January 16, 2014

Prescription an Integral Element of Lawsuits After Wrongful Death

A few months after being in a car wreck, the unthinkable happens, and as a result of the accident, your loved one passes away. As you are mourning the loss, you also have to start thinking about your legal options that stem from the crash and the possible avenues you have as a "survivor" of your loved one in order to receive some damages from the liable person. While this seems somewhat callous to talk about, especially in light of the pain you are already in from losing someone close to you, it is necessary to begin thinking about this somewhat quickly if you are going to actually be able to bring a survival action.

First, though, what exactly is a survival action? In simple terms, a survival action is an action for damages (an award of money) for injuries incurred by the deceased right before dying. You can think of a survival action as a lawsuit for injuries incurred that the actual deceased would have been able to bring had he or she not passed away. Since the decedent is not able to bring the suit himself or herself, the decedent's estate has to bring the suit. This is typically a child or other close relative. (States will specify exactly which family members are allowed to bring a survival action in that state.)

Along with deeming who can bring a survival action, states also specify during what timeframe individuals are allowed to bring such a lawsuit. This is not because the state or the courts do not want individuals to be able to recover, but rather because a timeframe has to be set so that the liable individual does not have an indefinite period of time during which to worry about the possibility of a lawsuit.

If someone is barred from bringing a suit, it is referred to as "prescription." If someone is "prescribed" from bringing an action, it means that they cannot bring that action. So when is someone barred from bringing a survival action?

In the state of Louisiana, the court and state statutes are pretty clear with regard to the allowable timeframe for bringing a survival action. According to the plain language of LSA-C.C. art. 2315.1, the proper individual can bring a survival action up until one year after the death of the injured person.

Recently one of the Louisiana appellate courts shed further light on this already rather straightforward area of the law. In that case, the defendant tried to argue (and was ruled in favor of in the district court) that the survivor of the deceased only had a year from the actual accident (rather than the death) in which to bring a survival action. The defendant even cited multiple cases in which this was the case; however, the defendant failed to notice the difference between the case at hand and the medical malpractice cases to which it was citing. The two are governed by different statutes.

The survivor also cited to multiple cases. In these cases, the court had affirmed that a survival action could be brought up to a year after the death of an individual and that the action was not automatically prescribed a year after the accident. One of the cases, Domingue v. ABC group, 98-657 (La.App. 3 Cir. 10/28/98), 720 So.2d 806, writ denied, 98-2905 (La.1/15/99), 736 So.2d 210, had very similar facts, and the court ruled in favor of the survivor. This was then again affirmed in some toxic materials exposure and work hazards case. In the case at hand, the deceased individual was involved in a car accident, which is governed by the same statutes as those other lawsuits and is not governed by medical malpractice statutes.

Ultimately, the appellate court found that the applicable statute was quite clear and that in Louisiana a survivor has a year from the date of the death of a loved one rather than from the date of the accident in which to bring a survival action provided that the action had not already been prescribed at the time of death.

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January 9, 2014

Rear-End Collision Case Examines Liability, Statutes in Louisiana

A case arising out of a St. Martin Parish accident has shed light on the responsibility placed on drivers following behind another vehicle. According to Journet v. Mouton out of the Court of Appeal for the Third Circuit, a driver following another vehicle must exercise great care. The case arose out of an accident where a man and his family swerved to miss a slowing sheriff's deputy, crossed the center line, and slammed into a ditch on the other side of the road. The driver of the vehicle was severely injured and was left quadriplegic.

Reports indicate the deputy was responding to an emergency call but had missed the driveway and was slowing to turn around in another drive. The driver of the following vehicle, who was driving without a license, knew the officer knew him and knew he did not have a license. Therefore, the following driver deliberately chose not to pass the deputy and claimed there were no brake lights and no turn signal used by the deputy. However, the plaintiff's wife contradicted this testimony, stating that she did see brake lights and a turn signal. The defendants filed for summary judgment, which was granted by the trial court and affirmed by the Court of Appeal.

To reach its decision, the court looked to relevant Louisiana statutes. Most pertinent amongst these is La.R.S. 32:81(A), which states a driver shall not follow another vehicle more closely than is reasonable and shall have regard for the speed of the other vehicle. The court also looked to a Louisiana Supreme Court interpretation of the matter, which held that it is the duty of the following driver to exercise a great deal of care and to keep a safe distance behind the lead car.

With these rules in mind, the court found the plaintiff knew the deputy's car was moving slow because he had passed other vehicles and would have passed the deputy if it were not for his fear of being caught driving without a license. The duty of care was therefore on the plaintiff to drive far enough back so as not to create a risk of harm to himself and the driver in front of him. When he could not stop fast enough to prevent hitting the deputy and thus swerved out of the way, the plaintiff breached his duty of care. Thus, the deputy's actions, whether brake lights and turn signal were working or not, were not the cause of the accident and summary judgment was upheld.

This case highlights the complexities imposed by car accident lawsuits. These situations often require a detailed accident investigation, thorough witness interviews, and close analysis of the statutes and case law that shape the legalities at hand. An experienced accident attorney can help a car accident victim decide the merits of his case and, if the case moves forward, can help the victim fight for the compensation he needs and deserves.

However, it is important to remember these lawsuits must be filed within a certain period of time. Therefore, legal advice should be sought promptly after being injured in a car accident.

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January 7, 2014

Louisiana Medical Malpractice Case Examines Federal Antidumping Laws

A recent case arising from occurrences in West Carroll Hospital considers the Louisiana and federal antidumping laws. In addition, it also explains the requirements for a case under medical malpractice. Several hospitals were involved in the case, but only two were actually involved in the suit. A woman who had serious kidney and urinary problems was admitted to West Carroll Hospital; however, once the hospital realized that they did not have the specialized equipment to treat her, they desperately tried to find somewhere to transfer her that did have the ability to help her. After several days of miscommunications, the woman died because they could not transfer her fast enough to address her medical issues. Her six daughters then attempted to find some kind of remedy against the hospitals for the wrongful death of their mother.

In Louisiana, La. R.S. 40:2113.4-2113.6, the “antidumping law,” requires hospitals to take patients who need emergency services and live in the territorial area regardless of whether they are able to pay for their care or if they have insurance. Federal law has the same type of requirement under the Emergency Medical Treatment and Active Labor Act. The Emergency Medical Treatment and Active Labor Act even specifies that hospitals cannot turn away patients who have Medicare or Medicaid, and hospitals cannot discriminate based on race, religion, economic status, or national ancestry.

The Emergency Medical Treatment and Active Labor Act further defines “emergency” as a “physical condition which the person in imminent danger of death or permanent disability.” The definition of “emergency services,” then, is “those services which are available in the emergency room and surgical units in order to sustain the person's life and prevent disablement until the person is in a condition to travel.” Louisiana law requires that the patient be stabilized before they are moved to another facility. However, the Louisiana antidumping law does not permit a private cause of action. That is, an individual cannot sue the hospital for a violation of this law. Even if they could, however, the first hospital, West Carroll, admitted her without incident, so there would be no claim under the antidumping law.

However, federal law prohibits “reverse dumping” as well. The prohibition on reverse dumping requires that a specialized hospital “shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual.” As a result, the plaintiffs, the patient's six daughters, would have had a claim under the reverse dumping limitation. Unfortunately, the plaintiffs did not make an argument under federal law, so they could not claim a violation of the reverse dumping prohibition.

Next, the plaintiffs attempted to argue medical malpractice on behalf of both hospitals. In order to prove medical malpractice in Louisiana, they have to show 1) the standard of care required by the hospital; 2) that the hospital violated that standard of care; and 3) that there was a causal connection between the violation and the resulting injury. As a rule, because the average person does not understand the medical field, the appropriate standard of care is usually determined by expert testimony at trial. In this case, however, several experts testified and they were unable to determine not only the standard of care that would have been required, but they also could not pinpoint exactly what caused the patient's death.

West Carroll admitted the patient, they transferred her to another hospital, Conway, because their superior services would be better able to stabilize her condition. However, once it became apparent that the patient would need surgery, they attempted to move her once again. They tried to get her into St. Francis, and St. Francis initially accepted her, but then later cancelled the acceptance because they did not have a bed open. But, there was some evidence that they actually did have a bed open, and they are unsure why the transfer was cancelled. The experts argued about whether she would have survived if they had not cancelled the transfer.

Both of the hospitals filed for a motion for Summary Judgment. Summary judgment is only appropriate where there are no fact discrepancies and one side could be granted a favorable result based on those facts. Since the court found that the experts did not agree on the cause, they sent the case back down to the lower court so that the lower court could make that determination. However, the court dismissed the claims based on the antidumping laws because there was no private right of action under Louisiana law.

It is important to know which laws allow a private right of action. In addition, diving into the facts to determine the actual cause of medical malpractice claims is equally significant.

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January 3, 2014

Medical Malpractice Subject to Prescription Limits

Doctors at the Women and Children's Hospital in Lake Charles, Louisiana, botched Beverly Lebouef's surgery in 2003. Eventually Lebouef sought legal advice and brought action against her surgeon. Much later in the pre-trial phase, arguably over a year later, she added a new doctor to his lawsuit who had helped perform one of the surgeries. The question is not about prescribed medication, but "prescription periods" and the accompanying rules.

In Louisiana, no action for damages for injury against any physician or hospital shall be brought unless filed within one year from the fate of the alleged act or negligence or within one year from the date of discovery of the alleged act or negligence. This period is considered a prescriptive period. Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. A prescriptive period will begin to run even if the injured party does not have actual knowledge, but constructive knowledge. Constructive knowledge is whatever notice is enough to raise awareness and put the injured party on guard and call for inquiry. Such information that should reasonably put the alleged victim on notice is sufficient to start running of the prescription.

Nevertheless, a plaintiff's mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. The ultimate issue is the reasonableness of the patient's action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant's conduct.

However, courts may find that the doctrine of contra non valentem applies. This doctrine is an exception to the general rules of prescription, which means that prescription does not run against a person who is unable to bring an action or a person who for some reason is unable to act. There are four situations in which the doctrine may apply, but let's focus on the fourth one: (4) where the cause of action was not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. This last situation is the one applicable to most medical malpractice cases.

LeBouef's botched surgery occurred in July 2003. On July 2, 2004, she filed a complaint against Dr. Chua, who had performed one of the surgeries. On November 14, 2005, LeBouef amended her complaint to add Dr. O'Donnell. By the plain reading of the medical malpractice statute, this would be outside the one year prescription period. However, the court held that the doctrine of contra non valentem applied, more specifically, situation number four.

The court found that LeBouef did not know of the cause of action until much later than July 2003. To court pointed to the fact that the surgery report makes no reference to the degree of Dr. O'Donnell's assistance, even though he was much more than an assistant to the procedure. LeBouef claimed that given her multiple surgeries and following long recovery period, she did not become aware that she might have a medical malpractice claim until the spring of 2004, almost a full year later. She finally contacted an attorney in June of 2004 and by July 2, LeBouef's attorney had filed a request for a medical review panel with Dr. Chua as the only named defendant. It was not until LeBouef's attorney took Dr. Chua's deposition on November 9, 2005 that she became aware of the extent of Dr. O'Donnell's involvement in the second surgery to repair the problems that arose in the first surgery. Five days later, Dr. O'Donnell was added as a defendant.

Dr. O'Donnell argued that the one year prescription period had run based on the fact that LeBouef knew or should have known he was a participant in the surgery, especially since she hired an medical expert to review her files. Unfortunately, in Dr. Chua's response to the claim filed against her, Dr. Chua did not point out Dr. O'Donnell's involvement in the 2003 surgery. Since there was no information pointing to Dr. O'Donnell, LeBouef's medical expert found nothing in his evaluation of the claim to suggest that anyone other than Dr. Chua has any potential liability. As a result, the prescription period did not start until later, arguably November 9th, for Dr. O'Donnell. Therefore, the appellate court upheld the jury verdict against Dr. O'Donnell and all of his appeals were dismissed.

This "time window" is a crucial aspect of medical malpractice claims and serves many purposes. If the prescription period rules were different, it would force malpractice victims to name every doctor on the medical record in order to satisfy the prescription requirement. This would create problematic public policy in that it would require a plaintiff to name any and every doctor not only on her medical record, but even doctors peripherally associated with the procedures. To deny a plaintiff the right to rely on the content of a medical record and require a blanket filing would be burdensome as well. Understanding your rights under the medical malpractice statute is half the battle, but financial hardship as a result of medical malpractice prescription technicalities can be prevented.

December 29, 2013

Rayville Doctor Found to Have Acted Within Standard of Care

Going to the hospital can be an unsettling experience. There are many ways treatment can go wrong and result in serious injury or death. Medical conditions can be misdiagnosed or wrongly diagnosed, wrong prescriptions or doses can be prescribed, and surgical errors can occur. When these mistakes happen and a medical malpractice lawsuit is filed against a doctor and hospital, the trier of fact must determine three elements in order to decide whether or not medical malpractice occurred, which often requires a careful examination of a doctor's standard of care.

In a recent case heard by the Court of Appeal for the Second Circuit, Crockham v. Thompson, a woman filed a medical malpractice lawsuit against her mother's doctor and hospital after her mother died from a brain hemorrhage induced by high blood pressure. According to the lawsuit, the mother had been paraplegic for 20 years and often suffered from bowel blockages. In this instance, the woman went to the hospital to have a blockage removed, but failed to get better after the operation was completed. The plaintiff took her mother back to the hospital where she was given oral medication for her high blood pressure, but she later suffered the stroke and her family chose to take her off life support.

In her wrongful death claim against the doctor, the plaintiff in this case claimed the doctor breached his duty of care to the deceased. The plaintiff claimed the blood pressure medication should have been given intravenously rather than by pill because the pill would have bypassed her mother's non-functioning bowel. Also, the plaintiff suggested the standard of care had been breached because the doctor failed to make his daily round in the morning, failed to admit the patient to the ICU, and failed to develop a cardiovascular profile for the patient. The plaintiff supported her argument with the fact that the hospital's medical board had found the doctor breached the standard of care. However, at trial, a jury found for the doctor and denied the plaintiff compensation. The Court of Appeal affirmed.

For a medical malpractice case to succeed, several factors must be proven. First, a duty of care must be proven and the standard of care must be established. Then, a plaintiff must show there was a breach of that duty of care and injuries resulted. If these elements can be established, then the plaintiff may receive compensation that can be used to pay medical expenses, lost wages, and compensate for pain and suffering. Yet, proving all of these elements can be quite difficult.

The reason why the ruling in Crockham v. Thompson was upheld is because the standard of care was properly assessed. Medical professionals are not held to a standard of absolute precision. Instead, doctors' actions are evaluated by their reasonableness under the circumstances so long as they are in line with the knowledge and skill held under the ordinary care exercised by other licensed physicians in Louisiana. If the doctor is a professional, then the standard of care is evaluated based on the knowledge, skill, and reasonableness of an ordinary specialist in that field. After hearing testimony from several expert witnesses, the jury found the testimony of a family practice instructor at LSU to be persuasive. That testimony stated that the doctor gave the patient oral medication because the bowel blockage had been removed, the bowels sounded like they were working, a doctor's daily rounds do not have to occur in the morning, and the medication created drops in the patient's blood pressure thus alleviating the need to admit her to the ICU.

In many medical malpractice cases, expert witnesses are necessary to establish the standard of care and to evaluate whether or not that standard was upheld. An experienced attorney can help a client find reputable experts who will support his case.

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December 28, 2013

Car Accident Leads to Examination of Mutual Responsibility

We’ve all been there: you’re running late for work, so you rush out the door and into your car. You drive ever so slightly above the speed limit, and all the traffic lights you come across are green. Fortune seems to be on your side. Suddenly, a car seemingly comes out of nowhere and hits you. Are you partially to blame because you were in a rush and drove over the speed limit? If you are liable, how does it affect your ability to collect damages from the other driver and his or her insurance company?

Laura McKinney of Shreveport, Louisiana, faced those very questions after she collided with another driver on the morning of July 23, 2009. She was running late for her 6:00 a.m. shift at Holy Angels Residential Facilities, and the accident occurred just as she turned into its parking lot. A co-worker was leaving the parking lot and cut across several empty parking spaces to enter the main travel lane when she collided with McKinney. Neither party reported any injuries at the time, but McKinney developed left knee pain three weeks later and was diagnosed with a left knee contusion. She subsequently filed a lawsuit against the other driver and her insurance company.

At trial, several witnesses to the accident provided vital eyewitness accounts to help the court determine who was at fault. One witness testified that it appeared that McKinney was driving faster than the parking lot’s signed speed limit of 15 miles per hour. Another witness, however, testified that she did not think McKinney was driving above the speed limit. After weighing the evidence, the trial court ruled that McKinney was 40 percent at fault and the other driver was 60 percent at fault. McKinney’s damages award was therefore reduced by 40 percent, and the trial court entered a judgment in her favor in the amount of $7,632.60. McKinney appealed, arguing that the trial court erred in finding that she was 40 percent at fault and that the trial court also erred in awarding her an excessively low amount of damages.

The Second Circuit Court of Appeal rejected both arguments and affirmed the trial court’s judgment in its entirety. The Second Circuit first addressed McKinney’s argument against the trial court’s apportionment of fault. It noted that such an apportionment is a factual determination that can only be reversed if it was “clearly wrong.” If the trial court’s fault apportionment was reasonable in light of the complete factual record, then the Second Circuit cannot reverse, even if it is convinced that it would have weighed the evidence differently and come to the opposite conclusion. Because the trial court has the discretion to credit one witness over another and because it was reasonable to infer that McKinney “was acting in haste” since she was running late to work, the trial court was not clearly wrong in determining that McKinney was 40 percent at fault. With respect to her second argument regarding damages, the Second Circuit found that McKinney did not present any evidence that the trial court abused its vast discretion in setting the amount of her damages award. Indeed, she was not unable to work because of the accident, and she did not require any pain management beyond a few sessions of physical therapy. It therefore affirmed the judgment of the trial court in its entirety.

If you have been in a car accident, contact the Berniard Law Firm. Providing the best experts in personal injuries and insurance disputes, our law firm can handle all of your litigation needs.

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December 24, 2013

Medical Malpractice Ruling Awards Wrongful Death Damages

Imagine taking your mother to the emergency room for abdominal pain and vomiting. A CT scan and x-ray do not reveal any serious medical issues, and blood work merely shows that her potassium level is low. But within a few hours, she is dead. Now imagine witnessing her death – seeing her break out in convulsions, foam at the mouth, gasp for breath, and lose consciousness.

Such was the experience of one of Virginia Martin’s thirteen adult children. Ms. Martin’s daughter, Betty Farmer, brought her to the emergency room after Ms. Martin complained of abdominal pain, vomiting, and diarrhea. Ms. Martin was 69 years old, and she was otherwise in very good health at the time of her hospital visit. She did not have any heart problems or other serious health-related issues.

The ER physician determined that she suffered from simple gastroenteritis. A chest x-ray came back normal. Ms. Martin began to receive pain medication via an IV, and her blood work revealed that her potassium was low. A CT was performed and showed that there were no abdominal abnormalities that could have caused her gastric distress. Ms. Martin returned from the CT scan to the ER at 9:35 p.m. By 9:44, Ms. Martin started convulsing, her face turned red, she began to foam at the mouth, and her eyes rolled into the back of her head. She lost consciousness, and efforts to resuscitate her failed. Her cause of death was listed as acute cardiac arrhythmia and arteriosclerotic heart disease.

There were conflicting accounts of what happened between 9:35 p.m. and 9:44 p.m. According to Betty Farmer, a nurse entered her mother’s ER room around that time and administered undiluted potassium directly into her mother’s IV port. A medical expert testified that injecting undiluted potassium is “like putting acid in the vein,” as it would cause significant pain and burning and would disrupt the electrical activity that controls a normal heart rhythm. In fact, because of the lethal nature of undiluted potassium, Ms. Martin’s medical center had issued a written directive a few years prior that all potassium be removed from all patient care areas. The expert also testified that Ms. Martin’s reaction was consistent with an IV push of undiluted potassium. Her convulsions started within 60 seconds of the IV push, and she was no longer breathing within 90 seconds.

The nurse that allegedly administered the undiluted potassium offered a different tale. She argued that any injection would have gone into Ms. Martin’s tissue and not her vein because her IV line had been infiltrated. The medical center also argued that undiluted potassium was not available in the ER at the time of Ms. Martin’s death. While undiluted potassium was obtainable from the on-site pharmacy, there was no record that undiluted potassium had been given to Ms. Martin’s nurse.

Ms. Martin’s 13 children filed a lawsuit against the medical center, alleging that the potassium IV push caused their mother’s cardiac arrest. A jury ruled in their favor, finding that the medical center breached the standard of care in its treatment of Ms. Martin. It awarded her 13 children survival damages of $250,000, but no wrongful death damages or funeral expenses. Her children sought the latter two on appeal, while the medical center sought a reversal of the jury’s verdict and survival damages award.

The Second Circuit Court of Appeal affirmed the liability verdict and survival damages award, and it also awarded $60,000 in wrongful death damages to each of Ms. Martin’s 13 children and $6,833.72 in funeral expenses. Regarding liability, a jury’s factual determinations can be reversed only if the record establishes that its findings were manifestly erroneous and without a reasonable factual basis. A jury is entitled to great deference in its choice between two conflicting views of the evidence. The Second Circuit therefore determined that the jury had a reasonable basis for concluding that the medical center breached the standard of care based on Ms. Martin’s reaction and the jury's credibility determination of the testimonies of Ms. Martin’s daughter and Ms. Martin’s nurse. The liability judgment was accordingly upheld.

Likewise, the survival damages award was upheld. Survival damages are awarded if the evidence demonstrates that the deceased suffered pain or suffering leading up to the time of death, and it is a factual determination as to whether pain or suffering actually occurred. Because the jury’s factual determination was reasonable, it was not clearly erroneous, and therefore the award was upheld.

But the Second Circuit amended the jury’s judgment to include wrongful death damages and funeral expenses. Wrongful death damages were warranted because Ms. Martin’s 13 children put forth evidence demonstrating their loss of love, affection, and support from their mother. The Second Circuit determined that “Ms. Martin spent an inordinate amount of love and energy helping and supporting her children in different ways,” and so it awarded each of her 13 children $60,000 in wrongful death damages. It also awarded funeral expenses in the amount of $6,833.72.

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December 21, 2013

Medical Malpractice Claims Rely Heavily Upon Prescriptive Period

In Louisiana, a civil law doctrine known as “prescription” limits the amount of time that may pass before someone files a lawsuit. Prescription is the extinction of a right of recovery and occurs due to a failure to exercise that right over a period of time. In other states, this doctrine may be referred to as a statute of limitations or a statute of repose. Louisiana's prescription period for filing a lawsuit based upon personal injury is one year. Often this doctrine is not an issue in litigation, but in a recent case in St. Tammany Parish, one doctor’s objection of prescription has fundamentally altered the life of a woman, alleging to have suffered from medical malpractice.

On November 21, 2008, Glenda DeBram was hospitalized by her attending physician, Dr. Keshelava, after complaining of painful urination, fever, and cough. On October 15, 2009, pursuant to LSA-R.S. 40:1299.47(A)(2)(a), Ms. DeBram filed a request for a medical review panel with the Patient’s Compensation Fund. According to her request, Ms. DeBram alleged that St. Tammany Parish Hospital and Dr. Keshelava fell below the standard of care owed to her between November 21, 2008 and October 20, 2009. Subsequently, Dr. Keshelava filed a peremptory exception raising the objection of prescription, arguing that Ms. DeBram’s complaint was prescribed on its face as it was filed on January 29, 2010, which was more than one year following her discharge from the hospital stay during which she claims Dr. Keshelava and the hospital breached the standard of care. As such, on September 16, 2010, the trial court sustained the exception and dismissed Ms. DeBram’s medical malpractice claims.

The prescriptive period for a medical malpractice claim is contained in LSA-R.S. 9:5628A, which provides, in pertinent part:

No action for damages for injury or death against any physician … [or] … hospital … whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless 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; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
The statute above sets forth two prescriptive limits within which to bring a medical malpractice action namely one year from the date of the alleged act or one year from the date of discovery with a three year limitation from the date of the alleged act. According to the Louisiana Supreme Court, “if prescription is evidence on the face of the pleadings, the burden shifts to the plaintiff to show that the act has not prescribed.” Moreover, “[t]he plaintiff’s petition cannot be considered prescribed on its face if the plaintiff’s pleadings make a prima facie showing that it was filed within one year from the date of discovery and within a period of three years from the date of the alleged act, omission, or neglect.”

In the instant case, Ms. DeBram’s complaints or presented facts did not contain any allegations regarding an inability to discover the alleged malpractice acts against Dr. Keshelava. Therefore, contrary to the precedent set forth in the Campo case, Ms. DeBram failed to “allege any facts with particularity that indicated that the injury and its causal relationship to the alleged misconduct against Dr. Keshelava were not apparent or discoverable until within the year the suit was filed.” After reviewing Ms. DeBram’s supplemental and amending complaints, the Louisiana First Circuit Court of Appeals agreed with the trial court that the prescription was evidence on the face of the pleadings and that the burden shifted to Ms. DeBram to show that the action against Dr. Keshelava and the hospital was not prescribed.

According to the Court of Appeals, the Ms. DeBram’s initial complaint referred only to her initial admission to the hospital and the amending complaint contains no allegations regarding any additional treatment by Dr. Keshelava. Thus, the First Circuit found that the amended complaint did not allege facts sufficient to constitute a continuing tort against Dr. Keshelava. Further, the Court of Appeals found Ms. DeBram’s argument that she received incomplete records from the hospital, and it was not until she received said records on October 5, 2009, that there was any indication that something was wrong to be unconvincing. Thus, the First Circuit affirmed the judgment of the trial court and upheld the dismissal of Ms. DeBram’s claims against the hospital and Dr. Keshelava.

As you can see, in order to be viable, any legal malpractice action must be commenced within the time limits set forth in LSA-R.S. 9:5628A. If you do not file a legal malpractice lawsuit before the expiration of the prescription, your lawsuit will be forever barred. Thus, it is essential that you talk to a lawyer and make sure you understand how prescription applies to your case.

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December 20, 2013

Employer-Employee Relationship Must Be Defined In Car Accident Lawsuits

Under the respondeat superior legal theory, an employer can be held liable for his employees' acts that occur within his scope of employment. This means that a truck company, for example, may be held responsible for an accident caused by one its drivers who was speeding or intoxicated while driving his route. This doctrine can be complicated when questions arise as to whether or not the employee was within the scope of his employment, or whether the person who caused the injurious accident was in fact an employee.

To determine scope of employment, one must look to what the employer pays the employee to do and what, exactly, the employee was doing when the accident occured. If a truck driver deviated from his route to go to a bar, for example, then it will likely be determined the driver was engaged in frolic for his own benefit and therefore was not within the scope of his employment. This means if an accident occurs while that truck driver is on his way to the bar, then the truck company will not be held liable. If, on the other hand, the truck driver had to deviate from his standard route because of a flooded road, then the detour is still considered to be to the employer's benefit and within his scope of employment. An accident that occurs while on detour will still be imputed to the truck company.

A recently decided case by Court of Appeal for the First Circuit helps illustrate issues of determining the employee/employer relationship. The importance of this aspect is if the party responsible for the accident is found to be an independent contractor rather than an employee, liability cannot be placed on the employer. So, in the case heard on appeal by the First Circuit, a woman who was injured by the negligent driving of a delivery van driver sought to join the subcontracting broker and the delivery service that hired the individuals responsible for the accident. To determine whether an independent contractor relationship existed, the court looked to case law and the facts before it.

According to case law, several factors must be considered to determine whether an employee or independent contractor relationship exists. The most important factor is the amount of control exercised by the employer over the worker. An independent contractor typically has freedom of action and choice when it comes to the task to be performed, often leaving the independent contractor to decide his own methods without employer supervision. Also, an independent contractor is typically subject to a specific price for an overall undertaking that is specific in duration, rather being subject to termination at will.

In the case at hand, the court found an independent contractor relationship existed, and thus held that the employers could not be held liable. In addition to having signed an independent contractor agreement, which is not itself dispositive, the workers in question had very little communication with the employers. Instead, the workers set their own delivery routes and schedules and worked when necessary. Therefore, since the employers lacked an exercise of control over the employees, they could not be held responsible for the employees' acts.

Lawsuits involving accidents can be extremely complicated, especially when the negligent driver is operating a company vehicle. A competent, experienced attorney can walk a victim through the lawsuit process and help determine if compensation is achievable from the employee, the employer, or both. If you have been injured in a car accident, please contact the Berniard Law Firm.

December 19, 2013

Injured Employee Limited to Workers’ Compensation Following Accident at Lena Power Plant

Work-related injuries, especially in construction, are not uncommon. However, the outcomes in workers’ compensation cases vary because the contractual relationship between the parties is often not clear. Under Louisiana law, workers’ compensation is provided to an employee if they’re injured by an accident “arising out of” and “in the course of” his employment with a statutory employer. However, the issue centers on whether the defendant is a statutory employer thereby limiting the plaintiff to workers’ compensation as their sole remedy. If a valid, written contract recognizes the existence of a statutory employer relationship, it creates a rebuttable presumption; this requires careful interpretation of the terms of the contract.

On August 12, 2008, Louis Fox (hereinafter “plaintiff”), employee of Foster Wheeler North America Corp. (hereinafter “Foster”), was assisting with the installation of boiler units at the Rodemacher Power Station near Lena. While working inside a cyclone tower, the plaintiff alleged that he sustained an injury when an object fell from above striking his head and neck. The plaintiff sought damages beyond workers’ compensation against several defendants including CLECO Power (hereinafter “CLECO”), owner of the power station, and general contractor Shaw Constructors, Inc. (hereinafter “Shaw”).

The installation of the boiler units was the result of a written contract between CLECO Power, owner of the station, and Shaw Constructors, Inc. As general contractor, Shaw selected Stone and Webster, Inc. (hereinafter “Stone”) to take charge of engineering and procurement services. Stone then entered into a purchase order agreement with Foster for the sale and installation of the boiler units.

The issue in the lawsuit was whether Shaw entered directly into a subcontract with Foster when Stone entered into the purchase order agreement thereby making Shaw the plaintiff’s statutory employer. The trial court cited two circumstances when a statutory employer relationship is created: (1) under the “two contract” theory (a.k.a. standing in the “middle” of the two contracts) and (2) the existence of a written contract recognizing the principal as the statutory employer. Shaw based its statutory immunity on the two contract theory. The two contract theory is applicable when (i) the principal enters into a contract with a third party; (ii) pursuant to that contract, work must be performed; and (iii) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed.

The trial court focused on the third element after concluding there was no question the first two elements were met because Shaw entered into a contract with CLECO and, pursuant to that general contract, work was performed. The plaintiff argued Shaw entered into a subcontract with Stone, who then subcontracted part of its work to Foster. The trial court however determined that Foster contracted with Shaw after citing a provision in the Corporate Guaranty that read in-part “Whereas, Purchaser (Stone) as agent for contractor (Shaw) and FWNA (Foster Wheeler) have entered into that certain purchase order for two CFB Boilers.” The court concluded this provision made clear that Stone was acting on behalf and for the benefit of Shaw, as the principal of Stone and granted Shaw and CLECO summary judgment.

The Court of Appeals, Third Circuit, affirmed the summary judgment motion for similar reasons. First, in the “Consent to Assignment” document included in the Stone- Foster agreement the court noted that it listed CLECO Power as owner, Shaw as contractor, and Foster as subcontractor. The court found this document clearly indicated that Foster was a subcontractor of Shaw. In addition, the provision in the Shaw-Stone contract authorized Stone to be responsible for “procurement services” and therefore empowered Stone to act on behalf of Shaw. Thus, the plaintiff was limited to workers’ compensation damages because Shaw was their statutory employer.

This case is a valuable reminder for injured workers to review the terms of their employment contract before seeking damages beyond workers’ compensation from an employer. An effective review of an employment contract should be conducted under the guidance of an attorney. If you’re an injured worker and looking for legal counsel, contact the Berniard Law Firm for immediate assistance from an experienced attorney.

December 17, 2013

Summary Judgment Tripping Case from Baton Rouge Illustrates Court Complexities

A recent case appealed from the Parish of East Baton Rouge provides a great example not only of the potential difficulties of recovering damages for negligence from a merchant, but also of summary judgment and how it works. In November 2006, the plaintiff entered the defendant's store, tripped on what she claims was a 'flipped-up' doormat, and struck her head on some shelving. She was injured as a result and tried to recover damages from the merchant, claiming that she was injured as a result of the merchant's negligence in maintaining the premises. The trial court granted summary judgment in the merchant's favor, and the appellate court affirmed.

If someone is injured while lawfully on a merchant's property and wishes to recover damages for negligence from that merchant, they must meet four requirements provided by Louisiana law. The claimant must show that their injury was the result of an unreasonably dangerous condition on the merchant's property, that the danger presented by that condition was reasonably foreseeable, that the merchant knew or should have known of the danger prior to the claimant's accident, and that the merchant did not take reasonable steps to correct the situation.

Summary judgment is rare and requires clearing some pretty high hurdles. A court must first find that there is no genuine contention as to any facts that might influence the outcome of the case. If the court so finds, then it will simply apply the law to the relevant facts and rule in a party's favor as a matter of law, perhaps before there is even a chance for a trial. Where the party moving for summary judgment will not bear the burden of proof at trial, for instance if that party is a merchant defending against a negligence claim, then s/he need only show the opposition's inability to prove or disprove one or more key elements of his/her action or defense. The opposing party must then answer somehow to prove that s/he will be able to prove the element(s) in question at trial, or lose on summary judgment.

In this case, the plaintiff's own testimony condemned her cause. She said she couldn't remember any details of the accident, only that "[s]omething caught [her] foot" and she fell down. The plaintiff failed to present any evidence, or explain how she would be able to prove in trial, that the mat had been disturbed long enough to have been discovered through reasonable care. She also had no evidence as to the location of any store employees at the time.

The defendant, for his part, testified that the rugs were maintained on a weekly basis and that the store had never before had an incident of any patrons slipping or falling because of the rugs.

The trial court ruled against the plaintiff on summary judgment, and the appellate court confirmed that judgment, because the plaintiff failed to demonstrate an ability to prove multiple elements of her negligence claim. A good attorney can help you understand those burdens that the law may place on you in proving a given claim, and can help you avoid the wasting your time and resources picking a legal fight you can't win.

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December 4, 2013

Burden of Proof in Claims Against Merchants

Louisiana merchants must keep their premises safe not only for their guests or customers but also for any person invited onto the property for business purposes. This also includes persons delivering goods to restaurants like in the case of Jones v. Jula Trust, LLC.

Jones was a deliveryman for Pepsi. En route, he stopped at a Jennings Popeye’s restaurant to deliver some Pepsi products that morning. While pulling his loaded dolly through the restaurant’s back door, he slipped and fell. His slip caused the boxes of Pepsi to topple on top of him. About a year after his accident, Jones initiated suit against Popeye’s by filing against the landlord of the property, JULA Trust, LLC. Jones claimed that either water or grease on the floor caused his fall, but he could not explain where the substance had come from. The Popeye’s manager said that he had conducted a walk-through inspection of the premises that morning and had not seen anything slippery on the floors. Nor had any employees notified him about any slippery substance on the floor the morning of the accident.

La. R.S. 9:2800.6 requires a merchant to “keep his aisles, passageways, and floors in a reasonably safe condition.” The burden of proof remains with the plaintiff to show the following elements: (1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm 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; (3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Jones argued that Popeye’s had caused his fall because customers were not allowed in the back, so the employees must have left a mess for him to fall on. He attributed the mess to the ice machines in the back leaking water. However, he did not introduce any evidence to substantiate that claim. Jones could not recall if his clothing was wet after the fall, if there was sufficient water to cause a puddle, or if it had rained the previous night. Due to the lack of evidence, the trial court granted the defendant’s motion for summary judgment. The appellate court affirmed. Since the Popeye’s manager had inspected the property that morning and no employees had notified him about any slippery floors, Jones was unable to show that Popeye’s had created the mess leading to his fall or even knew about a mess before the accident. It appears that the merchant had exercised reasonable care under the third element because the manager had conducted his morning walk-through inspection.

A motion for summary judgment will prevent a case from going to trial if there is not enough evidence to establish that the plaintiff will be able to meet his burden of proof in front of a jury or judge. Once filed, the movant only needs to show that there is not enough factual support for at least one of the necessary elements. Here, Jones could not produce enough evidence to prove the second or third elements of the claim.

Since motions for summary judgments are common, it is essential to have legal representation that is familiar with the procedural matters that must be made to survive these motions. The Berniard Law Firm has substantial experience in responding to motions for summary judgment.

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December 2, 2013

Court Throws Out Lafayette Parish Case As Plaintiff Fails To Deliver Service of Process Before Deadline

It is vital to know proper court procedures at the outset of litigation or else an otherwise valid claim might be thrown out of court without ever being heard. One prime example is the need to send initial court documents to a defendant within a set deadline (sending such documents, such as a citation or summons, is known as service of process). Case in point, the Lafayette Parish Court of Appeal, in Boka v. Oller, recently upheld the dismissal of a claim without even considering the merits because service of process was delivered too late. Therefore, it is important to know the rules before bringing a lawsuit or a good claim might be lost due to a mere technicality, such as delivering papers too late. For a non-lawyer, an attorney can be instrumental in making sure proper procedures are followed so that the party has a chance to present their case in court.

In Lafayette Parish, Louisiana Code of Civil Procedure Article 1201 requires that service of the citation must be requested within a deadline of ninety days from commencement of the action. Article 1201 also notes that service of process on defendants is “essential” and “without them all proceedings are absolutely null.” The deadline for service is to ensure that defendants are aware of an action and have enough to prepare. Therefore, as a delay in service is deemed unfair to the defendant, a court may dismiss a claim if service of process is sent too late.

There are some limited exceptions to the rule, but, due to the risks involved in these exceptions, generally a party should attempt to serve process on time. For example, one exception permits late service if there is good cause for the delay. However, as the court is unlikely to accept run-of-the-mill excuses for delays, proving a good cause for failure to serve process on time can be difficult. As noted below, the court in Lafayette Parish found that there was no good cause for late service as the plaintiff knew the defendant’s address.

Another exception is that the defendant may waive the requirement that process be served on them, but this should by no means be expected. As the plaintiff in Lafayette Parish learned the hard way, a defendant will often choose not to waive the requirement as they can avoid all liability if they successfully object to late service. Article 1201 does require a defendant to expressly assert thier defense of late service or else the defendant will be deemed to have waived such defense. However, the Lafayette case shows a defendant was able to successfully assert such a defense nearly two years after the case was underway. In this way, a plaintiff can invest much time, money, and effort into litigation, and have it all lost by a simple procedural rule that was overlooked at the beginning.

Another way out might be to attempt an appeal, but the standard to appeal a decision dismissing a claim for late service is high as it requires the party to prove that the trial judge made a manifest error or applied a clearly wrong standard. The difficulty of an appeal is compounded by the fact that losing an appeal can be costly as the party that loses, as occurred in the Lafayette case, can be ordered to pay the other party's costs of defending the appeal. One might be tempted to think that a court may be forgiving, but, as the Lafayette case shows, an appeal on such an issue can be very hard to win.

In Lafayette Parish, the trial court dismissed the plaintiff’s claim of fraud because the plaintiff had failed to request service of his original petition to be made on the defendant. After roughly two years, the defendant finally asserted that he had never been properly served, and the trial court agreed. The trial court found that the plaintiff had missed the deadline for service and that there was no good cause for the delay.

The plaintiff then appealed the decision, but failed to convince the appeals court. The plaintiff could not prove that the trial judge made a manifest error or applied a clearly wrong standard, and so the plaintiff did not meet the high burden for appealing a dismissal for failure to timely serve process. The appeals court found that the court record showed that no service of process was ever requested by the plaintiff and that, even though the defendant was eventually served after nearly two years by the clerk of court, such service was long after the ninety days required by law. The appeals court also found that there was no good cause for the delay in service as the plaintiff knew the defendant’s address. Therefore, the appeals court upheld the decision dismissing the claim for late service of process. On top of that, the appeals court ordered the plaintiff to pay the defendant’s costs for the appeal.

