to patients and can be subject to liability if they deliver treatment that falls below the standard set forth by the law of proper care. A 2010 case centering around the Willis Knighton Medical Center in Bossier City, Louisiana, discusses the standards required of a nurse.

Mr. Reilly was admitted to the ER with multiple pelvic fractures after a horse had fallen on top of him at Louisiana Downs. After surgery, doctors inserted a catheter to alleviate bladder pressure. Reilly was cared for by several nurses in the following months who removed and reinserted additional catheters. Reilly alleged that on numerous occasions, the nurses were negligent in the removal and insertion process, leaving him impotent and in need of additional surgery to correct the damage that he had suffered from this process.

To file a medical malpractice claim against a nurse or doctor, you must establish the:

(1) standard of care applicable to the nurse/doctor
(2) that the nurse/doctor breached that standard of care, and
(3) that the nurse's/doctor's actions were causally related to the resulting injury

Standard of care is usually established with expert testimony; perhaps a nurse/doctor in a similar field that can show how an ordinary professional in that situation would have behaved. Showing that the nurse/doctor's actions deviated from the standard is less intensive and is typically established by a close examination of the facts.

More importantly, however, and the reason why Mr. Reilly ultimately lost his claim in the case mentioned above, is to show that the nurse's/doctor's negligence was the proximate (most direct) cause of the accident. Your claim cannot survive without this element. What this requires is demonstrating in court that but for the improper care demonstrated by the medical expert, your harm or damage would not have been suffered. Mr. Reilly was unable to prove that the catheter procedures were the specific reason for his damage.

While claims against the nurse or doctor may seem the most obvious path to take, another avenue of relief may be against the hospital itself. The doctrine of respondeat superior says that employers are responsible for the negligent acts of their employees if the act is performed during the normal course of duties. Liability for the nurse's behavior can be assigned to the medical facility and viewed in light of the employee's actions. Claims addressing respondeat superior are attractive to patients because the pocket of the medical facility is typically much larger than that of the individual nurse or doctor.

If you are a victim of nurse/doctor negligence, consider your options. Your choice of defendant may have a significant effect on the dollar amount of your recovery. Perhaps what is an even more important choice is the legal representation you select for your litigation. By carefully selecting an attorney with extensive experience in medical malpractice suits, settlements and trials, you can insure that you do not fall into the unfortunate class of people who never receive the justice they deserve.

According to a recent study published by the Road Information Program (a nonprofit group that evaluates highway data), Louisiana has the second highest auto fatality rate in the nation. In 2008, Louisiana had 2.02 deaths for every 100 million miles traveled. Montana was the one state with more deaths, at 2.12 per 100 million miles. As noted in a recent editorial in the Louisiana Times-Picayune, “That translates into 4,782 people who lost their lives on Louisiana’s roadways from 2005 to 2008.”

Researchers found that many factors lead to the higher percentage of deaths, including poor road conditions. In fact, according to the study, 44 percent of major state and local roads are in “poor or mediocre” condition. Additionally, 13 percent of Louisiana’s bridges are structurally deficient and 16 percent don’t meet current design standards. Poor roads are those considered to have deficient lane width and lighting and lack barriers and paved shoulders. The study found that these factors played a role in as many as a third of the fatal or serious accidents.

While road conditions in Louisiana are bad, the state is working towards improvements and recently used $1.2 billion in state surplus money and $500 million in federal stimulus money to renovate highways and bridges. The article notes “safety projects such as the post and cable barriers on Interstate 12 in St. Tammany Parish and on Interstate 10 in St. James are examples of smart, life saving measures.”

How can Poor Road Conditions Cause an Accident?
There are several ways the design of a roadway can contribute to an accident. First, bad roads make it more difficult to see other drivers. They can also create dangerous obstacles or create increased susceptibility to weather. Signs that are inadequate or poorly placed can confuse drivers or make it harder to anticipate hazards. Lacking night time lighting, poorly visible road markings, and even the condition of the road surface itself can contribute to accidents.

Improperly maintained roads can also cause accidents. If debris is allowed to accumulate without being removed, potholes are not fixed, overgrown trees obstruct drivers’ line of site, snow is not removed after a storm, etc., the likelihood of accidents increases. Drivers should be aware of poor road conditions and adjust their behavior accordingly, just as they would while driving in adverse weather.