The case in Lafayette Parish presents a stark reminder of the importance of properly following court procedures, as the entire case was dismissed after nearly two years merely for the failure to send service of process on the defendant on time. It is important to note that the deadline for service is only one of a many technical procedural rules that can completely bar a claim regardless of whether a person was actually injured. A case can and often will be dismissed if a party fails to comply with technical requirements of the court. Overcoming the hurdles of court procedures can be a daunting task for the uninitiated and lead to serious consequences.

If you are unfamiliar with the ins and outs of the complex legal procedure facing your case, call the Berniard Law Firm today to speak with an attorney immediately.

November 30, 2013

Appeals Court Upholds Summary Judgment Against Manufacturer in Evangeline Parish Products Liability Case

Companies manufacturing items that are inherently dangerous in the course of its normal use have certain legal obligations under products liability law. This case illustrates the necessary components of a successful products liability claim in Louisiana.

The plaintiff was working on a backhoe to clean out a drainage culvert when the clamps holding the vehicle’s hydraulic lines broke free and caused the lines to spew out hydraulic fluid. While attempting to reconnect the clamps, the plaintiff fell off the vehicle and was injured. He brought suit against the backhoe’s manufacturer and claimed that the company knew of the existence of an alternative design of the clamps that would better protect the hydraulic lines from leaking.

The trial court denied two separate motions for summary judgment by the defendant finding there were issues of material fact that precluded the granting of a motion for summary judgment. Subsequently, the plaintiff filed his own motion for summary judgment against the manufacturer under the Louisiana Products Liability Act (LPLA) which the court granted. The manufacturer appealed the trial court’s decision, and this appeal followed.

In Louisiana, the LPLA provides the only remedy against manufacturers for damage caused by their products. The appeals court points out that plaintiff must prove the following four things to establish a manufacturer’s liability under the LPLA:

(1) the defendant is the manufacturer of the product; (2) the claimant’s damage was proximately caused by a characteristic of the product; (3) this characteristic made the product unreasonably dangerous; and (4) the claimant’s damage arose from a reasonably anticipated use of the product by the claimant or someone else.

The manufacturer challenged the plaintiff’s assertions that it marketed an item that was inherently dangerous in the course of its normal use and that utilizing an alternative design would have prevented his injury. The appeals court disagreed with the defendants on all of their arguments.

The appeals court first found that the problem the plaintiff encountered with the clamps was the proximate cause of his injury. The court felt that the manufacturer failed to adequately rebut the plaintiff’s evidence that it was the clamps coming loose from the line that allowed the hydraulic fluid the plaintiff slipped in to leak from the lines.

The appeals court then found that the manufacturer failed to adequately rebut the plaintiff’s evidence that he was operating the backhoe in a reasonably foreseeable manner. The court points out that backhoes are marketed as heavy duty machines that are used in a variety of outdoor situations, so its use in this case was not unreasonable.

The appeals court also found that the manufacturer failed to adequately rebut the plaintiff’s evidence showing that hydraulic lines were themselves the defective. The manufacturer argued that the clamps alone were the problem, but the court was unconvinced and found that the manufacturer failed to rebut the plaintiff’s expert evidence that the entire hydraulic line was defective.

Finally, the appeals court addressed the issue of the existence of an alternative design. The issue of an alternative design only applies when the plaintiff was using the product in a reasonably foreseeable manner. The court had previously found that to be the case here, so the issue was applicable here. The plaintiff provided evidence that other products made by the manufacturer had an alternative hydraulic line design that decreases the possibility of leakage, and this meant the design that was at issue was unreasonably dangerous. The court once again finds that the defendant failed to rebut the plaintiff’s evidence on this matter.

In the end, the appeals court finds in favor of the plaintiff on every issue and affirms the trial court’s granting of a motion for summary judgment in favor of the plaintiff.

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November 28, 2013

Appeals Court Upholds Jones Act Claim for Seaman Injured Off Gulf Coast

The Jones Act is a law that provides seamen the chance to bring personal injury suits against the owners and operators of vessels they are working on in cases where the owner or operator was negligent or in some other way at fault for the injury. One of the types of damage allowable under the Jones Act is that of maintenance and cure. In maritime law, maintenance is the employee’s daily living expenses and cure is the employee’s medical bills. If an employer has to pay maintenance and cure, they will only have to pay such costs until the seaman is either fit for duty, or at a point where added medical treatment will not improve his condition. This case goes into further detail about what is necessary for a plaintiff to receive an award for maintenance and cure in a Jones Act case, and the relationship between maintenance and cure and worker’s compensation in Louisiana.

In this case, the plaintiff was performing sandblasting and plating work on an offshore rig. While performing this work, the plaintiff slept and ate aboard the M/V Howard McCall, stored equipment on the vessel, and used the vessel as a work platform on several occasions. After the initial work on the rig was done, the plaintiff was brought back to the vessel to perform sandblasting work on the vessel itself. During this period of work, the plaintiff sustained injuries while exiting the ship’s wheelhouse. The plaintiff soon began receiving payments from the Louisiana Worker’s Compensation Commission who was the employer’s insurer.

Subsequently the plaintiff filed suit against both of the owners and the operator of the vessel under the Jones Act. The plaintiff made three basic claims: 1) the owners and operator of the vessel were negligent in maintaining the safety of the vessel, 2) the vessel was unseaworthy, and 3) the owners and operators owed him costs for maintenance and cure. During the jury trial, the negligence and unseaworthiness claims were dismissed, and the remaining claim of maintenance and cure was the only claim left. The jury found in the plaintiff’s favor and awarded him awards of maintenance and cure. The defendants appealed the jury’s award.

The appellate court took up the case on two claims: 1) the plaintiff was not a seaman under the Jones Act, and therefore his claim should be dismissed, and 2) the trial court erred in not offsetting the maintenance and cure award by the amount the employer had previously paid the plaintiff under its workers compensation policy.

In order for a worker to succeed in a Jones Act claim, he must first meet the requirements set out in the Jones Act that classify who is considered a seaman. In order to be classified as a seaman under the Jones Act, the court will look towards such issues as: the worker’s duties aboard the vessel, the length of time the worker is connected to the vessel, and whether or not the worker performs work onboard the vessel or whether his work is performed on land and he only travels on the vessel. The penultimate inquiry is whether or not the worker in question is whether is actually a land-based employee who just happens to be onboard the vessel at the time of injury, or whether the worker is actually a member of the vessel’s crew.

The appellate court looked at the totality of the facts of the case and determined that the plaintiff was a seaman under the Jones Act. The court pointed to several facts to backup its decision. First, the majority of the plaintiff’s work for his employer was sea-based and a good percentage of that work was performed on the vessel. Second, the plaintiff and other members of the crew slept, ate, and stored equipment on the vessel. Finally, the plaintiff was brought back aboard the vessel to perform further work on the vessel itself. These facts led the appellate court to determine that there was no merit to the defendant’s argument that the plaintiff was not a seaman under the Jones Act.

Having determined that the plaintiff was indeed covered by the Jones Act, the appellate court turned to the argument regarding the jury’s award for maintenance and cure. The employer claimed that the jury erred by not offsetting the award for maintenance and cure by the employer’s previous payment to the plaintiff under its workers’ compensation policy.

The court pointed out that the Supreme Court has held that an action for damages under the Jones Act is the seaman’s exclusive remedy for personal injury during his employment. Consequently, any recovery of damages under the Jones Act must be reduced by any payments the plaintiff received from a state workers’ compensation law.

In this case, the appellate court found that the employer had not paid anything to the plaintiff except through its insurer, and was therefore not entitled to any offsets for funds it had not paid. The appellate court pointed out that the Louisiana Workers’ Compensation Commission, which sought to intervene in this case, might have a claim for some type of offset, but that was not an issue in this particular appeal.

As the above case shows, Jones Act claims can be extremely complicated, and require high quality legal representation.

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November 26, 2013

Parish Judge Affirms Denial of Class Certification in Oil Spill Suit

A class action suit occurs when a group of people bring a case together as representatives of an entire class of people who are similarly situated. In order to bring a class action in Louisiana, a judge must certify the class. This means that the class of plaintiffs meets the requirements for their class action to go forward. One of the requirements a class must meet to be certified is that it must have what is known as numerosity. In Louisiana numerosity is defined as meaning that the class is too large for the individual plaintiffs to pursue their claims separately or it is too large for the individual plaintiffs to be joined to the case in a practical manner. The following case illustrates what happens when questions about numerosity arise in a class action.

On May 15, 2009 a vacuum truck owned and operated by Environmental Services, Inc. was driving on Louisiana Highway 27 between Singer and DeQuincy when a valve broke and 300-500 gallons of motor oil leaked out onto the highway. The leak was discovered when the truck arrived in DeQuincy, and the impacted portion of the highway was closed within approximately 15 minutes of the truck’s arrival.

The plaintiffs seeking to certify this class action brought suit alleging that they suffered physical injury due to inhaling the fumes from the spilled motor oil and also alleged that they suffered damage to their vehicles and livestock in their vehicles from driving over the spilled oil. The plaintiffs sought to certify a class that included everyone who drove over the spilled oil before it was cleaned up.

The appeals court stated that while there is no set number required to meet the numerosity requirement, the plaintiffs seeking certification must make a prima facie showing that there is a definable group of class members large enough to make joinder of these parties impracticable. The court further stresses that mere allegations of numerosity, without some further showing, are not enough to meet the requirements for class certificiation.

In this case, he plaintiffs argued that several hundred people drove over the spilled oil before the clean up response, and . The defendants argued that it was not likely that so many people had driven over the oil since the highway was shut down and clean up responses began within 15 minutes of the discovery of the leak. The trial court accepted the defendants’ arguments and refused to certify the class leading to this appeal.

The plaintiffs also argued that the trial court erred in stating that the potential damages in this case were insufficient to rise to the level of a class action and might impact potential parties’ decision to join the class action. The appeals court determined that the trial court’s determination regarding the insufficient numerosity of the class outweighed any concerns regarding the trial court’s statements about potential damages. The appeals court found that the trial court’s statements rose to the level of harmless error at most and was not reversible.

In the end, the appeals court holds that, based on the information provided to the trial court, there was no abuse of discretion in the trial court’s denial of class certification, and affirmed the trial court’s ruling that the plaintiffs failed to make a sufficient showing of numerosity.

Bringing class actions can be very complicated, and it is necessary to have quality legal representation in such cases.

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November 22, 2013

Injured Ouachita Patient Fails to Meet Burden of Proof in Medical Malpractice Action

When treatment provided by a health care professional falls below the accepted standard of practice in the medical community and causes injury or death to a patient, it is said that medical negligence or medical malpractice has occurred. 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. These three elements must be proven by a preponderance of the evidence, which is the requirement that more than fifty percent of the evidence be in the plaintiff’s favor.

Nearly a month after surgery, it was discovered that John Roberts had been suffering from a staph infection after having a vasectomy performed by, urologist, Dr. Don Marx. On November 17, 2010, Mr. Roberts filed a lawsuit against Dr. Marx seeking damages for allegedly failing to provide appropriate medical care and treatment and diagnosis of the surgery’s complications. In addition to those allegations, Mr. Roberts’ complains that Dr. Marx failed to inform him that just days before performing Mr. Roberts’ vasectomy procedure, the doctor himself had undergone eye surgery after losing part of his vision in his right eye.

After the filing of the initial complaint, Dr. Marx moved for summary judgment and argued that Mr. Roberts would be unable to sustain his burden of proof at trial due to the lack of expert testimony to establish a breach of the standard of care. Accordingly, the trial court agreed with Dr. Marx determined that no genuine issue of material fact existed and granted summary judgment against Mr. Roberts.

On appeal, Mr. Roberts argued that the trial court erred: (1) in finding that he did not carry his burden of proof that Dr. Marx failed to obtain his informed consent prior to surgery and (2) in determining that the lack of expert testimony defeated his claims.

When a party is unsatisfied with a summary judgment determination by the court, she may submit to the court an appeal. “A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.”

The burden of proof at the hearing on the motion for summary judgment is on the mover (normally the defendant), who can ordinarily meet that burden by
submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion.

In a medical malpractice action “[e]xpert 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.” Further, pursuant to Louisiana’s informed consent law, La. R.S 40:1299.40, a patient must give written consent to a procedure only after being informed of any known and material risks. According to Louisiana case law, “[a] risk is material when a reasonable person would be likely to attach significant to the risk or cluster of risks in deciding whether or not to forgo the proposed therapy.

According to the Second Circuit Court of Appeal, Mr. Roberts: (1) failed to show that Dr. Marx’s return to practice, after undergoing eye surgery, caused any problems or created a material risk to his patients’ care; (2) did not raise a material issue of fact that Dr. Marx’s treatment fell below the standard of care; and (3) was unable to provide the expert testimony necessary to dispute Dr. Marz’s ability to return to practice.

Because summary judgment motions are so common, it is essential to have legal representation that is familiar with both the procedural matters and the arguments that must be made to survive these motions. In this instance, because the claimant did not provide evidence to show he could meet the burden of proof at trial, the court found that there was no genuine issue of material fact and dismissed his claims. With so much on the line, it is important for your attorney to present compelling and well-developed arguments in your favor. If you are looking for representation of this kind, contact the Berniard Law Firm, providing methodical, step-by-step review of procedural matters and facts to make sure the proper ruling is found.

November 17, 2013

Public Entities Afforded Special Treatment by the Law in Injury Cases

Public entities, such as the food bank in the City of Kenner, get special treatment when it comes to personal injuries. A plaintiff must prove that a hazard was not open and obvious in order to collect damages for their injuries. The thing must also pose an unreasonable risk of harm. However, if there is an unreasonably dangerous condition, the owner of the premises is supposed to either correct the danger or post some kind of warning for people passing by or using the premises.

Louisiana courts use a four-part test to determine whether a risk is unreasonable. First, the court will consider the utility of the thing, or its overall usefulness. Then, the court considers the likelihood and degree of the harm. Part of that determination considers the openness and obviousness of the condition. That is, they will attempt to consider how likely it is that someone will not notice the condition, and if they did not notice the condition, how badly they will be injured. Third, the court considers the cost of preventing the harm, or how much it would cost to fix the condition. Finally, the court will address how dangerous the plaintiff's actions were in the first place. For example, if Plaintiff trips on a crack in the sidewalk, but he was running with scissors on public property, then the court will take that into consideration when determining if the crack in the sidewalk is related to his stab wound.

If Plaintiff satisfies all of these prongs, then the public entity will likely be to blame for the plaintiff's injuries. The public entity faces strict liability if Plaintiff passes all four prongs. Strict liability is a very difficult standard for the public entity to face because there are no degrees of fault. It is either the city's (or other pubic entity's fault) or it is not. If Plaintiff meets all four prongs, fault has pretty much already been determined.

This balancing test may sound complicated, but when you consider the open and obvious question in the second prong, it makes it much simpler. The open and obvious prong allows the public entity to avoid liability where the reasonable person would have noticed the condition of the thing. For example, if there is a manhole cover uncovered in the middle of the sidewalk, surrounded by orange cones and signs, there is a good argument that the reasonable person would notice this condition and avoid it. If you are reading a book and not paying attention while you walk, then your injury is likely more your own fault than the city's.

A case arising from the Parish of Jefferson, which the Plaintiff appealed to the Fifth Circuit Court of Appeals for the State of Louisiana explains this test and applies it to an individual who suffered a head injury. The man was at a food bank collecting food when the injury occurred. He was just on his way out, which required going down some stairs, when he bumped his head on the ceiling above the stairs, fell back, and was dazed for some time. Someone found him and helped him back inside. He went home to rest, but then called the food bank to discuss the incident the next day.

The ceiling above the stairs was about six feet tall. The court found that the condition of the ceiling the stairs was open and obvious, so the city, who owned and operated the food bank, was not liable. Perhaps the most telling evidence that the defense offered is that no one else had been injured from the low ceiling and that several people testified that they had never had problems with the stairs nor knew anyone that had been injured by the ceiling above the stairs.

The interesting portion, however, was that the ceiling above the stairs was actually lower than required by code. In fact, the building was built in 1952 and did not even meet the required code when it was built. Nonetheless, the court still determined that the fact that the ceiling above the stairs violated the code was of no consequence to the fact that the condition was open and obvious. This interesting development shows that the open and obvious condition trumps even a violation of the city code.

Bringing suit against public entities can be difficult, but it is not impossible.

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November 14, 2013

Louisiana Court Says Widow of Paper Mill Employee in Mansfield Unable to Recover Damages

The appellate court has affirmed a summary judgment dismissing a widow’s case against Stebbins Engineering and Manufacturing Company. She filed suit after her husband died while he was working at International Paper Company in Mansfield, Louisiana.

An employee died when, while attempting to repair a valve on the platform surrounding a white water tank/tile chest, he fell into the tank. Pulp debris around the opening cover may have been dislodged due to overflow before his fall. Thus, the widow brought suit against the manager of the Mansfield paper mill, International Paper, and Stebbins, which designs and constructs the tanks. Over 20 years ago, it manufactured the tank that the deceased fell into, and Stebbins also inspects tile chests at some of its locations, though not at the Mansfield mill.

Whether the widow had a case or not turned on the legal duties of Stebbins. The widow argued that inspections at other plants provided notice to Stebbins that some of the tile chests were over-pressurized and overflowing, which caused the dislodging of the access opening covers, thereby endangering International Paper employees working around the tanks. She argued this created an obligation for Stebbins to inform International Paper employees about the safety issue.

Stebbins stated that the inspections did not relate to the operation of the tanks. Instead, they were concerned with cracks and structural flaws, but not with the plant’s involvement in over-pressurizing the tanks. Stebbins also argued it had no duty to International Paper or to the deceased, and secondly, the widow’s claim was preempted because five years had already passed.

The court agreed with Stebbins. The manufacturing company did not assume a duty to provide safety advice to International Paper due to its awareness of overflowing tanks while inspecting the integrity of the walls of the tile chests. The appellate court relied on a Supreme Court case considering Louisiana jurisprudence, which requires parties who voluntarily assume duties for workplace safety to perform those duties reasonably and prudently. However, to find that such duties existed, the court required proof of some positive undertaking for workplace safety, not just some concern with safety matters. The court decided here that Stebbins did not positively undertake any obligation to ensure the safety of International Paper employees. Thus, the widow’s claim was dismissed.

The facts of this case are tragic. Unfortunately, liability can often be difficult to prove, especially with a company that is not a direct employer. Finding the best lawyers to bring your case and filing suit quickly, within the preemption period, will increase your chances at getting your claims heard.

November 12, 2013

Westlake Head-on Collision Leads to Serious Injuries, Examination of Responsibility

Throughout Louisiana there are many roads that do not have marked center lines. When an accident occurs on one of these roads, a careful investigation must be made to determine which side of the road the accident occurred on. Then, if a lawsuit is filed, the trier of fact can determine which driver was responsible for the accident. A recently decided case that was affirmed by the Court of Appeal for the Third Circuit serves as an example of how such fault determinations are made and how the law plays into these accidents.

In that case, a woman was on an unmarked road getting ready to turn left into a private driveway. From the other direction, another vehicle crossed the center of the road in order to pass cars parked along the side of the road. By doing so, the second driver failed to re-enter his lane before reaching the first vehicle. The second car slammed into the first, causing serious injury to the first driver and severe damage to her vehicle. An investigation of the crash, particularly of skid marks, showed the accident did indeed take place in the first driver's lane and that the second driver was driving much faster than the posted speed limit. The first driver filed a lawsuit against the other driver and won compensation for her damages. To find the second driver at fault, the judge in the case examined existing statutes to determined the second driver broke the law by moving into the other lane to pass vehicles when the other lane was not clear for a reasonable distance and f or traveling at excessive speed.

As evidenced by this case, when one is injured in an accident, a lawsuit may be filed against another driver in an attempt to recover damages. To succeed on such a claim, the plaintiff must show the other driver was negligent and that negligence caused the plaintiff's injuries. If a driver is speeding, crosses the center line, or is drunk, for example, the driver is likely to be found negligent. If injuries are sustained as a direct result of that negligence, then compensation may be obtained to cover medical expenses, pain and suffering, and lost wages. Then, the plaintiff can focus on moving past the accident and getting life back to normal.

It is also important to note that accident lawsuits are subject to a comparative negligence analysis. Under this analysis, fault is allocated to each party according to their responsibility for the accident and damages are awarded accordingly. In the accident discussed above, for example, the plaintiff was found to be 30 percent at fault for letting her foot off the brake when she saw the oncoming vehicle in her lane. Therefore, the plaintiff's award was reduced by 30 percent in an attempt to reach the fairest outcome possible.

Accident lawsuits are very fact sensitive and require a deep and thorough investigation into the accident's cause and the amount of damages caused to the plaintiff. An experienced New Orleans attorney can help a plaintiff fight for the compensation she needs and deserves, and can help hold irresponsible drivers accountable. If you have been hurt in an auto accident, please contact the Berniard Law Firm.

November 11, 2013

Employer Had No Duty to Prevent Caregiver’s Lifting Injury

To a certain extent, employers are legally required to guard their employees against the risk of on-the-job injuries. But for an injured employee to prevail in a lawsuit against the employer, the employee must be able to prove that the employer owed him or her a duty to prevent the particular accident that occurred. The Louisiana Third Circuit Court of Appeal recently affirmed this rule in the recent case of Chaisson v. Drake.

Mary Elizabeth Chaisson was working as a private caregiver for Dr. Winbourne Macgruder Drake. She had been helping him get in and out of his wheelchair for three years when one day something went wrong.

Chaisson was attempting to transfer Drake from a lift chair to his wheelchair when he suddenly began to fall forward. When Chaisson grabbed him to prevent the fall, she pulled muscles in her neck and back.

Chaisson sued Drake and his homeowner’s insurance company for her work-related injuries. The defendants claimed that they did not owe Chaisson a duty to guard against the particular risk that gave rise to her injures. The trial court agreed, granting summary judgment in favor of the defendants. Chaisson appealed, and the Louisiana State Court of Appeal for the Third Circuit reviewed her case.

The court compared the facts of Chaisson’s case to those in Griffin v. Shelter Insurance Co., a Louisiana First Circuit case that also concerned an accident involving a caregiver and a patient in a wheelchair. The caregiver, Earnestine Griffin, was caring for an elderly woman named Sally Kemp. Griffin was helping Kemp move from her wheelchair to an easy chair when Kemp suddenly grabbed Griffin’s arm, causing pain in Griffin’s leg and back. The trial court granted summary judgment for the defendants, and Griffin appealed.

The appellate court in Griffin affirmed the lower court’s ruling in favor of the defendants. The question of duty, the court explained, depended on the facts and circumstances of the case and the relationship of the parties. Whether a particular risk of harm is reasonable also depends on the facts at hand, including who the particular plaintiff is, any contractual obligations that exist, and the superior knowledge the plaintiff may have of the situation.

Applying these principles to Griffin’s case, the First Circuit found that Griffin’s contractual duty to Kemp included helping her from her wheelchair into an easy chair, and the risk of Kemp grabbing Griffin’s arm in the process was the very type of risk that Griffin, not Kemp, was contractually obligated to guard against, based on her special status and job responsibilities.

Chaisson argued that her case was different from Griffin’s, because Griffin had received instructions from a physical therapist on how to move Kemp from her wheelchair to an easy chair, whereas Chaisson was not qualified to help Drake from a standing position to a seated position in his wheelchair.

But the court pointed out that Chaisson was a certified nursing assistant with over a decade of experience working for health care agencies and three years of experience lifting Drake into and out of his wheelchair.

According to the court, it was Chaisson, not Drake, who had the duty to prevent the accident that occurred: “Similar to the court’s finding in Griffin, Plaintiff in this case had the contractual duty to take care of Dr. Drake, and this specifically included assisting him from his lift chair to his wheelchair. We cannot say the trial court erred in finding no duty was owed by Dr. Drake to protect Plaintiff against the very risk she was hired to protect against, i.e., Dr. Drake’s falling due to his physical infirmities.”

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November 9, 2013

Nursing Home Injury Leads to Medical Malpractice Claim

Recently, an individual from the Parish of St. Tammany was injured as she was transported from a nursing home to another health-care facility. She fell from her wheelchair when the driver had to slam on his brakes. The wheelchair had neither a seatbelt, nor was the wheelchair strapped down in the van. The individual sued her nursing home based on the failure to adequately secure her for her journey. Questions regarding the Louisiana Medical Malpractice Act arose that considered whether the nursing home was a healthcare provider and whether her injury constituted medical malpractice.

The Louisiana Medical Malpractice Act (“Act”) requires that individuals take their medical malpractice complaints against qualified health care providers to a medical review board before taking the claim to a court. The State of Louisiana employs this administrative process because the state is self-insured, and it covers some health-care providers. They want to be sure that a medical malpractice claim exists before it gets into the courtroom. The medical review board generally consists of two healthcare professionals and one attorney. Generally, the healthcare professionals are in the same field as the doctor accused of malpractice. For more information on the medical review panel, see http://www.doa.louisiana.gov/MedReview/index.htm.

If a claimant does not use the medical review panel and tries to take their claim directly to court, then it will be dismissed because it is premature. Dismissing for prematurity is a dilatory exception, which means that it only delays the progress of a lawsuit, but does not defeat the action. In medical malpractice suits, the defendant has the burden of proving that he is entitled to a medical review panel, which only applies to only malpractice, not other tort actions, and that he or she is a qualified medical provider.

Malpractice is defined by statute as “any unintentional tort of any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient.” Then, health care is also defined in the statute as, “any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement.”

Then, the court generally uses a six-factor test to determine whether a claim is medical malpractice: (1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached; (3) whether the pertinent act or omission involved assessment of the patient's condition; (4) whether the incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital or other health care provider is licensed to perform, (5) whether the injury would have occurred if the patient had not sought treatment, and (6) whether the tort alleged was intentional. The Court notes that, essentially, all of these items depend on whether the action was related to treatment by a medical professional.

First, the nursing home did have a certificate providing that they are “qualified health care providers” under the Act. So, the remaining question was whether her injury was considered malpractice under the Act. The argument that the injured individual was making is that the nursing home failed to put her in a wheelchair with a seatbelt. The court reasoned that since she was already confined to a wheelchair, an average person with little to no medical education could have reasoned that she should be in a wheelchair with a seatbelt while being transported. The fact that she was being transported for medical reasons has no real bearing since she was not in the nursing home for medical reasons other than the “normal infirmities of advanced age.” Since the negligence referred to the condition of the equipment and not the decision to transport, the court found that the injured individual did not need to go through the medical review board to bring her suit.

The court mentions several similiar cases. While transporting a patient who is under medical care is generally within the definition of relating to treatment, when a patient is injured while being transported from a nursing home where they reside for no real medical reason, then the nursing home may be liable for the failure to provide the proper equipment or care. Because these distinctions can be somewhat confusing, it is helpful to consult attorneys who are well versed in this area.

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October 27, 2013

5th Circuit Rules Wal-Mart Not Liable for Slip-and-Fall Caused by Leaky Roof

When a hazardous condition on a merchant’s property causes a slip-and-fall accident, the victim can file suit for his or her injuries. But in Louisiana, the merchant can only be held liable for those injuries if the merchant created the danger or had actual or constructive notice of it before the accident. This law saved Wal-Mart from liability in Gray v. Wal-Mart, a recent case from the Fifth Circuit Court of Appeals.

On September 1, 2008, Hurricane Gustav made landfall near Cocodrie, Louisiana as a Category 2 storm, causing considerable casualties and damages along its track. That day, Louisiana resident Jean Gray was shopping at a Wal-Mart in Pineville. As she was pushing her cart down an aisle, she slipped in a puddle of clear liquid and fell, injuring her right knee. In an internal incident report, a Wal-Mart supervisor identified a hole in the store’s roof as the source of the puddle, an assumption he made based on his knowledge of other leaks in the roof and the heavy rain pouring down outside.

Gray and her husband sued Wal-Mart for her injuries, claiming that she slipped in a puddle of rainwater that had leaked from a hole in the store’s roof. The district court granted summary judgment in favor of Wal-Mart. The Grays appealed, and the case went to the Fifth Circuit.

Under Louisiana law, a plaintiff asserting a slip-and-fall claim against a merchant must prove that the merchant “either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.” If the Grays could not raise a genuine issue as to this fact -- in other words, if no reasonable jury could find that Wal-Mart created or had notice of the hazardous puddle -- then Wal-Mart was entitled to summary judgment.

The Grays argued, based on the incident report, that either Wal-Mart created the hazard by allowing its roof to leak, or Wal-Mart had actual knowledge of the hazard because it was aware that its roof leaked.

As to the first claim, the court found that Wal-Mart did not create the hazardous condition that caused Gray’s injury. To prevail on this claim, the Grays would have had to show that an action by a Wal-Mart employee caused the leak. Because the Grays could not establish that Wal-Mart was directly responsible for the leak, they failed to raise a genuine issue as to whether Wal-Mart created the dangerous puddle.

Nor did the Grays show that Wal-Mart had actual knowledge of the leak before Gray’s accident occurred. The supervisor merely assumed after the accident had already occurred that the hole he identified was the source of the leak. This assumption after the fact was insufficient to create a genuine issue of fact as to Wal-Mart’s actual knowledge of the puddle before the accident.

If you suffered an injury as a result of a dangerous condition on someone else’s property, contact the Berniard Law Firm. Providing the best experts in personal injury law, our law firm is fully capable of meeting your litigation needs and getting you the relief you deserve.

October 22, 2013

Standing in Wrongful Death Cases: Who May Initiate a Lawsuit?

The term wrongful death refers to cases in which the decedent's death was the fault of another. The other "person" could be one individual, such as someone driving under the influence of drugs or alcohol; it could also be a group of people or a business, such as the decedent's employers or the manufacturers of a product whose defect or malfunctioning resulted in the user's death. Wrongful death lawsuits may be initiated by family members of the decedent in order to obtain monetary benefits, such as for wages the decedent would have earned if he were still alive. Before filing a lawsuit, it is important to establish whether the person bringing the case has standing to do so. Standing indicates that the moving party has a sufficient connection to or is substantially affected by the harm being alleged, in this case the wrongful death of the victim.

In order to bring a wrongful death lawsuit, the plaintiff must have standing as a close relative of the deceased. The first family members who would be favored to have standing would be the decedent's spouse and children. Louisiana Civil Code states that the surviving mother or father of the deceased may only have standing if there is no spouse or child surviving the decedent. If the deceased had no surviving parents, spouse or child, then his or her brothers or sisters would have standing to bring a lawsuit. Finally, if the decedent had no surviving siblings, spouse, parents or children, then his or her grandparents would have standing to file a wrongful death claim. Note that a mother or father who abandoned the decedent while he or she was still a minor would not have standing.

Though children are the first to have standing in a wrongful death case, standing may be challenged when the parentage is called into question. A Louisiana court stated that "a filiation action inherently accompanies an illegitimate child's wrongful death and survival action." Thus, children born out of wedlock, that is, to parents who were not married at the time of birth, must be able to prove paternity in order to have standing. According to Louisiana law, a husband will be presumed to be the parent of a child when the child is born within 300 days of the termination of a marriage (300 being considered the maximum possible time of gestation). Outside of this exception, proceedings must be conducted to establish standing.

Louisiana law states that a man who has married the mother of another child may establish filiation to the child if the child has no filiation to another man and if, with the mother's agreement, the man acknowledges the child "by authentic act or signing the birth certificate." The Louisiana Supreme Court explicitly stated that paternity is not established by the man's name being listed on the birth certificate, but rather by his having signed the birth certificate. To have parentage established by an "authentic act", the party must present a notarized writing executed in the presence of two witnesses that establishes paternity. However, a lower court found that meeting these legal criteria for filiation was not sufficient for establishing a child's standing in a wrongful death action. Though the Louisiana Supreme Court allowed this law to be the basis for a father's standing in a wrongful death case, a signed birth certificate or authentic act may not always be sufficient for children making a claim. Nonetheless, there are cases in which standing has been established by birth certificate signatures.

In the absence of presumed paternity, a signed birth certificate or an authentic act, the party will need to draw upon other pieces of evidence to establish standing as the child of the deceased. A recent 2013 Louisiana case analyzing the capacity of multiple children to bring a wrongful death claim found the following sufficient to establish paternity: "obituary and funeral programs which list Brian and Brianika [plaintiff children] as his [decedent's] children...affidavits from 1) Brian and Brianika, 2) their mother Anita Jourdan, 3) their maternal grandmother, 4) the mothers of Mr. Harris's other children, Shannon Grace and Tyralyn Harris, and 5) a family friend, which state that Brian Harris openly and continuously acknowledged Brian and Brianika as his own children." The children had also been receiving court-ordered child support payments and had been awarded social security benefits after their father's death.

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October 19, 2013

Worker's Comp Case Involving Level of Disability and Compensation Shows Degrees of Relief

Under Louisiana Law, there are four types of workers' compensation: Permanent partial disability benefits, permanent total disability benefits, temporary total disability benefits, and supplemental earnings benefits. Permanent partial disability allows you to collect benefits for serious or disfiguring injuries, even if you do not miss any significant work time. The time frame is limited, however. Permanent total disability benefits occur when you have been injured in such a way as to render it impossible to work in the future in any capacity. Temporary total disability benefits allows you to collect benefits as if you were permanently disabled for only a certain amount of time.

Lastly, supplemental earnings benefits occur when you have been seriously injured, but you can still work in some capacity, even if you cannot continue the job where you were previously employed. Supplemental earnings benefits require that you cannot do at least 90% of your previous job. In order to qualify for supplemental earnings benefits, the employer must not be able to offer the employee light-duty work. For example, if you work in a construction site and you are injured, then your employee may offer you a desk job while you are recovering. If, however, all the desk jobs are full, then the employee will likely have to pay supplemental earnings benefits to the injured employee.

Like any workers' compensation claim, your injury has to arise out of the work context. You need proof of the injury to make a claim, so be sure to report injuries right away and see a doctor if necessary. The legal standard in workers' compensation claims is a preponderance of the evidence, which is a slightly higher standard, so good records are important. However, the court can occasionally take your testimony alone as evidence of the injury.

In a recent case, the court considered whether testimony, which was only slightly supported by medical records and other evidence, could establish a claim for workers' compensation. The claimant, a truck driver, injured himself while trying to unstick a broken clutch. He suffered permanent injury to his leg as a result, but only occasionally went to the doctor, the doctor's records were unclear, and the injury was not directly reported to the employer. The lower court determined that his testimony and the patchwork record was enough to award supplemental earnings benefits.

The State of Louisiana Court of Appeals for the Second Circuit explained that testimony alone could be sufficient to establish that an accident occurred if none of the other evidence discredits the witness or casts serious doubt on the testimony and the worker's testimony is corroborated by the circumstances following the injury. For example, the lower court can consider late reports to the employer, supervisor or coworker testimony, family and friends' testimony, medical evidence, whether the injured person continued to work, and any prior injuries. Generally, the court allows the claimant to assume that the work accident caused the related injury if they were in good health before the accident, but were not in good health after the accident.

In the truck driver's case, the only directly contradicting evidence came from the doctor's report, which stated the injury actually occurred three years prior to work injury. Statements from family, friends, and co-workers all matched the injured employee's claims. His supervisor commented that his work quality declined, which was also consistent with the injury. In addition, the employee went to the doctor again later, and the medical records indicated the same type of injury that he acquired while at work during the same time period of the injury. He had no previous record of a similar injury or previous condition. Lastly, the injured worker also attempted to work in a similar field, but due to pain in his leg, could not drive well and had to quit.

As a result, the court determined that the employee was entitled to supplemental earnings benefits because he could not perform 90% of his pre-injury job, and the employer did not find a light work position for him. However, in this case, there was significant time between the injury and the claim for benefits. During part of that time, the injured employee received unemployment benefits. The court points out that you cannot receive both supplemental earnings benefits and unemployment benefits. Therefore, the employee only received supplemental earnings benefits for the weeks that he did not also receive unemployment benefits.

There are many legal options if you are injured at work. However, it is much easier to file a claim if you keep complete records of the incident.

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October 11, 2013

Procedure Needs to Be Followed in Personal Injury Cases

When a legal issue goes to trial attorneys on both sides must abide by the rules of evidence. These rules pertain to how witnesses may be questioned and which evidence may be admitted. An error in any of these areas may lead to an objection which may be upheld by the judge. However, sometimes the judge allows evidence that the Court of Appeal finds inappropriate. When this happens, the entire case may have to start over again. This is the situation for one case arising out of an accident in Lafayette.

In Cawthorne v. Fogelman, an accident occurred when the defendant turned right out of a drive and into the road's outer lane, but struck the plaintiff's vehicle. The plaintiff suffered severe neck and back injuries as a result of the collision. This lawsuit was subsequently filed. According to court documents, the defendant checked the road before turning out of the drive, saw no oncoming cars in the lane he was turning into, and saw no vehicles in the inside lane with their blinker on. After hearing testimony from expert witnesses the jury found for the defendant.

On appeal to the Court of Appeal for the Third Circuit, the plaintiff asserted the trial court erred in allowing the defendant's deposition to be admitted into evidence in place of the defendant's live testimony. In other words, a written transcription of the defendant's statements was made available to the jury, but the defendant was not physically present to be questioned by the plaintiff and to be seen and heard by the jury.

The Court of Appeal agreed with the plaintiff and found the defendant failed to prove he was legally unavailable to attend the trial. The defendant, who had been in drug treatment, had voluntarily decided to attend a transitional program in Washington. The defendant claimed this made him unavailable to attend the trial. According to Louisiana law, a deposition cannot be used in place of live testimony unless the witness is unavailable or resides more than 100 miles away. The court found the transitional program was not a medical center, the defendant was not being treated by a doctor, and the defendant failed to prove he could not leave the program to attend the trial. Therefore, reasoned the court, the defendant chose to be absent from the trial. This absence unfairly hindered the plaintiff by denying him the opportunity to question the defendant and prohibited the jury from making a credibility judgment by seeing the defendant's live testimony.

Though most appeals of final judgments are reviewed for manifest error and the judgment on the merits is often not disturbed, there are times when an appellate court can make a final judgment when an error has occurred. For example, when a mistake of law forecloses any finding of fact and where the record is otherwise complete, the appellate court should render judgment on the record. However, if the weight of the evidence is nearly equal to the point where a firsthand view of the witness may be essential to deciding the case, the appellate court should remand the case for a new trial. Here, the court found the facts of the case to make the outcome uncertain. In other words, the credibility of the defendant, or lack thereof, may make the difference in a jury's decision. Thus, the case was remanded back to the trail court for a new trial.

In most cases, an individual will be found to be legally unavailable only if that person is dead, physically or mentally ill, unable to be procured through process or other reasonable means, or refuses to testify despite a court order. Only then will his out of court statements be admitted into evidence. This is important to know because a mistake in this area can waste time, money, and overturn a client's favorable judgment.

When an attorney fails to properly introduce evidence, or erroneously introduces evidence, a client's entire case may be put at risk and legal costs can rise. For this reason, it is imperative those facing legal issues research their attorney to ensure he is experienced and reputable. If you are facing legal trouble contact such an attorney at The Berniard Law Firm.

October 10, 2013

Medical Malpractice Cases Require Timely Legal Action

Unfortunately, medical malpractice happens all too often. Doctors misdiagnose conditions, prescribe wrong medications, and make surgical errors. Victims of this negligence can face serious injuries including permanent disability requiring long-term care. In the worst cases, the victim dies. While these harms are physically painful, they can also be emotionally trying, throwing a victim into a tailspin of depression. Making matters worse, financial consequences bear down on these victims in the form of costly medical bills. Fortunately, a medical malpractice lawsuit can help these victims obtain compensation for their damages, but only if filed in a timely matter. However, strict rules exist as to how quickly such a suit must be brought. A recent decision by the Court of Appeal for the Second Circuit in Louisiana addressed this issue.

In Davidson v. Glenwood Resolution Authority, Inc., a metal piece of a retractor was accidentally left inside a patient after a 2006 abdominal surgery. However, at the time, neither the doctor nor the patient was aware of the foreign object being left inside the patient. Three months after the surgery, the patient began to feel something sharp in his abdomen that he knew should not have been there. A month after that, the patient had a CT scan after an auto accident which showed the presence of metal within the patient. The doctor who conducted the original surgery was contacted and he, in turn, contacted the patient, but the patient said he felt fine and he did not want to mess with whatever was problematic. It was not until two years later, in 2008, after an MRI was conducted that the patient actually discovered the presence of the metal object. Within a year of that test, in 2009, the patient filed a medical malpractice lawsuit.