If the major cause of an accident is the improper design or maintenance of a roadway, injured parties may be able to collect damages from the state or locality responsible if they can prove negligence in the design or maintenance. These lawsuits are more complicated than a lawsuit against another driver, due to defenses of sovereign immunity that may be brought. Codified in the 11th Amendment to the U.S. Constitution, sovereign immunity protects the state from being sued in federal court. In Hans v. Louisiana, the Supreme Court of the United States held that the Eleventh Amendment re-affirms that states have sovereign immunity and are generally immune from lawsuit in federal court without their consent.

Sovereign immunity laws vary from state to state and analysis of them can be very difficult. If you are considering bringing a claim against the state for poor roads, make sure you have an experienced attorney on your side.

Determining fault is central to the resolution of every negligence case. Typically, the plaintiff alleges the defendant's fault, and it is up to the court to determine whether the plaintiff has carried this burden. In the event that more than just one party was responsible for causing a particular accident, it is up to the court to "apportion" fault. That is, the court must decide how much each party contributed to the overall situation, and assign them responsibility for the appropriate percentage of the damages.

In Cashio v. Department of Transportation, 518 So.2d 1063 (La. Ct. App. 1st Cir. 1987), the court undertook this type of apportionment. Around noon on March 14, 1984, Jo-Louise Cashio was driving her 1984 Datsun 260-Z north on Louisiana Highway 77 in Iberville Parish. Passing the shop of a friend, Delores Nall, Cashio beeped her horn and waved. Seconds later, Nall saw Cashio's car leave the paved portion of the highway in a cloud of dust. Upon re-entering the road, Cashio lost control of her car, crossed the center line, and ran into a ditch. Cashio's car flipped and left her with severe injuries. Cashio filed suit against the State of Louisiana through the Department of Transportation and Development (DOTD) alleging that the shoulder of the road was defective. Cashio claimed that the shoulder was below the minimum design standard because it was too narrow and was unsafe because of its deep downward slope toward the ditch.

At trial, the court heard testimony from a number of expert witnesses on the road's design. Relying on well-settled law that "the DOTD is under a duty to maintain the highways and shoulders in a reasonably safe condition," the trial judge determined that the DOTD was 100 percent at fault for Cashio's accident and awarded her approximately $111,000 in damages.

On appeal, the Court of Appeals more closely examined Cashio's role in the crash. The court noted that "motorists have a duty both to maintain control of their vehicles and to maintain a proper lookout," and concluded that if Cashio had been "diligent in her duty to maintain a lookout, she would not have strayed from the roadway." Further,

"there was a substantial relationship between Ms. Cashio's negligently running off the highway and the resultant damages sustained by her. Because we find that the plaintiff's negligence was a cause-in-fact and legal cause of the accident, we must conclude the trial court committed manifest error in concluding that Ms. Cashio was free from fault in this accident."

The court then turned to the matter of fault apportionment under Louisiana law:

" In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages claimed." Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985).

After weighing these factors, the court concluded that the DOTD's fault in causing the accident was much less significant than Cashio's own. In the words of the court: "Had Ms. Cashio kept her car on the highway, the accident would not have occurred." The court assigned 25 percent of the fault to the State of Louisiana through the DOTD, and 75 percent of the fault to Cashio. This resulted in a reduction in Cashio's award to only about $28,000.

The Cashio case demonstrates that apportioning fault can be a complicated task for the trial court in any negligence case. A plaintiff must expect to have their own fault, if any, taken into consideration by the court. For this reason, it is critical that a plaintiff obtain competent counsel who fully understands how courts apportion fault.

Continue reading "Iberville Parish Car Crash Shows Court's Role in Apportioning Fault " »

A recent Louisiana Court of Appeals decision does a good job of explaining the elements of a medical malpractice claim and some pitfalls that might be encountered along the way.

In this

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Louisiana's Supreme Court, in an April 2007 opinion, expounded on the vast discretion an appellate court is to give to a jury's verdict on review.