In Louisiana, a medical malpractice lawsuit must be brought within one year of the alleged act or within one year from the date of discovery of the act, omission, or neglect. (La. R.S. 9:5628(A)) This means that once the victim obtains actual or constructive notice of the harmful act, the one year clock starts running. Constructive knowledge exists when facts indicate to a reasonable person that he is a victim of a tort. As interpreted by the Supreme Court in Campo, constructive knowledge is whatever is enough to excite attention and puts the plaintiff on guard and calls for inquiry.

With this reasoning in mind, the trial court in Davidson found that the plaintiff had constructive notice of the harmful incident in 2006 and was therefore barred from filing suit three years later. The Court of Appeal affirmed this ruling, stating that the plaintiff knew of the sharp object in his abdomen that should not have been there and that he was told by doctors after his 2006 CT scan that metal was present inside his abdomen. These facts taken together, reasoned the court, would have put a reasonable person on guard and to inquire as to what caused the situation. Thus, the plaintiff was unable to sue and obtain compensation for his damages.

If an individual believes he has been harmed by a doctor's negligence, he should seek legal advice immediately. Only then can an experienced attorney can help gather facts and witnesses necessary to prove a breach of the duty of care owed to the patient and causation. Once these elements are proven the victim may obtain compensation to help cover medical expenses, lost wages, and pain and suffering.

Medical malpractice cases can be extremely complex. An experienced New Orleans attorney can help a victim develop an aggressive legal strategy that works in his best interest. However, the lawsuit must be timely. Therefore, if you believe you have been harmed by a medical professional's negligence, do not hesitate to contact The Berniard Law Firm.

October 9, 2013

Louisiana Wrongful Death Summary Judgment Overturned on Appeal

If you have ever been selected to serve as a juror, you know that the jury's job in a trial is to hear the facts and arguments presented by both parties to a case and to make an informed judgment based on the evidence. In criminal cases, the jury is asked to assess the state or federal government's case against the defendant and determine his guilt or innocence. In civil cases, the jury evaluates a dispute between two parties, and determines whether one party must compensate the other for damages caused.

Before a civil lawsuit reaches the trial stage, either party to the case may file a motion for summary judgment. Summary judgment is when the court dismisses the case and rules in favor of the moving party (the party making the motion), on the grounds that there were no triable issues of material fact presented. "No triable issues" means that all reasonable-minded persons would come to the same conclusion after weighing the evidence presented.

A verdict for summary judgment can be hard to overcome on an appeal, as the court will be reviewing the facts in the light most favorable to the party opposing the appeal. Additionally, Louisiana legislature expressly favors the summary judgment procedure, as it saves the time and cost of a jury trial. Nonetheless, there are certain types of cases that by their nature should not be settled by summary judgment. An example of such a case would be Bryan and Madison Manis' wrongful death lawsuit, in which the Louisiana Fifth Circuit of Appeal overruled a verdict for summary judgment in favor of the defendants.

Bryan and Madison Manis sued police officer Douglas Zemlik, Gretna Chief of Police Arthur Lawson, and the city of Gretna for the wrongful death of their father, Michael Manis Jr. On October 3, 2005, police officers were called to the scene where Mr. Manis was parked in his car on railroad tracks and failing to respond to any of the green lights. After Mr. Manis did not respond to the verbal commands of Sergeant Vinson and Deputy Zemlik, the officers shook Mr. Manis to wake him up. Mr. Manis then began flailing and cursing at the officers, repeatedly lurching in their direction but restrained by his seatbelt. Mr. Manis refused the officers' instruction to exit the vehicle. Despite Mr. Manis' behavior, Sergeant Vinson managed to turn off the ignition by reaching through the passenger side door.

Once both officers were on the driver's side of the car, Mr. Manis reached under the front seat with one or both hands. Mr. Manis refused repeated orders to show his hands, and once it seemed to Deputy Zemlik that Mr. Manis had retrieved something and was sitting back up, Mr. Zemlik shot Mr. Manis four or five times in the back, neck and shoulders. The witnesses who had called the officers to the scene asserted that Mr. Manis "went crazy" during the incident, and the toxicology report later showed that Mr. Manis tested positive for cocaine, barbiturates, marijuana and alcohol.

To determine whether an officer used reasonable force in a given set of circumstances, the court follows a seven-factor test: "(1) the known character of the arrestee; (2) the risks and dangers faced by the officer; (3) the nature of the offense involved; (4) the chance of the arrestee's escape if the particular means are not employed; (5) the existence of alternative methods of arrest; (6) the physical size, strength, and weaponry of the officers as compared to the arrestee; and (7) [sic] the exigencies of the moment." Additionally, the degree of force employed by the officer is also a factual question that would be posed to a jury.

The Fifth Circuit found that reasonable persons could disagree as to Mr. Manis' character, as some could find that Mr. Manis was being belligerent in refusing to exit the vehicle while others may conclude that he was simply "too inebriated." The court also believed that a jury could disagree as to whether Mr. Manis appeared to be retrieving a weapon, which would speak to the dangers faced by the officer and whether an alternative method of arrest would have been possible. Lastly, a jury could dispute whether Deputy Zemlik was using reasonable force in firing five shots at Mr. Manis. Thus, the court found that there were genuine issues of material fact presented by the parties' evidence and reversed the lower court's finding for summary judgment.

In any civil action, it is important to have an attorney who can identify and present all relevant facts and evidence in your favor.

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October 6, 2013

Summary Judgment Obstacle for Delayed Suit in Medical Malpractice Case

Put simply, summary judgment is a decision rendered by a court for one party and against another without the litigation of a full trial. According to the Louisiana Supreme Court, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. As you can probably understand, arguing for or against a party’s motion for summary judgment is not only a complex process, but also one that carries much risk.

On September 2, 2008, Daniel Milbert fell off of a roof and broke his ankle. Shortly thereafter, Mr. Milbert received surgery to repair his ankle at the Lafayette General Medical Center and was placed on a pain pump. After speaking to one of his doctors about an increase in pain following his discharge from the hospital, Mr. Milbert was instructed to call if the pain worsened. After attempting to contact doctors at the medical center, Mr. Milbert and his wife were required to leave messages with Dexcomm, an answering service in Lafayette. After Mr. Milbert was diagnosed with compartment syndrome and had to undergo surgery, he and his wife filed suit against Dexcomm on December 23, 2009. Accordingly, Dexcomm filed a motion for summary judgment alleging that the right of recovery had expired. At trial, the court agreed with Dexcomm and granted the motion for summary judgment.

Mr. Milbert and his wife appealed.

The Louisiana Third Circuit Court of Appeal addressed two legal issues in this case: the trial court finding (1) that the running of prescription was not suspended pursuant to the Medical Malpractice Act (La.R.S. 40:1299.47(A)(2)(a)) and (2) that Mr. Milbert and his wife were not prevented from timely bringing suit due to circumstances beyond their knowledge or control.

When a party is unsatisfied with a trial court’s finding on a motion for summary judgment, he may file an appeal. Appellate courts review summary judgments de novo under the same criteria that governed the trial court’s consideration of whether or not summary judgment was appropriate. According to the La.Code Civ.P. art. 966(B), “[s]ummary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.”

According to the Louisiana Third Circuit Court of Appeal, “[f]acts are material if they determine the outcome of the legal dispute.” The Court of Appeal found the Milberts contention that the trial court erred in finding that the running of prescription was not suspended pursuant to the Medical Malpractice Act to be without merit. The Court of Appeal found, like the trial court, that the Act did not suspend prescription in this particular case because Dexcomm is not considered a healthcare provider covered by the Act.

Further on appeal, the Milberts argued that they were not aware until November 2009 that Dexcomm failed to forward their messages to the doctors and as such the period of prescription was interrupted. In affirming the judgment of the trial court, the Court of Appeal found that the Milberts were not prevented from timely bringing suit due to circumstances beyond their knowledge or control because they acknowledged in their original complaint that they were told, on the date of Mr. Milbert’s second surgery, that Dexcomm failed to their forward calls.

In the end, this case illustrates the importance of prescription and preemption periods in relation to summary judgment and the Medical Malpractice Act. It is worth noting that Louisiana law contains many complicated prescription and preemption statutes, so it is essential to find experienced lawyers who can advise on such matters which can make or break a case.

October 3, 2013

Lack of Evidence Leads to Failed Suit Against Employer for Workplace Incident

On July 12, 2006, Raymond Alex, Sr., a structure carpenter for the BNSF Railway was driving a company boom to a work site in Mermentau. Around 3 p.m., Mr. Alex stopped at an intersection, was rear-ended by a large tractor-trailer rig driven by Edward Zenon, Jr. As a result of the accident, Mr. Alex alleged he suffered injuries to his neck with radiating pain down his right arm and hand. He was given injections in his neck at first, but ultimately required cervical spine surgery.

In July 2007, Mr. Alex sued Mr. Zenon, the lessor of the tractor/trailer, PACCAR Leasing Company, and his employer, Creole Fermentation. After some initial discovery, Mr. Alex settled with the defendants.

Two years after his previous suit, Mr. Alex decided to sue his employer, BNSF, under the Federal Employer's Liability Act (FELA). In his petition, Mr. Alex alleged that BNSF was negligent for failing to provide a reasonably safe place to work, failing to warn him of dangerous conditions and providing a poorly designed truck for him to work in.

As stated in the Louisiana Third Circuit Court of Appeals' ruling, "'In order to recover under FELA, the plaintiff must establish that (1) he was injured within the scope of his employment; (2) the employment was in furtherance of the railroad‟s commerce in interstate transportation; (3) his employer was negligent; and (4) this negligence played a part in causing his injury.'"

The appellate court added that a FELA claim does not require as high a burden as in an ordinary negligence case. However, a showing of some negligence is necessary. In June 2010, BNSF filed for summary judgment, but agreed to continue the summary judgment hearing at Mr. Alex's urging that further discovery would reveal the genuine issues of material fact present in the case. Further, BNSF made available employees the plaintiff sought to depose.

The case drug on into the next year, to March 2011, and a deposition of Mr. Alex. He testified that the truck he drove on the day of the accident was not his normal operating vehicle, which was out of service. The plaintiff said he was given an old truck from Texas, though he signed off on the condition of the truck both before and after the accident. Mr. Alex even said that the truck was "pretty crashworthy."

Complaints of the truck's boom not always working, dry-rotted seats, and old shocks were just that -- complaints; they had nothing to do with the vehicle's crash-worthiness. The strongest criticism to the truck's crash performance offered was a suggestion that a lack of headrest might have contributed to Mr. Alex's injuries.

BNSF again sought summary judgment in June 2011 -- nearly two years after the case was filed and five after the accident -- attaching the deposition of Mr. Alex as an exhibit. Plaintiff responded just before the summary judgment hearing, re-iterating its allegations and again seeking further discovery. Unlike the year before, BNSF smartly replied that allegations were not enough to withstand summary judgment. As for any other discovery, the BNSF employees plaintiff's counsel wanted to testify were not witnesses to the accident and were found not able to contribute anything of merit to the negligence allegations.

The trial court granted summary judgment to BNSF, to which Mr. Alex appealed. Under a de novo review, the appellate court, was not swayed. Noting previous holdings that additional discovery is not warranted when plaintiff had over a year to do so, the appellate court summed its ruling thusly:

"…there was no evidence presented that the condition of the truck played any part in the injuries suffered by [Mr. Alex]. Thus…[he] could not prevail even under this “easier burden.”

When you enter litigation, make certain that you seek an appropriate legal remedy.

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October 1, 2013

Dispute Over Responsibility in Accident at Apartment Complex

Every first year law student learns about negligence in their tort law class. Negligence claims are some of the most common claims brought in civil court. In order for a defendant to be found liable for negligence, it must be shown that the defendant owed the plaintiff a duty of care, which can also be refered to as a duty to protect. This means that the defendant has to have some level of responsibility for protecting the plaintiff from harm. If the defendant has no duty of care, then they cannot be held liable for negligence. The plaintiff has to prove that the defendant owed them that duty of care.

Sometimes it is easy to determine whether or not a defendant owed a plaintiff a duty of care. For instance, medical malpractice suits are often refered to as professional negligence since a doctor or nurse owes their patient a duty of care regarding their medical treatments. Likewise a lawyer owes his client a duty of care regarding their legal representation. But sometimes, a major point of contention in a lawsuit is whether such a duty of care exists at all. The case of Ponceti v. First Lake Properties shows what happens when a plaintiff cannot show that the defendant owed them a duty of care.

Ms. Ponceti and her daughter, Kaitlynn, lived in an apartment complex in Mandeville owned by First Lake Properties. One day Kaitlynn was riding her scooter in the courtyard of the complex. A teenager was riding his bike in the courtyard at the same time, and lost control of his bike while popping a wheelie. He hit Kaitlynn with his bike and injured her leg.

Ms. Ponceti subsequently sued First Lake Properties, alleging that they were negligent in allowing bikes to be ridden on the sidewalks and courtyard of the complex. Ms. Ponceti claimed such actions were in violation of a Mandeville city ordinance, and thus the apartment complex had a duty of care to protect those in the courtyard from bike riders. First Lake argued that they had no such responsibility to protect against a third party injuring people on their premises. Both the district court and the court of appeals denied First Lake's motion for summary judgment, and the Louisiana Supreme Court ending up taking the case.

The Court began and ended their analysis with one question: did First Lake owe a duty of care to those on their premises in this case. In order to determine whether a business owed a duty to protect its residents, or customers, from the acts of third parties, the most important factor is the foreseeability of the dangerous behavior in light of the facts of the case and what type of premises is in question. In other words, the more foreseeable the behavior is, the more likely a duty to protect exists. When establishing the foreseeability of a dangerous behavior, the court looks to the "existence, frequency, and similarity of prior incidents" on the premises.

In this case, Ms. Ponceti relied on statements from the apartment manager stating that she knew that teens sometimes rode their bikes on the sidewalks and courtyard of the apartment complex. Ms. Ponceti argued that these statements showed that it was foreseeable that the bike riding teens might be reckeless and pose a danger to other residents of the complex. First Lake countered by showing that they had never received any complaints about the bike riders, nor had their been any previous injuries reported. The Court goes on to point out that the plaintiff herself stated that she had never seen, let alone reported, anybody riding bikes in the complex's courtyard. The Court concluded that Ms. Ponceti simply had not established any previous incidents that would lead to her daughter's injury being foreseeable.

The Court quickly dispatched with Ms. Ponceti's argument that the Mandeville City Ordinance stating that bicycles "shall not be ridden on sidewalks or in public streets" established a duty of care on First Lake's part by pointing out that nothing in the language of the ordinance shows that it applies to, or was meant to apply to, sidewalks or courtyards in private developments. The Court then concluded Ms. Ponceti simply did not prove that First Lake owed it resident a duty of care to protect them in this case and thus dismisses her suit.

The important takeaway from this case is how a court determines whether or not a duty of care exists. The more foreseeable an injury, the more likely a duty of care exists, but these cases will always be looked at on a case-by-case basis.

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September 27, 2013

Fifth Circuit Sides with Plaintiff in Jones Act suit for Injuries Sustained on Sea Vessel

The Jones Act deals with injuries suffered by employees working on American sea-going vessels and their rights to workers' compensation for those injuries. The Act requires employers to "maintain a reasonably safe work environment." Another important feature of the Jones Act is that not only is the employer liable for the negligence of their employees, but also any amount of negligence on the employer's part will result in some level of liability. In other words, in a Jones Act case, if one employee negligently injures another, both the offendin employee and their employer are liable.

The case of Martinez v. Offshore Specialty Fabricators, Inc. deals with a Jones Act claim and really brings to light how important it is to obtain quality legal representation. Mr. Martinez was a seaman employed by Offshore Specialty Fabricators as a mechanic. On May 26, 2008, he and his supervisor, Mr. Smith, went aboard a ship owned by Offshore to repair a defective winch. Both Martinez and Smith testified that the work space was very cramped and required them to bend over while swinging a sledgehammer for almost an hour when suddenly Martinez felt a pop in his neck. Smith testified that he saw Martinez visibly twitch and asked what was wrong. Martinez informed him that something was wrong with his neck, and Smith immediately told him stop working.

Shortly after the injury he told an on-board medic about soreness in his arm due to using the sledgehammer. Two days later Martinez visited another medic and told him that he was unable to move his head or jaw without shooting pain in his neck and shoulder. He was also interviewed by a claims adjuster hired by Offshore and told the adjuster that his injury was due to the cramped working conditions and hammering.

Martinez visited several other doctors and they reached the conclusion that the incident on May 26th had led to a degenerative disc disease. An orthopedic surgeon determined that Martinez would be unable to do any activities that would require repetitive "bending, stooping, lifting, and carrying," and a rehabilitation specialist concluded that Martinez's chances of being able to return to his previous job as a mechanic or deckhand were poor.

Martinez brought a Jones Act suit against Offshore, and after a bench trial, the judge concluded that Offshore was negligent, that negligence contributed to Martinez's injury, the ship he was working on was unseaworthy, and that unseaworthiness contributed substantially to Martinez's injury. The district court found that Martinez was entitled to damages for both past and future lost wages and future pain and suffering. The district court also held that Martinez also contributed to his injury and found him to be contributorily negligent and decreased his award by 20%.

Under appeal, the 5th Circuit found that there was no clear error in the district court's finding that Offshore negligently provided Martinez a workplace that was too cramped to safely work in and that actually increased his chance of injury. Both Martinez and his supervisor, Smith, testified about the cramped working conditions, but Offshore failed to call any witnesses to rebut their testimony.

Offshore also argued that they were not negligent as there was no evidence that they did no, or should have known, about the cramped working conditions. The Court points out that in Jones Act cases, the negligence of an employee is imputed to their employer. In this case, Smith testified as to the cramped working conditions and that he failed to fill out proper safety forms that might have prevented Martinez's injury. This was enough for the 5th Circuit to determine that the district court did not err in finding Offshore negligent.

The 5th Circuit then moved to the issue of contributory negligence. Offshore argued that the district court erred in finding Martinez only 20% liable for his own injury. However, the Court states that none of the cases that Offshore cited or mentioned actually establish or led to the conclusion that the district court erred. This element, or lack thereof, led the 5th Circuit to uphold the district court's finding of contributory negligence.

The final issue addressed by the 5th Circuit was Offshore's argument that the district court had clearly erred in calculating Martinez's lost wages. Offshore argued that there was no actual basis for determining that Martinez would be unable to return to his previous mechanic's job and that he would be able to return to the same type of work. Martinez pointed out that several doctors had determined that he would be unable to peform certain repetitive physical activities that would be required of a mechanic or similar types of work. The Court concludes that Martinez provided enough proof to overcome Offshore's argument.

Offshore also argued that the method the district court used to calculate Martinez's lost wages is clearly erroneous. They argued that an average of several years should be used, instead of the amount Martinez earned in the previous year. This was important because Martinez had gone from an average salary of about $8,400 the previous forty years to about $45,000 the year before his injury. The Court again sides against Offshore and state that the cases cited by Offshore did not actually back up their arguments, and thus were not persuasive to the Court at all. The Court finally determined that the district court's reasoning was not clearly erroneous and affirms the judgment of the district court in favor of Martinez.

The big takeaway from this case is that quality representation is absolutely vital. Offshore had several major legal gaps in their case that heavily influenced the Court's decision. While it's unclear why Offshore did not feature these elements, it demonstrates the complexity within a case and why hiring an attorney that reviews each angle is inherently necessary.

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September 19, 2013

Spoliation of Evidence Key Concern in Personal Injury Cases

After you have been in a terrible accident or lost a loved one, especially when the accident or death was caused by the negligence of someone else, you probably want justice. The outrage, the pain, and the sense of loss are too much to bear, and you want someone to pay for what was done. You want to be made as whole as possible. But what if the evidence that would allow that justice to come to pass has been ruined? And what if it was the allegedly guilty party who destroyed it? This intentional destruction of evidence primarily for the purpose of depriving the opposing party of its use is known as spoliation of evidence.

While a party might assume that spoliation of evidence has occurred, mere allegations will not get you far, and actually proving that spoliation of evidence has occurred can be much harder than you might think. In the state of Louisiana, there are several rules and standards with regard to how a party must prove that such spoliation of evidence actually occurred. First of all, merely accusing someone of negligently destroying evidence is not enough to prove spoliation of evidence. The standard is much higher than that. The plaintiff actually has to prove that the evidence was intentionally destroyed, and it can be quite difficult to prove the intentions of one's actions.

If a party fails to produce evidence within his or her reach, there is a presumption that the evidence would have been detrimental to the case; however, it is still essential to prove that the evidence was intentionally destroyed. Furthermore, the defendant has a duty to preserve evidence. This duty arises because of the foreseeability of needing that evidence in the future. If there is no ability to foresee the need for that evidence in the future, though, the duty does not exist.

To help explain this concept a bit better, we can look at the facts of a recent case that was heard in one of the Louisiana appellate courts. In that case, a family had just experienced the tragic death of their son, and they suspected that medical malpractice was at fault. Separate from their medical malpractice claim, the couple brought a separate tort cause of action, arguing that the doctor and his staff were liable for spoliation of evidence. Specifically, one of the things the couple claimed was that the medical staff had unplugged a pump which deleted all of the data regarding the amount of narcotics that their son had received. This was relevant because one of the possible causes of death was related to the narcotics provided by the staff.

While it became an undisputed fact that the staff had actually unplugged the machine and lost the data, this was not enough to prove spoliation of evidence. As stated above, there has to be a duty to preserve the evidence, which arises from the foreseeability of needing that evidence in the future. There also has to be proof that the evidence was intentionally destroyed. In this case, the couple had not asserted any facts that would prove the machine was unplugged for the purpose of intentionally destroying evidence. The couple, furthermore, had not proved that any duty existed for the defendants to collect data in order to support the theory that the death was caused by an adverse reaction to prescribed narcotics. At the time that the staff unplugged the machine, there was no litigation pending or any litigation foreseeable in the near future, so the staff did not have a duty to collect evidence. Because of these reasons, the court found that no spoliation of evidence had occurred in this instance.

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September 17, 2013

Proper Service Essential for Successful Legal Remedy

Under Louisiana law, there are very specific rules about how to properly serve someone, and one of the important aspects of service that an attorney has to get right is the timing of it. Furthermore, not only does the service have to be carried out in a timely manner, but it also has to be perfected properly.

This particular Supreme Court of Louisiana case dealt with service on a state entity, and it is important for your attorney to be aware of any differences that exist with regard to service requirements depending on who the other party is. According to the applicable state law, La. R.S. 13:850, "perfecting" a service request requires that the appropriate filing fees and transmission fees have been received by the clerk of the court and that the original signed document has been received by the clerk. All of this must be received within the proper timeframe. As stated in La. R.S. 13:850, the proper timeframe for perfection in this case is seven days.

In this case, the service request was received within the required ninety-day timeframe (ninety days since the filing of the petition), and the service request was perfected five days later once the requisite documents and fee payments were received by the clerk of the court. The question then is whether or not this counts as proper request for service: Was the request for service properly received within ninety days even though perfection of the request was outside of that ninety-day timeframe?

Surprisingly, the Supreme Court went against what both the district court and the court of appeals had decided. According to the Supreme Court, because the actual request for service was received within the proper ninety-day timeframe, and because it was perfected within the proper seven-day timeframe set out in La. R.S. 13:850 (it was perfected in five days), the request for service was proper and timely.

In coming to this decision, the Supreme Court analyzed the finding in Tranchant v. State of Louisiana, Louisiana State University Health Sciences Center, 08-0978, p. 7 (La. 1/21/09), 5 So. 3d 832, 836. In that case, the court found that "[a] valid request for service under La. R.S. 13:6107(D)(1) is made when the clerk receives the request for service and can then act on it." While the Court of Appeals used this finding to argue that the request for service was not proper (because the clerk could not act on it until five days after the ninety-day requirement), the Supreme Court argues that this is not the case. According to the Supreme Court, because the request for service was received within ninety-days and was perfected according to the statutory requirements, the requirements of La. R.S. 13:6107(D)(1) were met. The appellate court erred because it was comparing the current case with the case in Tranchant, while the request for service in Tranchant was not even received by the clerk until after the ninety-day time period.

Based on the Supreme Court's ruling in this case, it appears that as long as your request for service is received within the proper statutory timeframe and that it then perfected properly and timely that the service request should be deemed proper.

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September 16, 2013

Inspecting Summary Judgment When Case Involves Improper Lawyer Actions

Filing a Motion for Summary Judgment in Louisiana

Can a trial court properly grant a motion for summary judgment when material issues of fact still remain? According to Louisiana law, a motion for summary judgment is not properly granted if material issues of fact still remain. Summary judgment is only properly granted if pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that no genuine issues of material fact exist.

The purpose of summary judgment is to circumvent a full-scale trial if there are no issues of fact. At trial, fact finders determine what the genuine facts are, and in the case of dispute, the fact finders have to decide what proposed facts are the most plausible in the context of the case. If no issues of fact exist, then this costly and time-consuming process can be avoided by granting a motion for summary judgment.

When seeking to have a motion for summary judgment granted, the burden of proof is on the party filing the motion for summary judgment. However, in order for there to still be a material issue of fact, the other party (the one responding to the motion for summary judgment) has to prove that if the case does go to trial and the motion for summary judgment is not granted that he or she will be able to produce sufficient evidence to back the claims at trial.

Once the party bringing the motion for summary judgment supports the motion, then the other party has to submit the requisite evidence showing specific facts that establish that there is still an issue of material fact. If the party cannot do this, then there is no genuine issue of material fact.

Recently, in Louisiana, this exact situation played out. A woman had brought a case against her former attorney for legal malpractice. She appealed when his motion for summary judgment was granted because she claimed that material issues of fact still remained.

In reviewing her case, the appellate court reviewed the case as if the trial court had not already ruled on it. This is referred to as reviewing the case de novo. In deciding what facts are material, the court has to look at the relevant substantive law. WIth regard to the woman's case, the question was whether or not her case for legal malpractice was precluded because she had already settled the underlying case. According to the appropriate case law, her claim was not precluded, but she would have to prove that a reasonably prudent person in her same situation would have gone ahead and settled the underlying case.

The appellate court determined that it was not unrealistic to assume that a reasonably prudent person in the same situation would have gone ahead and settled the case. And because it was decided a reasonably prudent person could have acted in a similar matter, a material issue of fact still existed: whether or not a reasonably prudent person would have settled the case.

While the appellate court determined that it was not outside the realm of possibility for a reasonably prudent person to settle the underlying case in this situation, that does not mean that the appellate court can go ahead and say that her claim for legal malpractice can go forward. The appellate court can only determine that an issue with regard to material issues of fact still exists, but the case then has to be remanded to the trial court to be reheard on this issue because the trial court deals with issues of fact. So in this case, the motion for summary judgment should not have been granted against the woman because an issue of material fact still exists.

Although motions for summary judgment can be great tools in the trial process, you want to make sure that they are being utilized in the most effective manner for you and that you are not improperly hurt by motions filed by the other party.

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September 14, 2013

The Role of Court-Appointed Experts in Complex Litigation

In order to aid the court, a judge might occasionally appoint an expert to help with specific aspects of the case. Court-appointed experts are different from a specific party's experts because the court-appointed experts do not favor one side or the other, but rather, help the judge with certain tasks or analyses.

A trial court-appointed expert can be especially useful in a class action lawsuit in which several people have a claim against the defendant and there is no way that the court can hear each individual person's case. In that instance, a court-appointed expert can help properly group the members of the class action lawsuit and help bring order to an otherwise unwieldy case.

In a recent case from Orleans Parish, the appellate court had to determine when a court-appointed expert is proper and what the limits of such an expert's duties should be. Before getting into the applicable Louisiana law and how the appellate court ultimately ruled, some knowledge of the background facts is useful: The case from Orleans Parish was a class action lawsuit in which several employees were suing over medical problems they experienced from working in a building that had serious mold damage. Over 600 individuals had claims in the suit, and in order to deal with the case in a more organized and manageable manner, the class was to be broken up into various groups. In order to help with this enormous task, the trial court stated that it wanted to appoint an expert to help group individuals according to damages. Each party was allowed to submit nominations and discuss any issues they felt might arise if such an expert was appointed. Ultimately, an expert was appointed to help with the necessary tasks, and after the case was decided at the trial court level, the State argued that the court-appointed expert had outstepped his appropriate boundaries.

Overall, the State argued that the expert had overextended his appropriate duties in several ways and that the court had improperly relied too heavily on the expert. Specifically, they claimed three main "errors" of the court with regard to the court-appointed expert. The State argued that the trial court was improper in allowing the expert to offer opinion testimony and that his report should not have been admitted to evidence; it argued that the awards of damages to the plaintiffs were improper and that they relied on the expert's misinterpretation of the law; and it argued that the test employed by the expert to decide how to award damages was improper. So the question before the appellate court is whether or not the expert was appropriately appointed and whether or not the tasks he completed were within his jurisdiction.

In Louisiana law, La. Code Evid. art. 706 deals explicitly with the limitations of experts in the court setting. While the State argued that the expert was utilized improperly, the appellate court found that according to article 706, it was well within the trial court's discretion to appoint the expert and that it was proper for the expert to group claims for the class action and make recommendations.

In addition to finding that the expert acted appropriately in his role, the appellate court further found that the judge had issued proper instructions to the expert as well. Specifically, the judge at the trial court level told the expert that he was not to engage in any judicial functions or be a trier of fact.

And most importantly, the judge did not just issue proper instructions and warnings to the expert, but the expert also did not try to improperly extend his employment to cover any of those functions. The expert limited his role to creating a method for breaking up the class into specific groups, submitting an expert report detailing his findings and opinions, and properly coming up with awards of damages for the plaintiffs as he was instructed to do. None of these jobs involved the expert taking over any judicial functions or necessitated him being a trier of fact. Because of this, the appointment of the expert witness and the tasks he completed were appropriate.

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September 12, 2013

Louisiana Legal Malpractice Claim Arises from Car Accident

If you feel like your attorney has engaged in malpractice, what can you do? First, you should have a basic idea of what actually constitutes legal malpractice. In Louisiana, the plaintiff has to prove (with evidence that is strong enough to convince a reasonable trier of fact) three things. 1) That an attorney-client relationship exists. 2) That there was negligent representation by the attorney. 3) That there was actual loss caused by that negligence. What constitutes negligence? The plaintiff would have to prove that the attorney did not use the same degree of care, skill, and diligence which other prudent practicing attorneys exercise in the same locality.

In order to prove that the attorney did not exercise an adequate level of care and diligence, normally the plaintiff will hire an expert witness in order to establish what the standard of care in that locality is. The plaintiff also has to establish that the attorney's actions did not live up to this standard of care. If the attorney was particularly negligent or the malpractice was obvious, then it might not be necessary to call in an expert witness to establish malpractice. If the malpractice or negligence was not gross, however, then bringing in an expert witness is almost essential.

A recent case in Louisiana is a great example of a legal malpractice claim. In early 2000, a woman filed suit for injuries she sustained in an automobile accident with another man. The attorney she retained never filed an opposition to the Motion to Limit the Ad Damnum (a motion that would limit her amount of recovery), which was filed by the other party. Because the attorney did not oppose the motion, the motion was granted and the woman's claim was limited to recovery in the amount of $30,000.00. According to the woman, her attorney also went ahead and settled the case without her authority while she was still being treated for her injuries. He settled the case for only $22,000.00. The woman then went ahead and settled her case and dismissed her attorney, filing a petition claiming legal malpractice.

The trial court ended up ruling against the woman, stating that the woman's settlement did not contain a reservation of rights. Basically, the trial court held that her settlement of the case for which she had originally retained her former attorney precluded her from bringing a legal malpractice claim against her former attorney. The woman appealed, and she argues that the trial court erred because material issues of fact remain.

One of the main questions to answer is whether or not settling the underlying case precluded the woman from bringing her legal malpractice claim. By looking at the relevant case law, the appellate court determined that settling an underlying case does not preclude the right to file a legal malpractice suit. However, this right might be waived if it is determined that a reasonably prudent party would not have settled the underlying case.

In determining whether or not a reasonably prudent party would have settled the underlying case, one must look at the facts that were known to the party at the time and not look at facts only known in hindsight. In reviewing this case, the appellate court found that the woman's actions were not clearly outside the bounds of what a prudent person would do. Because of this, a material question of fact exists with regard to whether or not she acted as a reasonably prudent person. So the motion for summary judgment was granted incorrectly, and her negligence claim remained.

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September 10, 2013

The Burden of Proving Legal Malpractice Claims in Louisiana

Every detail matters at trial and can make the difference between winning and losing. In a recent Louisiana case, BCM L.L.C ("BCM") and Nawlins Kajun Foods, L.L.C. ("Nawlins") sued Copeland's of New Orleans under the theory of detrimental reliance. At the end of the trial, the jury sent a request to the judge to clarify certain words and phrases in the jury instructions. After discussion with both parties' lawyers, the judge issued supplemental instructions regarding the theory of detrimental reliance. Neither party objected to the instructions and the jury returned a verdict denying BCM and Nawlins' claim for detrimental reliance, but it did reward them damages for conversion. In a post-trial motion, the lawyers for BCM and Nawlins claimed the jury instructions were confusing and misleading, entitling them to a new trial. The trial court denied the motion. BCM and Nawlins then filed a legal malpractice suit against their former attorneys, claiming they should have objected to the jury instructions because they were confusing and misstated the law on detrimental reliance.

The burden of proof for legal malpractice is tough to meet. BCM and Nawlins had to produce evidence sufficient to convince a reasonable trier of fact of (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney; and (3) loss caused by that negligence" and also had to prove their attorneys, now the defendants, failed to exercise the degree of care, skill, and diligence which is exercised by prudent practicing attorneys in their locality. Clearly BCM and Nawlins can establish prong number one, but prongs number two and three requires more analysis.

In order for the attorneys to have been negligent in not objecting to the jury instructions, the jury instructions must have been inadequate or misstated the law. The Louisiana Code of Civil Procedure article 1972(B) sets forth the requirements for jury instructions. 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. The trial judge is not required to give any specific jury instructions that either party wishes to be submitted, but the judge must properly charge the jury. Reversible error occurs when the trial court omits an applicable, essential legal principle. Trial courts are given broad discretion in formulating jury instructinos and a trial court judgment should not be reversed so long as the charge correctly states the substantive law. The determinative question is whether the jury instructions miseld the jury to the extent that it was prevented from dispensing justice. The court must compare the degree of any error or confusing term witht he jury instructions as a whole and the circumstances of the case. Therefore, when small portions of the instructions are isolated from the context and are erroneous, the error is not necessarily prejudicial.

The supplemental instructions in this case read: "uner the detrimental reliance doctrine in Louisiana law, a party is permitted to recover for economic harm whenever the defendant made a representation by word or conduct upon which the plaintiff justifiably relied and becauseof which the plaintiff changed his position to his detriment." The attorneys for BCM and Nawlins argued in their post-trial motion that the use of the term "party" to refer to the "defendant" and then to refer to the "plaintiff" in the following sentence confused the jury such that they should have gotten a new trial. BCM and Nawlins, in their subsequent case against their former attorneys, point out that their lawyers admitted they believed the instructions were confusing when they filed the post-trial motion on their behalf. However, this admission is not required or dispositive of legal malpractice. The apellate court, using de novo review, found the supplemental instructions correctly stated the law on detrimental reliance. Furthermore, when considered in the context of the instructions as a whole, the complained of sentences make sense and are not confusing. The instructions might have been better constructed, but they were not incorrect or misleading. As a result, the trial court correctly granted summary judgment in favor of the defendants.

Legal malpractice claims are hard to prove and place attorneys in an awkward position. If more legal malpractice claims are brought, attorneys will be wary to file post-trial motions for a new trial based on a minor mistake they made during trial. This might prevent their clients from receiving a fair trial they are entitled to if a mistake has been made because the attorney is worried about being sanctioned for legal malpractice. With the requirements for jury instructions granting so much leeway to judges and the burden for legal malpractice cases being so steep, it is extremely hard to succeed in such a case.

September 5, 2013

Medical Malpractice Cap Reviewed By Louisiana Third Circuit Court of Appeal

Recently, the Louisiana Third Circuit Court of Appeal considered the assertion that the Medical Malpractice Act’s limitation of recovery or the “cap” contained within La.R.S. 40:1299.42(B) is unconstitutional.

At trial, the court determined that the Louisiana statute La.R.S. 40:1299.47(B) was unconstitutional “as violative of the equal protection and adequate remedy guarantees of the Louisiana constitution.” Moreover, the trial court relied upon the opinion of the Louisiana Third Circuit Court of Appeal in a recent case that held that the cap of La.R.S. 40:1299.42(B) was unconstitutional “to the extent it includes nurse practitioners within its ambit, [and] violates the equal protection and adequate remedy guarantees of the Louisiana Constitution …” Subsequently, however, the Louisiana Supreme Court reversed that very aspect of the Court of Appeal’s ruling, finding the medical malpractice cap unconstitutional. Rather, the Louisiana Supreme Court declared “the MMA’s cap described in La.R.S. 40:1299.42(B) is constitutional as it applies to all qualified health care providers, including nurse practitioners.

As such, the subsequent ruling of the Louisiana Supreme Court vacated the prior judgment of the trial court and the trial court was then directed to reconsider its ruling in light of the changes in the recent case law precedent. Ultimately, the trial court found La.R.S. 40:1299.42(B) constitutional and plaintiffs appealed the trial court’s decision.

On appeal, plaintiffs argued, among other things, that the Louisiana Supreme Court misunderstood the statutory “cap” and further violated basic rules for interpreting the constitution and statutes by failing to consider, apply, or interpret the actual language of Art. I., Sec. 22, which grants plaintiffs “adequate damages by due process of law and justice.” According to the Louisiana Third Circuit Court of Appeal, the plaintiffs’ question on appeal focuses primarily upon whether the Louisiana Supreme Court decision appropriately addressed the question of adequacy of damages and whether it sufficiently considered the difficulties malpractice plaintiffs face in recouping losses.

In review of plaintiffs’ proposal, the Third Circuit Court of Appeal observed that “trial courts and courts of appeal are bound to follow the last expression of law of the Louisiana Supreme Court.” As such, the Court of Appeal suggests that the Louisiana Supreme Court’s pronouncements in the Oliver case are broad constitutional statements, which included an evaluation of a variety of policy considerations attendant to the Medical Malpractice Act. Thus, in opposition to plaintiffs’ statements and allegations to the contrary, the court found no distinction in the present case to suggest a departure from the straightforward position of the court in Oliver v. Magnolia Clinic. Furthermore, the Court of Appeal found that the supreme court ruled in broad constitutional terms and referred to the underlying policy considerations of the Medical Malpractice Act stating that “[o]verall, the Louisiana Medical Malpractice Act represents a reasonable but imperfect balance between the rights of victims and those of health care providers … it does not violate the state or federal constitutions.”

In conclusion, the Third Circuit Court of Appeal found that given the breadth of the supreme court’s pronouncement in it jurisprudence, namely in the Oliver case, the trial court did not err in either its rejection of the plaintiffs’ constitutional claims or in its ultimate determination that La.R.S. 40:1299.42(B) is fully constitutional.

Aside from demonstrating the complexities of statutory interpretation and medical malpractice litigation generally, the issue discussed above reveals an important practice that is essential to the success of any case. In litigation, case law is king and it is imperative to retain representation that is not only cognizant of changes in the law, but comfortable with those changes.

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September 2, 2013

Trip and Fall Incident at Casino Leads to Lawsuit

On October 26, 2009, Deborah Pellegrin filed a petition for damages against Boomtown, L.L.C., Louisiana-1 Gaming, and Pinnacle Entertainment, Inc., after tripping on a piece of carpet in the Boomtown Casino in Harvey, Louisiana. In her complaint, Ms. Pellegrin alleged that her accident and injury were directly caused by the negligence of Boomtown in allowing such a hazard to customers to exist and in failing to adequately inspect and maintain the carpet and flooring of the casino.

After a hearing was held in 2011, the trial court rendered summary judgment in favor of Boomtown and dismissed Ms. Pellegrin’s petition. Specifically, the trial court ruled for the defendants based on the fact that there was no evidence that defendants had actual or constructive notice of the condition of the carpet at the time of the accident.

Ms. Pellegrin’s claim for damages is governed by La. R.S. 9:2800.6, which provides who has the burden of proof in claims against merchants. Under this particular section of the Lousiana Merchant Liability Law:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.