From December 2000 to January 2001, Thurman and Rosemary Kaiser, a married couple in their mid-70s, were involved in three auto accidents - one in Jefferson Parish and two in Orleans Parish. Claims the couple may have had regarding the first and third accidents were settled out of court. However, regarding the second accident, which occurred on January 15, 2001, when the couple's vehicle was rear-ended by Harry Hardin, the couple filed suit. Prior to trial, Hardin stipulated to liability. He later testified that his vehicle hydroplaned into the back of the plaintiffs' vehicle, causing the accident. The case proceeded to a jury trial on the issue of damages.

After testimony from plaintiffs and defendant, Dr. Donald French, an orthopedic surgeon who treated both of the Kaisers, Paul Van Hoose, a claim representative of State Farm, Dr. Wendy Jamison, a neurologist who treated Mrs. Kaiser, and Dr. Jeffrey Sketchler, an orthopedic surgeon who treated both of the Kaisers, the jury rendered a verdict in favor of the plaintiffs, awarding Mr. Kaiser $6,500 in total damages, including damages for past and future medical expenses as well as general damages, and awarding Mrs. Kaiser $20,000 in total damages for past and future medical expenses as well as general damages.

Though the jury's verdict was in favor of the plaintiffs, they moved for a new trial, which was denied. They then appealed, seeking review of the damages awarded. Louisiana's Fourth Circuit Court of Appeal amended the judgment, and increased both plaintiffs' damages. Defendant Hardin then filed for certiorari with the Supreme Court of Louisiana, which was granted.

The Supreme Court began by discussing the standard of appellate review that the Fourth Circuit should have used when evaluating a jury's award of damages.

General Damages
The Court first focused on general damages, which are damages that cannot be definitely measured in monetary terms. They involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style.

The Court provided that in reviewing an award of general damages, vast discretion is accorded to the trier of fact, in this case, the jury. This vast discretion is such that an appellate court should rarely disturb an award of general damages. The role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. The inquiry is whether the trier of fact abused its discretion in assessing the amount of damages.

The jury awarded Mr. Kaiser the amount of $3,500 in general damages and Mrs. Kaiser the amount of $13,300. The court of appeal increased both of these amounts to $30,000, pointing to the testimony of doctors French and Sketchler, who both testified that it would be unusual to not have experienced some degree of pain at the time of the accident, and the appellate court's own observation that "[i]t is not a stretch to take notice that even a minor injury to an elderly person could prove to be relatively substantial."

However, the Supreme Court, based on its review of the record, found that the jury's awards did not represent an abuse of discretion. The Court noted that though the medical testimony revealed that both of the Kaisers suffered medical injuries, the only evidence connecting the injuries to the second auto accident as opposed to the first, or third, or some other pre-existing condition, was their own testimony.

Special Damages

The Supreme Court then focused on the award of special damages, which are those that have a ready market value. These include amounts such as those for past and future medical expenses and lost wages. The Court provided that in reviewing a jury's factual conclusions regarding special damages, an appellate court must satisfy a two-step process: 1) there must be no reasonable factual basis for the trial court's conclusions, and 2) the finding must be clearly wrong.

The jury awarded Mr. Kaiser $1,500 for past medical expenses, and the appellate court increased that amount to $4,180.50. The jury awarded Mrs. Kaiser past medical expenses in the amount of $3,500, and the appellate court increased this amount to $7,734.86.

However, after the Supreme Court's review of the record, medical testimony indicated that Mrs. Kaiser had suffered a stroke, and that both of the Kaisers had age-related degenerative changes, which pre-dated the second auto accident.

Considering all the evidence, the Supreme Court concluded that there was a reasonable factual basis for the jury's finding that only part of the medical expenses claimed by the plaintiffs were attributable to the second accident.

To conclude, the Supreme Court held that the jury's general damage award did not represent an abuse of the jury's vast discretion and that the jury's award of special damages was consistent with its factual findings. The court of appeal erred in disturbing the awards, and the judgment of the trial court was to be reinstated.

A February 1996 car accident led the First Circuit Court of Appeals of Louisiana to find that testimony indentifying an ample history of car accidents near a sharp curve in Addis, Louisiana, established that the curve had presented a problem for a significant period of time. The Court found that the testimony was sufficient to support a finding of constructive notice of a problem with the roadway to the Louisiana Department of Transportation and Development (DOTD). Constructive notice, one of the requirements necessary to find an entity responsible for a faulty element, is highly essential when trying to prove responsibility after an accident or incident involving injury.