B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm 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.

(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

According to the statute, a merchant is shown to have constructive notice when “the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care … [t]he presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.”

Ms. Pellegrin appealed the decision of the trial court and argued that because Boomtown created this defect in the carpet, it was unnecessary for her to also prove that defendants had notice of the defect. The trial court below stated that Ms. Pellegrin failed to present direct evidence in the form of complaints or logs indicating that defendants knew or should have known of the condition. Ms. Pellegrin contended that constructive notice can be established by circumstantial evidence and, thus, she relied on bystander testimony as to what the carpet looked like after her fall as well as testimony that the condition of the carpet remained the same for weeks after this particular incident. Further, Ms. Pellegrin also relied on the testimony of a former Boomtown employee, who stated that on occasion she had seen employees and guests stumble while walking on the carpet in the area where Ms. Pellegrin fell.

On appeal, the Fifth Circuit decided that in the present case, there was no direct or circumstantial evidence that Boomtown knew or should have known of the condition of the carpet prior to the occurrence and that the evidence offered by Ms. Pellegrin was insufficient in proving that the casino was aware that the carpet presented an unreasonable risk of harm prior to this incident. Therefore, the Fifth Circuit Court of Appeals affirmed the summary judgment in favor of Boomtown and dismissed Ms. Pellegrin’s petition.

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August 27, 2013

Accident at Hospital Highlights Importance of Causality Proof (But-For Test)

In personal injury cases, the plaintiff carries the burden to prove that her injuries are actually caused by the defendant. One usual method of establishing factual causation is the “but-for” test. The test inquires: ‘but for’ defendant’s actions, would the harm to the plaintiff have occurred?” If the answer is “no”, then the plaintiff fails to prove causation, because the defendant’s act is not necessary to cause her injuries.

Let’s consider the following scenario: a lady went to a hospital to visit her grandson. She sat on a sofa bed while waiting in the emergency room. Unfortunately, because the springs that hold the supporting tarp for the sofa bed were missing, the lady fell through the sofa bed onto the floor. As a result, she suffered severe back injuries that ultimately required surgeries.

Using the ‘but-for’ test, we can conclude that the lady’s harm was caused by the hospital’s negligent act by having a defective sofa bed. Had the springs not been missing, she would not have fallen through the sofa bed. However, in many real-world situations, establishing causation is far more complex. One factor is the defendant’s pre-existing condition.

The above scenario is a simplified version of a recent case decided by the Louisiana Court of Appeals: Mrs. Crooks was the lady harmed by the defective sofa bed at Lake Charles Memorial Hospital. On appeal, the hospital defendant contended that Mrs. Crooks failed to prove that she was actually injured by falling through the sofa bed. The defendant pointed to the medical history of Mrs. Crooks. According to her medical record, she frequently suffered from neck pains and occasionally lower back pains even prior to the falling incident. Mrs. Crooks also underwent two neck surgeries prior to the accident.

Here the complication for proving factual causation is Mrs. Crooks’s pre-existing medical condition. The hospital was essentially arguing that the accident was not a “but for” cause for the injuries. Even if the accident had not occurred, Mrs. Crooks would probably still suffer from back pains and need future surgeries. Therefore, it is not enough for Mrs. Crooks to merely show that she experienced neck pain after the accident. She has to further prove that falling through the sofa bed exacerbated her pre-exiting condition or led to some new injuries. In this case, several doctors and medical experts testified that the accident, more probable than not, caused Mrs. Crooks to undergo surgery.

In conclusion, establishing factual causation in personal injury disputes is far more complicated when the defendant has a pre-exiting condition. In these situations, simply showing harm is not enough. The defendant has to further prove that her pre-existing condition has been exacerbated to prevail.

August 26, 2013

Litigation for Workplace Injury Requires Proper Naming of Defendants

In Louisiana, the Third Circuit Court of Appeal upheld a summary judgment against plaintiff Louis Fox in a tort claim ensuing from a work-related injury at the Rodemacher Power Station. On August 12, 2008, Louis Fox, while working inside a cyclone tower at the Rodemacher Power Station, sustained an injury when an object fell from above, striking him in the head and neck area. At the time of the accident, CLECO Power L.L.C. is the owner of the Rodemacher Power Station. Shaw had a contract with CLECO Power L.L.C.in furtherance of the project known as Rodemacher Unit 3. Shaw subcontracted a portion of the work to Foster Wheeler CLECO Power while Mr. Fox was employed by Foster Wheeler Constructors, Inc. as a refractory gunner. Mr. Fox and his wife filed a petition for personal injuries against several defendants: Shaw, CLECO Power, L.L.C., CLECO Corporation, Rodemacher Power Station, etc. CLECO Power and Shaw filed a motion for summary judgment requesting the court find that CLECO Power and Shaw are the statutory employers of Mr. Fox and thus immune from any tort claim brought by him.

If CLECO Power and Shaw were statutory employers of Mr. Fox, it would render the issue of liability moot as workers’ compensation was Mr. Fox’s exclusive remedy against those two defendants. Therefore, the main question is, whether CLECO Power and Shaw were statutory employers of Mr. Fox? There are two instances in which a statutory relationship will be found, thus holding the statutory employer only liable for workers’ compensation benefits: (1) being a principal in the middle of two contracts, referred to as the “two-contract” theory, and (2) the existence of a written contract recognizing the principal as the statutory employer. In addition, the “two-contract” theory “applies when: (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed.

However, in Mr. Fox's case, the existence of a written contract is lacking. In other words, CLECO Power and Shaw's summary judgment motion was based on "two-contract" theory. Firstly, there is no question the first two requirements for application of the “two-contract” theory were met. Shaw entered into a contract with CLECO Power and, pursuant to that general contract, work was performed. There is no question the first two requirements for application of the “two-contract” theory were met. Regarding the last element, Shaw did not subcontract directly with Foster Wheele and it was Stone who signed directly with Foster Wheele. The court agreed with the defendants that Stone was acting on behalf and for the benefit of Shaw, as the principal of Stone, thus entitling Shaw to classification as the statutory employer of Foster Wheeler’s direct employee, Louis Fox. The trial court did not err in granting Shaw and CLECO Power’s motion for summary judgment.

The court's "game-changing" decision, which came down for the defendants, essentially means while the required contractual chain necessary for application of the “two-contract” theory is breached, contractors may still be viewed as statutory employers for the purpose of claiming benefits.

August 25, 2013

Man Representing Himself Fails to File Case Against Sheriff's Office Properly

The following is a case in which the plaintiff, Nolan J. Benson, Sr., is representing himself. In legalese, he would be referred to as a plaintiff ‘in proper person’, or more commonly, as a pro se plaintiff.

Sometimes, plaintiffs cannot obtain attorneys to represent them, either because the plaintiff cannot afford an attorney, chooses not to hire an attorney, or the attorney chooses not to take on the plaintiff’s case. If the plaintiff still wishes to continue litigating his case, he may do so without the aid of an attorney. Usually, plaintiffs do not win these cases either because they do not follow proper protocol/ procedure or they do not conduct themselves ethically.

In this case, Nolan J. Benson was allegedly involved in some sort of quarrel with the deputies of the Avoyelles Parish Sheriff’s Office who had just arrested, or were in the process of arresting, Mr. Benson’s son. Exactly one year after that alleged incident, Mr. Benson, Sr., filed a petition in proper person, complaining that he had been wrongfully arrested, detained, and tased during the quarrel with the deputies of the Sheriff’s Office.

Most cases must be filed within a predetermined statute of limitations period. In other words, cases need to be filed before the allocated time period runs out. After the time period for filing the petition has run out, the plaintiff can no longer litigate the case. In this particular situation, Mr. Benson filed the petition on the last day he could have filed it, within the statute of limitations period. The statute of limitations period for Mr. Benson’s case, also known as the ‘prescriptive period’ was exactly one year.

If Mr. Benson had filed the petition even a day later than the one year period, he would not have been able to bring the case before a court. The reason for prescriptive periods is to make the process of litigation more effective and smoother. The longer the plaintiff takes to file his petition, the less evidence that can be dug up and the more memory fades regarding factual details. Therefore, courts consistently follow the hard deadline set by the prescriptive periods.

Although it seems like Mr. Benson had timely filed his petition, he named a fictitious entity as the defendant. Filing a petition with a non-existent defendant invalidates the entire petition. It is as if no petition was filed. Without a valid defendant, there can be no case. If he had been represented by an attorney, such an erroneous petition would probably never have been filed. Unfortunately, Mr. Benson decided to go forth with his case on his own, which ultimately resulted in such a faulty filing.

Roughly eighty-two days after the filing of his original petition, Mr. Benson attempted to amend his petition by adding a defendant, a Sheriff, to the petition. The Sheriff rightfully argued that the prescriptive period for filing the petition had ended eighty-two days ago. Mr. Benson attempted to argue that he had filed the original petition timely, and was now simply amending the petition by naming the correct defendant.

The Court of Appeal found Mr. Benson’s argument to be without merit. The Court found that the original petition had not been filed within the prescriptive period because it had named a fake defendant. Amending a fake petition well after the prescriptive period has expired does not by any means make the petition valid. Since Mr. Benson did not file a legitimate petition until after the prescriptive period for filing a petition was over, Mr. Benson could not bring his case before the court.

Realizing that he could not continue to litigate his case, Mr. Benson attempted another tactic. This tactic also failed him. He filed a motion for a new trial, arguing that he should be granted leave to amend his petition to assert claims that the damages he sustained were the result of a crime of violence such that the prescriptive period would be two years, rather than one. Mr. Benson figured that having a longer prescriptive period to file his petition would allow him to bring his petition to court.

The Court did not find any merit to this approach either. Mr. Benson’s original petition, which was filed a year after the alleged altercation with the deputies of the Sheriff’s office did not make any allegations of a crime of violence. Therefore, the Court concluded that Mr. Benson should not be allowed to amend his petition to add claims alleging a crime of violence just so he could obtain a longer prescriptive period.

Using a prior opinion for guidance, the court determined that allowing Mr. Benson to amend his petition to allege facts concerning aggravated battery or aggravated assault would be for the court to condone speculation on alleged facts that may or may not have occurred well over a year ago. The court does not condone such behavior.

The importance of having competent representation is highlighted in Mr. Benson’s situation.

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August 23, 2013

Injury Case Shows the Ultimate Impact Summary Judgment Can Make

In a typical case, either party can move for summary judgment. The defendant can move for summary judgment after the plaintiff files the complaint. The plaintiff can move for summary judgment after the defendant has answered the plaintiff’s complaint.

Summary judgment is a common procedural occurrence within civil and criminal trials. The purpose of summary judgment is “to secure the just, speedy, and inexpensive determination” of actions. A party is granted summary judgment when there is no genuine issue of material fact. In other words, a party is granted summary judgment if the court finds that no reasonable jury would ever find in favor of the non-movant (the party that is not moving for summary judgment) based upon the facts in the record. When it is beyond a reasonable doubt that the movant is entitled to summary judgment, summary judgment is granted and the case never reaches a jury. However, if there is even the slightest chance that a jury could find for the non-movant, summary judgment is not granted and litigation continues until a jury determines who should win the case.

In this particular case, Ricky Whittington Jr., was rear-ended by an eighteen-wheel tractor trailer rig in the Parish of Rapides on June 2, 2009. He sustained extensive injuries from this accident and had to go through back surgery as a result. Mr. Whittington filed suit against the operator of the eighteen-wheel tractor, the operator’s employer, and the employer’s insurer, QBE Specialty Insurance Company (“QBE”). In addition, he also named General Insurance Company of America (“GICA”) as the fourth defendant. The issue on appeal is whether the trial court erred in granting summary judgment to the fourth defendant, GICA.

The only reason that Mr. Whittington added GICA as the fourth defendant was because he was worried that QBE and its insureds would attempt to shift the fault for Mr. Whittington’s medical injuries onto GICA. Mr. Whittington feared that he would be left with no compensation for his injuries if he did not name GICA as a defendant as well. He decided to play it safe just in case the court found that QBE was not at fault, finding instead that GICA was responsible for his injuries. Mr. Whittington was merely exercising caution when he named GICA as the fourth defendant.

The reason Mr. Whittington feared QBE would attempt to shift the blame onto GICA was because one of GICA’s insureds hit Mr. Whittington’s dump truck in a previous accident on April 16, 2009. Following this accident, Mr. Whittington scheduled a doctor’s visit, in which his doctor indicated that Mr. Whittington’s backache and leg pain from the accident were getting better. However, the primary reason for Mr. Whittington’s visit to the doctor that week was not related to the injuries he received from the accident; it was due to a totally unrelated reason, relating to his high sugar level.

After GICA moved for summary judgment, Mr. Whittington stated with emphasis, “Plaintiff RICKEY WHITTINGTON, JR., has no Opposition to the motion [of GICA] on its merits.” He also stated that he was “perfectly content” for GICA “to be dismissed from this case.”

Since GICA could show that Mr. Whittington did not think that he sustained injuries from the first accident, GICA moved for summary judgment. GICA based this belief off of Mr. Whittington’s petition which stated that he “[did] not believe” the April accident “caused or contributed to any of the injuries” he sustained in the June accident; and he “[did] not believe” the April accident “caused or contributed to any condition of his body which was aggravated or exacerbated by the June 2, [2009] accident.”

Because Mr. Whittington himself alleged no causes of action against the fourth defendant, the Court of Appeals affirmed the trial court’s grant of summary judgment in favor of GICA. This case will now proceed without GICA as a defendant. Because no jury would find against GICA, (because Mr. Whittington is not alleging that any of his injuries were from the earlier accident), the grant of summary judgment in favor of GICA was appropriate.

August 22, 2013

No Relief for Post-Op Plaintiff Who Could Not Prove Standard of Care

When a healthcare provider is involved in an accident that harms a patient, the injured party can seek relief in court. But a medical malpractice plaintiff must be able to show the standard of care that applies to the particular provider in question. In Blood v. Southwest Medical Center, a recent case arising out of Lafayette, Louisiana, one unfortunate plaintiff learned this lesson the hard way.

Hershel Blood was a patient in the post-operative care of Regional Medical Center of Acadiana (“RMCA”) when two nurses moved him from his hospital bed to a reclining surgical chair. Just after they placed the plaintiff in the chair, Nurse Rachelle Sorlie attempted to recline it to the first position. But instead of reclining just slightly, the chair suddenly snapped backwards, abruptly extending much farther than the nurse intended.

The plaintiff claimed that this sudden motion caused him to suffer permanent back injuries. He complained to the Louisiana Patient’s Compensation Fund, and a Medical Review Panel ruled in RMCA’s favor, finding that no evidence indicated that the hospital improperly inspected or operated the surgical chair.

Blood then sued RMCA for medical malpractice, and the trial court granted summary judgment in favor of RMCA and dismissed all of Blood’s claims. Blood appealed, and the case went to the Louisiana Third Circuit Court of Appeal.

Blood made three allegations on appeal: (1) that RMCA failed to completely transfer him from the hospital bed to the surgical chair; (2) that he did not need expert evidence to overcome summary judgment; and (3) that the nurse had a duty to visually and physically inspect the chair before placing him in it.

As to the first allegation, that RMCA failed to properly complete the transfer to the chair, the court sided with RMCA, because Blood himself had testified that he was already sitting in the chair when the accident occurred.

Next, the court determined whether Blood needed to present expert testimony to prove the standard of care. The court rejected Blood’s allegation that the opinion of the Panel below required the court to hold no expert evidence necessary, as Blood did not raise the issue before the Panel, and even if he had, the Panel’s opinion had no binding effect on the court.

Blood also argued that his case fell under an exception to the requirement of expert testimony in medical malpractice cases. The court found it unnecessary to address this argument, because it went on to hold that the evidence Blood did present was insufficient to survive summary judgment.

Finally, the court moved to the issue of the standard of care. To survive a summary judgment motion, Blood had to provide some evidence that he could meet his burden at trial. To prevail at trial, he would have to establish the standard of care applicable to RMCA, show that RMCA breached that standard of care, and demonstrate a causal connection between the breach and his resulting injury.

Blood alleged that Nurse Sorlie had a duty to visually and physically inspect the surgical chair before using it. To prove the standard of care, he presented an affidavit from a registered nurse. The nurse claimed to be familiar with the specific chair used by RMCA and stated that “failure to perform both visual and physical examination of equipment falls below the applicable standard of care.”

The court concluded that while the nurse’s affidavit did establish the standard of care, it did not establish that that standard of care applied to Nurse Sorlie specifically. The affidavit merely stated that “it is necessary” to inspect the chair, without stating by whom it is necessary. In fact, Nurse Sorlie testified that she believed the hospital’s maintenance department inspected the chairs, and Blood offered no evidence to contradict her. As a result, the court held that Blood failed to present any evidence that he would be able to prove the applicable standard of care at trial.

If you suffered an injury at the hands of a healthcare provider, contact the Berniard Law Firm. Providing the best experts in personal injury law, our law firm is fully capable of meeting your litigation needs and getting you the relief you deserve.

August 21, 2013

Exposure to Toxic Chemicals Leads to Louisiana Resident's Appeal

The United States of America was founded on a Constitution that still serves as the supreme law of the land in our country today. Each state followed suit and created its own constitution to be the supreme law throughout the state, second only to the Constitution of the United States. Many claims are made throughout our country based on the constitutionality of particular laws or statutes but very few of these make it to the Supreme Court of the United States, where a final decision is made on the specific action's constitutionality. For an appellate court to rule on a constitutional challenge it must have been "properly raised and pleaded in the trial court below."

The Fifth Circuit Court of Appeal in Louisiana heard a case where this exact issue and rule was raised. It arose from a claim made by Mr. Vincent E. Johnson against Motiva Enterprises, LLC (Motiva) for damages arising out of his exposure to toxic chemicals while working at a Motiva refinery in Norco, LA. The constitutional issue arose because Motiva had contracted out of being sued by the plaintiff because of a contract with his direct employers, becoming merely his statutory employer. The trial court found that the contract was valid and refused to reach the constitutionality of the Louisiana statute allowing for the contract. It is a known fact that courts shy away from determining the constitutionality of legislation unless the resolution of the constitutional issue is absolutely essential to the decision of the case.

Here the appellate court determined that the constitutionality of the Louisiana statute was a "seminal" issue in determining whether Motiva was entitled to the tort immunity that was provided to it by the statute. Because the trial court declined to deliberate the constitutional issue the entire case was not properly before the Fifth Circuit Court of Appeal and was accordingly remanded back to the trial court for a ruling on the statute's constitutionality.

The issues on hand during this trial are ones that have been entangling our legal system since its inception into the country's fabric. The duty of the courts to determine the constitutionality of legislation is a delicate issue and only comes to the forefront when there is no other way for the case to be remedied. The trial court may have shied away from deciding the constitutionality issue of Mr. Johnson's claim for a variety of reasons but, as is supposed to occur, the Appellate court reviewed the decision and deemed it necessary to determine. Mr. Johnson will get another chance for his claim to be heard and if the statute is determined unconstitutional, will change the law throughout the state of Louisiana.

August 20, 2013

Court of Appeals Increases Damages for Lost Wages

The jury is the ultimate trier of fact. In our democratic society, we place high value on the idea of being judged by a panel of your peers. In addition, it allows the accused to be judged by the prevailing community standards. The jury is supposed to be more in touch with the average person than the average judge would be. Generally, since the jury is held is such high regard, the court of appeals is hesitant to overturn any of their decisions. The court explained this notion in a case arising from Cameron Parish, Louisiana.

In that case, a truck driver swerved to avoid a sign placed there by the Department of Transportation and Development. The sign was too far on to the road, the truck driver did not notice the misplacement fast enough, and had to swerve to avoid hitting the sign. When he swerved, he lost control and ended up in a ditch that Hurricane Ike damaged. The truck flipped and, although the truck driver was not harmed upon the collision, he was stuck in the vehicle upside-down. After forty-five minutes of being pinned upside-down, the truck driver died of asphyxiation. His wife and three children sued the DOTD based on general damages, lost past and future wages, survival damages, and funeral expenses.

The lower court found that the DOTD was fifty percent at fault and the truck driver was also fifty percent at fault. As such, the lower court awarded damages that amounted to $700,000 in total. Fault determinations are extremely fact intensive, so the lower court, as the trier of fact has broad abilities to make these determinations. As such, they are difficult to overturn in the court of appeals.

In this type of case, the court of appeals will review the lower court based on a standard of manifest error. That is, the court of appeals will only reverse the lower court if there is a clear error based on a mistake regarding the facts and that because of this mistake in the facts, the final outcome is clearly wrong. In addition, since there are damages awarded by a jury in this case, the court will also look at those damages to determine if they are reasonable.

This case had “special damages” because it included damages for lost past and future wages. Special damages are those that have a “ready market value.” Unlike many forms of damages, it is much easier to assign a dollar figure to special damages. For example, if you lost your arm, it would be difficult to put a dollar figure on what your arm was worth to you. However, if you lost your job, as this truck driver did, then you could take the number of years that you are expecting to work multiplied by your expected yearly salary and come up with a number that would resemble the damages for lost wages.

In this case, the truck driver earned roughly $41,000 per year. He was expected to be able to work for another twenty-five years. When you take the present value of those figures (you have to assume that the future dollars are worth less than the present dollars), you'd get a figure that is roughly four times what the jury actually awarded for lost wages. The appeals court considered these numbers and determined that although juries are granted great deference, the appeals court will correct them if they are clearly wrong. The appeals court thought that, based on the computations provided at trial, that the damages amount for lost wages was abusively low. Therefore, the appeals court increased the damages significantly.

The court of appeals can increase or decrease damages if they feel the need. However, the jury and the lower court judge get great deference because they are the fact-finders. The appeals court will only step in if they see manifest error. In this case, the manifest error was based on simple math.

It is important to consider your options for damages in appeals. Even when you “win” the case, you may be entitled to a larger award.

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August 19, 2013

Appeal Dismissed Because of Late Payment, Abandonment

In a recent case, Johnson v. University Medical Center in Lafayette, the Louisiana Court of Appeal for the Third Circuit reversed a trial court decision to dismiss a plaintiff's case for abandonment due to her failure to timely pay the costs of appeal. The plaintiff in the case, Lela Johnson, originally filed a medical malpractice action against both the University Medical Center in Lafayette and the Medical Center of Louisiana in New Orleans. The case has proceeded through courts since the original petition for damages was filed on March 15, 2006.

Both defendants, whose principal places of business correspond with the last word of their names, are operated by the State of Louisiana. After a dismissal of her original suit by the Supreme Court of Louisiana due to her failure to properly notify the defendants of the action because she had requested service of process on individuals who had not been individuals who were authorized to accept such information on behalf of the defendants, Ms. Johnson's decided to re-file the original suit in trial court. Once again, Ms. Johnson's service of process was held insufficient by the trial court and she moved to appeal that judgment.

Service of process is a legal term of art which essentially describes the process in which plaintiffs notify defendants of a pending suit. When the plaintiff files a complaint with a court, any defendant in the case must be given notice of the pending case and an opportunity to be heard and defend themselves against the complaint. This requirement is a basic constitutional right conferred upon everyone who has been accused of some wrongdoing and it is the accuser's responsibility to ensure that the constitutional right of the accused is protected. The importance of service of process to our legal system and the rights of defendants makes it necessary for trial courts to dismiss actions, without regard to the merits of the plaintiff's claims, if service of process is deficient in some way or another.

Thus, the trial court dismissed Ms. Johnson's suit for those reasons and Ms. Johnson filed a motion to appeal. The Louisiana Code of Civil Procedure Article 2126 explains what is required of a party appealing a decision by a state trial court. Under the law, when a plaintiff files a motion to appeal a trial court's decision and an order of appeal has been granted by the court, the clerk of the trial court must estimate how much it will cost to prepare the record and the filing fee required by the court hearing the appeal. The clerk then must notify both parties of the costs by mail and the person appealing the trial court decision, the "appellant," must then pay the estimated costs within twenty days of the mailing. An extension may also be granted for an additional twenty days for good cause if requested by the appellant. Alternatively, the appellant may also apply for a reduction in the costs if they are shown to be excessive and the application is filed within the first twenty day period. If there is any difference between the actual and estimated costs after preparation is complete, then the difference must be paid to the appellant if the estimate was excessive or paid to the clerk if the costs were insufficient.

Ms. Johnson, however, failed to pay the costs within the twenty day period or request an extension. Under Louisiana law, if the appellant fails to pay the estimated costs in a timely fashion or request the necessary extension, the trial court may either (1) dismiss the case as abandoned, or (2) grant a ten day extension and dismiss the appeal as abandoned if the costs are not paid within that extension. Both the trial court and the other party in the suit can file a motion to dismiss the appeal on grounds of abandonment under that law. In the instant case, Ms. Johson failed to pay the estimated costs, failed to request and extension and failed to request a reduction in the estimated costs due to excessiveness. As a result, the defendants moved to dismiss the appeal and the trial court granted the motion to dismiss the appeal as abandoned.

The third circuit, however, reversed and reinstated the appeal on review. Ms. Johnson appealed the trial court's decision to dismiss the appeal mentioned above. The appellate court analyzed the law described above, particularly the law's desired purpose and effect. In essence, the Louisiana law which requires appellate costs to be paid in a timely fashion by appellants serves two main purposes. The primary purpose of the law allows a court or a party to dismiss an appeal because the appellant has filed an appeal but has decided to abandon it. This protects the integrity of the court by making the appeals process efficient for parties who truly wish to appeal a trial court's decision. The trial court's decision might be erroneous, and the party seeking appeal may have a desperate need for relief and a reversal of the earlier decision. Appeals which lack merit and were filed out of temporary frustration with the holding might later be reconsidered later and abandoned. Without the law requiring the timely payment of fees, the system would have difficultly ensuring the timely and efficient resolution of appeals which are honestly filed and meritorious.

Conversely,the victorious party in trial court (the "appellee") should not be forced to wait anxiously for the disposition of an appeal which has been in fact abandoned by the appellant. The appellant, by necessity, files an appeal because he or she believes that the trial court has either misapplied the correct legal standard, applied the wrong legal standard, or has relied on clearly erroneous findings of fact in reaching his legal conclusions. If the appellant then later abandons his claim but does not formally notify the court or the appellee, then neither the court nor the appellee have any notice that the claim has been abandoned. This could allow a losing party to file an appeal with no intention of appealing the trial court's decision use the appeal to temporarily threaten the winning party at trial. To prevent appeals that lack merit or are based on ill motive, the Louisiana Code of Civil Procedure requires the appellate to pay the estimated costs to the clerk and provides the appellate with the opportunity to both contest the amount of the estimate or request an extension if good cause is shown.

The secondary purpose of the law requiring timely payment of the costs of appeals is to provide an incentive for tardy appellants to pay the costs of appeal in a timely fashion. The Code also clearly states that the focus of trial courts deciding motions to dismiss for abandonment under the provision to focus on securing payment of the costs of appeals to promote the efficient movement of appeals through the courts. The Code also expressly states that the purpose of such motions to dismiss is not to punish those who do not pay the costs of appeal in a timely fashion by dismissal due to abandonment. The court, interpreting both prior case law and the Code's provision discussed above, ultimately decided that Ms. Johnson's failure to pay did not represent the type of circumstances which the provision was designed to prevent.

The court reasoned that the dual purpose of the provision was ultimately to weed out claims which had been actually abandoned and to incentivize the timely payment of costs of appeal by appellants. It is true that Ms. Johnson failed to pay the costs of appeal within the twenty day period or request an extension or reduction in costs. However, Ms. Johnson did pay the costs, albeit slightly late, a little over a month after the defendants filed a motion to dismiss for abandonment. The court held that the purpose of the law was not to punish tardy payment of the costs of appeal by dismissing the appeal. Rather, the provision was designed to rid the court system of appeals which had been truly abandoned by the party who filed the appeal. Ms. Johnson had not decided to abandon her appeal, and although her payment had been slightly delayed, the dismissal of her appeal would result in the misapplication of the law governing the payment of the costs of appeals. Since one of the purposes of the law is to bring justice to the parties before the court, the dismissal of an appeal due to a slight delay in payment by the appellant would be an unduly harsh penalty and contravene the purpose of the legislature in developing the Code and the rules governing the payment of costs of appeal.

The intricate rules of civil procedure are daunting and can be fatal to an otherwise meritorious case. The rules are different in every state as well as the federal system. It is essential that all deadlines are met at every stage of litigation to ensure that a valid claim ultimately results in compensation rightfully owed to the victim of another's wrongful acts. Attorneys are "doctors of the law" and can assist a worthy plaintiff in obtaining compensation for his or her injuries and make certain all costs and filing are completed in a timely fashion to avoid disaster, up to and including dismissal due to a procedural error. Legal representation can be employed to avoid dismissal of what could be a victorious claim.

August 18, 2013

Injury at Store Leads to Case Involving Past, Present, Future Injuries

While Ms. Jo Anna Savant shopped at Hobby Lobby in Lafayette, two large, seventeen-pound clocks fell from a wall display and struck her on the head. She filed a suit against Hobby Lobby, alleging negligence.

Negligence is a common law tort that requires the victim to prove that the defendant had a duty to the victim, that the defendant breached that duty, that the defendant's negligent conduct was the cause of the harm to the victim, and that the victim was, in fact, harmed. In this case, Ms. Jo Anna Savant was able to prove that Hobby Lobby was negligent. Even Hobby Lobby’s store manager testified that the manner in which the clocks were suspended on the display was unsafe.

The jury awarded Ms. Savant damages for past, present, and future physical pain and suffering, past lost wages and past medical expenses. The jury also awarded Ms. Savant’s children damages for loss of consortium because Ms. Savant was unable to spend quality time with them after she sustained her injuries. Loss of consortium is the deprivation of the benefits of a family relationship due to injuries caused by the defendant. Awards to children for loss of consortium compensate them for "loss of love and affection, society and companionship, aid and assistance, comfort and felicity."

The jury did not award Ms. Savant damages for mental anguish, suffering, or disfigurement; loss of enjoyment of life; loss of future earnings or earning capacity; and past and future loss of household services. When Ms. Savant moved for judgment notwithstanding the verdict (“JNOV”), the trial court granted JNOV in part and denied JNOV in part. The court increased the damages for past lost wages and past, present and future physical and mental pain and suffering. The court also awarded damages for past loss of household services and for loss of enjoyment of life.

JNOV, or judgment notwithstanding the verdict, is a type of judgment as a matter of law (“JMOL”) that is ordered at the conclusion of a jury trial. The presiding judge in a civil jury trial may overrule the decision of a jury and reverse or amend the jury's verdict. JNOV is rarely granted because it is somewhat controversial for the judge to overrule the decision of a jury. However, if the judge believes that the jury’s decision should be amended in some manner, the judge can exercise this discretion. In this case, the judge thought it proper to award damages for certain things that the jury did not initially award damages for, and increased the amount awarded for other things.

The standard of review on appeal for determining whether JNOV was correctly granted or denied is the manifest error standard of review for special damages. The manifest error standard of review requires an inquiry as to whether the granting of the award was clearly wrong. JNOV can be overruled on appeal only if the court of appeals finds that the trial court was clearly wrong in awarding special damages.

The standard of review on appeal for determining whether JNOV was correctly granted or denied is the abuse of discretion standard for general damages. The abuse of discretion standard requires an inquiry as to whether the court displayed a clear abuse of discretion in awarding the damages. JNOV can be overruled on appeal only if the court of appeal finds that the trial court abused its discretion.

At issue on appeal is whether the trial court properly granted and denied JNOV when it increased the amount of general and special damages awarded to Ms. Savant. Hobby Lobby argued that the trial court erred when it increased the damages awarded to Ms. Savant. Ms. Savant argued that the trial court should have awarded her damages for loss of future earnings and loss of future household services as well.

Ms. Savant underwent her first cervical spine surgery in January 2009 due to her injuries caused by the falling clocks. A month following her first cervical spine surgery, she injured the site of surgical incision while trying to restrain her autistic son. After this incident, she continued to experience neck pain and numbness in her upper extremities, so she eventually underwent a second cervical spine surgery one year later.

Hobby Lobby argued that it should not be held responsible for the medical expenses of Ms. Savant’s second cervical spine surgery because that surgery had to be done because of her son’s behavior. Ms. Savant was struck in the head while struggling with her son. Hobby Lobby believes that the initial award that the jury determined for her past, present, and future physical pain and suffering was sufficient, and the subsequent increase granted by the trial court was inappropriate. Hobby Lobby believed the the injury she sustained from her son was an intervening cause that cut off Hobby Lobby’s liability to Ms. Savant.

An intervening cause will generally absolve the defendant of liability for the victim's injury only if the event is a superseding cause. A superseding cause is an unforeseeable intervening cause. By contrast, a foreseeable intervening cause typically does not break the chain of causality, which means the defendant is still responsible for the victim’s injury.

In this case, the injury that Ms. Savant suffered while attempting to restrain her son was a foreseeable intervening cause because she had an autistic son who was difficult to restrain at times. Without the clock incident, the son would have never injured the site of her first surgical incision because she would not have had to undergo surgery in the first place. Therefore, her injuries and both surgeries were caused by and related to the Hobby Lobby incident. Therefore, granting an increase in the amount of damages was not clearly wrong or an abuse of the trial court's discretion.The trial court appropriately granted and denied JNOV.

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August 17, 2013

Court Re-Allocates Liability for U-Haul Accident in New Orleans

Appealing turned out to be a beneficial move for U-Haul International, Inc., and U-Haul Company of Georgia, who were sued when Mr. Omar Erazo’s truck came off his rented U-Haul van while he was moving back to Louisiana from Georgia. Unfortunately, when the truck detached from the van on I-10 in eastern New Orleans, it collided with Mr. James Gaunt’s vehicle, resulting in serious injuries to Mr. Gaunt.

On appeal of the trial court's findings against them, U-Haul raised a number of issues. The first issue was whether the trial court erred by conducting improper research, considering outside evidence that should not have been admitted. The appellate court sided against U-Haul on this issue, stating that a judge may conduct legal research on a site such as Westlaw and see the number of hits that “U-Haul” and “auto transport” returns.

Another issue was whether the trial court erred by assessing 90% of the fault to U-Haul and only 10% to the driver, Mr. Erazo. Here the appellate court agreed with U-Haul that 90% was too much liability considering that U-Haul employees largely followed protocol based upon the information Mr. Erazo provided them. When Mr. Erazo noticed that his truck was coming unhinged and called U-Haul, he did not convey that he felt it was unsafe to continue towing the truck. However, his subsequent conduct – driving slowly with lights blinking while making sure his wife kept a safe distance away – showed he did believe continuing to tow the truck was unsafe. If he had informed U-Haul of this belief, they would have sent someone out to help him.

However, unfortunately, Mr. Erazo decided to continue on without their help. In light of this, the appellate court determined that 50%, rather than 10%, of liability should be assigned to Mr. Erazo. Also, in contrast to the trial court, which found U-Haul International and U-Haul Georgia 80% liable (70% and 10%, respectively), the appellate court assigned no liability to U-Haul Georgia as there was no evidence that it had improperly trained its employees, and only 40% to U-Haul, International.

The third issue that U-Haul brought was whether the trial court erred by awarding an excessive amount of damages to Mr. Gaunt. The appellate court upheld the trial court here, finding the damages were not excessive. Some of the injuries that Mr. Gaunt sustained following the accident were pre-existing injuries but were aggravated by the accident. The ensuing surgeries that Mr. Gaunt would have were calculated into the damages awarded to Mr. Gaunt. The appellate court asserted that when pre-existing injuries are aggravated by a defendant’s conduct, the defendant is responsible for the additional medical expenses even if the defendant only aggravated, but did not originally cause, the injuries.

It is essential to have the best lawyers possible when deciding whether to appeal a judgment and what arguments to present. U-Haul’s lawyers raised many issues, and fortunately for U-Haul, one of the issues found favor with the appellate court.

August 15, 2013

Judge's Ruling for Medical Malpractice Patient in Lafourche Parish Overturned on Appeal

In a recent medical malpractice case, the jury found that the plaintiffs did not prove, by a preponderance of the evidence, the standard of care applicable to the emergency room doctor they had sued for a medical malpractice allegation. Because the plaintiffs had not proved their case the suit was dismissed. However, on a motion by the plaintiffs, the trial judge issued a judgment notwithstanding the verdict, reversing the jury's decision and awarding the plainiffs over five million dollars in damages. The doctor and hospital board appealed this decision.

A plaintiff in a medical malpractice case alleging that the doctor was negligent must prove 1) the amount of skill or knowledge possessed by a typical doctor or the amount of care ordinarily exercised by licensed doctors in Louisiana practicing in a similar community or under similar circumstances as the doctor being sued. 2) that the doctor either did not have required level of knowledge or skill or did not use ordinary level of care and 3) that the result of this lack of knowledge, skill or care caused the plaintiffs injuries which would not have otherwise occurred. The jury found that the plaintiffs failed to establish the level of care used by Louisiana emergency room physician in similar circumstances therefore they could not have proved either of the other elements.

A judge may issue a judgment notwithstanding the verdict when the evidence is so strongly in favor of one party that reasonable jurors could not give a verdict for the other party. When a party (the party who lost the jury verdict) moves for a judgment notwithstanding the verdict the motion must be denied if there is evidence for the other party (which won the jury verdict) that could lead a reasonable person to side with the other party. The court should resolved all reasonable inferences and factual questions in favor of the party who won the jury verdict. This is a very difficult standart for the moving party to clear. The jury verdict must have been completely illogical and unfounded for a judge to override it. When an appeals court reviews a trial judge's decision to grant a judgment notwithstanding the verdict the same standard is used. In this case the courts must evaluate the evidence given my both sides medical experts to determine whether reasonable people could have found that the plaintiffs failed to prove the applicable standard of care.

The plaintiff's experts stated that the plaintiff's condition in the hospital showed obvious signs of a possible stroke and that the defendant did not do the majority of tests that a reasonable emergency room doctor would do if a stroke was suspected. The defense's experts stated that it was no so obvious the plaintiff was having a stroke and that tests and procedures performed by the defendant were what a reasonable doctor would do under the circumstances. After reviewing the testimony the appeals court found that the many differences in the expert's opinions as to what should have been done in this case showed that there was enough of a question about the standard of care that a reasonable juror could have found for the defendants, as the jury did. The appeals court vacated the trial court's judgment notwithstanding the verdict.

The next issue is whether or not there should be a new trial. The trial judge had ordered a new trial in the case that the judgment notwithstanding the verdict was vacated. The trial court has discretion to order a new trial and the appeals court will review that decision for abuse of discretion. An order for a new trial should be vacated if it is not supported by any fair interpretation of the evidence from the first trial. Because the appeals court found that the evidence supported the jury's verdict the plaintiff's are not entitled to a new trial.

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August 14, 2013

Summary Judgment Upheld by 3rd Circuit in Negligence Suit

Regardless of the issue at law, parties in a civil suit can halt further litigation by obtaining a motion for summary judgment. The party seeking summary judgment, known as the movant, must show there is no genuine issue of material fact despite the allegations asserted by the non-moving party. The court will consider a fact “material” if “its existence potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the relevant legal dispute.” Furthermore, a fact will be deemed at issue “if there exists any reasonable doubt as to its existence.”

On July 12, 2006, Raymond Alex, Sr. (hereinafter “plaintiff”) was driving his employer’s, BNSF Railway Company (hereinafter “defendant"), truck south on North Eastern Avenue in Crowley when he was rear-ended by a large tractor-trailer rig driven by Edward Zenon, Jr. (hereinafter “Mr. Zenon”) of Creole Fermentation Industries, Inc. The plaintiff alleged the accident injured his neck and caused radiating pain down his right arm into his hand. His recovery consisted of neck injections and surgery.

Interestingly, the plaintiff signed off on the operating condition of the truck before driving it and after the accident signed a report admitting the defendant was not to blame for his injuries.

The plaintiff first sought recovery for his injuries from Mr. Zenon, his employer, and the lessor of the truck. The petition cited Mr. Zenon’s negligence as the “sole cause of the instant incident.” Ultimately, the two parties settled.

Even though the plaintiff settled with Mr. Zenon and admitted the defendant was not responsible, he filed a second suit against the defendant pursuant to the Federal Employer’s Liability Act ( hereinafter “FELA”). To successfully recover under FELA, a plaintiff must establish that (1) he was injured within the scope of his employment; (2) the employment was in furtherance of the railroad’s commerce in interstate transportation; (3) his employer was negligent; and (4) this negligence played a part in causing his injury. The plaintiff specifically alleged that (i) the seats on the inside of the truck were dry-rotted, (ii) the shocks “weren’t a hundred percent” and (iii) the boom on the truck did not always operate properly. Despite these allegations, the plaintiff agreed that the defendant’s truck was “pretty crashworthy” as it suffered only minimal damage.

On summary judgment the trial court determined there was no evidence pointing to the conclusion that the condition of the truck played any role in the alleged injury even though it is well accepted under FELA that the plaintiff carries an easier burden than usual in getting his claim in front of a jury.

The plaintiff appealed to the Third Circuit Court who also found no merit in his argument. Appellate courts review summary judgments “de novo” and re-evaluate the issues regardless of the trial court’s ruling. During the appeal the plaintiff testified that the truck’s lack of a headrest “maybe” contributed to his injuries. The appellate court was not persuaded by the plaintiff’s arguments labeling them self-serving and not based on credible evidence. Accordingly, the trial court’s ruling was affirmed.

This case provides future plaintiffs a valuable reminder that a claim will only be successful if it is based on credible evidence. It’s not difficult to overcome a motion for summary judgment as a non-moving party is not required to prove each element of their claim but rather must only establish that proof exists. When meeting with an attorney, clients should be forthright about the facts surrounding their claim in order to determine whether it will survive a motion for summary judgment.

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August 13, 2013

Louisiana Court of Appeals Gives Deference in Chemical Exposure Case

In September 2006, Georgia Gulf Lake Charles, LLC's Westlake facility suffered a fire and explosion. Because of the fire and explosion, hazardous chemicals were released into the air. Several people filed suit because of the medical complications that the exposure caused. Georgia Gulf stipulated that it was the cause of the chemical release, but argued that the release did not cause the Plaintiff's medical complications and that it should not be charged damages. The trial court disagreed and awarded the Plaintiffs damages. Georgia Gulf appealed.

Georgia Gulf's major concerns were about two major decisions of the trial court. The first was that the trial court excluded their expert witness. Second, the lower court found a link between the Plaintiff's symptoms and the chemical exposure, which Georgia Gulf argued did not really exist.

In Louisiana, the Court of Appeals reviews these types of decisions with great deference to the lower court. The lower court gets to see all of the witnesses and hear the testimony whereas the Court of Appeals generally does not. As such, the lower court may be a better judge of character and credibility because they actually see the person making the testimony and can observe their demeanor and evaluate how truthful they seem. The court is set up in this way so that people do not have to come back repeatedly to testify and attorneys do not have to present the same evidence to different people again; it is a matter of convenience and timesaving for everyone involved.

The standard that the Court of Appeals uses to evaluate the exclusion of experts is “abuse of discretion.” That is, the court will consider whether the lower court made an arbitrary decision or whether it had good reason to exclude the expert. The court may not agree with the lower court, but whether they agree is not relevant for the standard.

In this case, the lower court argued that the expert was not using the proper standard to evaluate the case. Defendant's expert used a “scientific certainty” standard to evaluate the information that he was presented. However, the required standard for experts in Louisiana is based on La. Code Evid. Art. 702. It does not include the requirement to have “a reasonable degree of medical and scientific certainty.” Instead, the standard is simply preponderance of the evidence, or more likely than not.

Since the expert did not use the correct standard to evaluate the information, the lower court determined that although he had done an extensive amount of work the case, it was not relevant because he was using the wrong standard. The court pointed out the great deference required to the lower court and did not determine that the lower court abused its discretion by excluding the expert witness due to relevancy concerns.

The next issue was the causation issue. The lower court found a link between the Plaintiff's medical conditions and the chemicals that were released into the air. A legal cause has a proximate relation to the harm involved. The court defines proximate relation as a “continuous sequence, unbroken by any efficient, intervening cause [and] produce[s the] result complained of.” The court explains that if the cause had not occurred, then the harm would not have happened. In this case, the lower court found that the eyewitnesses to the chemical exposure and medical records proved the link between the chemicals and the harm.

The Court of Appeals reviews causation issues through a manifest error standard. That is, the court asked if the lower court had something to base their decision on and was that basis a reasonable one. Even if the Court of Appeals does not agree with the outcome, they will still give the lower court the benefit of the doubt if the lower court was not clearly in error.

In this case, the Court of Appeals found that the lower court could have found a connection between the harm and the chemical exposure, so there was no manifest error. As a result, the Court of Appeals upheld the lower court's decision in both of the contested issues and awarded damages to those affected by the chemical exposure.

It can be difficult to get around the required standards of review at the Court of Appeals level. That is one of the many reasons that it is so important to have a good, solid case at the trial level. An excellent attorney is important to presenting your case.

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August 12, 2013

Shreveport Property Owner Found Liable for Kitchen Ceiling Collapse

Many people in New Orleans rent property. Whether a house, a duplex, or an apartment, these residents typically rely on property owners to make necessary repairs to the premises. Proper maintenance ensures that residents are safe and their well-being will be protected. Unfortunately, all too often property owners fail to remedy dangerous situations, which can lead to serious injuries. Wynn v. Luck, a recently decided lawsuit by the Court of Appeal for the Second Circuit, illustrates how a negligence claim can help victims of these situations obtain the compensation they deserve.

In that case, two women were injured when a large section of the kitchen ceiling in a rented house collapsed on them. Though the property owner claimed he did not know of the condition and therefore was not negligent for failing to repair it, the court found the record full of evidence to the contrary. First, an inspection of the property days after the incident found that almost all of the ceilings in the house were in dangerous disrepair and would have been noticeable during any visit by the property owner. Second, a maintenance man hired by the property owner provided services to the house on several occasions and, according to the court, he should have noticed the conditions and conveyed that information to the property owner. Finding the property owner constructively knew of the dangerous condition, the court held the property owner liable for negligence and the victims' injuries.

According to Louisiana law, an owner or lessor of a property is responsible for the condition of his premises when leased to another. Therefore, the owner is liable for any damage or injuries caused by a defect in the property that he knew of or should have known of through the exercise of reasonable care, provided the dangerous condition could have been prevented through the exercise of reasonable care and the owner failed to exercise that care.

One of the more important elements in these types of cases is proving that a defect existed. A defect, as defined by Louisiana law, is a condition that poses an unreasonable risk of injury when a person is exercising ordinary care. Exposed electrical wires, rotting steps and crumbling walls are characteristics that could be considered defects. Thus, if the property owner knows of that condition but fails to remedy it, and the condition leads to an injurious accident, then the victim may be able to obtain compensation through a lawsuit.

Another important aspect, and perhaps the most difficult to prove, is the property owner's knowledge of, or the fact that he should have known of, the defect. If the property owner was told about the dangerous condition or saw the condition himself, then it is likely he will be found to have had knowledge of the defect. Also, any routine inspections of the premises that should have led to a discovery of the condition, but for whatever reason did not, will likely be found to satisfy the "should have known" prong of the statute. Lastly, as evidenced by the recently decided Second Circuit case, an employee of the property owner who did discover or should have discovered the condition will probably be held to have imputed that knowledge to the property owner, essentially presuming the owner knew of the condition. If this element can be proven along with a defective condition that caused an injury, a plaintiff will likely have a successful claim. Compensation can then be used to cover medical expenses, pain and suffering, and any lost wages. Then, the victim can focus on moving past the incident and obtaining a full recovery.

Older properties are especially susceptible to defects, but they can also be present in new residences, too. When an injury results and the choice is made to file a lawsuit, a long analysis of the facts and legal issues will follow. In these situations it is best to have an experienced attorney who will fight for your rights.

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August 11, 2013

Third Circuit Court of Appeals Reverses 10-2 Jury Holding in Medical Malpractice Case

A February 27, 2013, decision issued by the Court of Appeals of Louisiana overruled a jury verdict in favor of defendant Dr. Robin Yue, finding that he failed to obtain informed consent before performing surgery on his patient, Plaintiff Clyde Snider, Jr.

At only 26-years old, Mr. Snider already had a personal as well as a family history of heart trouble, diabetes, and high blood pressure. On November 28, 2007, Mr. Snider and his wife Lisa went to the Emergency Room at Beauregard Memorial Hospital (Beauregard) in DeRidder, after Mr. Snider experienced chest pains and an extreme drop in his pulse rate. At Beauregard, Mr. Snider expressed a desire to be transferred to his primary cardiologist, Dr. J. King White, but Dr. Yue asserted that Mr. Snider required immediate attention and scheduled him for a heart catharization. Right before the procedure, Mr. Snider signed a consent form, provided to him by Dr. Yue. The implant procedure left a permanent scar, and Mr. Snider suffered pain and lost normal use of his left arm for several weeks.

Mr. Snider was later examined by Dr. White, after an injury and infection around the location of the pacemaker (which were unrelated to the implant procedure). Dr. White removed the pacemaker, and he told Mr. Snider that the implantation of the pacemaker was unnecessary and unwarranted given his condition when he went to Beauregard. A three-member Medical Review Panel unanimously agreed that Dr. Yue violated the proper standard of care in performing the surgery on Mr. Snider under the non-emergent circumstances.

How did 10 out of 12 jurors come to the conclusion that Dr. Yue exercised the proper standard of care, after hearing testimony from Dr. White, the Medical Review Panel, and even Dr. Yue himself stressing that Mr. Snider's condition was not critical, and that there was no need for an emergency procedure? According to the appellate court's legal analysis, the procedure in question was not "bungled", nor was it "completely unnecessary". Mr. Snider lost at trial simply because he signed a consent form.

According to Louisiana law, "consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts." La.R.S. 40:1299.40. (Note that La.R.S. 40:1299.40, was repealed July 12, 2012 and is now contained in La. R.S. 40:1299.39.5). A physician must also provide his client with "sufficient information" to allow him to make an "informed and intelligent decision." The introduction of the consent form provided to Mr. Snider reflected Louisiana's law, which required that the patient be informed of "(1) the nature of [his/her] condition, (2) the general nature of the medical treatment/surgery, (3) the risks of the proposed treatment/surgery, as defined by the Louisiana Medical Disclosure Panel or as determined by your doctor, (4) reasonable therapeutic alternatives and material risks associated with such alternatives, and (5) risks of treatment".

However, the substantive portion of Mr. Snider's consent form was left partially blank. Though Dr. Yue disclosed the risks of the procedure, he did not list additional risks posed by Mr. Snider's condition or by the medications he was taking. Dr. Yue also failed to fill in information regarding the reasonable therapeutic alternatives and the risks associated with those alternatives, which were found to have existed in this case. The court subsequently found that the consent form did not comply with Louisiana law, and overruled the jury's decision.

As patients, it can be hard, if not impossible, to know what a medical practitioner is obligated to tell you by law in order to gain your consent for a procedure. As we can see in this case, 10 out of 12 civilians thought that Mr. Snider had given informed consent, which the Court of Appeals then overruled. This decision emphasizes the importance of having a skillful attorney in the early stages of a trial or arbitration.

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August 10, 2013

Findings of Fact: Just As Important As Conclusions of Law?

Findings of fact refer to the findings of a jury on issues of fact submitted to it and are distinct from conclusions of law. Generally, a jury resolves questions of fact, whereas a judge, or an equivalent resolves questions of law. However, in Rayne, Louisiana, Mary Betty Williams, the plaintiff in a personal injury case, appealed the trial court judge’s determination that she did not carry her burden of proving that the defendant caused the accident at issue.

On December 8, 2009, Ms. Williams and Paula Trahan were involved in an automobile accident in Rayne, Louisiana. Accordingly, Ms. Williams filed suit against Ms. Trahan, asserting that Ms. Trahan caused the accident and was responsible to pay damages to Ms. Williams for pain and suffering, medical expenses, and lost income. At trial, both Ms. Williams and Ms. Trahan offered conflicting testimony that the other was to blame for the accident. Moreover, Ms. Trahan testified that the accident report filed included only portions of the statement she made to Patrolman Joshua Board at the scene of the accident. According to Patrolman Board, he found “a little plastic shard” of debris in the area where the accident occurred, which he believed fell from one of the vehicles involved in the accident. However, Patrolman Board further testified that he never checked either Ms. Williams’ or Ms. Trahan’s vehicle to determine whether the plastic shard had fallen from one of their vehicles or had resulted in damage to either vehicle.

After the accident, Ms. Trahan submitted an amended statement to reflect what she says accurately describes the incident and includes the portions of her statement not included in the initial accident report filed by Patrolman Board. However, at trial, Patrolman Board denied that Ms. Trahan’s amended statement reflected what the she told him at the scene of the accident. Nonetheless, the trial court awarded judgment in favor of Ms. Trahan and dismissed Ms. Williams’s claims, concluding that Ms. Williams had not carried her burden of proof. According to the trial court judge, “the scales are evenly balanced. I don’t feel that the plaintiff has carried her burden, because both versions are plausible, but neither one has more credibility than the other. So this is a case where plaintiff cannot recover, because she could not prove, by a preponderance of the evidence, that the accident was the fault of the defendant in this case.” As a result, Ms. Williams appealed the trial court’s determination and submits that the trial court erred in its conclusion that she did not prove Ms. Trahan caused the accident.

According to the Louisiana Third Circuit Court of Appeals, “[a] trial court’s findings of fact cannot be set aside on appeal unless review of the record shows the trial court’s findings were manifestly erroneous or clearly wrong.” An appellate court must review the entire record and find that no reasonable factual basis exists for the trial court’s findings before it reverses a trial court’s findings of fact. Further, “[t]he court’s review of the record must also establish the fact finder was clearly wrong or manifestly erroneous … [i]f there are conflicts in the testimony, the appellate court should not disturb reasonable evaluations of credibility and reasonable inferences of fact made by the fact finder.” As mentioned above, there were conflicts in the testimonies of Ms. Williams and Ms. Trahan as to how the accident occurred and who was at fault, and as the trial concluded, none of the testimony or the physical evidence resolved these conflicts. Therefore, the Third Circuit of Appeals affirmed the decision below, and after reviewing the record, held that trial court’s findings of fact were not manifestly erroneous or clearly wrong.

On appeal, deference may be given to the findings of fact of lower courts as is often the case with conclusions of law. Thus, the initial trial is extremely important and you need an experienced attorney to present a convincing and credible case to the trial court. At the Berniard Law Firm, our attorneys understand the importance of facts and have the experience and skills to put forth a credible case.

August 8, 2013

Casino Accident Lawsuit Carried On By Surviving Family Members

The essential elements necessary to form a binding contract are usually described as: (1) an offer, (2) an acceptance, (3) a legal purpose or objective, (4) a “meeting of the minds,” (5) consideration, and (6) competent parties. Ambiguities typically arise with offers and acceptances that often lead to litigation. An offer is generally defined as the manifestation of the willingness to enter into a deal so as to justify to another party the offeror’s assent to the deal. Although an acceptance of an offer can occur in several ways, it is most typically described as the assent to the terms made by the offeror. In a recent case in Lake Charles, Louisiana, a finding made by a trial court that an offer and acceptance were ambiguous is under appeal.

On December 13, 2006, a woman robbed Jalil Abushanab as he was about to enter the Isle of Capri Casino in Lake Charles. While attempting to chase the woman, Mr. Abushanab was struck by an SUV and suffered bruises, abrasions, and a broken hip. After Mr. Abushanab’s death in early 2008, his surviving spouse and ten children were substituted as party plaintiffs and asserted claims against the Isle of Capri Casino for wrongful death and survivor damages. In May of 2011, the Isle of Capri Casino filed a motion for summary judgment seeking to dismiss the plaintiff’s claims for lack of liability. But on August 6, 2011, before the hearing, the casino made a written offer to the plaintiffs seeking to settlement the matter for $250,000.00. Prior to the hearing, the plaintiffs accepted the casino’s offer with a signed acceptance letter.

On October 6, 2011, a trial court ruled in the plaintiffs favor and agreed with their motion that the offer made by the casino was exclusive of medical and statutory liens and court costs. At that time, Mr. Abushanab’s family was awarded a lump sum payment of $250,000.00, plus any Medicare/Medicaid liens, a lien on behalf of a drug company, and court costs. Accordingly, Isle of Capri Casino appealed, contending that the trial court was legally incorrect in its finding and that based on the law and on the totality of the circumstances, the offer and acceptance were ambiguous. The casino contends that not only did the trial court err in refusing to consider the casino’s intent when it made the offer, but that the court erred in concluding that there was a “meeting of the minds” and that the parties had reached a compromise agreement.

According to the Louisiana Third Circuit Court of Appeals, there is no merit to the casino’s contention that the trial court was legally incorrect in finding the offer and acceptance ambiguous. “Whether a contract is ambiguous is a question of law.” In its decision, the Third Circuit stated that “[t]o determine whether the trial court was legally correct in its determination that the offer was ambiguous, we will independently examine the offer ‘without giving any deference to [the trial court’s] conclusion.”

As such, the Third Circuit examined the language of the offer and the arguments made each party concerning the meaning and interpretation of commas and conjunctions in the offer. According to the Third Circuit Court of Appeals, both parties submitted two reasonable interpretations of the offer, but further suggested that “the issue presented to us is not the most probable intent of the parties or the most probable interpretation of the offer. Rather, the issue before us is whether the offer is ambiguous.” Id. at 9. Ultimately, the Third Circuit concluded that while the offer can be clearly construed in two very different and reasonable manners, as the offeror, it was the casino’s responsibility to clearly phrase its offer. Therefore, the Court of Appeals affirmed the trial court’s determination that the casino’s offer was ambiguous.

When a court makes a finding on whether an offer and acceptance is ambiguous, its decision is often unpredictable. Therefore, it is important to properly iron out the details of an agreement to avoid or appropriately prepare for litigation.

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August 5, 2013

Excessive Force During a Traffic Stop Inspected in Louisiana and Qualified Immunity

After a traffic stop in Shreveport, Louisiana, a man was arrested by two officers. The man had thrown liquid at the car behind him before he was pulled over. During the arrest, the two officers repeatedly grabbed and tasered the man. Eventually, they realized that the man's elbow had been dislocated and called for medical assistance. Because of the injury, the man had to undergo multiple surgeries and was ultimately left with permanent disabilities in his left arm and hand. In light of this, the man claimed that the officers used excessive force during the arrest.

The injured man brought suit against the police officers as well as other defendants, and ultimately the trial court granted the motion of summary judgment filed by the defendants, ruling against the injured man. When appealing this decision, the injured man brought two main claims: 1) that the district court erred by granting the two police officers qualified immunity with regard to the excessive force claim; and 2) that the district court erred by dismissing the constitutional claim he brought against the head of the police department and the city for not implementing a proper policy for off-duty cops (one of the cops involved in the arrest was off-duty at the time).

With regard to the first claim, public officials (e.g. police officers) are allowed qualified immunity on summary judgment unless two requirements are met: 1) the plaintiff produces sufficient evidence to raise a genuine issue of material fact as to whether the conduct actually violated a constitutional right; and 2) the actions of the officers were objectively unreasonably in light of the relevant law at the time. In this case the Fourth Amendment provides that excessive force during an arrest is impermissible. However, according to the Supreme Court, every arrest requires the right to use some force, especially if the suspect is a threat to the officers or is resisting arrest. So, did the police officers use force that was clearly excessive and clearly unreasonable?

In this case, the injured man had been driving recklessly, had been drinking, raised his arms at the police officers, and threw liquid at another vehicle while driving. In addition to arguing these facts, the defendants were lucky to have caught the whole encounter on the officers' videocamera. Ultimately, in reaction to these facts and the videotape, the appellate court agrees with the defendants that the officers did not use clearly excessive or clearly unreasonable force. Because the injured man was unable to prove that the officers' actions met this threshold of being clearly excessive or clearly unreasonable, the officers are entitled to qualified immunity in this case.

With regard to the man's second claim, a claim for failure to establish a policy only exists if the policy is the actual moving force behind the constitutional violation. Such a failure has to involve deliberate indifference, which is a standard much greater than negligence or gross negligence. In this case, the injured man is unable to prove that the city or the head of the police department acted with deliberate indifference with regard to citizens' rights. To reach this conclusion, the court looked for any patterns of violence by off-duty police officers. The court also looked to see if the Shreveport Police Department had policies in place that were at least equal to the minimum standard required in Louisiana and similar to those required nationally. In this case, the policies in place were above the minimum standard required, and there was no pattern of off-duty police officer violence. For this reason, the appellate court affirmed the trial court's decision to grant the defendants' motion for summary judgment.

As you can see from the above analysis, personal injury cases can be incredibly complex. When choosing an attorney, you want to make sure that you select an attorney who is aware of the complex ins and outs of the legal system.

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August 4, 2013

Employer Liable for Injuries Suffered While Socializing at Work

When an accident occurs at someone’s place of work, the injured party can hold the employer responsible in certain circumstances, under the legal concept of vicarious liability. This doctrine provided relief for Kenneth and Pamela Porter in a recent Fifth Circuit Court of Appeals case arising out of Avondale, Louisiana.

In Porter v. Fulkerson, the accident occurred at the office of a Navy project that was staffed by personnel from a variety of entities, including subcontractor John J. McMullen Associates (“JJM”). The workspace, with an open air layout with low cubicles, was designed to foster camaraderie and ease of communication, creating a very social environment.

One day, JJM employee Philip Fulkerson was on his way into the office, heading to his desk, when he saw an acquaintance sitting with Navy employee Kenneth Porter in Porter’s cubicle. Fulkerson stopped by to chat, perching on the edge of Porter’s desk. At one point while Porter was speaking, Fulkerson went to pat Porter in what the court described as the style of Tony Soprano. But Fulkerson slipped off the desk, causing him to accidentally slap Porter hard in the face.

Porter was so badly injured from the accident that he was found to be permanently disabled. He suffered from TMJ issues, an aggravated degenerative cervical disc disease that causes debilitating headaches, an inner ear concussion that causes vertigo, and a heightened psychological response to injury.

Porter and his wife sued Fulkerson and JJM. Fulkerson settled with the Porters, but the case against JJM went to trial. The jury found JJM liable for Fulkerson’s actions and awarded the Porters $1.9 million in damages. JJM appealed, and the case went to the Fifth Circuit.

Article 2320 of the Louisiana Civil Code provides that, under Louisiana law, an employer is liable for a tort committed by his employee if the employee was acting within the course and scope of his employment at the time.

The court noted that the course of employment refers to time and place, and the scope of employment is determined according to the following test:

For the employer to be vicariously liable, the tortious conduct of the employee must be so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer's business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer's interest. However, the employee's conduct need only be reasonably incidental to the performance of the employee's official duties, and need not be exclusively employment rooted.

In Porter’s case, the workspace itself was designed to facilitate social interaction. Physical contact was not discouraged – in fact, friendly handshaking and back-patting were quite frequent. Because Fulkerson was in Porter’s cubicle to socialize, an activity JJM specifically intended to encourage, Fulkerson’s actions served JJM’s purpose and satisfied its goals.

For this reason, the jury was not manifestly erroneous in finding that Fulkerson was within the course and scope of his employment when he injured Porter and that JJM was therefore responsible for the damage Fulkerson caused. Because the Fifth Circuit could not reverse the jury’s finding unless there was manifest error, the court affirmed the jury’s verdict.

If you suffered from an accident arising out of an employment relationship, contact the Berniard Law Firm. Providing the best experts in personal injury, our law firm is fully capable of meeting your litigation needs.

August 1, 2013

Police Department's Improper Arrest Target of Louisiana Woman's Claim

On January 25, 2010, while at work at The Oaks Nursing Home in West Monroe, Sheriff Royce Toney of Ouachita Parish wrongfully arrested Ms. Annette Brown for aggravated battery. Despite showing Dep. David Germany of the Ouachita Parish Sheriff’s Office (“OPSO”) her drivers license, which listed an address separate from the one on the arrest warrant, she was still taken into custody. Ms. Brown then had to gather $1,255 to pay a bail bondsmen.

Upon release, she brought hospital records showing where she was on the night of the alleged battery and her driver’s license. The charges were quickly dropped. Despite several requests for a return of her $1,255, city officials replied there was nothing they could do about it. Ms. Brown then filed suit demanding general damages for wrongful arrest, false imprisonment and malicious prosecution.

OPSO filed for, and was granted, summary judgment asserting that it was MPD that gave the wrong name to the issuing magistrate. OPSO argued that it acted pursuant to a facially valid warrant, while Ms. Brown argued that someone likely in the OPSO mistakenly grabbed her DMV record instead of the real culprit, Annette Bryant. While ruling in favor of OPSO, the court explained that a “suspicion of what might have happened” is not sufficient evidence to connect OPSO to the warrant. Upon appeal, the court used a duty-risk analysis to determine whether to impose liability under La. C.C. art. 2315 A, which holds “every act whatever of a man that causes damage to another obliges him by whose fault it happened to repair it.”

The court in this case used the element of determining whether the defendant’s substandard conduct was a cause in fact of the plaintiff’s injuries. In this case, with multiple defendants, Ms. Brown as the plaintiff carried the burden to prove that the harm “would not have occurred absent the specific defendant’s conduct." Ms. Brown urged that OPSO participated in the investigation which resulted in incorrectly identifying her as the perpetrator and that the person who supplied the incorrect name was employed by OPSO.

Despite Ms. Brown’s contentions, the court held that there was no specific facts to show that OPSO officers provided incorrect information in support of the warrant. The mere speculation on the part of Ms. Brown was held inadequate to warrant a genuine issue of material facts. The court went on to explain that a person arrested pursuant to a valid warrant has no claim for false arrest or false imprisonment. In her last claim, Ms. Brown urged the court erred in denying her opportunity for additional discovery. However, the court held that the district court did not abuse its broad discretion to regulate pretrial discovery. In the end, the court of appeals affirmed summary judgment in favor of OPSO.

This case highlights two key components: that a filing must be thoroughly vetted with factual bases for the court to determine them as valid argument and that the proper defendant needs to be identified in the claim.

July 29, 2013

Injury at Sea and Signed Release Key Components of Lawsuit

The appellate court differed with the trial court on the validity of a compromise when Louisiana company D.R.D. Towing was sued by a crew member on D.R.D.’s ship.

Mr. Randy Rudolph was a crew member of the M/V RUBY E, which was struck by another ship while he was on board. The collision threw him from his bunk, causing injuries to his back. Additionally, Mr. Rudolph lost his personal computer, cell phone, car keys and other items when the ship sank. He filed suit against D.R.D. Towing, the operator of the M/V RUBY E.

The issue for the court was whether Mr. Rudolph’s signing a release settling all claims for $3,000 a few days after the incident precluded him from collecting further money for his injuries. He argued that he understood the $3,000 was offered to compensate him for what he lost on the boat, but not to cover his future claims, including medical expenses and loss of earning potential associated with his injuries.

Before executing the release, Mr. Rudolph had told an attorney representing D.R.D. that his neck and back had been hurting and he had an appointment with a doctor later that day. The trial court found no requirement that Mr. Rudolph see a doctor prior to executing the release. All that was required was that he be aware that medical advice was available. However, the appellate court emphasized that Mr. Rudolph’s status as a seaman required careful scrutiny of the release. Here, the appellate court found that the release was not valid.

First, the court reasoned that $3,000 could not be sufficient to cover the property that Mr. Rudolph lost on the boat in addition to any medical expenses caused by injuries from the collision. Another problem was that Mr. Rudolph was not represented by counsel during the settlement negotiations, and the legal rights Mr. Rudolph was giving up were not explained to him. Given these circumstances, the court found that the release was not executed by Mr. Rudolph with a full understanding of his rights, as is required by federal law. The court also highlighted that Mr. Rudolph was having medical issues after the accident and had not yet seen a doctor or received medical advice, which supports his claim that he did not believe he was giving up all medical claims for injuries he may have sustained.

This case shows how reasonable minds can differ when it comes to proving that a contract or compromise is valid. Assembling the best legal team possible is especially important in such cases.

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July 28, 2013

Jury Errors Inspected by Lafayette Judge in Negligence Suit

Two clocks fell from a wall display in the Lafayette Hobby Lobby and struck a customer in the head. Jo Anna Savant brought a negligence suit seeking compensation for her accident-related damages. The case went to trial and the jury found for the plaintiff. The trial judge, finding errors in the jury’s verdict, set it aside, and issued a judgment even more favorable to the plaintiff.

The case went up on appeal.

The Louisiana Third Circuit Court of Appeal addressed four legal issues in this case: the trial court (1) setting aside of the judgment; (2) not charging the jury to determine Ms. Savant’s fault in the accident; (3) approving the award to plaintiff for the cost of her second cervical fusion surgery; and (4) awarding the loss of consortium to plaintiff’s children.

When a party is unsatisfied with a jury’s verdict, she can submit to the court a JNOV motion, asking the judge to set aside the jury’s verdict and issue his own. In this case, the judge granted the motion and set aside several rulings made by the jury. The trial judge set aside the jury’s findings on the issues of general damages; past lost wages; and past lost household services. He did not find error on the issues of loss of future earnings or future loss of household services.

A judge will grant a JNOV motion if he determines that the evidence “point[s] so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict.” In reviewing the JNOV, the appellate court used a two-part analysis. First, the court determined whether the granting of the motion was proper, i.e. did the evidence point so strongly in favor of one party that reasonable jurors could not have arrived at a contrary verdict. Second, the appellate court applied the manifest error standard of review to the JNOV. The manifest error standard is a fairly deferential standard to the trial court.

The Court of Appeal found that the record indisputably showed Ms. Savant suffered neck pain as a result of the Hobby Lobby incident. Even defendant’s own expert testified that treatment will not likely improve her condition. The Court of Appeal further found that Ms. Savant experienced great pain and anxiety with her inability to function normally as a mother to her small children. She was an active individual until the accident and now can no longer participate in the enjoyable activities of her pre-accident life. The trial court rightly observed the evidence pointed undeniably in favor of the plaintiff and correctly awarded greater compensation for her damages.

On the loss of future household services and loss of future earning capacity, the Court of Appeal did not find that the evidence pointed so strongly in favor of one party that reasonable men could not reach different conclusions. Therefore, the trial court was correct in not setting aside these issues.The Court of Appeal affirmed the JNOV motion, finding that the motion was properly granted according to the “strongly and overwhelmingly in favor” standard and that there was no abuse of discretion by the trial court.

On the exclusion of Ms. Savant’s fault from the jury’s verdict form, the Court of Appeal found it to be harmless error. The record contained no evidence of Ms. Savant’s fault in the accident. On awarding the plaintiff the cost of her second cervical fusion surgery, the appellate court found that the jury was presented with more than sufficient medical testimony to find causation between the Hobby Lobby accident and her second surgery. In awarding the loss of consortium to plaintiff’s children, the jury had plenty of evidence on which to find that Ms. Savant could no longer be the active and engaged mother she was before the accident.

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July 27, 2013

5th Circuit Court of Appeals Rules in Favor of Drug Manufacturers in Suit for Damages

In 2011, a Louisiana woman appealed a decision issued by the state's highest court in a case she filed after suffered damages from the drug metoclopramine. Julie Demahy filed a lawsuit in 2008, alleging that she had suffered damages from the generic version of metoclopramide, which she took between 2002 and 2007. The state court had dismissed Ms. Demahy's claims against Actavis, the manufacturer of the generic version of the drug, and against prescription drug makers Wyeth, Inc. and Schwarz Pharma, Inc. Schwarz had acquired the name-brand rights to the drug in 2001.

As of 1985, the FDA required that generic manufacturers of the drug metoclopramide include a warning with the medication about the risk of tardive dyskinesia, an often irreversible neurological disorder. In 2004, Schwarz voluntarily requested a change to the name-brand label, adding a warning that the drug should not be used for more than 12 weeks. It was not until 2009 that the FDA issued a black-box warning that informed consumers about the risk of tardive dyskinesia and that warned customers that the drug should not be used for longer than 12 weeks except in rare cases.

Under federal law, generic drug labels are required to be the same as name-brand labels. This means that state law cannot require generic manufacturers to include more information than that which would be available on the name-brand product of a prescription drug, as this would be contrary to the federal law. On these grounds, the state court had found that Actavis was not responsible under a failure-to-warn claim brought by Ms. Demahy. On appeal, Ms. Demahy claims that the state court's mandate to change the district court ruling in favor of the defendant was improperly interpreted as calling for the dismissal of all claims against Actavis; Ms. Demahy argued that Actavis could still be found liable outside of the failure-to-warn claim.

The United States Fifth Circuit Court of Appeals found that the only other possible claim that Ms. Demahy could have brought against Actavis would have been a design defect claim. The Court, however, believed that Ms. Demahy's claims were at best failure-to-warn, and thus the mandate by the Louisiana Supreme Court for the district court to dismiss these claims against the defendant encompassed all of Ms. Demahy's claims. On these grounds, the Court of Appeals denied Ms. Demahy's motion to set aside the judgment of dismissal as to the defendant Actavis.

Ms. Demahy had also appealed the dismissal of her claims against Wyeth, Inc. and Schwarz Pharma, Inc. Since Ms. Demahy had been taking the generic rather than the name-brand drug, her claims against Wyeth, Inc. and Schwarz were dismissed on the grounds that, under the Louisiana Products Liability Act, recovery was not available against a manufacturer if the manufacturer did not produce the offending product. On appeal, Ms. Demahy argued that cases forming the basis for the court's decision to not hold Wyeth, Inc. and Schwarz liable were overruled by a more recent U.S. Supreme Court decision, Mensing. The ruling in Mensing provides that generic manufacturers cannot alter their labeling without taking direction from the name-brand manufacturers, and it also holds that failure-to-warn claims against generic manufacturers are preempted on impossibility grounds. Ms. Demahy essentially implies that a name-brand manufacturer should be held liable for damages caused using a generic product if the generic manufacturers could not alter their labeling independently. The 5th Circuit, however, held that the decision in Mensing does not impose a duty of care on name-brand manufacturers to customers using the generic-brand products. Thus, the 5th Circuit dismissed Ms. Demahy's motion that would evacuate the judgment in favor of Wyeth, Inc. and Schwarz Pharma, Inc.

If you have suffered harm as a result of taking a generic or a name-brand prescription drug, an attorney at law may help you determine whether you have a viable case against one of the manufacturers.

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July 26, 2013

Plaintiff Fails on Appeal in Restaurant Fall Personal Injury Suit

Plaintiff Judith Henry seeks to recover damages resulting from an accidental fall in the defendants' restaurant in Houma, Louisiana, on March 13, 2008. The accident occurred when Ms. Henry placed her order and got her soft drink at the counter and began to walk back across the carpeted floor to the table. At that time, she was using a cane and one of her friends was walking ahead of her carrying her soft drink. According to Ms. Henry's deposition, she was stepping with her right foot when her toe got caught in the carpet. Her foot went backwards and she fell, landing on the foot and breaking her right ankle. Although the carpet was not frayed or worn, she stated it was uneven because it had little squares that formed its weave.

On February 17, 2009, Mr. and Mrs. Henry filed suit for the damages they had incurred as a result of her fall naming NOHSC and its insurer Colony as defendants. On April 1, NOHSC and Colony filed a motion for summary judgment supported by excerpts from Ms. Henry's deposition, an affidavit from Paul McGoey, NsOHSC managing partner, and an affidavit from Donald Maginnis, a registered architect. Included in this evidence were attachments consisting of photographs of the restaurant interior, a hand-drawn diagram of the restaurant interior and excerpts from the 2006 Life Safety Code Handbook.

After hearing arguments and considering the evidence presented by the parties, the court ruled in favor of the defendants, granting the motion for summary judgment and dismissing the Henrys claims with prejudice The judgment was signed on June 30, 2010. The Henrys then appealed this judgment.

The Appellate Court reviewed the summary judgment de novo using the same criteria that govern the trial court consideration of whether summary judgment is appropriate. The focus in these reviews is namely whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. The mover has the burden to prove there is no genuine issue of material facts. However, this burden does not require the mover to meet all essential elements of the adverse party's claim action or defense but, rather, to point out to the court that there is an absence of factual support of one or more elements essential to the claim.

In Louisiana, the general rule is that the owner or custodian of a property has a duty to keep the property in a reasonably safe condition. Under either theory of negligence, the plaintiff has the burden of proving that (1) the property that caused the damage was in the custody of the defendant; (2) the property had a condition that created an unreasonable risk of harm to persons on the premises; (3) the unreasonably dangerous condition was a cause in fact of the resulting injury and (4) defendant had actual or constructive knowledge of the risk.

In the instant case, the court's analysis focused on whether the property had a condition that created an unreasonable risk of harm to persons on the premises. Specifically, in this case, the risk of harm refers to the allegedly "uneven" carpet that Ms. Henry believes caused her to trip. Considering all the facts under the circumstances, the court found for the defendant based upon the following factual supports: (1) She had never tripped slipped or fallen on the carpeted floor nor had she seen anyone else slip and fall in the restaurant. On the day she fell, as she walked toward the counter, she had no trouble walking on the carpet and (2) She did not notice anything on the floor that looked like it presented a hazard or a danger; (3) Since the restaurant opening on February 14, 2008, the carpet had not been altered in any way. In the month before Ms. Henry's fall, NOHSC did not receive any complaints from patrons employees or anyone else about the restaurant floor or carpet nor did any accidents occur which were attributed in any way to either the floor or carpet. In additon, Donald Maginnis, a licensed architect who was NOHSC's liability expert, inspected the restaurant premises and provided an affidavit concerning the condition of the floor and carpet. His inspection of the premises and review of applicable building and safety codes did not reveal any defects or coda violations.

In conclusion, the evidence submitted in support of the motion points out an absence of factual support for the essential element of the case, that the carpet or floor where Ms. Henry fell had a condition that created an unreasonable risk of harm to her. The Henrys' opposition to the motion did not establish that they would be able to satisfy their evidentiary burden of proof at trial. Therefore there was no genuine issue of material fact and the motion was granted.

All of these ideas involved are highly complex and might even stump a law student in review. However, qualified attorneys with experience in personal injury are able to navigate these case complexities to best understand the legal nuances necessary to properly file and prove harms, or determine if they are even provable.

July 23, 2013

Workplace Injury Leads to Review of Statute Interpretation

The district court dismissed the claims of Entergy, an electrical utility company, for indemnity from contractors involved with repairs to a building to which the utility company provided electrical service on the ground that the Louisiana Overhead
Power Line Safety Act (“OPLSA”) does not allow indemnification remedy. On appeal, having decided favorably for the plaintiff in the legal issue of whether OPLSA might require indemnity, the appellate court vacated the district court’s grant of summary judgment in favor of the contractors.

Shortly after Hurricane Katrina, a general contractor, Carl E. Woodward, LLC, (“Woodward”), entered into a contract with Eagle Enterprises of Jefferson, Inc., the owner of the Walgreens Shopping Center. Woodward subcontracted with Stewart Interior Contractors, LLC (“Stewart”) to install framing and exterior wall material at the shopping center. In turn, Stewart subcontracted with Landaverde Construction, LLC (“Landaverde”) to assist with providing labor. On January 5, 2006, Landaverde laborers, including plaintiff, Daniel Moreno, arrived at the shopping center work site. As Mr. Moreno was standing near the scaffold and evaluating how to best disassemble it, another worker at the top of the scaffold moved a piece of metal that came in contact with both the overhead power line and the scaffolding frame. A resulting arc of electricity flashed from the scaffolding to Mr. Moreno’s body, inflicting serious burns.

In their motions for summary judgment, the contractors did not attempt to negate every element of Entergy’s indemnity claims, but instead argued that Entergy was not entitled to indemnity because, as a matter of law, the OPLSA did not provide indemnity for a utility company’s own negligence. However, the Supreme Court rejected the contractors’ argument that “all damages, costs, or expenses” under subsection (A) of La. R.S. 45:144 restricts a utility company to recovering those items only inasmuch as the utility company itself has suffered a damage to its equipment or an economic loss for a service interruption to its customers.

The starting point in the interpretation of any statute is the language of the statute itself. Words and phrases shall be read in context and shall be construed according to the common and approved usage of the language. The meaning and intent of a law is determined by considering the law in its entirety and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law.

Specifically, the court reasoned that the operation of the three subsections of La. R.S. 45:144 can be restated as follows: subsection (A) describes a cause of action in favor of a utility company and against an OPLSA violator; subsection (B) requires an allocation of a degree of fault, if any, to be made at trial and any allocation against the utility company is recoverable against the OPLSA violator if the utility company has successfully proven its cause of action under subsection (A); and, if an employer is an OPLSA violator, subsection (C) erases the immunity that the employer normally enjoys under the Workers’ Compensation Act. Although the OPLSA nowhere uses the word “indemnity,” La.R.S. 45:144 effectively operates as indemnity.