Around 7:45 p.m. on the evening of the accident, Jerry Goza was traveling westbound on Louisiana Highway 989-1. While traveling, he came upon a sharp curve at the point where Highway 989-1 intersects with Highway 989-2. Goza's vehicle ran off the roadway into a cane field, eventually running into a ditch, striking a culvert, and flipping over. Goza sustained serious injuries requiring surgery and rehabilitative treatment.

Goza filed a suit for damages against the DOTD alleging that the design, construction, and signage of Highway 989-1 were defective. Following a four-day jury trial, a verdict was rendered in favor of Goza, and the DOTD was allocated twenty five percent fault. The DOTD filed a motion for a judgment notwithstanding the verdict (JNOV). The trial court granted the motion in part, amending the jury's award of damages, but maintaining the awards and fault allocations rendered by the jury. The DOTD appealed both the original jury verdict and the JNOV.

On appeal, the First Circuit provided that in order for the court to have found the DOTD liable, the plaintiff had to prove: (1) the DOTD had custody of the thing that caused the plaintiff's damages, (2) the thing was defective because it had a condition that created an unreasonable risk of harm, (3) the DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and (4) the defect was a cause-in-fact of the plaintiff's injuries. The two issues at the heart of the appeal were whether the DOTD had constructive notice of the alleged defect in the roadway and whether that alleged defect was the cause of the plaintiff's injuries.

The First Circuit provided that constructive notice is defined as the existence of facts which imply actual knowledge. This definition allows a person to infer actual knowledge on the part of a public entity when the facts demonstrate that the defective condition existed for such a period of time that the defect should have been discovered and repaired. While the DOTD cannot be required to be aware of every defect on its roadways and shoulders, neither can the DOTD escape liability by negligently failing to discover that which is easily discoverable. In this case, because the DOTD possesses records of traffic incidences and accidents, the department would have been aware that events kept happening at this intersection and should have taken action to prevent them from continuing.

Goza offered the testimony of Larry Straub, a resident who lived less than a mile from the curve. Straub testified that over the years he had seen several accidents at the intersection of the Highways and that people often asked Straub's grandfather to help pull their vehicles out of the nearby ditch. Straub also testified that he had often seen State Police investigating accidents at the intersection. In fact, he testified that despite his familiarity with the area, both he and his wife had had accidents while traveling on the sharp curve.

Goza also offered the testimony of Jason Campbell who testified that he was involved in an accident that was similar to that of the plaintiff.

The Court found that the testimony regarding the long history of accidents at the site of the curve was sufficient to support a finding of constructive notice of the roadway defect to the DOTD.

This second central issue was whether or not the alleged defect in the roadway was the cause of Goza's injuries.

As a result of the severity of the injuries sustained by Goza in the accident, he had no memory of the accident or how it occurred. However, at trial, Goza presented the testimony of John Bates, an expert in civil engineering, specializing in traffic accident reconstruction and the evaluation of highway design and maintenance, to establish that the roadway contained several defects that caused it to be unreasonably dangerous. The primary defect observed by Bates was the compound curvature of Highway 989-1 at the point where it connects with Highway 989-2, making the curve quite sharp. Bates testified that the danger presented by the curve, under the blanket of night, when Goza's accident occurred, was increased by the lack of lighting, inadequate signage altering motorists of the significant curve, an excessive speed limit, and failure to install protective barriers to keep the unwary motorist on the roadway.

The Court found that this evidence was sufficient to support the jury's finding that the defects in the roadway contributed to Goza's accident.

The Court also addressed the issue of fault comparison, and affirmed both the lower court's jury verdit, as amended by the JNOV, and its fault allocation. As a result, the DOTD was held responsible for failing to address the issue. This incident demonstrates the need not only for expert testimony in issues involving complex engineering and analysis but for careful research on the history of a locale when trying to determine culpability. Selecting attorneys with experience in these sort of incidences is essential in order to protect the injured party's interests, especially in suits against public entities like the DOTD was in this case.

Slip and Fall claims are filed in courts everyday and most are dismissed because the injured party could not prove anything. Important in a slip and fall case is "timeliness": how soon after the incident a party filed a claim, got pictures of the accident area, hired an expert, etc. As you will see, the difference between a few days and a few weeks could make all the difference in a successful cause of action for a plaintiff. While accidents can occur almost anywhere, residents of New Orleans and other Gulf Coast cities know how difficult to navigate certain sidewalks and areas can be - to fail to file in time on a just claim would be a disaster if true harm has befallen a victim of such a fall.