This case shows how reasonable minds can differ when it comes to statute interpretation. Assembling the best legal team possible is especially important in such cases.

July 21, 2013

Second Circuit Affirms Notice Case Regarding Fallen Tree

It is well established that an appeal court gives deference to a trial court’s finding of fact (ruling) unless the court was clearly wrong or acted in extreme error. In other words, even if the appellate court is convinced that they would have decided upon the evidence differently, the trial court’s findings cannot be reversed if it was reasonable that it could rule in the manner it did. Moreover, if there are two permissible rulings that could be determined, the trial court’s choice between the two cannot be found manifestly erroneous or clearly wrong.

On March 29, 2009, plaintiff Franklin Scott (“Mr. Scott”) was driving his tractor/trailer rig carrying saltwater west on Keatchie-Marshall Road in Caddo Parish (“Caddo”) where he failed to observe and avoid a fallen tree blocking the road. Mr. Scott’s truck slid 350 feet after the collision and hit several other trees before stopping. Among other injuries resulting in the crash, Mr. Scott suffered a “serious injury” to his neck.

Mr. Scott filed a personal injury suit in District Court against Caddo, property owners Roger and Marilyn Connell (“property owners”) and State Farm Fire and Casualty Company (“State Farm”) for failure to maintain the road from potentially hazardous conditions. After weighing the oral testimony of several witnesses, the District Court found in favor of Caddo. Mr. Scott appealed.

On appeal, the Second Circuit disagreed with Mr. Scott’s assertion that the trial court “erred” because it relied on “incompetent, inadmissible evidence” regarding the practices and procedures of the neighboring Parish’s highway departments. Caddo called the Public Works Directors of the Bossier and Webster Parish highway departments to establish that Caddo’s practices were proper as demonstrated by other Parishes. The court held that both witnesses were knowledgeable and that their testimony was relevant given the similar conditions and hazards of the neighboring Parishes.

In addition, Mr. Scott argued that the trial court erred in finding that Caddo lacked constructive notice of the dead tree before it fell on the road. However the Second Circuit reaffirmed the trial court’s conclusion. In order to establish that a Parish breached its duty to maintain road safety, a plaintiff must prove that: (1) a hazardous condition existed; (2) the state had actual knowledge of the condition; and (3) the state failed to take corrective action within a reasonable time. Mr. Scott claimed that the fallen tree’s bright red needles and lack of bark was a clear indicator that the tree was in imminent danger of falling and that Caddo’s Highway Department should have noticed its condition. Aided by the expert testimony of two foresters provided by each party, the trial court concluded that the tree could not have been easily spotted from the road given the foliage surrounding it and the amount of bark located around its base. Further, the court questioned Mr. Scott’s expert witness’s reliance on Google Earth photographs and his lack of knowledge regarding how government entities inspect roadways. The Second Circuit determined that the trial court properly acted within its discretion in weighing the witness’ testimony.

Finally, on the issue of whether Caddo had policies in place to identify and remove hazardous trees, both the trial court and Second Circuit found that it did. The court considered the testimony of several witnesses employed by Caddo who admitted that there were no written policies for maintaining Parish roadways. However, they were able to describe monthly inspections and the process followed when removing dangerous hazards. The Second Circuit did not second guess the trial court’s conclusion that the town properly inspected the roadway and determined that the trial court was in the best position to judge the credibility of the witnesses.

Accordingly, the Second Circuit affirmed the decision.

The take-away from this case is that the trial court is given wide discretion by appeals courts in its consideration of the evidence. Appellate lawyers should properly manage the expectations of their clients in personal injury cases by fully describing the difficulty of winning an appeal unless it is factually obvious that the trial court was clearly wrong or manifestly erroneous in their ruling.

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July 19, 2013

Ruling in Sabine River Authority Wrongful Death Action Clarifies Boundaries of Federal Preemption

In the fall of 2012 the Louisiana Third Circuit Court of Appeals handed down a decision clarifying the rights of plaintiffs in personal injury claims resulting from the opening of the flood gates. In Jeanie Hurst Simmons, et al., v. Sabine River Authority of LA, et. al., the court denied a writ submitted by Associated Electric and Gas Insurance Service. Associated is the excess insurer of the Sabine River Authority of Louisiana.

In 2001 the Sabine River Authority made the decision to open the flood gates of the Toledo Bend Dam, flooding the land downriver. As a result of the flooding, Kyle Simmons and his family were forced to use a 14 foot aluminum boat as their only means of transportation to dry land. After dropping his daughters off at school, Kyle and his young son Christopher began the return trip home in their boat. The Plaintiffs allege that the current of the swollen flood waters left Kyle unable to control the small boat. Both Kyle and Christopher were thrown from the boat and died. The Plaintiffs, Kyle’s wife and two daughters, filed a wrongful death action.

The Plaintiffs settled their claims against two other defendants to the action, the Sabine River Authority of Louisiana, and its primary insurer. The action against Associated, the Sabine River Authority’s excess insurer, remained unsettled. Associated filed a motion for summary judgment in the trial court. The motion stated that the claims filed by the Plaintiffs were preempted by federal law. Associated made the contention that preemption was proper because the Sabine River Authority was operating under the federal licensure of the Federal Power Agency and its successor agency, the Federal Energy Regulatory Commission. Associated also argued, in the alternative, that the Sabine River Authority neither owed nor breached any duty to the plaintiffs because of the obvious danger of releasing the floodwaters. The trial court denied Associated’s motion.

Associated then sought a supervisory writ from the Louisiana Third Circuit Court of Appeals. The court reviewed Associated’s argument for summary judgment and denied the writ. In their decision the court clarified the ways in which federal preemption applies to Louisiana tort claims. First, the court affirmed that federal preemption is a question of congressional intent. Secondly, the court cited Frank v. Delta Airlines Inc., stating, “…‘[f]ederal law will override state law under the Supremacy Clause when (1) Congress expressly preempts state law; (2) Congressional intent to preempt may be inferred from the existence of a pervasive federal regulatory scheme; or (3) state law conflicts with federal law or its purposes.” (314 F.3d 195, 197 (5th Cir. 2002). Finally, the court analyzed whether the doctrine of field preemption applies to the facts of Simmons.

In their Supremacy Clause argument Associated noted that the United Stated District Court for the Western District of Louisiana found that property damage claims arising out of purposeful flooding by federally licensed agencies were preempted under 16 U.S.C. § 803(c). In their decision, the Louisiana Third Circuit Court of Appeals stated that although property damage claims were preempted, Congress had not expressed similar intent in state tort claims. Therefore, the court found that the requirements for preemption under the Supremacy Clause were not met.

Associated also raised the issue of field preemption. The court stated, “Field preemption exists when Congress ‘has legislated so comprehensively in a field that it has left no room for state regulation.’” If field preemption is found to exist, federal law preempts the issue and the case must be brought in federal court. Although it seems as if field preemption is the strongest argument Associated was able to muster, the court found that there were questions of fact regarding whether the decision to open the flood gates were governed by the Sabine River Authority’s statutory obligation.

The court answered the second issue, whether Associated owed a duty to the Plaintiffs, by citing the 1991 Louisiana Supreme Court decision in Socorro v. City of New Orleans, “… a defendant’s ‘duty [is] separate and apart from any knowledge the plaintiff had or should have had of the danger he was encountering.’” Instead, ‘the plaintiff’s knowledge and conduct is considered only to determine the extent of his comparative negligence.’” (579 So. 2d 931, 941 (La. 1991)). Applying this reasoning, the court found that Associated’s “obvious dangers” argument is not conclusive as to whether the defendants owed a duty.

Overall, the decision in Simmons provides clarity when dealing with federal preemption issues in regard to personal injury cases. If you or a loved one has been injured or even died as a result of catastrophic flooding, please contact the Berniard Law Firm.

July 18, 2013

Workers Comp Case Involves Settlement Dispute, Rights Review

In a recent Louisiana workers' compensation case, a man filed suit after deciding that the settlement agreement he signed was reached based on misrepresentations. The man was rendered quadriplegic after falling from a roof he was working on during his employment as a roofer. After his injury, he hired an attorney and attended several mediations, which resulted in the signing of a settlement agreement. However, about half a year after the settlement agreement was approved, the man filed a disputed claim for compensation, asking for the settlement to be set aside because it was based on misrepresentations.

What is interesting in this case, though, is that It was not the other party that the man believed misrepresented the facts, but rather, his own attorneys. The plaintiff claims that his own attorneys told him that he would continue receiving 24-hour nursing care and other medical services after the settlement, but this was not the case.

The plaintiff's motion to set aside the settlement agreement was denied, and the plaintiff then brought suit against his own attorneys, claiming legal malpractice in their representation of him. After a three-day trial, the jury decide to rule in favor of the attorneys and against the injured man. Furthermore, when the plaintiff filed a motion for a new trial, the trial court also denied that request. The plaintiff appealed the case at that point.

Although the plaintiff's appeal was ultimately denied and the judgment of the trial court dismissing the plaintiff's suit affirmed, the case sheds light on an important issue: an "assignment of errors." An assignment of errors is basically a report or statement of all of the alleged errors made by the lower court in reaching its prior decision(s). The appellant (the one appealing the case) must compile this list and state all of the errors made by the trial court. This document is important because anything not included in it will likely not be considered by the court, so the appellant must make sure that the assignment of errors is comprehensive.

The plaintiff in this case listed several errors made by the trial court. For example, one of the errors related to the facts given to the jury in the "jury charge." Specifically, the trial court told the jury that the workers' compensation court had ruled that there was no evidence of misrepresentation, even though this judgment had not been entered into evidence. However, the appellate court found that this was not an error in the jury instructions. When taken in the context of all of the given jury instructions, the court found that the jury instruction was not misleading, or at least not misleading to the extent that it impeded justice. In order to make this determination, the appellate court turned to case law issued by the Supreme Court in which the Supreme Court stated that the determinative question when deciding whether jury instructions constitute an error or not is whether the jury instructions misled the jury to the point that the jury was prevented from "dispensing justice." In this case, the appellate court ruled that they had not.

In addition to his claim of error with regard to the jury charge, the plaintiff also went on to claim that there were other errors made by the trial court, including an error for excluding the testimony of the plaintiff's expert, an error for not granting the plaintiff $30,000 under a specific Louisiana law, and an error with regard to evidence at one of the hearings, among others. However, in the end all of the man's errors were dismissed and the ruling of the trial court was upheld. For each dismissal of a claimed error, the appellate court performed an in-depth analysis of the requisite law, explaining why no error had occurred.

From looking over the court's analysis in this case, it is clear that in order to successfully file an assignment of errors and win your case, the assignment of errors has to be cautiously and carefully written out.

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July 16, 2013

The Standard for Reviewing Medical Evidence After Auto Accidents

Medical testimony after an automobile accident is complicated enough. When two accidents close in time are involved, it can get downright confusing. All the more so when a court is trying to determine which accident is to blame for not one but several different injuries. But despite questions of accuracy and the sufficiency of evidence, the role of a court of appeals is not to second-guess or set aside the trial court's facts - provided they are reasonably arrived at and not obviously wrong.

This principle was on display in a case out of Vermilion Parish. Wanda Turner was involved in two accidents in 2010 - one in September and one in October. After the second accident, Turner filed suit against the insurer of the vehicle from the first accident, alleging neck pain, back pain, and migraines. She attributed all of her injuries to the first accident, rather than the second one, despite the fact that the second was more serious. The trial court ruled in Turner's favor and awarded $8,500 in general damages ($3,500 for the migraines; $3,000 for aggravating her back condition; and $2,000 for her neck pain) and $1,800 in special damages to cover her medical expenses related to the first accident.

The defendant insurance company appealed the ruling, claiming a lack of medical evidence and unsupported testimony. The appellate court even noted numerous inconsistencies in Turner's testimony. Despite this, and citing past legal precedent, the court explained that it was obligated to give great deference to the factual findings of the trial court. Unless those findings are obviously unreasonable or rife with manifest error, the appellate court will not set them aside. This was the standard applied to Turner's claims.

The appeals court reviewed the trial record and found that the neck pain and migraines could reasonably be attributed to the first accident. Turner mentioned them to her doctor after the first accident and before the second. The awards for these injuries were affirmed.

However, the same could not be said of the back pains, which Turner had complained of prior to either accident. She was being treated for chronic back pain and was even on medication for it the day of the September accident. Turner's first mention of back pain did not take place until the date of the second accident in October. In addition, a doctor reviewing her MRI after the second accident did not attribute the back pain to any "recent trauma." Simply put, the back pain was a pre-existing ailment. The appellate court therefore reversed the general damages for it.

The special damages award of $1,800 was also scrutinized on appeal. Plaintiffs are allowed to recover for reasonable medical expenses related to their injuries. But obviously, a party is not responsible for medical expenses related to injuries he or she did not cause. In this case, the court reversed the general damages relating to the back pain; it therefore excluded medical expenses for all back-related treatment. Only the expenses incurred in treating the injuries from the September accident could properly be awarded, so the court did so in the amount of $60.

Courts of appeals are reluctant to tamper with the facts established at the trial level. Nonetheless, clearly incorrect or unreasonable determinations can be reversed. Turner's case shows the importance of accurate medical records and testimony, but also the need for a skilled attorney to adjudicate one's rights after an accident. The professionals at the Berniard Law Firm are standing by in the event you've been injured and are facing steep medical costs.

July 14, 2013

Prescription Leads to Patient Injury - What Legal Remedy Exists?

Imagine that your doctor gives you a prescription drug to alleviate a persistent headache or cold, or recommends for you a new pacemaker or prosthetic joint. If your doctor’s prescription drug or medical device ends up injuring you—what do you?

The general rule is that a consumer who is injured by a prescription drug or medical device may be able to seek compensatory damages from the physician that prescribed that drug or device and from the manufacturer who manufactured that drug or device. For example, a doctor may be liable for a patient’s damages if he should not have prescribed the drug or medical device or if he failed to warn of a non-obvious risk. Likewise, the manufacturer could be liable if the product is unreasonably dangerous or if the manufacturer failed to warn of non-obvious dangers.

However, there’s an important exception regarding a drug or device manufacturer’s liability—the learned intermediary doctrine. A majority of states, including Louisiana, have adopted some form of the learned intermediary doctrine. The doctrine works as a shield to protect manufacturers from being liable for not informing the patient of the product’s risks if the manufacturer has adequately warned the patient’s physician of the risk. Essentially this means that a manufacturer has no duty to warn you- the patient; instead, the manufacturer must warn your physician of the drug or device’s dangers. The physician then becomes responsible for warning the patient of the risks. The physician is quite literally the intermediary between the patient and the manufacturer.

As the District Court for the Eastern District of Louisiana has made clear in Allgood v. Glaxosmithkline PLC, in Louisiana a patient must meet both parts of a two-pronged test to hold the manufacturer liable despite the learned intermediary principle: 1) “The patient must show that the manufacturer failed to warn (or inadequately warned) the physician of a risk associated with the product that was not otherwise known to the physician;” and 2) the patient must show the manufacturer’s failure to warn the physician was both the cause in fact and the proximate cause of the injuries.

In Talley v. Danek Med., Inc., the Court of Appeals for the Fourth Circuit explained that the rationale behind the doctrine is based on the fact that prescription drugs are likely to be complex medicines, “esoteric in formula and varied in effect.” Because of the drug or device’s complexity physicians are in the best position to understand the complex risks. Additionally, many risks depend on the medical history and condition of each particular patient, and the physician instead of the manufacturer is in the best position to offer personalized warnings to each patient, as each unique set of circumstances require.

How does the learned intermediary doctrine impact an injured patient’s lawsuit against the prescribing physician and manufacturer? Although the doctrine may seem to merely shift the duty to warn from the manufacturer to the physician the doctrine carries real consequences. A manufacturer will often have more funds available than an individual physician from which to satisfy the injured patient’s claims. Oftentimes a physician’s personal insurance policy will be insufficient to fully compensate the injured patient, leaving the patient under compensated unless the patient has other legitimate claims against another party.

There are various instances when the learned intermediary doctrine will not shield a manufacturer from an injured patient’s suit. One of the most common ways a patient can get around the doctrine and hold the manufacturer liable is to show that the manufacturer failed to adequately inform the physician of the drug or device’s unobvious risks.

That is exactly what happened to Rock P. Kampmann of Jefferson Parish in 2006. After suffering injuries caused by prescription drugs, Kampmann sued his doctor, pharmacist, and the drug manufacturer for failing to warn him of the risks. The Twenty-Fourth Judicial District Court of Louisiana found that the doctrine shielded the manufacturer because his duty to warn was to the physician and not the patient. The appellate court reversed because it found the manufacturer in fact failed to adequately inform the physician of the risks.

There are many case specific nuances to the learned intermediary doctrine. Speak with an attorney for more information about your rights as an injured party before ever agreeing to a settlement or damages.

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July 13, 2013

Timeliness Due to Lawyer Mistake Essential in Court Ruling

It is common knowledge that most courts have more cases than they can handle today. Many parties experience long waits between court dates in most courts. This is one of the many reasons that timeliness in the courtroom is so important. The following case arising from the Sixth Judicial District Court for the Parish of East Carroll, Louisiana, displays the importance of timeliness.

A Plaintiff was involved in a one car accident in March of 2008. She hit a large pot hole and lost control of her vehicle. She sued the makers of the road resurfacing machine and Carroll Parish Police Jury. She claimed that the machine that resurfaced the road was faulty and that the Carroll Parish Police Jury should have had the road fixed so as to avoid accidents.

The Defendants filed a motion for summary judgment. A motion for summary judgment asks the court to dismiss the case because there are no facts in dispute and those facts can only lead to one conclusion. The Defendants argued that since the pothole was open and obvious, a possible mechanism to avoid liability because the Plaintiff should have seen the pothole, then the Defendants should not be liable. In addition, Defendants pointed out that those who maintain roads and sidewalks are not required to have completely uniform surfaces that are entirely free from potholes or cracks because such a requirement would be an impossible feat.

Plaintiff countered these arguments with claims such as that the road should have sealant on it and that rain that was in the pothole made the road slippery and therefore dangerous. However, Plaintiff was not allowed to bring any of these arguments because they untimely filed their resistance to the motion for summary judgment. Originally, the Court gave Plaintiff a 45 day extension on top of the 45 days that she had already received. In fact, since the case was already significantly behind, the parties had roughly seven months to prepare for the hearing, but the Plaintiff was still not ready. The Court graciously stated that Plaintiff should have their motion filed by a specific date. However, Plaintiff filed approximately six days later than the required date.

Generally, parties are required to submit their memorandums and supporting exhibits eight days prior to the hearing for summary judgment. However, since this Court had granted an extension, the date that the required documents were to be submitted fell before the eight days that is normally required. The Court, using their discretion in the administration of justice, can set deadlines that are before the eight day requirement, and in this case, the Court had. The eight day rule is more of a minimum than a solid rule for all circumstances. Unfortunately, this attorney overlooked the deadline and used the eight day deadline instead.

Since the arguments were late, the judge did not accept them and the motion for summary judgment for the Plaintiff went through without much contest. Normally, one party will file a motion for summary judgment and the other side will oppose it with their evidence and arguments. However, if the opposing side does not have evidence and arguments, then the summary judgment is nearly always automatically granted to the moving party, the party that made the motion. Since Plaintiff did not get their arguments in on time, the Court acted as if those arguments did not exist, and therefore the Court did not consider them.

On appeal, Plaintiff argued that their case should not be dismissed because that was too harsh of a sanction for the woman who suffered the injury due to her lawyer's error. Plaintiffs pointed out that Court Rule 9.9(b) states that the Court may “forfeit the privilege of oral argument” and “the court may order the late-filing party to pay the opposing side's costs” caused by the untimely filing. However, the court of appeals concluded that the word “may” suggests that these remedies are only recommendations and are not a limitation. The court of appeals concluded that the lower court did not abuse their discretion by dismissing the case.

Therefore, Plaintiff's lawyer ultimately cost the Plaintiff her case. The discovery process can be long and time consuming, but it is your lawyer's job to work hard for you to meet the deadlines that the Court provides.

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July 12, 2013

Demonstrating Permissive Use of Vehicles Key to Insurers' Liability

Motorist Jennifer Lopez was injured in a hit-and-run accident with a truck near Vinton. At the time of the accident, the truck was being driven by someone other than its owner, Teri Ardoin. The driver fled the scene but the truck was tracked down and Ardoin identified as the owner. Lopez filed suit against both Ardoin and her insurer, Safeway Insurance Company. At trial, the issue was Safeway's liability as insurer of the truck. The trial judge awarded damages to Lopez, but because of Safeway's policy limits, Lopez's own insurer, State Farm, had to cover the balance.

On appeal, Safeway contended that its coverage of the vehicle could not be proven without first establishing that the insured gave permission to drive the truck to the unknown driver. The appeal raises questions of the omnibus insurance clause provided by Louisiana statute, La.R.S. 32:900(B)(2). Under this law, an automobile insurance policy shall cover any person who uses the insured's vehicle with express or implied permission of the insured. It's up to the plaintiff to establish use of the vehicle with express or implied permission of the insured.

Demonstrating this permissive use requires fact-finding at the trial level. Without some proof of "manifest error," such fact-finding will not be overturned on appeal. The trial judge in this case found that Ardoin's truck was the truck involved in the accident. Further, he found Safeway liable for the accident. Several pieces of evidence were put forth to show this, including eyewitness reports identifying the truck and careful observation and recording of the license plate number.

One interesting twist in this case involved the identity of the driver. While Teri and her son are black, the driver of the truck was positively identified as a white male. However, Ardoin testified that she had been out of town during the accident and it was possible her son had used the truck, or let a friend use it.

The appellate court refused to assign manifest error to the trial judge for his finding that someone driving the truck had permissive use to do so. The court reiterated the fact that the truck was identified as being involved in the accident. Additionally, no evidence was put forth to disprove that someone had permission to drive the truck.

Facts are essential to proving that a driver had permission to use a vehicle involved in an accident. If you've been in an accident that wasn't your fault, your case may turn on what a trial court determines concerning this permissive use. Contact a skilled legal professional today to make sure your rights are not jeopardized.

July 10, 2013

Second Circuit Confirms that Employee Was At Fault in Personal Injury Lawsuit

Last August, the Second Circuit Court of Appeal upheld a ruling against plaintiff Dennis Quillian in a tort claim ensuing from a work-related injury in Pineville. At the time of the accident, Mr. Quillian was working as a truck driver for Swift Transportation Company, Inc., carrying paper manufactured by Georgia Pacific. Mr. Quillian's job was to move the shipment of paper from Dixie in West Monroe to Plastipak, located in Pineville. Mr. Quillian was hurt when he went to unload the paper at Plastipak and was struck in the side by a bundle of paper. Mr. Quillian subsequently filed a lawsuit against Dixie.

In a personal injury lawsuit against an employer the main question is, who is responsible? If the employer failed to take a precaution or committed an act that was in breach of his "duty of care", then the employer should be held accountable for damages caused to the employee. If the injury was the result of the employee's own wrongdoing, and not the result of an unsafe work environment, then the employer will not have to compensate the employee for his injury. If the fault of the accident can be attributed in part to the employer and in part to the employee, then the employer can be held responsible for the employee's injuries, but only up to the amount corresponding to his percentage of fault. So if an employer is found 60% responsible for a work accident, then he will have to pay for 60% of the employee's damages.

In Mr. Quillian's case, the issues that were in contention were whether any pertinent safety measures had been contravened and whether Mr. Quillian had assumed any risks associated with transporting the shipment. A contract regulation to ensure secure transportation stated that Dixie was to use Georgia Pacific air bags to secure the cargo being moved. Another safety measure was the use of load locks to secure the bundles of cargo, to ensure that the cargo would not fall out when the truck doors were opened; Georgia Pacific requires the use of two load locks. According to expert testimony, the air bags were meant to ensure the safety of the cargo, whereas the load locks are used to protect the driver from falling cargo. when opening the truck. Mr. Quillian agreed in his testimony that load locks are the main safety mechanism used to prevent cargo from falling out when the truck doors are opened.

On the day of the accident, Dixie could not supply air bags due to a broken air compressor. Dixie foreman Bobby Foster testified that Mr. Quillian had been advised of the lack of air bags, of which Mr. Quillian denied having knowledge. Mr. Foster further testified that he told Mr. Quillian that he could pick up some air bags at the Georgia Pacific office nearby, but Mr. Quillian responded that it would not be necessary since the drive was short. Mr. Foster stated that Mr. Quillian failed to install a second load lock on the top level, and that he could have done so during loading. The Court of Appeal found that the trial court had reasonably concluded that Mr. Quillian failed to inspect the load before driving away, and that the court had not abused its power in crediting Mr. Foster's testimony regarding the air bags and the load locks.

With respect to whether Mr. Quillian had assumed any risks, Mr. Quillian gave conflicting testimony regarding whether or not he properly opened the truck doors. The Court of Appeals found that there was no clear error in accepting the expert testimony and finding that the evidence "profoundly demonstrated" that Mr. Quillian failed to properly open the truck doors, which would have prevented the box from hitting him in the manner that Mr. Quillian described.

Mr. Quillian did not have an expert witness to testify on his behalf at trial. He had tried to call a truck safety expert but the trial judge refused, on the grounds that expert witnesses must be identified within 90 days of trial according to Louisiana law; Mr. Quillian had only given 60 days notice.

As a last point, there was evidence that Mr. Quillian suffered from degenerative disk disease and had prior back issues. Additionally, there was no outward sign of injury from the work accident and Mr. Quillian did not seek medical attention until the next day.

As Mr. Quillian's case illustrates, many factors and details come into play in a personal injury lawsuit, from procedural issues such as promptly turning over witness lists to questions of fact concerning a plaintiff's own negligent behavior.

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July 9, 2013

In Negligence Claims, Evidence Is Everything in Court

When it comes to negligence cases, specifically those related to property, it's important for plaintiffs to provide solid evidence of dangerous conditions. An injury in St. Bernard Parish, LA, goes far in driving home this point.

Lillie Labit and her (now deceased) husband filed suit against a casino after claiming to have tripped on an unpainted wheel stop in a parking lot. This personal injury action alleged negligence in failing to provide sufficient lighting or markings for the wheel stop. Summary judgment was granted to defendants at trial and affirmed on appeal.

In general, property owners have a duty to correct or warn of conditions that pose an unreasonable risk of harm on their land. The question of whether the unpainted wheel stop presented such a risk was essential to this case. In particular, plaintiffs maintained that the trial court's grant of summary judgment was wrong because there were genuine questions as to whether this risk was present.

The flaw in plaintiff's argument was the lack of good evidence that the unpainted wheel stop was a defect or that the casino knew or should have known it posed an unreasonable risk. This could have included expert testimony or evidence that these stops were not in line with industry standards or building codes. Plaintiff could also have introduced evidence of a history of accidents due to unpainted wheel stops.

However, plaintiff could only point to testimony from a subcontractor who renovated the parking lot that it was his "preference" to paint wheel stops. As the appellate court ruled, such a personal preference - even if held by an expert - does not establish that a property condition presents an unreasonable risk of harm.

An engineer's affidavit also demonstrated that the unpainted wheel stop violated no state or local building code or other requirement. While the plaintiff argued that compliance with such rules does not prove the wheel stop was safe, the appellate court responded that the casino did not bear this burden. Rather, "it was incumbent on the plaintiffs to introduce some competent evidence, such as expert testimony, that unpainted wheel stops violate a building code or that unpainted wheel stops present an unreasonable risk of harm." Though subcontractors do owe third parties (including the plaintiff) the duty to not create hazardous conditions, there simply was no evidence that the unpainted wheel stop created such a condition.

This case demonstrates yet again the obligation plaintiffs have to go beyond mere conjecture or personal preference in making their arguments. If you've been hurt on someone's property or believe you've been the victim of negligence, you should speak with an attorney at Berniard Law Firm.

July 5, 2013

No Contest Ruling Means Damages in Marrero Car Accident Case

On May 8, 2007, in Marrero, Louisiana, two cars were sitting at the intersection of Ames and Lapalco Boulevards. One car carrying a couple sat ahead of a truck carrying one individual. The man driving the truck's foot slipped off the clutch and the truck rolled into the back of the car. The couple said that the truck hit the car with such force that they jumped out of their seats. Their trunk and bumper had also been slightly pushed in, where there were no damages to the vehicle prior to the accident. The police arrived to document the accident and no injuries were reported on either side.

However, shortly after the accident, the couple experienced a variety of medical issues. While soreness and bruising is common after accidents, the couple experienced a much more serious version of injuries following the accident. The woman claimed roughly $13,000 in medical bills while the man claimed roughly $19,000 after the accident.

During trial, the man driving the truck admitted that this foot slipped off the clutch and he ran into the back of the car. Therefore, the court awarded a directed verdict that concluded that the man in the truck was 100% at fault, and therefore 100% liable, for the accident. The only issue that remained for the jury to decide was how much the couple should be awarded for damages. However, the jury came back with an award of $0.00 for the couple.

The couple asked that the judge grant a JNOV, or a judgment notwithstanding the verdict, which the judge declined to do. A JNOV allows the judge to override the jury's decision and make a decision of his or her own. A JNOV is only allowed in the rare circumstance that a jury declares a final decision that is so contrary to the evidence or law so as to be completely incorrect.

In this case, the jury awarded no damages despite the fact that the driver of the truck was 100% liable, and the truck driver did not argue that the injuries the couple suffered were not related to the accident. While the jury may have thought that the injuries were not related, they are not allowed to make that conclusion without the other side presenting evidence that supports that conclusion.

In addition, Louisiana uses the Housley presumption, which states that if there are no injuries prior to the accident, but there are injuries after the accident, then the jury can presume that the injuries were caused by the accident. However, since neither side complained that the jury did not see or consider that point of law, the Court of Appeals could not consider that issue.

However, the Court of Appeals still found error based on the liability issue. Since the jury did not award damages even though the truck driver was 100% at fault, the Court of Appeals for the Fifth Circuit for the State of Louisiana declared that the lower court erred in not allowing damages and rejecting the use of the JNOV.

When the Court of Appeals decides that the lower court obtained an incorrect result, then the Court of Appeals can correct the error. In the area of damages, the Court of Appeals will consider what other courts have awarded for similar injuries and determine the amount of damages from that information instead of having a new trial. This type of ruling saves both time and money for the parties. For example, this court considered the following injuries and awards resulting from car accidents:

Where the injured had a contusion to her left shoulder and cervical strain, which was still in pain three years later, the court awarded $25,000. Where the injured suffered from neck and back pain and migraine headaches, which continued 15 months later, the court awarded $15,000. Where the injured suffered from a laceration to her arm and injuries to her knee and back, which continued two and a half years later, the court awarded $30,000. Where the injured suffered from a soft tissue injury lasting over two years, the court raised the jury award of $5,000 to $15,000 because it found the $5,000 award to be abusively low.

In light of these cases, the Court of Appeals determined that the lowest amount that they could reasonably award is $15,000. Therefore, the Court of Appeals raised the damages amount to $15,000, plus all of her medical expenses, for the woman, and awarded $15,000 to the man, plus all of his medical expenses. Since the other side did not argue that the injuries could have resulted from any other cause, the court was justified in raising the damages award.

If you have been injured in a motor vehicle accident and are still suffering from pain sometime after, you should contact The Berniard Law Firm to see if you may have a legal claim for relief.

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July 3, 2013

Car Accident Damage Award Increased in Monroe, Affirmed on Appeal

The American justice system places juries in charge of some fairly weighty decisions. However, juries are not the final arbiter of a plaintiff's rights. There are several post-verdict motions that can be made at the trial level as well as an entire system of appellate courts to which a plaintiff can turn if a jury verdict fails to satisfy.

Sheila Martin, an adult woman incapable of caring for herself, brought suit through her parents against the driver of the vehicle that struck Ms. Martin's mother's vehicle, thereby injuring Ms. Martin. The driver, Bruce Walker, conceded liability but no settlement could be reached as to the appropriate amount of damages. Trial proceeded on the issue of damages alone. The jury determined that Ms. Martin was entitled to $25,96.58 for medical expenses, $6,500 for past physical pain and $500 for past mental anguish. No damages were awarded for any future expenses or suffering, most likely because a doctor who had treated Ms. Martin signed a form indicating that she was back to pre-accident status and would not require any future care.

The plaintiffs, however, were not completely pleased with this verdict. They felt it was inadequate compensation for the totality of Ms. Martin's injuries and as such filed a motion for what is called additur. Additur is an additional award of damages added to a jury verdict by the trial court judge. Judges are not permitted to engage in this type of change in the verdict in all states but Louisiana law allows for it. The judge in Ms. Martin's case tacked an additional $17,000 on to her award citing Ms. Martin's soft tissue injury as the reason for which she was entitled to recovery. The court broke down its additional $17,000 into $14,000 for past physical pain, $2,000 for past mental anguish and $1,000 for loss of enjoyment of life.

This award of general damages was still not enough for the plaintiffs so an appeal followed this judgment notwithstanding the verdict. The appellate court, however, was unmoved by the plaintiffs' arguments and did not disturb the trial court's findings or award. The plaintiffs alleged that when the trial court cited soft tissue injuries it was incorrectly noting the severity of Ms. Martin's injuries because she also had a bulging disc in her back. The appellate court was bound to look for a manifest error in the trial court's finding of fact on appeal and was thus not compelled to disturb the findings or the resulting award due to this minor oversight.

There was evidence in the trial record indicating that Ms. Martin's bulging disc was minimal and that her spine was not touching her spinal cord. Dr. Ledbetter testified during the trial concerning the extent and severity of Ms. Martin's injuries. His testimony focused on the soft tissue injuries that she had sustained as result of her accident. The appellate court was therefore unable to state that the trial court had committed a manifest error when it attributed Ms. Martin's injuries primarily to soft tissue damage.

In addition to a strong presumption that the trial court has rendered appropriate factual findings absent strong evidence to the contrary, the trial court also enjoys a strong presumption that its judgment notwithstanding the verdict was rendered correctly. A trial court is vested with vast discretion when rendering a judgment notwithstanding the verdict. Without a finding of abuse of this discretion by an appellate court, such a judgment will not be overturned.

Trial courts are viewed as the best seeker of the truth of legal matters. Appellate courts deal with a cold record and do not have an opportunity to question witnesses or listen to witnesses testify live. As such, presumptions regarding judgments notwithstanding the verdict and factual findings are strongly in favor of trial courts when cases are appealed. Issues of law are reviewed de novo because appellate courts are seen as better wardens of the actual law than trial courts in some cases. Differing standards of review make different issues more or less likely to succeed on appeal. Standards of review should be considered carefully when seeking appellate review. The appellate court's opinion in Ms. Martin's case can be viewed here.

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July 2, 2013

Summary Judgment and its Significant Impact in the Judicial System

Is it possible for your case to be over even before it begins? Yes … well, sort of. Through what is known as summary judgment, it is possible for a court to render a decision in favor of one party and against another before there is a trial on the issue. You may be wondering, “What is the point of this?” and “Isn’t it only fair that I get my day in court?” Essentially, the purpose of summary judgment is to avoid unnecessary trials and litigation. It is important to note that although orders for summary judgment are common in civil cases, they do not apply in criminal cases because a criminal defendant has a constitutional right to jury trial.

According to a report researched by the Federal Judicial Center, 26% of all plaintiffs file motions for summary judgment, whereas defendants file 71% of all summary judgment motions. A judge may also on his or her own determine that summary judgment is appropriate. Nonetheless, orders granting summary judgment for defendants can have detrimental effects on plaintiffs who have sustained injuries, financial hardships, and who may have even lost a loved one. The adversity associated with orders of summary judgment can be shown in a recent case out of Jefferson Parish. Favre v. Boh Bros. Construction Co., L.L.C.

In Louisiana, summary judgment is appropriate if the declarations under oath, depositions, admissions of fact, and legal authorities show that there is no genuine issue as to a material fact and the party requesting the order is entitled to a judgment as a matter of law. A fact is considered to be a material fact if it is needed to prove one party's case, or establishes a point that is crucial to a party’s position and success. Also, a genuine issue is an issue where two reasonable parties disagree. So, for example, if two parties could reach only one conclusion as to the dispute, then there is no need for a trial and summary judgment is appropriate.

In Favre v. Boh Bros. Construction Co., L.L.C., Mr. Favre sustained severe injuries after crashing into a guardrail that had been previously damaged by an accident earlier in the day. After the first crash, the Boh Bros. Project Safety Manager for the I-10/Causeway Boulevard construction project inspected the area and noticed that the damaged guardrail was missing a reflective diamond, but failed to replace it. Later that day, Mr. Favre was traveling in the area on his motorcycle and ran into the same guardrail that had been damaged; as a result, Mr. Favre incurred injuries requiring skin grafts and surgery to his leg. Mr. Favre filed a claim for damages and alleged, among other things that Boh Bros. and the Louisiana Department of Transportation and Development breached their duties in failing to replace the guardrail.

The trial court concluded, in this case, that both Boh Bros. and the LA DOTD were entitled to summary judgment. Mr. Favre appealed this decision and the Fifth Circuit Court of Appeals considered whether summary judgment was appropriate. The Court ultimately decided that there were genuine issues of material fact and reversed the trial court’s conclusion that both Boh Bros. and the LA DOTD were entitled to summary judgment. Specifically, the Court cited to the facts in the deposition and the traffic crash report of the trooper who was called to the accident. Further, the Court reasoned that two persons could disagree as to whether the exposed metal rail, without a reflective diamond attached, posed an unreasonable risk to Mr. Favre as a motorist traveling on the interstate.

Mr. Favre was fortunate enough to have representation that was competent and advocated his theory of the case. Ultimately, he was able to overcome the trial court’s decision that would have ended the litigation and in turn, changed his life. Because summary judgment motions are so common, it is essential to have legal representation that is familiar with both the procedural matters and the arguments that must be made to survive these motions. With so much on the line, it is important for your attorney to present compelling and well-developed arguments in your favor. The lawyers at the Berniard Law Firm have substantial experience in responding to motions for summary judgment. Therefore, we will fight for your interests and are well equipped and ready to make sure that you see your day in court.

July 1, 2013

Tragic Incident Involving Infant Demonstrates Assignment of Liability

Any injury suffered by a child under medical care is especially tragic. However, litigation after such an injury is essential for families who often have to do so in order to afford future medical costs down the road. Recently, the parents of an infant sued a group of doctors and a medical equipment provider alleging that the defendants caused their daughter's brain damage. The jury found another doctor, one who was not sued, to be one hundred percent responsible for the girl's injuries. The parents appealed this decision but the decision was upheld by the appeals court.

After a stay in the neonatal ICU, the infant in question was sent home with her parents with a device which recorded her breathing and heart rate. This device alerted the parents when problems arose and every so often sent the recorded data to her doctors. After a while, the device began to reach capacity quickly and would delete some of the information as it was programmed to do. The infant's doctors said they did not receive some of the information they should have received, which proved to be the cause of the tragedy. The infant was again hospitalized and found to have permanent brain damage due to lack of oxygen. The parents alleged that this brain damage caused when the infant was being monitored by the breathing device.

The parents argued that the failure of the device to properly send information to the doctors caused the doctors not to perform surgery which would have prevented the brain injuries their daughter sustained. The equipment provider argued that the infant's original injuries occurred before she was born and progressed to her current injury.

For the parents to hold the medical equipment provider liable for their daughter's injuries they must prove several factors: First they must prove that the defendant owed their daughter a duty to conform to a specific standard of conduct. Then they must prove that the defendant failed to live up to this standard that their conduct caused their daughter's injuries, both in fact and legally, and finally, they must prove that their daughter suffered actual harm. The jury found that the equipment provider owed a duty to the infant and that this duty was breached. However, breaching a duty of care is not enough to hold someone liable for damages. The factor at issue here is whether the equipment provider's failure to live up to the required standard was the cause of the child's injuries.

The jury was presented with a great deal of evidence that a doctor who was not a defendant in the lawsuit failed in his duty before the equipment stopped sending data as it should have. The jury assigned all the blame to this doctor because, if the doctor had acted differently, steps would have been taken to help the infant at that time and the later failure of the equipment would not have happened or mattered. The appeals court points out that the equipment merely monitored the infant but did not provide or initiate treatment. Even if the machine had been functioning properly, the damage to the infant probably would have happened anyway. The appeals court decided that the jury acted reasonably when it believed that this was the case. The appeals court did not independently evaluate the evidence heard by the jury. The appeals court reviewed the jury's decision for manifest error, whether the jury acted reasonably or not. Given the amount and contradictory nature of the evidence presented, the appeals court found the jury came to a reasonable conclusion.

This case shows the importance of including as a defendant every person who could be responsible for the harm suffered. Medical malpractice cases are extremely complex and often involve a variety of people and a large number of legal issues. This is why hiring an attorney who is well-versed at taking these cases to trial is essential.

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June 30, 2013

Car Accident Caused by Slow Merge Raises Legal Issue of Sudden Emergency Doctrine

Car accidents can be difficult to navigate because of conflicting evidence, opinions and the fact the circumstances often lead the people involve rattled and unable to recall facts clearly. In a recent case, Bethany Dixon appealed a trial court judgment against her involving a vehicular accident that occurred on I-20 near Acadia in Bienville Parish. In part because Ms. Dixon could not recall exactly how the accident occurred, the court relied on the evidence put forth by the defendant, Charles Tucker, who rear-ended her as she merged onto I-20 from an on ramp. Mr. Tucker believed Ms Dixon was travelling at around 30 mph while he was travelling at the speed limit, 70 mph.

The trial court relied on the sudden emergency doctrine, which states that when a driver merges onto a limited access highway, the driver it merges in front of will not be liable if the lead driver created a hazard that could not be avoided. Here, the court accepted the narrative that Mr. Tucker rear-ended Ms Dixon’s vehicle because Ms. Dixon failed to signal or yield to oncoming traffic, and Mr. Tucker did not have enough notice to avoid the hazard Ms Dixon created. In addition, an eighteen-wheeler in the lane next to him prevented him from switching lanes.

Appealing a ruling is a risk, and is often a question of strategy. In this case, Ms. Dixon was unable to win the appeal in part because the Appellate Court was deferential to the trial court. Ms. Dixon claimed that the trial court erred in its factual findings, rather than legal findings, so the Appellate Court could not simply consider the case anew from start to finish. Instead, the Appellate Court could only reverse the lower court’s finding if the lower court did not have a sufficient factual basis for its findings. Here, the Appellate Court found a reasonable factual basis for the trial court’s outcome, and upheld its decision.

On top of not receiving the ruling she looked for, Ms. Dixon was also required to pay the costs of the appeal. Since litigation costs can be quite high, it is crucial to find an excellent legal team when deciding whether or not to appeal a court’s decision. Part of making this strategic decision is relying on the counsel of lawyers who know what kind of standard an Appellate Court will apply. Will they be deferential to the lower court, or will they conduct their own independent review of the case without necessarily accepting the lower court’s factual findings?

It is important to find the best lawyers who can explain what the risk of appealing is, the strength of your case, and what arguments to present. An appeal is difficult in of itself, but having an attorney who carefully navigates the original case can help advance your cause.

June 28, 2013

Distinguishing Wrongful Death Claims from Exclusive Worker's Compensation Issues

Many experience the unfortunate circumstance of work related accidents, the most extreme of which may result in death. People often wrongly assume that sustaining an on-the-job injury guarantees a right to sue the employer, in addition to asserting workers' compensation claims. However, the Louisiana Workers' Compensation Act provides strict guidelines for remedying a work relating injury, even those that result in death.

A recent East Carroll Parish decision aims to clarify some of those common misconceptions. McNeil Harvey, an employee of MAPP, Inc. died when a piece of heavy farm equipment he was working under fell and crushed him. His daughter, Valerie Harvey, filed suit against both MAPP, Inc. and Joseph Brown, an officer of MAPP, Inc. Harvey alleged that MAPP, Inc.'s negligence in exposing McNeil to “ultra-hazardous” perils and assigning McNeil to work outside the course and scope of his employment was the cause of the accident and McNeil's subsequent death. Ms. Harvey sought survivor's damages and wrongful death damages.

The Louisiana Workers' Compensation Act is the exclusive remedy for all work-related injuries and illnesses. If an employee suffers a personal injury as a result of fulfilling a job's duties, the act provides the employee with compensation. The act also prevents an employee from filing a lawsuit for damages against his employer or any principal or any officer, director, stockholder, partner, etc. When such issues arise, the defendant employer bears the burden of proving that it is entitled to immunity under the statute. The employer must prove that (1) the victim was an employee within its company at the time of the accident and (2) the other named defendants are officers, directors, stockholders, etc. of the company. The only exception to the exclusive remedy rule is if a death or injury is the result of an intentional tort. Additionally, an employer must prove that the injury or death occurring during the course and scope of the victim's employment.

The court awarded MAPP, Inc. and Brown summary judgment, finding that McNeil was an employee of MAPP, evidenced by his recent W-2 for wages paid, and he died during the course and scope of his employment with MAAP. MAAP also presented affidavits showing Brown was not only an officer, but also a stockholder of MAAP. Finally, MAPP provided a statement from another employee who worked with McNeil and who confirmed that repairing the heavy equipment was normal during the course of McNeil's work and happened on a frequent basis.

Harvey's only alternative would have been to allege that McNeil died as the result of an intentional tort. However, this fact was negated by Harvey's initial claim that McNeil died as a result of MAPP's negligence.

The Louisiana Workers' Compensation Act is very narrowly tailored to address issues that arise solely from death and work related injuries. Keep in mind that while the standard is very specific, an exception applies where there is suspicion of an intentional tort. There are several instances in which wrongful death suits and similar claims are proper. Don't hesitate to assert such claims.

June 27, 2013

Fall at Hospital Brings to Light Debate Over Liability for Public Entity

Generally, if you are injured due to the fault of someone else, you are likely to have a legal claim. However, this is not always the case. You must prove additional elements if you are injured on the property of a public entity. A case involving the West Jefferson Medical Center helps explain these concepts.

A woman was on the way to visit a family member in the hospital when she tripped and injured herself on the sidewalk. One portion of the sidewalk near the parking garage was raised about two inches from the rest, and the woman caught her foot on the raised portion. She fell and suffered injuries to her foot, neck, and shoulder. Then, she filed a complaint against the hospital for damages related to her injuries. Her complaint included her medical records and photos of the raised portion of the sidewalk.

The West Jefferson Medical Center, in Marrero, Louisiana, is a public entity because it is state sponsored. As such, the woman needed to prove not only that she was injured, but also the additional elements that are required for a suit against a public entity. Requirements for suit against a public entity include: establishment that the thing that caused the damage was in the custody of the public entity, the thing was defective because it had a condition that caused an unreasonable risk of harm, that the public entity had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and that the defect was in fact the cause of the plaintiff's injuries.

Since the injured woman's complaint was dismissed in the lower court on summary judgment (the lower court found no legal claim and issued a judgment as a matter of law), then the Fifth Circuit Court of Appeal for the State of Louisiana, where this case was appealed, could look at the facts de novo. That means that the court of appeals could consider all of the facts in the record and make their own determination instead of just evaluating the decision making process of the lower court. This standard gives the lower court much less deference than they would otherwise have.

The West Jefferson Medical Center does not deny that the sidewalk near their parking garage was in their custody at the time of the incident. However, the determination that the sidewalk posed an unreasonable risk of harm is a more difficult question. Generally, courts use a balancing test to determine the unreasonable risk of harm standard. The balancing test involves balancing the gravity and risk of harm against the individual and societal utility, along with the cost and feasibility of repair. In addition, in order for it to be an unreasonable harm, the defect must be one that an ordinary person would expect to cause harm. In the past, the court has held that a sidewalk deviation of one to two inches is not an unreasonable risk of harm; they ruled the same way in this case.

Next, the court points out that the public entity must have known about the risk and either deliberately ignored it or did not repair it within a reasonable time. This requirement can also be satisfied by constructive notice. Constructive notice states that the public entity should have known about the circumstance, even if they did not actually know about the circumstance. Normally, if the injured person were not suing a public entity, there would be two overreaching legal theories where the defendant could be liable: strict liability and negligence. Strict liability allows the plaintiff to avoid proving the notice requirements. However, because public entities are not subject to strict liability regarding notice, thanks to La. R.S. 9:2800, the injured party still needs to prove the notice requirement in every case.

The West Jefferson Medical Center presented affidavits that stated all of the improvements that were recently conducted on their sidewalks. In fact, according to the records in Jefferson Parrish, there had not been a single previous complaint about the sidewalk conditions near the medical center. Jefferson Parrish also performed improvements in the same area, but not in the area that the woman fell. As a result, the West Jefferson Medical Center argued that they did not have notice of this particular two-inch raise in the sidewalk. The West Jefferson Medical Center does not dispute that the two inch raise caused the woman's fall.

The court agreed that the woman could not prove the notice requirement regarding the two-inch raise in the sidewalk. The court declared that since the plaintiff, who would bear the burden of proof at trial, could not show an essential element of her claim, then the the court upheld the lower court's grant of summary judgment for the hospital.

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June 26, 2013

Informed Consent Target of Lawsuit Involving Medical Malpractice Claim

Medical malpractice occurs when a doctor or medical professional fails to competently perform a medical treatment and the patient is harmed as a result. One type of medical malpractice is lack of informed consent by the patient - doctors are required by law to inform their patients about the known risks involved for a proposed medical procedure or a course of treatment. When fulfilling this requirement is in question, litigation can become essential to analyze what happened.

While informed consent is not required in some situations, such as in an emergency, under most circumstances, doctors must give their patients detailed information about the particular procedure to be performed and explain the risks. Typically doctors ask the patients to sign an informed consent form to satisfy this requirement. After a patient gives his or her informed consent, the doctor cannot do what the patient has not consented to by doing a different surgery or performing additional medical treatment.

To better illustrate these points, a recent medical malpractice case examines the doctrine of informed consent: Ms. Boudreaux underwent a shoulder replacement surgery performed by Dr. Parnell to cure rheumatoid arthritis that severely affected her right shoulder joint. Following the surgery, however, Ms. Boudreaux developed radical nerve palsy that ultimately became permanent and disabling.

It was not disputed that Ms. Broudreaux’s humerus was fractured during the surgery and a large amount of surgical cement leaked through the fracture. One of the allegations by Ms. Boudreaux was that Dr. Parnell failed to provide her with sufficient information before the surgery to enable her to give an informed consent. Specifically, she alleged that Dr. Parnell failed to inform her the known risk of cement for this type of surgery.

According to the Louisiana Uniform Consent Law, the fact that there is injury is not by itself sufficient to establish a lack of informed consent. Also, a doctor does not need to tell the patient every possible thing that might happen, but only need to inform those risks that are important. A risk is important if it is material, meaning that a reasonable patient would have made a different decision if the risk was disclosed. Ms. Broudreaux's claim of informed consent was dismissed because she failed to prove that her consent “was induced by a misrepresentation of any material facts”. In other words, the risk of cement intrusion was not an important risk so Dr. Parnell did not have to tell her about it.

Informed consent is often a hotly contested issue in court because doctors do not have to inform all the risks involved in a medical procedure. The patient has to provide sufficient evidence to show that a doctor failed to disclose a material risk that would have led a reasonable patient in the same situation to change her mind. It is therefore very important to get legal representation when informed consent is at issue.

June 25, 2013

Tragic Workplace Accident Provides Insight Into Duty of Care

A former employee of the Mansfield, LA, branch of the International Paper Company, met with a fatal accident while on the job. While repairing a valve on the platform surrounding the top of a whitewater tank, he fell through the access opening and into the tank.

Access opening covers are not rooted firmly to the tank and are known to become dislocated if the tank contains overpressurized liquid, or if the liquid and debris overflow. Evidence in the form of photographs show that debris had accumulated around the access opening that the deceased had fallen into, indicating that the opening may have been dislodged before he had fallen into the tank. As a result of the incident, the widow of the deceased filed suit against the manager of the Mansfield paper mill and the engineering company that designed and constructed parts of the whitewater tank that the employee fell into.

The engineering company, Stebbins, had a contract with International Paper Company to inspect the durability of its whitewater tanks at many of its locations worldwide. The inspections conducted by Stebbins brought knowledge that some whitewater tanks were over-pressurized and were overflowing. The victims' family contended that Stebbins' knowledge of this hazard created a duty on the part of Stebbins to inform the International Paper company of the unsafe practice. The issue, however, was that Stebbins had no such inspection contract with the Mansfield paper mill where the deceased met with his accident.

The problem in this case for the victim's family was that the duty of care on the part of Stebbins did not involve the material issues in this particular case. This distinguishing factor between what Stebbins' contract with the International Paper Company actually required the engineering company to do, and what the plaintiff was filing suit against Stebbins for, prevented Stebbins from liability for the unfortunate death.

Because of this gap in liability, Stebbins was found to have no duty to the employee. A duty of care is a legal obligation which is imposed on an individual, requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. In this case, the plaintiff argued that Stebbins owed a legal obligation to the employee because Stebbins knew of the hazardous conditions imposed by the dislodging of access opening covers when the tanks became over-pressurized or overfilled. Generally, a duty of care to another is only present within direct relationships such as that between family members: a mother has a duty to her child to make sure the child crosses the street safely. A duty of care is also present in contractual relationships, as of that between an employer and an employee. There is also a duty of care that is formed when a third party begins to help another in need. Once the third party begins to help, he cannot leave the scene until he finishes aiding the person in need. If these direct relationships are not present, a duty may be imposed by the law. In this case, Stebbins did not have any direct relationship to the victim as there was not a contractual relationship between Stebbins and the International Paper Company in Mansfield.

There was also no duty imposed by the law. A Louisiana Supreme Court case had held that in order to find a duty in such a situation, "some proof of positive undertaking" for work place safety is required, stating that "neither mere concern with nor minimal contact about safety matters creates a duty to create a safe working environment for employees of a subsidiary corporation." In other words, a parent corporation must clearly undertake the goal of providing work place safety for its subsidiary corporation as its primary concern, in order for a duty of care to be found.

In this case, there is no evidence that Stebbins positively undertook any duty to ensure the safety of the employees of the International Paper Company. Stebbins was merely responsible for inspecting the structure of whitewater tanks when requested by the International Paper Company to do so, after a plant had shut down.

Therefore, the Court held that Stebbins had no duty of care to the employee, leaving the family with no relief in this particular case. This is an incredibly difficult situation and is extremely saddening for the victim's family. It does, however, help explain key components of the law that must be met for recovery to take place. In finding out how the law handles situations, we can explore the nature in which responsibility is apportioned and, in all instances possible, get justice for those impacted.

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June 24, 2013

Liability When an Escaped Prisoner Injures an Innocent Community Member

What sort of liability arises when an escaped prisoner causes personal injury to someone? It's certainly not a typical question with which tort law deals. The matter arose in Acadia Parish, where prisoner Jack Stansberry escaped from a hospital, stole a vehicle, and injured plaintiff Nelwin Rider in the process. The trial court granted partial summary judgment in favor of the plaintiff, but the Louisiana Third Circuit Court of Appeal reversed.

The trial court considered summary judgment motions by both the law enforcement defendants and the plaintiff. Summary judgment motions are designed to ensure more efficient use of court resources by granting judgments when there are no genuine issues of material fact. The trial court found the law enforcement defendants solely at fault for plaintiff's injuries and granted plaintiff's motion. In reversing this judgment, the appellate court held that there were genuine issues of material fact as to whether the prisoner was in the process of escape when the plaintiff was injured. For this reason, the court of appeals said, summary judgment was not proper.

The matter before the trial court was one of negligence. Generally, courts are careful in such cases to lay down specific tests that must be met before assigning liability for injury. While recognizing the duty of prison custodians to act with care in managing prisoners, the appellate court affirmed that this is not an absolute duty intended to forego all potential harm. This duty "is not intended to protect persons from harm inflicted by inmates who have already escaped and who subsequently commit tortious acts in the furtherance of their own pursuits." This important line, dividing a prisoner's escape from subsequent activity, was drawn by previous court decisions and was critical to assessing the propriety of the trial court's summary judgment ruling.

How does a court actually apply this limited duty of care? It looks at whether the injury complained of was an essential part of the escape itself. Emphasizing that this a fact-intensive, case-by-case determination, the appellate court ruled here that it was not beyond dispute whether the prisoner was still in the process of escaping. That is to say, there was a genuine issue of material fact that the trial court should have considered. This rendered the grant of summary judgment to the plaintiff improper.

Prison escapes resulting in civilian injuries are not common. However, if you believe you've been the victim of government negligence, attorneys at the Berniard Law Firm are ready to help resolve your case.

June 21, 2013

Dog Injury in Lafayette Leads to Examination of Liability

The Court of Appeal of Louisiana, Third Circuit, recently ruled in the summer of 2012 on an issue coming out of the Parish of Lafayette involving a variety of legal questions. In the case of Theresa St. Julien v. Julie Walters Landry, Julien was allegedly injured by her neighbor’s dog when it came free from her neighbor’s yard and knocked her down while on her own property. Immediately there are negligence and strict liability issues when it comes to this event: Who owned the animal? Who secured the animal? Who was in charge of the animal at the time of the accident?

The St. Julien case is a perfect example of how a mishap in filing documents, leading to admitted facts, can result in the downfall of a defendant who assumes responsibility by not denying it. After failing to answer the plaintiff’s complaint on time, Landry admitted to being the owner of the dog and that it was being kept on her property under her control. The court found that there were genuine issues on multiple material facts and for that reason reversed the decision of the lower court in favor of St. Julien, which will result in a trial. The larger issue for the public is whether it even mattered if Landry was determined to be the dog’s owner.

Dogs are one of the most commonly owned domestic animals and also result in a large number of injuries throughout the state of Louisiana but also across the country. Many times these injuries occur to complete strangers but, nevertheless, owners of inherently dangerous animals need to be responsible for injuries resulting from the actions of those animals. The harder question is what is to be done when the animal injures another while in the care of someone who is not the owner. This is why the courts of this nation have adopted the theory of strict liability.

As neighbors, we have a duty to one another to do what we can to prevent harm to each other. This theory of duty is the most basic principle that lies at the heart of the above case. The court describes the test to determine one’s duty to a neighbor as being “whether she acted as a reasonable person in relation to the probability of injury to others like the plaintiff,” citing Shelton v. Aetna Cas. and Sur. Co., and Ladner v. Fireman’s Ins. Co. of Newark.

According to this test one must always be on guard to “conform one’s conduct to that of a reasonable man in like circumstances.” In many people’s minds this creates a nation where we are all constantly looking over our shoulders to make sure we are acting appropriately, even while friends fasten their pets in our front yards. While the facts of this case vary from common injuries, the reality is that the concept of duty permeates a wide variety of legal issues that can impact people wherever they may be.

June 20, 2013

Third Circuit Reverses Lafayette Court Ruling on an Exception of No Right of Action Claim

On October 3, 2010, Darnall and Michelle Carter suffered the loss of their son Kyris in a drowning incident at a party. On April 25, 2011, the Carters filed wrongful death and survival actions against Steak House Steaks, Inc., James Nations Jr., the alleged owner of the property where the party was held, and XYZ Insurance Co. Wrongful death and survival actions are civil lawsuits initiated by the family members of a deceased victim to obtain a monetary settlement from the person or people responsible for the death of their loved one. Under Louisiana law, there is an established order concerning who has first priority to take these civil actions, with the children of the victim having the first right to file against the wrongdoing party. If the victim had no children then his or her siblings may bring the matter to court, and if the victim had no siblings, then the right falls to the victim's parents.

Since Kyris Carter did not have any children or siblings, his parents Darnall and Michelle were within their rights to bring wrongful death and survival actions on his behalf. However, the trial court in Lafayette ruled in favor of a motion filed by the defendants in June 2011 for an "exception of no right of action" and dismissed the defendant parties from the lawsuit. According to the defendants, the plaintiffs had no right of action, that is, they did not have a right to bring the wrongful death and survival action claims because the defendants were not the owners of the property where the accident occurred, nor were they the hosts of the party where Kyris Carter died.

The details of the party in question are not laid out by the Court of Appeal or the lower court, but the particular facts concerning who hosted the party or who may have been responsible for the drowning accident should not have been taken into account when the trial court was deciding the motion. In 2012, the Court of Appeal held that the trial court had erred in its assessment of the legal procedural issues involved in the defendant's motion. The purpose of the "exception of no right of action", it said, is "to challenge whether a plaintiff is the proper party to file an action, not whether a defendant is the proper party against whom an action can be filed." In other words, even if Darnall and Michelle Carter had mistakenly initiated a lawsuit against the wrong defendants, the motion used by the defendants should not have been the one used to challenge such an error. The "exception of no right of action" can only be used to challenge whether a plaintiff is the right person to be filing the lawsuit in the first place. Since Darnall and Michelle were proper plaintiffs in this lawsuit, there was no ground for this exception.

Courts can make mistakes in applying the correct legal standards, but what is more significant and more common is for lawyers to file the wrong motions in the first place. If you are a defendant or potential plaintiff to a lawsuit, it is important to have a legal representative who makes the right calls and won't waste your time and money with unmeritorious claims.

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June 19, 2013

Jones Act Negligence and Unseaworthiness Explored in Louisiana Maritime Case

The Jones Act is officially titled the Merchant Marine Act of 1920 and was passed by Congress in response to concerns about the health of the Merchant Marine and to establish protections for sailors. Before the Jones Act, seamen who were injured had few options for recovering damages for their injuries, but now the Jones Act allows you, as an injured seaman, to obtain damages from your employer for the negligence of the ship owner, the captain, or fellow members of the crew.

A federal statute (46 U.S.C. § 688) extends the Federal Employer’s Liability Act (FELA), which originally only applied to railway workers to seamen and it reads, in part, "[a]ny sailor who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right to trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply..."

According to the Fifth Circuit Court of Appeals for the State of Louisiana, “an employer is held to the standard of care of ‘ordinary prudence under the circumstances.’” Admiralty and maritime law can become increasingly complicated and it is important that you sufficiently prove to the court that your employer has breached the standard of care that is owed to you. In Lett v. Omega Protein, Inc., a recent case decided by the Fifth Circuit, the importance of having quality representation with experience in admiralty and maritime law is evident.

In this case, James Lett filed a lawsuit against his former employer, Omega Protein, Inc., and two of Omega’s fishing vessels. Mr. Lett asserted negligence claims, unseaworthiness claims, and claims for maintenance and cure. From 2007 to 2009, Mr. Lett worked for Omega Protein as a seaman and an engineer aboard several of Omega’s fishing vessels. Specifically, Mr. Lett was responsible for maintaining the engine room, which included chipping off rust from the floor for several hours using a needle gun. According to Mr. Lett, he sustained several injuries to his back and neck from this activity. The district court below dismissed all of Mr. Lett’s claims and granted summary judgment in favor of Omega Protein.

According to the Fifth Circuit, to establish a claim of unseaworthiness under general maritime law, an injured seaman must prove “that the owner has failed to provide a vessel, including her equipment and crew, which is reasonably fit and safe for the purposes for which it is to be used.” Lastly, to be successful on a claim of unseaworthiness, a seaman “must prove that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonable probable consequence of the unseaworthiness.”

On appeal, the Fifth Circuit affirmed the judgment of the district court and dismissed Mr. Lett’s claims. The Court concluded that Mr. Lett failed to create a genuine issue of material fact regarding his unseaworthiness claim because Lett failed to provide any evidence that the use of the needle gun aboard the vessel was unsafe. Rather, Mr. Lett pointed to the availability of safer rust-removing equipment, but the Court said that this evidence alone – without evidence indicating that the needle gun is unsafe – was not enough to create a genuine factual dispute regarding unseaworthiness. According to the Court, “a plaintiff must present sufficient evidence to raise a jury question whether a method of operation is unsafe, before a fully equipped vessel, with all its gear in good working order, can be rendered unseaworthy.”

This case illustrates the critical elements that must be established sufficiently to successfully bring an unseaworthiness claim. Experienced attorneys can help determine what evidence to use and how to apply it to your situation in admiralty cases.

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June 18, 2013

When is a Hotel Responsible for the Injury of a Guest?

We hear about injuries to customers resulting in large settlements in the news frequently. In any industry, there is some risk that clients or customers will be injured during the time they are patronizing the establishment. When these injuries occur it often results in a lawsuit. Who is at fault (and as a result, liable for the damage) generally comes down to a determination of the "duty" that is owed by the establishment owner to his patrons.

So when can someone be injured and lose? One scenario presented itself in Darlene Johnson v. Super 8 Lodge-Shreveport in 2008. Mrs. Johnson and her father were guests staying in a Shreveport, Louisiana, Super 8 Lodge hotel "Jacuzzi Suite" after evacuating their home as a result of a hurricane. Like most hotel rooms, this one had a television for guest use. Unlike many, this suite's TV was positioned at a 90 degree angle to the bed, making it awkward to view while laying in bed but designed to be comfortably viewed from the provided couch. The hotel was aware that not all guests preferred to have the television facing the bed and offered a service moving the entire entertainment center around for them. While the majority of guests didn't request it, it wasn't an unusual request. In fact, Mrs. Johnson was aware of this service and had requested it multiple times during her stay. However, during this incident, Mrs. Johnson did not request the entertainment center be moved. Instead, she attempted to do it herself and was injured as a result of the television falling on her. She subsequently sued suggesting the television should have been secured to the entertainment center with a pivoting platform, as they should have anticipated a guest trying to move the TV themselves.

The crux of the debate is a matter of what level of duty was owed to their guests by the hotel operators. Duty is a technical term in negligence law that sets the lowest obligation that someone owes to someone else in a situation. A hotel is required to exercise "reasonable and ordinary care including maintaining the premises in a reasonably safe and suitable condition." While they are not required to absolutely guarantee the safety of guests, hotels must be careful to keep them from anticipated injury. To succeed in a suit such as this, a guest needs to demonstrate that the television was in the hotel's custody, that it created an unreasonable risk of harm to others, and that something about the defective condition caused the damage. The court ruled in favor of the hotel.

So how did Mrs. Johnson lose? She was injured by a device owned by the hotel, this should have been easy, right? The hotel even confirmed they recognized people would want the television moved. However, duty isn't that simple as it requires asking if the defending party should have been expected to protect the injured from the specific injury. The court recognizes that there is nothing inherently dangerous about a waist-high television. After all, people are seldom injured by hotel televisions. In fact, it was perfectly stable when used facing the couch, as intended. As a result, Mrs. Johnson's suggesting that the television should have been on a pivot to prevent her injury was found to be an unreasonable requirement to ask of a hotel operator.

Does this mean anytime you are injured in a hotel room you are out of luck? Not at all. The key issue here was Mrs. Johnson taking it upon herself to rearrange the room, especially while knowing someone could have done it more safely for her. Perhaps if the hotel had refused to move the entertainment center when asked, if the patron hadn't been aware of the option or if the television couldn't have been viewed from any commonly used point in the room, then this case could have ended differently for her. Every case is decided on subtleties and nuances just like this, providing even more rationale of why an attorney is important in the wake of an injury.

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June 17, 2013

Appeal Necessary in Car Accident Case Where District Court's Finding of Fact Strays

On a June night in 2006, Jeryd Zito was driving on a highway going through Plaquemines Parish when an ambulance appeared seemingly out of nowhere. Zito swerved to avoid it, but was not fast enough, hitting the left back corner and the left side of the ambulance. After the accident, Zito sued the owner of the Ambulance, Advanced Emergency Medical Services, Inc., and its insurer, to recover for the damage caused by the accident. While this may seem backwards, the person causing an accident suing, but the issue is much more complicated.

Zito claimed the accident was Advanced’s fault because the drivers were negligent in not taking the proper precautions to warn oncoming traffic that the ambulance was broken down on the side of the road. During the trial, the big issues were how far into the right lane, if at all, the ambulance was, and if there were any warnings on it, such as reflective tape, to signal to oncoming drivers there was something in the way. The rationale is that, while the vehicle was off to the side of the road, people are not expected to see in the dark or sense a blockage up ahead versus a general expectation of reasonable efforts being made to avoid accidents.

The trooper who investigated the accident testified that based on skid marks, the ambulance was parked five feet from the right lane, it was covered in reflective tape when he got there, Zito told him that he (Zito) was on his cell phone at the time of the accident and that there was no evidence that Zito tried to break before he hit the ambulance. The trooper issued Zito a citation for careless operation of a vehicle, which Zito paid without dispute.

When it came to facts relating to Zito, many items were unclear. Between various prescription medicines and a lack of clarity on the part of Zito as to what he was doing, if anything, with his phone at the time the accident occurred, a significant amount of clarity existed. Zito’s friend Gauthier testified that he was driving along the same road a little before Zito and the ambulance was out of the right lane of traffic enough for Gauthier to be able to stay inside the right lane and had reflectors on so he was able to see it from about 200 to 300 feet away.

Despite these facts, the district court found for Zito, awarding him $50,000 plus costs and interest. The court “found” that Gauthier had to swerve to avoid the ambulance and that the ambulance was blocking traffic with nothing to signal it was blocking the lane, thus holding Advanced accountable for being negligently parked in the roadway while Zito was not considered even partially at fault for the accident.

Advanced appealed up to the Supreme Court of Louisiana, which reversed the ruling for Zito. The court can only reverse based on questions of fact, such as whether the ambulance had reflectors on, if they find the trial court was manifestly erroneous in its findings. Here, the district court was manifestly erroneous because its “findings” were contrary to the actual testimony. Gauthier did not say he had to swerve to avoid the ambulance, just that he moved over in his lane, but he did say that it had reflectors on and he could see it from at least 200 feet, which the trooper’s testimony backed. Even Zito’s testimony did not help his case, as he said he was on prescription drugs and he was inconsistent with his story about whether or not he was on the phone.

Louisiana’s Supreme Court reviewed the trial record and concluded the district court’s factual finding that the ambulance was not completely out of the lane of travel was not reasonable. The Supreme Court found there was nothing on the record that could support the trial court’s finding that Advanced’s negligence was the cause of the accident, and that it was Zito’s fault. This case helps explain why people who lose lawsuits appeal, regardless of role in the proceedings, because there are always the possibility that the lower court’s finding will be reversed. By hiring a qualified attorney, the original trial is navigated easier, but also allows for the appeal process to be managed by an expert in the field.

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June 14, 2013

LMMA’s Medical Review Board and How “Medical Malpractice” is Defined

According to a provision of the Louisiana Medical Malpractice Act (LMMA), a medical malpractice claim against a private health care provider is subject to dismissal on an exception of prematurity if the claim is not first presented to a medical review board.

In the 2012 case Matherne v. Jefferson Parish Hosp. Distr. No. 1, the plaintiffs sought damages for an injury Mrs. Matherne received when she fell while being transported by an employee to her hospital bed. The hospital argued that the petition was premature because the claim was not first presented to the panel. The court sustained the exception.

When a dismissal for prematurity is without prejudice, it is as though the suit was never filed, and a plea of prescription may follow. Prematurity measures whether the cause of action is ripe for judicial determination.

According to La. Civ. L. Treatise, Tort Law § 15:5, the purpose of statutes requiring board review is to separate frivolous claims from those with merit, to alert attorneys and the claimant to the weaknesses of their position, to reduce the cost of litigation, to expedite the disposition of cases, and to encourage settlement with meritorious cases.

The panel is composed of four members: three licensed health care providers, and one attorney, whose role is purely advisory and who does not vote. The claimant chooses one health care provider panelist, the defendant chose another, and the remaining provider is chosen by the first two. If only the defendant is a specialist, then all must be from that specialty. The panelists sign an oath of impartiality, and deliberate in private. They are presented with evidence in written form only, and have a duty to request any information if necessary.

Within 30 days of reviewing or no more than 180 days of selection of the final panelist, a decision must be reached on whether the standard of care was met. If the panelists find negligence, they must then decide whether it caused the injuries. The panel must give written reasons for its decision. The opinion is admissible at trial, but is not conclusive. The parties may also call the panelists as witnesses.

The burden of proving prematurity is on the mover, and therefore, the hospital must show that it is entitled to a review panel. The court first contemplated wither the claim fell within Louisiana's statutory definition of malpractice: an unintentional tort or breach of contract based on services rendered by a health care provider, including failure to render services timely and the handling of a patient, including loading and unloading of a patient. The Louisiana Supreme Court notes that the LMMA applies only to claims "arising from medical malpractice," and that all other liability is governed by general tort law. A de novo review was appropriate as a question of law was underlying the issue of whether a claim pertains to medical malpractice.

By incorporating the case precedent of Coleman v. Deno, the court found a multi-factor test to determine whether an act is covered: 1) whether the wrong is "treatment related" or caused by a dereliction of skill; 2) whether the wrong requires expert medical evidence to determine whether a standard of care was breached; 3) whether the act or omission involved assessment of the patient's condition; 4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities that a hospital is license to perform; 5) whether the injury would have happened if the patient had not sought treatment, and 6) whether the tort was intentional.

By applying the factors to the present case, the court determined that the act was covered by the LMMA. First, the hospital's fall prevention program, which requires a risk assessment for all patients, should have been implemented in treating the plaintiff. Second, medical evidence was deemed necessary to determine whether the standard of care was breached. The third factor is met, as the hospital required an assessment of all patients to determine their fall risk factor. The fourth factor was met as the injury occurred during the scope of licensed activities. Fifth, if the plaintiff had not sought treatment, the fall would not have occurred. Finally, Mrs. Matherne does not claim that the actions were intentional.

Although all the factors are satisfied, the patient relied on a 2003 case, Jordan v. Stonebridge, to insist that her claim did not fit the definition of medical malpractice. But that case was not applicable, as the treatment was not received at the nursing home, and an assessment of the condition was not required. The exception of prematurity granted was affirmed based on the application of the six Coleman factors.

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June 11, 2013

"Egg-Shell Skull” Rule and Personal Injury Claims

It may be common sense that a person is responsible for consequences caused by their actions. One reflection of this common understanding in legal principles, referred to by lawyers as the “Egg-Shell Skull” Rule, may lead to financial burdens unexpected by people who can be deemed responsible for the events. To understand this Egg-Shell Skull Rule, it is first necessary to know the importance of “causation” in pining legal liabilities to a person.

In situations where a person’s behavior has caused someone else to suffer loss or harm, causation is a crucial element of liability because it connects an injury to a responsible party. This makes sense because if A hit B in the arm and B suffered a fracture, naturally A would be responsible for the injury. Yet if A threw a light kick at the shin of B, who, unknown to A, had a series condition that set of a chain of events that finally resulted in B unable to use his leg at all, A may find herself held responsible for this grievous injury.

The Egg-Shell Skull Rule literally means that if B had a skull as delicate as that of the shell of an egg, and A, unaware of this condition, injured B’s head, causing the skull unexpectedly to break, A would be held liable for all damages.

The Third Circuit Court of Appeal in Louisiana recently illustrated this rule in Augustine v. State Farm Mutual Automobile Insurance Company, et al. In this case, the seventy-four year-old Mrs. Augustine was driving at about ten miles per hour in her 1995 Mercury Grand Marquis. Her vehicle was struck from the rear by a Mini Cooper driven by Ms. Coston. Although the accident caused no physical damage to either vehicle, Mrs. Augustine was awarded damages at $50,000 at trial.

The amount of damages awarded for this low-speed, possibly also minor, accident was the direct corollary of the application of the Egg-shell Skull Rule. Prior to the accident, Mrs. Augustine testified that she had arthritic pain three times a week or everyday if there was a flare-up of symptoms. After the accident, however, she said that she experienced pain on a more frequent basis and on a more severe scale.

Having heard conflicting expert testimonies on Mrs. Augustine’s medical conditions, the trial jury believed that she did suffer an aggravation of her pre-existing conditions and awarded her damages for both past and future pain and suffering. The Court of Appeals, operating under the high legal hurdle that it will not reverse trial court’s fact finding unless clearly erroneous, affirmed the $50,000 judgment.

Unaware of this rule, one in Mrs. Augustine’s circumstances may not seek maximum damages to her injury while someone in a similar position as Ms. Coston’s position may be dumbfounded to find herself in unexpected financial burden. The most important fact, though, is that your legal representation clearly understand the injury suffered and make claims open to all suffering reached.

June 10, 2013

Property Owners Not Liable Unless They Caused Sidewalk Defect

According to an American Law Report, it is generally the rule that the owner or occupant of a property touching a public sidewalk does not, solely by reason of being the owner, owe to the public a duty to keep the sidewalk in safe condition. This rule of nonliability is not affected by a statute or ordinance requiring an abutter to construct or maintain an adjoining sidewalk, unless there is an express, contrary provision.

However, the abutter will be liable for injuries resulting from a defective or dangerous condition that is created by his or her own acts, which constitutes negligence or a nuisance under the circumstances. For example, an abutter may be liable for injuries resulting from negligent construction, alteration, or repair of the sidewalk, even though these acts in and of themselves do not create liability.

The courts have usually considered compliance with the requirements of a statute regulating the construction of sidewalks. In a number of cases, knowledge or notice of the defect is a factor for liability, although the courts in many other cases have not treated this issue, given the fact that knowledge or notice of a defect on a sidewalk, as well as its direct cause, is difficult to ascertain.

Louisiana falls into this majority, with cases such as Legg v. Palozzola, in which one who knowingly constructed a dangerous sidewalk was liable, as well as Youngblood v. Newspaper Production Co. and Lee v. Baton Rouge, in which abutters were liable when they were the cause of a defect in or obstruction on the sidewalk.

Again, in a 2012 case, Benson v. Women's Aglow Fellowship, the Court of Appeals affirmed a summary judgment dismissing injury claims. After parking to attend a service at an adjacent church building, the plaintiff unloaded at a curb in from of the defendant's home. When the plaintiff later approached the car, she did not trip, but rather stepped into a depression in the cement curb and turned her ankle.

The City owned and was responsible for the curb. Photographs indicated that the curb is slanted and that a small pipe, which is recessed into an expansion joint, runs underground from the defendant's property to the curb. There was no presence of water, and the plaintiff testified that the depression was covered with direct and grass at the time.

The defendants argued that the pipe was there when they bought the property and that they had nothing to do with its installation, nor the maintenance of or defect in the curb. The court applied the common-law rule by citing Butkiewicz v. Evans, in which the burden for tort liability resulting from a defect in a public sidewalk is placed with the municipality, not the landowner. Louisiana case law held true to the majority rule, as Schully v. Hughes held that a property owner is generally not responsible for repair or maintenance, except where they cause the defect in the sidewalk.

Given the defendants' denial, the plaintiff was required to present evidence that they did in fact cause the defect in the curb. Although the injured woman's husband entered the scene immediately after she fell and took pictures the following day, there is nothing to suggest that an essential element of their claim could be established at trial. There is no issue of material fact and summary judgment was granted.

Summary judgment is appropriate when there is no dispute as to a material fact, and where there is no factual support for one or more of the essential elements of the claim. Therefore, because the claimant did not provide evidence to show she could meet the burden of proof at trial, specifically that the property owners caused the chip in the curb, there is no genuine issue of material fact and the claims are dismissed.

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June 8, 2013

American Legion Hospital Decision Highlights Importance of "Getting it Right" the First Time

Many people wonder what can be done from a legal standpoint to get a better verdict. In situations involving accidents where the damages awarded don't fully cover the perceived damage, it would be prudent to appeal your verdict. However, before any action be taken, it is crucial to note the role of the Appellate court and its scope of power in reviewing a damage award. This is important for two reasons: (1) to keep expectations realistic and (2) to highlight the pertinent actions to be taken after an injury.

Trying to get a damage award amended on appeal can be an uphill battle, but it is possible. To better understand this amendment process, a recent attempt to amend a general damage award provides a solid example.

In December of 2007, Shirley Langley was the victim of a bee sting, resulting in a severe allergic reaction. She was admitted to American Legion Hospital in Crowley, LA, where the hospital medical staff improperly administered epinephrine to Mrs. Langley, resulting in, amongst other ailments, permanent damage to her heart.

Mrs. Langley sued the hospital in the 15th Judicial District Court for her injuries and was awarded $25,000 in general damages. Mrs. Langley, unsatisfied with the amount, subsequently appealed the decision, stating that the awarded amount was excessively and abusively low considering the severity of the physical and emotional damages she sustained and because in other situations mirroring her own, higher general damages awards have been given.