In 1987, Mrs. Sellers was exiting a doctor's office when she slipped and fell on a sidewalk. It had been raining that morning and the sidewalk, although covered, was clearly wet. Mrs. Sellers claimed to have slipped in a puddle of standing water outside the office entrance. She argued that the sidewalk, because of a defect, collected excess water that contributed to her fall. In an effort to recover damages from minor injuries sustained in the fall, Mrs. Sellers hired a professional photographer to take pictures of the sidewalk.

Under LSA-C.C. arts. 2317 and 2322, to prove liability for a defective thing, you must show that the defect in the thing poses an unreasonable risk of harm to others, and that the defect indeed caused the harm. The plaintiff, in this case Mrs. Sellers, has the burden of proving that (a) the defective sidewalk created an unreasonable risk of harm to patrons leaving the office, and (b) that the defective sidewalk in fact caused
the harm in question.

There was no conclusive evidence to support a defective sidewalk theory, however, because two weeks after the accident, the Parish Commission had begun to break up the concrete sidewalk to install a handicap-access ramp. Here's where timeliness becomes a factor. Had Mrs. Sellers hired a photographer within a few days of her accident, the courts may have had some conclusive evidence to find that the sidewalk was indeed defective. In the photographs, the depressed area that allegedly collected excess rainwater looked like freshly chipped concrete surrounded by a pile of dust and debris. The pictures were useless because they failed to depict the sidewalk in the condition as it was the day of the accident.

The lesson learned from Mrs. Sellers' unfortunate set of circumstances is that potential plantiffs must move forward on their case as quickly as possible because the conditions surrounding the incident may change. Mrs. Sellers' case is an extreme example, but it illustrates the importance of moving on a claim before circumstances change. Had the pictures been taken a few days after the accident rather than a few weeks, Mrs. Sellers may have received compensation for the injuries sustained in the fall.

In previous posts we have examined the important role of expert witnesses in litigation. As a general rule, the party who retains an expert witness is responsible for paying for the witness's services.

The issue of expert witness fees was central to the case of case of Burns v. Apache Corp, 853 So. 2d 708 (La. Ct. of App., 2nd Cir. 2003), which was an appeal from a ruling by the Louisiana Office of Workers' Compensation (OWC). Mr. Barry Burns was employed by Apache Corporation as an oil well pump technician in Shongaloo, Louisiana. On June 21, 2000, he was struck and killed by a moving part of the pump he was working on. His widow, Terry Burns, made a claim for workers' compensation against Apache and also filed a tort action against Dodson Tye Machine Works, Inc., a third-party contractor who had also worked on the oil well.

After the accident, Apache began paying Ms. Burns $384 per week in workers' compensation death benefits. Ms. Burns's lawsuit proceeded to trial where a jury awarded her $45,324 in damages against Dodson.

Under Louisiana's workers' compensation law, an employer who pays benefits is entitled to offset from its obligation any money the injured party/claimant also recovers from other parties in tort. (This situation usually arises in cases like this one where there are parties other than the employer who also may have contributed to the claimant's injury or death. Although the claimant cannot sue the employer, he or she may pursue any potential tort claims against other parties involved in the accident.) The intent of this provision is to prevent the claimant from obtaining a "double recovery"--that is, enjoying both an award for tort damages and workers' compensation payments from the employer, when together the amounts would exceed the claimant's actual losses.

Under Louisiana law, the application of the employer's benefits offset takes into account the court costs and attorney's fees incurred by the claimant as a result of her related tort case:

The employer's credit against its future compensation obligation shall be reduced by the amount of attorney fees and court costs paid by the employee in the third party suit. (La. R. S. 23:1103(A)(1))

In the Burns case, Apache sought to reduce its obligation to Ms. Burns by offsetting the $45,324 awarded to her in the tort case against Dodson. The OWC allowed the offset, but lowered the amount by $14,360 to cover Ms. Burns's attorney's fees in bringing the tort action. The OWC also reduced the offset by $5,700 to cover other court costs. It refused, however, to further adjust the offset for the $35,043 Ms. Burns spent on expert witnesses.

The Court of Appeal, in noting that Louisiana Workers' Compensation law is "to be interpreted liberally in favor of the workmen," concluded that requiring Apache to offset the expert witness fees would in no way lead to a double recovery by Ms. Burns. The court reasoned that "to disallow the offset for expert witness fees would be to punish the claimant by allowing the employer to disproportionately benefit from the employee's successful... pursuit of tort remedies."

Accordingly, the court ordered that Apache's offset be adjusted by the amount of Ms. Burns's expert witness fees, which effectively reduced Apache's benefits offset to zero.

The Court of Appeal's ruling reflects the purpose of the workers' compensation scheme of protecting Louisiana families when workers are injured on the job. To have disallowed the consideration of Ms. Burns's expert witness fees would have left her worse off than if she had not pursued her tort claim against Dodson in the first place: Ms. Burns would have received reduced death benefits from Apache and would have been left with a hefty expert witness bill. Since Apache was not 100 percent responsible for the incident that killed Barry Burns, the court appropriately demanded through its decision that any other at-fault party share in the duty to make Ms. Burns whole.

If you have been injured on the job, talk to an attorney who can help you understand your rights under the workers' compensation laws and help you get the benefits your deserve.

Continue reading "Workers' Compensation, Expert Witness Fees, and the Employer's Benefit Offset" »

In May 2005 the Third Circuit of the Louisiana Court of Appeals upheld a significant general damages award rendered in favor of Clyde Rayburn of Hineston. Mr. Rayburn, an 83 year old widower, was injured in 2003 when he was stopped in his pickup truck at an intersection and was struck from the rear by a school bus. He sustained injuries to his right shoulder, neck, and lower back and the defendants stipulated to liability at a 2004 trial. While Mr. Rayburn’s neck and lower back complaints were resolved, at the time of trial he continued to have difficulty with his right shoulder.

According to the testimony of his physician Dr. Drury, Mr. Rayburn has a chronic complete tear to his rotator cuff. A chronic tear means that the tear initially occurred six months or more before examination (and the accident) and completely tore during the accident. Mr. Rayburn had no complaints of pain before the accident and was quite active. After the accident, however, he had difficulty lifting his arm over his head or reaching out to pick up anything, even something as light as a gallon of milk from his refrigerator. Dr. Drury also testified regarding the prognosis of the injury and indicated that Mr. Rayburn was not a candidate for surgery and, although he would have good months and bad months, his condition was permanent.

The trial court believed Mr. Rayburn’s testimony that the preexisting rotator cuff tear did not hinder his lifestyle which was affected for the worse by the accident. As such, the court awarded Mr. Rayburn $85,000 in general damages and $3,450.15 in medical expenses. The general damage award was appealed as excessive to the court of appeals.

The court upheld the damages award and indicated that a "trial court’s factual findings will not be disturbed absent manifest error." Trial courts are typically granted vast discretion in their factual findings. Only if the award for injuries and their effects is a clear abuse of the discretion should they be disturbed. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied. Even a finding that lesser damages were awarded in prior cases with similar medical injuries should not be used to find an abuse of discretion. Prior awards may be looked at by a reviewing court, but only after a finding of abuse of discretion by the trial court has been made, and only to determine an appropriate damages range.

Abuse of discretion is a high legal standard. It entails a failure (by the trial court in this case) to take the facts and law related to the particular matter into proper consideration. An abuse of discretion amounts to an unreasonable departure from legal precedent and settled judicial custom. When a trial court decides a question it must not do so in a way that is clearly against logic and evidence. If that occurs, findings may be reversed on appeal.

How does the law treat someone bringing a lawsuit who may be somewhat at fault for the incident? Let's assume an injured Louisiana resident wants to sue another driver for crashing into her vehicle. In his defense, the defendant driver argues that the plaintiff failed to properly yield, and is therefore at least partly to blame for the accident.

Depending on whether the jurisdiction follows the contributory, purely contributory, comparative, or purely comparative negligence regime, the defendant may be fully liable, partly liable, or not liable at all for the damages sustained by the plaintiff. These legal tests of contributory and comparative negligence are critical for injured plaintiffs to understand, as they may decide just how much or how little one can recover from a defendant if the accident was not fully the fault of just one party. Louisiana follows a pure comparative model. Whereas other negligence regimes might bar a plaintiff from recovering damages if they are more than 50% at fault for the injuries, the Louisiana model allows a jury to award damages as long as the defendant is simply a little bit at fault.

The defense of comparative negligence is critical in products liability litigation. Recent headlines regarding the Toyota recalls reveal that the car manufacturer may already be laying the groundwork for this type of defense in anticipation of future litigation.

In a recent New York Times article written by Nick Bunkly, Toyota claims that after a San Diego man's Prius failed to stop, an "examination showed that the car would have stopped when the driver firmly applied the brakes." Experts in products liability litigation are waiting to see just what methods Toyota is using to make such determinations. If a court buys such argument as plausible, it may be up to a jury decide how much of the incident was the fault of the driver and how much was the fault of the car itself. Just as much an example of how expert testimony can affect the outcome of a trial, this also serves to illustrate how culpability is determined for the accident.

Just like Louisiana, California is a purely comparative negligence jurisdiction. This means that a Toyota driver's ability to recover monetary damages for his injuries, is directly proportional to the percentage he was at fault. Even if Toyota prevails in convincing a jury that an individual driver was at least partly to blame for a particular accident, that driver may still be able to recover a percentage of damages from Toyota based on the pure comparative theory. If a jury were to find that the plaintiffís inability to press the breaks caused 75% of the damage, the driver could theoretically still recover 25% of the total cost of the damages.

All too often, would-be plaintiffs are left frustrated that their injuries are not fully compensated, even for what seems like a minor mistake on their own part. Other times they may be barred from recovery completely. The car-crash example from the beginning of this article was taken from a real story of a tragic car accident this past December in Metairie, Louisiana. According to the report, the deceased woman who sustained the injuries failed to yield as the other driver was following the speed limit. Therefore, even if her surviving family members were to bring a wrongful death lawsuit in a "plaintiff-friendly" pure comparative jurisdiction like Louisiana, a jury could reduce any recovery by the percent she was at fault, even to the point of zero.

With such a flexible system, plaintiffs must rely on the expertise of their legal counsel to analyze all the facts of the case. Minor details in any one accident could mean the difference between large and small percentages of recovery.

Continue reading "How Might Toyota Defend Itself?: A Lesson in Pure Comparative Negligence " »

On the morning of February 2, 1961, Erwin Davis was driving his Chevrolet Impala southbound on Louisiana State Route 66 toward Bains. O.C. Roberts, who was driving a Pontiac with two other passengers, was headed north on the same road in the direction of Angola. When Roberts attempted to slow his car, the front left brake "grabbed," causing the vehicle to cross the center line and veer into the path of Davisís oncoming Chevy. Davis suffered contusions to the head, shoulder, and chest, as well as a neck strain which aggravated a pre-existing arthritic condition. He was hospitalized for six days, wore a collar brace for 10 months, and was placed in traction while recuperating in his home.

According to Louisiana law, a plaintiff has the burden of proof to establish the essential facts that support his theory of recovery. At trial, Davis put on evidence showing that the accident occurred because Roberts' car crossed the road's center line and invaded Davis' lane. This established a prima facie case of negligence against Roberts. A prima facie case means evidence which, unless countered by the defendant, would support the plaintiff's theory of recovery. Here, Roberts had a duty to operate his car in a safe manner, which would include maintaining control of his vehicle and keeping it within his lane of travel. The movement of Roberts' vehicle into the oncoming lane represented a breach of this duty, and pointed to negligence unless Roberts could rebut that presumption with his own evidence.

Roberts offered the testimony of Alvin Doyle, an automobile consultant who inspected Robertsís Pontiac after the crash. Doyle testified that the brake "grabbing" sensation Roberts felt just before the accident was due to excessive grease on the left front brake drum, which was the result of improper lubrication of the ball joint. In Doyle's opinion, the "accumulation of grease was so obvious as to merit the attention of any conscientious grease man and to call for replacement as well as removal of the grease deposits."

Roberts' car had recently been serviced by a shop owned by L. L. James, also named a defendant in the suit. To counter Doyle's testimony, James called two expert witnesses, Leo Bickford and George Wilson. Bickford was trained by General Motors and had previously been employed for Pontiac dealers for 16 years were he achieved the position of senior service craftsman. Wilson was an approved automotive appraiser who attended the General Motors Institute in Flint, Michigan and completed a course in collision damages. Each expert testified that, in his opinion, the excess grease that accumulated on a ball joint could not have made its way into the brake drum leading to its malfunction.

After hearing the testimony, the trial court dismissed Davis' claim against Roberts, the driver, but entered a judgment against James, the shop owner, and awarded Davis $4,014.49 in damages. Davis appealed the dismissal of his action against Roberts, and James appealed the judgment.

The Louisiana Court of Appeal found that the "evidence shows the accident occurred because the north bound Roberts automobile invaded the south bound lane, and there collided with the south bound Davis automobile, making out a prima facie case of negligence against Roberts." The court then carefully examined the trial court's analysis of the expert testimony, finding that there was no testimony other than Doyle's to corroborate the presence of grease in the left front brake. It determined that Doyle's testimony was contradicted by Bickford and Wilson and, therefore, since "Davis has proven the accident happened in his lane of traffic and he was in no way negligent, a prima facie case was made out against defendant Roberts." Accordingly, the court concluded that the trial court erred in dismissing Davis' suit against Roberts and in rendering a judgment against James. The court ordered that the judgment of the trial court be reversed and judgment entered in favor of Davis and against Roberts in the amount of $5,514.49; further, the court dismissed Davis' action against James.

The Davis case, though almost 50 years old, illustrates the important role of expert testimony in negligence actions. Although the plaintiff carries the initial burden of establishing his prima facie case where expert testimony is often useful, the defendant's rebuttal can also be enhanced by convincing expert testimony.

When choosing an attorney, it is increasingly important to choose one that has a variety of experts in various fields that it will use to argue your case. By selecting the lawyer with a proven track record and that has experience not only arguing cases but using quality experts, the victim of a car accident can help make sure they do not select for themselves deficient representation.

Continue reading "A 'Battle of the Experts' and the Role of Expert Testimony in a Negligence Action " »

In navigating the complex waters of lawsuits, personal injury cases will often require the use of experts to make it through the waves of unclear facts. An expert is oftentimes a professional (although this is not a requirement) in a given field that can help lend credibility to a plaintiff's (or defendant's) theory in the eyes of a judge or jury. Experts do this by persuasively demonstrating knowledge of the facts and legal issues at hand that support a judgment in favor of one side or the other.

In Bozarth v. State of Louisiana LSU Medical Center, the plaintiff's case hinged partially on whether the trial judge correctly admitted the testimony of the defendant's expert, Dr. Mary Eschete. Bozarth was originally a medical malpractice case in which the plaintiffs sued Louisiana State University Regional Medical Center for

fail[ing] to properly diagnose and treat Mr. Bozarth and for negligently proscribing medications and discharging Mr. Bozarth under the circumstances.

After the trial court had dismissed the plaintiffís case, they appealed, citing that admitting the testimony of Dr. Eschete was in error, since she herself was a former defendant and was the trial judge's childhood friend.

The court cited a Louisiana case from 1999, Pelts & Skins Export v. Department of Wildlife and Fisheries, for the proposition that neither bias of an expert witness, nor

the fact that a witness is a party or an employee of a party precludes a witness from being qualified as an expert.

The court noted that no provision of the Louisiana Code of Evidence supported the disqualification of Dr. Eschete as an expert witness, and that consequently there was no error in allowing her to testify.

When a case reaches the appellate level, or second level, of the state court system in Louisiana, the appellate court reviews most decisions via an "abuse of discretion" standard. This means, for example, that instead of reviewing evidence de novo (meaning "anew" or "from the beginning"), the court will decide whether the trial judge exercised his discretion in an impartial and fair manner on specific elements of the case, such as testimony, evidence, etc.

Typically this standard of review is highly deferential to the trial judge's decision. After all, the trial court judge saw all the evidence firsthand and witnessed the facts and testimony with his or her own eyes. The appellate court in Bozarth, applying this abuse of discretion standard, found that since the decision to admit Dr. Eschete's testimony did not offend any Louisiana law, there could not have been an abuse of discretion.

The testimony of an expert in your case could mean the difference between a successful and failed lawsuit.

Continue reading "The Use of Expert Testimony in Personal Injury Lawsuits" »