On appeal, Mrs. Langley provided evidence to the court chronicling her visits to four separate doctors assessing her damages stemming from the improperly administered epinephrine. She testified that some of her doctors recommended she receive additional treatment and testing but she did not follow these suggestions. These recommendations were made to Mrs. Langley over a year before the trial took place. Therefore, a substantial amount of time elapsed between her doctors visits and the court date, during which time Mrs. Langley sought no medical attention.

Judge Elizabeth A. Pickett, the presiding judge on the case, agreed with the trial court's determination that "the medical evidence... clearly shows [Mrs. Langley] experienced physical pain and psychological distress during the episode and continued to experience psychological distress after the episode... but concluded [that] Mrs. Langley
did not prove she continued to suffer such pain and/or distress at the time of trial."
Because Mrs. Langley's injuries could be seen as not being so extensive as to warrant any damages exceeding $25,000, the court determined that the trial court exercised proper discretion in its determination of the general damage award.

When appellate courts review a general damages award, their duty is not to consider whether or not the award is appropriate given the circumstances, but rather to review the exercise of the discretion of the trial court. Furthermore, trial courts are given wide latitude and discretion in when awarding general damages. It is important to, simply put, get it right the first time - meaning to do whatever it is you can to show the court that the injuries you sustained are not minor and require medical attention, and that you attempted to mitigate your damages. It is very possible that your damage award can be decreased for failure to mitigate damages.

So how do you make sure the court is aware that your injuries are serious? This can be done by simply adhering to the advice of your doctor or physician post injury. If your doctor recommends you take further tests, take further tests; if your doctor recommends a certain type of treatment, take the treatment. By adhering to the counsel of your doctor or physician, when a court is looking over your general damage award they are more likely to come to the conclusion that the injuries you sustained were serious enough to warrant reconsideration of your initial damage amount. In a situation where an individual does not seek out additional treatment or testing advised by a doctor, a court reviewing the damage award may conclude that the injury sustained by the individual is not extensive enough to warrant consideration, which is what happened with the case of Mrs. Langley.

If you have been injured, awarded general damages, and feel that you are entitled to a more favorable damage award, contact the Berniard Law Firm today.

June 6, 2013

Injury at Hospital Examines Liability and Duty

The duty owed by hospitals to patients is a rather cut and dry area of law. However, a case arising out of West Monroe, Louisiana, illustrates how questions of liability become more difficult when the patients' visitors are involved. Although a hospital does owe a duty of reasonable care to its visitors, the key is whether there is an "ease of association" between that duty and the risk of harm. Liability will therefore often turn, not on the factual issues of a case, but whether the risk of harm to the visitor is within the scope of that duty.

This was the matter before the Louisiana Second Circuit Court of Appeal in Vanderpool v. Louisiana Extended Care Hospital. The case involved a visitor who was injured after her mother fell off a commode chair. The patient's daughter was helping her mother onto the chair when the arm gave way. Unable to support her mother's weight, the daughter fell to the floor and sustained injury. The trial court granted summary judgment to the defendant hospital, meaning there was no issue of material fact and a decision could properly be made without the need for further deliberation.

Reviewing summary judgment for a hospital's liability usually begins with consideration of the hospital's legal duty. This was the primary determination in Vanderpool, where the appellate court first addressed the hospital's duty to the plaintiff visitor. While the hospital had a duty to maintain the commode chair in safe working order and to take other steps to protect the patient, the patient's visitor was not similarly protected. As the court reasoned, "The hospital’s duty to exercise reasonable care for the safety of visitors would not encompass the unlikely risk that a visitor would sustain an injury in connection with a patient using a commode chair." The point of a duty of care is not to protect against all possible instances of harm that could arise.

Of particular note in this case was the fact that the plaintiff visitor's decision to help her mother was voluntary. Even assuming the validity of the facts alleged, the court found that the particular circumstances of the incident gave rise to no duty of care to the visitor plaintiff. For this reason, the appellate court held that the trial court's determination of summary judgment was appropriate.

The court turned next to the hospital's duty of care as the owner and custodian of the commode chair. Central to this analysis was whether there was a defect in the chair that posed an unreasonable risk of injury to the plaintiff visitor. The hospital was able to show that the plaintiff would be unable to demonstrate such a defect. In turn, plaintiff invoked the legal doctrine of res ipsa loquitur, which essentially alleges that the nature of an accident is such that it could only have occurred through negligence. But because res ipsa loquitur relies upon a circumstantial determination, the court noted, it does not apply where direct evidence is available - namely, Vanderpool's own account. The fact that the chair "gave way" under the plaintiff's mother's weight does not necessarily mean it happened because of a defect. Another explanation is plausible, so res ipsa loquitur was inapplicable.

Up to this point the appellate court was giving the plaintiff visitor the benefit of the doubt regarding her factual claims. Aside from the above considerations, the summary judgment hearing determined that plaintiff could not prove those claims anyway. She was the only eyewitness to the alleged injury; sought medical treatment more than a year after the incident; and her injuries were not documented in the medical charts concerning the mother's fall. The plaintiff's "allegations and uncorroborated, self-serving testimony" were simply not enough to rebut the motion for summary judgment.

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June 5, 2013

Understanding Duty Important in Worker's Compensation Claims, Civil Suits

To bring a case to court, it seems obvious that you must have some kind of legal basis for your claim. For a personal injury case, that could mean that someone else caused you to slip and fall; you slipped because the floor was wet. In that type of case, someone else had a duty to keep the floor clear from slippery things, and they did not follow through on that duty. Because of their lack of follow-through, you can likely bring a case to court so that the person that failed to keep the floor clear of slippery things will be responsible for their actions. However, if you slipped in your own house because your son spilled on the kitchen floor, you are very unlikely to have a case against your ten-year-old son.

While the explanation seems simple, it is not in many cases. The law is filled with qualifications and loop holes. In the previous example, you cannot bring a case if no one had a duty to keep the floor clear from slippery things. In personal injury cases, there needs to be a duty to create liability.

There are also time, place, and manner restrictions in bringing lawsuits as well. The classic example is restricting work injuries to worker's compensation claims. Generally, if you are injured while at work, then you do not file a separate lawsuit, you file a worker's compensation claim. It is similar to an in-house procedure for taking care of injury claims. Worker's compensation is an insurance that the employer uses so that they cannot be sued in the regular courts. It provides damages in the form of wage replacement and medical expenses. Therefore, if you tried to bring a case for being injured while you are at work to a normal courtroom, you would likely be dismissed because the worker's compensation program should be handling your claim, not the court.

A situation exploring these circumstances happened in Pineville, Louisiana, in 2009. A worker was leaving her parking spot after completing her shift when she was hit by a van operated by another worker. The worker who was hit filed suit against the business and the worker operating the van. The business objected, stating that she should be filling out paperwork for the worker's compensation claim, not trying to bring the business into court. The trial court agreed and dismissed the case.

However, the appeals court disagreed and reversed the lower court. The time, place, and manner restrictions were important in this case. The worker who was hit was actually leaving her shift. She was not working for the business at the time and was not on the clock. Although she was in the parking lot, she was not acting within the scope of her employment and would therefore not be covered by the worker's compensation program. If the accident had occurred while she was still clocked in, then the result would be very different.

The difference of half an hour allowed that worker to have her day in court. Although litigation is time consuming for both parties, if a worker sues then she may get a jury and that jury may award damages that are significantly higher than what the employee would have gotten under the worker's compensation claim. Businesses are also more likely to settle because they want to avoid the “bad press” of going to trial. Both of these reasons make taking the claim to court much more appealing for the employee, but not the employer.

Whether you are dealing with a worker's compensation claim or want to take your claim to court, you need to be mindful of the time, place, and manner restrictions. They can make or break a case.

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June 4, 2013

Legal Concepts: Louisiana Code of Civil Procedure and Hearsay

The law has a wide variety of rules in place to force a clean route to evidence, especially from authorities on the topic, like people present or involved with the case's topic. Hearsay is a statement, other than one made by the person themself while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. Article 802 of the Louisiana Code of Evidence states “Hearsay is not admissible except as otherwise provided by this Code or other legislation.”

Understanding Legal Terms
Assertive Conduct:
Words, either oral or written, can constitute hearsay if intended as an assertion or detail to be considered factually correct. Also, action or conduct could be considered as assertion even when technically, no words have been spoken. When wordless behavior has expressive and communicative intent or purpose, it too is subject to hearsay. One example of assertive action or conduct is nodding one’s head in answer to a question as it is a wordless statement that is offered to prove what it asserts.

Non Assertive Conduct:
Usually, conduct does not necessarily assert anything and where conduct is apparently non-assertive, it is likely to be treated as non-hearsay. Conduct is hearsay if the person engaging in the conduct probably intended it to assert a fact observed. For example, a woman testifies that her mother complained of a smell in her home and had health troubles, pointing at her throat like it was difficult to breathe. If the mother is unable to testify at trial, the pointing is (potentially) hearsay since it is meant to assert a fact observed - that the health problem was in the throat/upper head area. Such issues are easily applicable in Chinese drywall cases, mesothelioma, asbestos-concerns, etc.

While these items seem simple and obvious, the reality is there are very unique reasons for why hearsay can be excluded. The four important hearsay risks are misperception, faulty memory, misstatement/ambiguity/faulty narration and distortion. There are key reasons as to hearsay is excluded from evidence are as follows. Firstly, there is an absence of cross-examination. This one is the most important because credibility of the statement cannot be tested by cross-examination. In State v. Brown, the Louisiana Supreme Court stated that “the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability.” Absence of demeanor evidence- the meaning of a person’s assertion can change depending on the person’s demeanor while making the assertion. Thus, without being able to see a person’s demeanor when an assertion was made, the meaning may be lost or confused. Lastly, the fact that the absence of oath in hearsay statements is another reason for exclusion. Granted, there are exceptions to the rule against hearsay and cross-examination and oath are sometimes requirements for an assertion to fall within one of these exceptions. One can refer to the Louisiana Code of Civil Procedure to see the exceptions to the hearsay rule and assertions that are not considered hearsay.

When hearsay is ruled admissible or inadmissible in trial court, this is considered a ruling on the admissibility of evidence. Such a ruling is a question of law and is not subject to the manifest error standard of review. Parties to a suit cannot complain on appeal about an evidentiary ruling in the trial court unless the trial judge was given the opportunity to avoid the perceived error, and the ruling “affected” a “substantial right” of the party. For example, in the Louisiana Supreme Court Case, Trascher v. Territo, the defendants argued that their substantial right was affected when in the district court, a video deposition was deemed admissible. In that case, the substantial right that was affected by the evidentiary ruling was the defendants' right to cross-examine the witness against them.

All of this is rather dense content for most people and is provided more as a way to navigate the content than anything else. Hearsay is a very important component to consider when any elements of the case involve testimony from a third-party regarding an experience of the defendant or plaintiff. Whether in a civil or criminal case, these statements need to be examined carefully by a qualified attorney who is sure to get information across in a manner that avoids hearsay exclusion.

June 3, 2013

Physical Rehabilitation Damage Leads to Difficult Ruling, Appeal of Facts

Scott Ramocitti lost three fingers on his left hand in a work-related accident that occurred while he was using a saw blade in May of 2008. During his treatment Mr. Ramocitti was referred by his work insurance company to the defendant in this case, Helping Hand Physical, for physical therapy in order to learn how to adjust to his new situation. His physical therapy regiment included almost daily exercises with a Thera-Band exercise band to strengthen his hand and help Mr. Ramociotti learn to adjust to living with two fingers on his left hand.

A Thera-Band is a yellow latex band, used to help increase strength by providing resistance to muscles during rehabilitation. He was given his band by Chere Johnson, a Helping Hand physical therapist and instructed to do the exercises at home. After a month of using the Thera-Band, it broke during one of his exercises and re-injured Mr. Ramocitti’s left index finger.

This incident led to Mr. Ramocitti filing suit against Helping Hands claiming negligence for failure to properly instruct and warn him on how to use the Thera-Band. Helping Hands filed a motion for summary judgment, which was granted by the trial court judge in the initial proceeding. Upon receiving this judgment Mr. Ramocitti appealed.

The issue on appeal was whether or not Helping Hands breached its duty to property instruct and warn Mr. Ramociotti about the potential dangers of the Thera-Band. In support of Helpings Hands motion for summary judgment, Ms. Johnson testified in her deposition that she had “provided specific instructions and warning to Mr. Ramociotti about inspecting the band for any nicks, tears or thin places prior to each use”. Had Ms. Johnson properly instructed Mr. Ramociotti on how to use and inspect his Thera-Band, she would have dispatched her legal duty of care and would not be liable for negligence.

However, Mr. Ramociotti testified in an affidavit that he was not given written instruction manuals of any kind on how to properly use the Thera-Band, nor had he received any oral instructions from Ms. Johnson on the importance of closely inspecting his Thera-Band before each usage. Due to the conflicting testimonies of Ms. Johnson and Mr. Ramociotti, a genuine issue of material fact exists as to whether Ms. Johnson properly instructed Mr. Ramocitti, thus the Court of Appeals reversed Summary Judgment in favor of Helping Hands and remanded the case to the trial court for further proceedings.

The importance of this decision lies in the manner in which a set of facts are assessed by a court, as well as the rights people have when they are injured. Not being provided proper instruction is one set of circumstances but, perhaps more importantly, the way in which the courts review a case is also significant. By having an attorney able to argue your case and handle the appeal process properly is crucial for justice when an injury has taken place.

May 31, 2013

Tractor Accident Leads to Question of Responsibility for Dead Tree Causing Incident

In 2009, a Louisiana man was driving a tractor/trailer in Caddo Parish when he suddenly hit a large pine tree that had fallen across the road. Despite having already made this same trip on the same road several times that day, since the last time he had made the pass, the tree had fallen in the road. Unfortunately, the man did not have enough time to see the tree and stop his vehicle before driving into it. As a result of the accident, the man suffered serious neck injuries.

In light of this injury, who was to blame and what action could be taken? The man sued the owners of the property from which the tree fell, State Farm and the Parish. The claims against the owners and State Farm were settled, but the claim against the Parish went to court. Ultimately the trial court ruled against the man in favor of the Parish.

Taking the case further, the man appealed, arguing that the trial court had erred in three main regards. These errors had to do with admissibility of evidence, knowledge of the hazardous condition, and corrective action.

First, the man argued that the trial court allowed inadmissible evidence into court. Specifically, the trial court looked at the policies and procedures of neighboring parishes when making their decision in the case. The Parish called two witnesses, parish workers from neighboring parishes, who discussed what kind of roadways they are responsible for maintaining. They also discussed what specific policies their departments have with regard to how and when to inspect a road. Despite this argument, the appellate court found that there was nothing inappropriate about the testimony of these two men. Their testimonies were used to compare the policies of Caddo Parish to those of similar parishes to show that the policies of the Parish in question were customary in the area. Furthermore, the trial court has broad discretion in evidentiary rulings such as this, and it did not abuse its discretion in this instance.

The man also argued that the trial court mistakenly found that the Parish did not have any constructive notice that the tree was dead before it fell on the road. According to the man, the tree was clearly dead and showed indicators such as lack of bark along the trunk and bright red needles at the crown of the tree that were clear indicators that the pine tree was dead. Because of this, the man argued that the Parish should have known that the tree was dead and posed a hazard, and that the Parish should have removed the tree prior to the accident in question.

However, in order for the appellate court to reverse the trial court's finding, it must find that the trial court had no reasonable factual basis for ruling the way it did. In this case, in order to say that the Parish breached its duty, the court would need to find three things: 1) a hazardous condition existed; 2) the state had knowledge of that condition; 3) the state did not take proper corrective action. In this case, based on the facts presented at trial, the trial court found that the tree could not have been spotted by a drive-by inspection. Two conflicting testimonies were presented as to whether the tree was obviously dead, and it was the trial court's prerogative to choose which testimony was the most believable. In this case, the trial court found that the tree was not obviously dead.

Finally, the man argued that the Parish did not have proper policies in place for when a road should be inspected and how such an inspection should be conducted. However, evidence was entered that clearly showed that the Parish does have appropriate policies in place. Based on the testimonies presented, there was no reason to overturn the trial court's finding.

Overall, the appellate court agreed with the trial court's findings on all three accounts, mainly because proper evidence was submitted, and the trial court had the right to choose which evidence was most persuasive given the circumstances.

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May 30, 2013

Asbestos Case Involves Rules for Testimony and Exclusion

Joseph Trascher of Slidell, LA, was born in April 15, 1940 and died April 11, 2007. Shortly before his death in March of 2007, he filed a petition in the district court seeking an ex parte order to perpetuate his testimony. He alleged that in August 2006, he was diagnosed with asbestosis, and that it was unlikely that he would survive longer than six more months. In the petition, Trascher also alleged that he sustained occupational exposures to asbestos while working as a tack welder at the Avondale Shipyard from 1960 to 1964, and at the Equitable Shipyard from 1965-1974. He requested service on these parties and a number of other parties he identified as expected defendants in his anticipated suit for damages. The district court granted the order.

The video deposition began on April 3, 2007, but was halted due to Trascher’s failing health and fatigue. He tragically died before his deposition could be continued and before he could be cross-examined by opposing counsel. The district court admitted the deposition as trial evidence, and the admissibility of the deposition reached the Supreme Court of Louisiana. The LA Supreme found that “while most of the video deposition is inadmissible, parts of the deposition are admissible under an exception to the hearsay rule.”

Typically, witnesses are to testify in court during a trial in order for the testimony to be admissible. However, there are exceptions to this general rule, and one such exception is to allow a party to perpetuate testimony. Perpetuating testimony is when testimony is prepared so that it can be used as evidence during a trial, even though the person who made the testimony will not be present at the trial. Article 1430 of the Louisiana Code of Civil Procedure grants perpetuation orders when

(1) The facts set forth in the petition show the desire to perpetuate testimony is based upon a reasonable belief that there is a substantial possibility that the person whose testimony is sought will die or be too incapacitated to testify before a contradictory hearing can be held; and
(2) The interest of justice requires the immediate perpetuation of the testimony.

Opposing counsel argued that the deposition was not admissible in trial because they never had the opportunity to cross-examine the witness. The district court admitted the full video deposition, and the case was reviewed by the Supreme Court. On May 8, 2012, the Supreme Court ruled that most of the deposition was inadmissible because, under the Louisiana Code of Civil Procedure article 1450, for a deposition taken to perpetuate testimony to be admissible where the witness is unavailable at trial, “the party against whom it is being used or with similar interests to that party must have been given the opportunity to cross-examine the witness.” The court asserted that “the necessity of an opportunity for cross-examination is evident from the notice provisions of La. C.C.P. art. 1430, which provide that if a party cannot be given timely notice of a de position to perpetuate testimony, the court must appoint an attorney to represent that party who “shall cross examine the deponent.”

In this case, the opposing party did not have an opportunity to cross, thus the Court explained that the deposition is inadmissible hearsay unless it fell within one of the hearsay exceptions. Here, the Court stated that most of the deposition did not qualify as a hearsay exception and that, particularly, none of the testimony met the “dying declaration” exception, since the deposition was not taken when Mr. Trascher believed his death was “imminent.”

The only part that the Court found admissible was the portion of the video in which Trascher is asked and answers the question “today how do you feel?" The court explained that his answer met the Louisiana Code of Evidence article 803(3) exception to hearsay, which allows the admission of a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant’s then existing condition or his future action. The Court stated that this line of question and answer reflected Trascher’s “then existing mental, emotional, or physical condition and is offered to prove his then existing condition, which is highly relevant in a wrongful death and survival claim.”

In the end, this case demonstrates that legal conditions are very stringent and important to follow. While many of the elements that were deemed inadmissible would have been difficult, possibly impossible, to do differently, this situation reminds why hiring counsel that are versed in these topics.

May 29, 2013

Pothole Blamed for One-Car Accident in East Carroll Parish

After being involved in a one-car accident in 2008, a Louisiana woman sued East Carroll Parish Police Jury, claiming that a pothole on Perry Road resulted in her accident. She later amended her claim to state that other factors had further contributed to her injury and that the road was defective. In response, the Police Jury filed a motion for summary judgment, and the hearing on the matter was set for August 1, 2011.

Because the hearing date was set for August 1, 2011, this meant, according to Louisiana law, that if the woman wanted to file an opposition to the motion for summary judgment, she had until eight days before the already set hearing date to do so. This deadline for filing the opposition materials was then set as July 24, 2011. However, July 24th came and went, and no opposition materials were filed on the plaintiff's behalf. On July 29, 2011, three days before the hearing, the plaintiff tried to move the hearing back, claiming that she needed more time for discovery. When the day of the hearing came about, the court pointed out that the plaintiff did not file her motion for continuance until after the eight-days before the hearing deadline.

At the hearing, the court did finally grant the motion for continuance, despite the fact that it was filed late, and the hearing was rescheduled for September 20, 2011. The plaintiff was told that any opposition had to be filed on or before September 6, 2011 (even though this would be more than eight days before the newly scheduled hearing). Basically, the court had offered the plaintiff a 45-day extension of her deadline, from July 24th to September 6th.

Once again the deadline came and went, and no materials were filed by the plaintiff's counsel. Finally, on September 12, 2011, plaintiff filed an opposition. Although this was eight days before the schedule hearing, it was six days after the deadline set by the court. According to Louisiana law, the defendant then has until four days before the hearing to file any response they may have to the opposing materials filed by the plaintiff. The Police Jury filed their response timely, and with their response they included a motion to strike the documents that the plaintiff filed late.

The main issue in this case is the fact that the plaintiff's attorney filed the opposition materials late. As a result of the late filing, the trial court ultimately used its discretion to disallow the late-filed opposition materials. While there are some exceptions when these documents can be accepted late, does the trial court have to accept the late-filed opposition materials?

The plaintiff argues that according to the plain language of Louisiana law, the plaintiff has until eight days before the hearing to file its opposition, and that the court erred by trying to require that she submit those materials 14 days before the hearing. Furthermore, she argues that the defendant was not hurt in any way by the late filing and that the court exceeded its authority by granting the defendant's motion to strike.

However, Louisiana law also says that parties can agree to submit documents earlier than required by the law and that a judge can decide to deviate from the rules as long as it is in the pursuit of justice and that all parties have been given notice. In this case, both of those conditions were met, and the appellate court found that the trial court does not have to accept the late-filed materials. The trial court further found that it was fully within the court's discretion to not take the late-filed materials into consideration.

This case highlights the importance of understanding state law when it comes to the actual procedural aspects of a case and how important deadlines are when serving a client.

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May 28, 2013

Workers' Compensation Act Protects Louisiana Employees Injured on Job

If you ever become injured in a work-related accident in Louisiana, or if you become ill with an occupation-related condition, workers’ compensation can help cover your expenses while you seek the treatment and take the time off that you need.

The Louisiana Workers’ Compensation Act is a piece of legislation that details the rules and regulations of Workers’ Compensation in the state of Louisiana. Specifically, the Act provides for compensation if an employee sustains a personal injury in an accident arising out of and in the course of his employment. Much like any other legal document or piece of legislation, it is best interpreted by trained and qualified legal representation.

In Harvey v. Brown, the Second Circuit Court of the State of Louisiana recently examined the Louisiana Workers’ Compensation Act in the context of whether an employee/employer relationship existed and, if so, whether the injury arose out of and in the course of this employment. On October 8, 2009, McNeil C. Harvey died when a piece of farm equipment he was working under fell and crush him. Subsequently, his daughter, Valerie Harvey filed a suit seeking survivor’s damages and wrongful death damages against Joseph Patten Brown, Jr., Gailliard Farms, Inc., and Gailliard Gin, Inc. According to Valerie Harvey, the accident was caused by the parties’ negligence in: (1) exposing McNeil to ultra hazardous perils; (2) assigning McNeil to work outside the course and scope of his employment; and (3) other fault and negligence to be discovered. Moreover, Valerie Harvey added MAPP, Inc. as an additional defendant and claimed that MAPP was negligent for the same reasons as the original defendants.

Both Galliard Farms and Gaillard Gin filed a motion for summary judgment and argued that there existed no basis for liability against them since neither entity had operated since 2001. Further, Brown and MAPP claimed that McNeil died in the course and scope of his employment with MAPP, thus making MAPP immune from tort liability, leaving Ms. Harvey’s with the sole remedy of a workers’ compensation claim. After the trial court dismissed all of Ms. Harvey’s claims against Brown and MAPP, she appealed.

According to Kelly v. CAN Ins. Co., “except for intentional acts, workers’ compensation is the exclusive remedy for work-related injuries and illnesses." Furthermore, “[t]he exclusive remedy provision of Louisiana’s workers’ compensation statute precludes an employee from filing a lawsuit for damages against “his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal.” Accordingly, when an employer invokes the immunity of a statutory employer under the Louisiana Workers’ Compensation Act, it has the burden of proving this immunity.

In deciding that trial court’s decision was proper, the Circuit Court, on appeal, determined that the evidence showed that McNeil was employed by MAPP and that he was performing employment duties on the date of the accident. Unfortunately, Ms. Harvey failed to refute this evidence and the court decided that MAPP and Brown (as an office of MAPP) were immune from liability.

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May 24, 2013

Slip at Large Retail Store Leads to Summary Judgment and Subsequent Appeal

A summary judgment is strong medicine. When a trial court grants a motion for summary judgment, it precludes the non-moving party from having their case go to the jury and in some cases from presenting any evidence at all. Because this remedy is so potent, the granting of a motion for summary judgment is reviewed de novo on appeal. A summary judgment is a matter of law not a matter of fact so the trial court is not in any way in a better position to make this decision. The appellate court uses the same standard of review as the district court.

Wal-Mart Louisiana, L.L.C. was granted a summary judgment against Jean and Robert Gray. The trial court found that they had not presented any genuine disputes of material fact. The plaintiffs appeal was granted and a new trial ordered because the appellate court found that there were genuine issues of material fact. The appellate court reversed the trial court's decision after commenting upon the meanings of the words "genuine" and "material."

The appellate court found that a fact was "material" if when it is resolved in favor of one party or another it affects the outcome of the case under the governing law. A fact will only be found to be material if it could actually matter to the trial court's decision. If a fact would not have any bearing on the case it cannot be deemed material. Facts that are presented that are immaterial do nothing to prevent a trial court from granting a motion for summary judgment.

The appellate court went on to explain that an issue is "genuine" if the evidence presented was sufficient to allow a reasonable jury to return a verdict for the non-moving party. If a jury that falls within objective standards for normal behavior and decision making could possibly have returned a verdict for the party that is not asking for summary judgment then that party has presented genuine issues and the moving party's motion should be denied or the decision should be reversed on appeal.

An important aspect of a case like this that the appellate court highlighted is that on appeal all inferences and constructions of fact are taken in the light most favorable to the non-moving party. The moving party has already been successful its case at the trial level by the time a case is under appellate review point. Construing all facts and inferences in that party's favor would provide little relief to the party that has lost at the trial level due to the motion for summary judgment. The appellate court in this case determined that the plaintiffs had actually put for genuine issues of material fact and therefore Wal-Mart was not entitled to a summary judgment. A new trial was ordered when the district court was reversed.

The plaintiffs in this case were found to have put into question the issue of whether or not Wal-Mart "created" the condition that caused Ms. Gray's accident. Ms. Gray was injured when she slipped on some liquid on Wal-Mart's floor. The appellate court noted some instances in which "created" was used by courts in this jurisdiction. These uses of "created" combined with the facts of this case were enough to convince the appellate court that the plaintiffs may have been entitled to relief. The appellate court used the following facts in its analysis. There was a rain storm the day of her accident. An incident report created contemporaneously with her accident noted that Wal-Mart's roof had some holes in it that contributed to the slippery conditions in the store. While the district court did not find that the issue was open as to whether or not Wal-Mart had a responsibility to Ms. Gray, the appellate court disagreed. The appellate court found that under the applicable law Ms. Gray and her husband may have been entitled to relief. The appellate court did not determine that as a matter of law that the plaintiffs were entitled to relief, simply that they may have been.

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May 21, 2013

Prematurity Raised in Nursing Home Injury Case

The exception of prematurity determines whether a plaintiff has fulfilled a condition prior to filing suit. That is, in some occasions, Louisiana law requires a complaining party to bring the case somewhere else before they can actually file the case in court. Generally, that means that an administrative remedy exists elsewhere, and the complaining party should use that avenue first instead of the court.

There are two burdens involved in the exception of prematurity. The first is on the party raising the exception. The party raising the exception should prove that there is another remedy elsewhere available and that the complaining party failed to exhaust their administrative options before bring the case to court. Once the party raising the exception has satisfied their buren, then the burden shifts to the plaintiff to prove that he or she has actually exhausted all of the options before bringing the case to the courtroom. See Mosley v. Louisiana Dept. of Public Safety & Corrections, et. al., 07-1501 (La. App. 3d Cir. 4/2/08), 980 So.2d 836.

A case arising from Deridder Louisiana in the Parish of Beauregard shows an example of the exception of prematurity. In that case, the plaintiff was a patient at Westwood Manor Nursing Home following a surgery on his skull. While an attendant was moving the plaintiff, the plaintiff struck his head against a wall and had to have immediate surgery. It is alleged that one worker moved the plaintiff while the other watched, but the second person did not help the first when the first lost his balance, causing the plaintiff to hit his head against the wall. The plaintiff allegedly suffered permanent damage as a result of the collision with the wall.

The plaintiff complained of failure to care for patients, failure to train employees properly, and the failure of the second employee to help the first to transfer the patient. The court examined none of these accusations, however. Instead, the court explained that the plaintiff's case was barred by the exception of prematurity. The Medical Malpractice Act, La.R.S. 40:1299.47, requires that malpractice claims must first be presented to a medical review panel, and plaintiff failed to fulfill that requirement.

In order for the exception of prematurity to apply, plaintiff's claim needed to fall within the definition of malpractice. Louisiana code defines malpractice, but the plaintiff relied on a six-part test that is laid out in another case, Coleman v. Deno, 01-1517 (La. 2/25/02), 813 So.2d 303. The six part test includes: (1) whether the particular wrong is 'treatment related' or caused by a dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached; (3) whether the act or omission involved assessment of the patient's condition; (4) whether the incident occurred in the context of a physician-patient relationship, or was within the scope of activities a hospital is licensed to perform; (5) whether the injury would have occurred had the patient not sought treatment; and (6) whether the tort was intentional. Again, the court did not examine the merits of plaintiff's claim because of Louisiana's unique status as a civil law state.

The court explained this role: “As a civilian jurisdiction, we look first to the plain language of the statute, and only resort to interpretive analysis when there is some ambiguity.” The definition of medical malpractice related to the plaintiff's claim is found specifically in the Medical Malpractice Act: “handling of a patient, including loading and unloading of a patient… in the training or supervision of health care providers…” As such, the court found no need to look further. The action fell within the Medical Malpractice Act's definition of malpractice, and therefore, in compliance with the Act, plaintiff should have brought his claim to a medical review board prior to bringing the case to court. The case was barred by the exception of prematurity and dismissed accordingly.

It may be difficult to determine when you need to bring a case to an administrative body in compliance with the law before actually taking the case to court. Thorough research is required to be sure your case does not end up like the one described here.

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May 20, 2013

Statements Made at End of Trial Reviewed for Propriety in Workplace Lawsuit

The case of Williams v. C&E Boat Rental shows how important it is to hire attorneys who navigate court proceedings in line with judicial expectations. This post's case arose out of a maritime injury claim and centered around comments made by the defense attorney during closing arguments.

In 2007, Williams was a deckhand on a boat owned by C&E. He alleged that he was injured by fumes while cleaning out the vessel's lube oil tanks. Later that year, he hired an attorney and filed suit against C&E. The suit was voluntarily dismissed the day after it was filed. In 2009, Williams re-filed his suit against C&E alleging negligence and unseaworthiness. After the defense made its closing statement, Williams moved for a new trial claiming that statements the defense made during its closing argument were inappropriate and prejudicial. The defense made six different statements that Williams argued were prejudicial, specifically regarding the fact the statements alleged various types of misbehavior on the part of Williams' attorney.

When discussing closing statements, an important evidentiary requirement is that statements made during closing argument must have some basis in evidence that was presented to the court. This is an issue of fundamental fairness as the opposing side would not be able to challenge the validity of such statements.

Williams' attorney objected to two of the statements at trial, and the other four statements on appeal which required the Fifth Circuit to use two different standards of review when determining whether the statements were prejudicial. For the objections that were raised at trial, the Fifth Circuit used an abuse of discretion standard. When looking at an abuse of discretion claim, the trial court is given deference in determining what the impact of the statement was. The Fifth Circuit held that the statements characterizing Williams' attorney's action had some basis in evidence that had been presented to the court.

The higher court will also look at any jury charges or court statements to see if they mitigated the impact of the statement in question. In this case, the Fifth Circuit held that a jury charge from the trial court judge telling the jury that they can disregard attorney statements if they do not agree with the attorney's interpretation of the evidence. The Fifth Circuit holds that between giving deference to the trial court and the jury charge, there is simply not enough evidence to overturn the lower court's denial of a new trial.

For the objections raised on appeal, the Fifth Circuit applied a plain error standard. To demonstrate reversible plain error, Williams would have to show that 1) there was an error, 2) it was plain, and 3) it affected his substantial rights. Basically, this means that an error is prejudicial, and a lower court decision reversible, if it is reasonably probable that the outcome of the trial would have been different had the error not been made. In this case, the Fifth Circuit simply states that they felt the evidence provided by Williams did not rise to the level of a reversible error.

In sum, the Court's decision boils down to holding that Williams simply did not provide strong enough evidence showing that the statements the defense attorney made rose to the level of reversible error or prejudice that would have required the Fifth Circuit to overturn the lower court's decision.

This case shows the necessity of having top notch legal representation during trial and appeal. If you have any legal questions or need assistance, please do not hesitate to call the Berniard Law Firm for your legal needs.

May 17, 2013

Understanding Comparative Fault/Negligence and How it Impacts Judgments

You have probably heard the phrase “accidents happen.” But if you are in an accident, the first thing that you want to ask is who is at fault. With all of the chaos that can be part of an accident, sometimes the answer to this question isn’t always clear. This is when comparative fault, also known as comparative negligence, comes into play. In general, negligence refers to conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. Comparative negligence is different from ordinary negligence in that ordinary negligence is a failure to exercise the care that a reasonable person would exercise in similar circumstances whereas comparative negligence describes conduct that creates an unreasonable risk to one’s self.

In 1979, Louisiana Civil Code Article 2323 was amended to provide for a pure comparative negligence regime where a plaintiff’s own contributing negligence did not bar the recovery of damages, but merely reduced it by his or her own portion of fault. The Louisiana Legislature, in 1996, further amended the Code, making Louisiana a “true” comparative fault jurisdiction and the language of that amendment provided:

In an action for damages where a person suffers injury … the degree or percentage of fault of all persons causing or contributing to the injury … shall be determined, regardless of whether the person is a party to the action, and regardless of such person’s insolvency, ability to pay, immunity by statute …

Therefore, the fault of all persons who contributed to the injury must be accounted for by the judge or jury and in every accident, the allocation of fault must total 100% amongst the parties.

An example of comparative negligence can be seen in Williams v. Asbestos Defendants, a recent case out of Orleans Parish. In 2009, Mr. Williams passed away from asbestos-related lung cancer and other complications. Before his death, Mr. Williams and his wife filed a claim for damages alleging that Mr. Williams was exposed to various sources of asbestos at his workplace between 1980 and 1998. The Williams’ filed their claim against Dow Chemical Company, Entergy Louisiana, LLC, General Electric Company, Shell Oil Company, and Union Carbide Corporation among others.

The trial court, in this case, found that the exposures allegedly caused by the various Defendants could not be separated in order to apply comparative negligence principles and, further, that “due to the nature of asbestos-related disease, th[e] court [found] that the damages caused by any one defendant [could not] be separated from the entire harm that the plaintiffs allegedly suffered.” However, the Louisiana Fourth Circuit Court of Appeals held that the law of comparative negligence does apply here and that after weighing the testimony presented at trial, such as the length of time Mr. Williams was alleged exposed by each defendant, the jury would be able to determine how to divide Mr. Williams’ injuries so that fault may be apportioned.

According to Watson v. State Farm, a Louisiana Supreme Court case, the jury will have to consider several factors in assessing and allocating fault amongst the parties in Mr. Williams’ case. These factors include: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought.

Comparative negligence is an important legal doctrine and it is important to seek legal representation even if you think that you are partly at fault for your injuries. Facts are especially important in cases of comparative negligence because when the victim is partly responsible for his or her own injuries, a defendant is less likely to fully compensate the victim. As such, the manner in which all of the facts and evidence is presented is very important in trial and appellate court proceedings and to assure fault is apportioned fairly among the parties. Not having the legal representation that you deserve may lead to an unfavorable ruling.

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May 16, 2013

Car Accident Claim Relies on Finding of Lower Courts

When cases are appealed, the appeals court must grant a great deal of deference to the lower court as the fact-finder. The lower court sees both parties at trial and deals extensively with all of the circumstances of the case. The appeals court, however, may see the parties, but does not listen to testimony or review the facts nearly as extensively as the lower court. Often, the only facts that are presented are those in the record of the lower court. Where the lower court has leeway to find additional facts, the appeals court has no such ability. However, the appeals court does have the discretion to adjust findings of the lower court should they find that the lower court's determination is not supported by the evidence in the record. Damages are generally vulnerable to changes at the appeals level.

Deference to the trial court may occasionally produce some results that one might question. For example, in a case appealed from the Abbeville City Court in the parish of Vermillion, the plaintiff, who was also the sole witness, and evidence seemed questionable, but because the lower court found in her favor, the appeals court had to defer to the lower court's version of the facts. In that case, the plaintiff sought damages related to a car accident. The question of fault in the car accident was clearly on the other driver, but the issue in the case revolved around the plaintiff's request for damages related to her injuries.

The plaintiff was involved in at least six car accidents in the past twenty years. The two most recent occurrences, however, were the issue in this case. The first accident involved the other driver in question. The second accident occurred one month later; she was at fault and it was much more serious because the air bag deployed in the second crash, but not in the first. Nonetheless, the plaintiff attributed back pain, neck pains and severe headaches to the first accident, which was not her fault.

The plaintiff presented conflicting medical evidence, her own testimony did not match previous testimony or the medical records and she suffered several other issues including high blood pressure, general anxiety, major depression, and chronic back pain. The court explained that “[s]he was taking four Lortab pills each day in addition to a myriad of other medication.” She testified that her headaches were so severe that she even had trouble walking, but none of her doctors noted this type of severity. Additionally, the court noted that the plaintiff left the hospital following the second accident because she “believed the hospital [was] 'an animal hospital.'” Finally, the plaintiff was very hostile at the trial, and when the defense attorney asked in-depth about her headaches on cross-examination, she replied, “I want to jump this man!”

Despite signs concerning the validity of the plaintiff's claims, the lower court awarded her damages for back pain, headaches, neck pain, and special damages for past medical treatment - a total of $8,500.00. The appeals court explained that “the trial court found [the plaintiff] to be a credible witness. Accordingly, we must afford great deference to the trial court's determination that the testimony she provided was true.” The court then examined the damages individually.

The court found that the plaintiff did mention her headaches and neck pain prior to the second accident, so it is plausible that those two injuries did result from the first accident. Therefore, the court sustained the damages for her neck and headaches. However, the court notes that the plaintiff did not complain about her increased back pain until after the second accident, so she should not be awarded damages related to her back pain because they may have resulted from the second accident. Accordingly, the court decreased her award of damages for past medical treatment that related to the back pain as well. In total then, the plaintiff's award was decreased to $5560.00.

Great deference to the lower court means that the initial trial is extremely important, even if there is an opportunity to appeal. You need an experienced attorney to present a convincing case to the trial court.

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May 11, 2013

Previously Dismissed Medical Malpractice Claim in Natchitoches Revived Due to Contrasting Interpretation

A medical malpractice claim in Natchitoches, Louisiana was dismissed by the District Court, but on appeal, the Third Circuit Court of Appeals reversed, keeping the claim alive. What led to the different outcomes was a difference in interpretation of the applicable Louisiana statute.

The claim was brought by the husband and children of 62 year old Margaret Benjamin, who was treated for abdominal pain by Dr. William Zeichner at Natchitoches Parish Hospital. Dr. Zeichner performed a surgery, and seven days later Mrs. Benjamin returned to her home in Lynwood, California. Enduring frequent vomiting, she was admitted to the Intensive Care Unit of St. Francis Medical Center a few days later. The source of the problem was a small bowel construction. Tragically, she passed away a few weeks later.

Mrs. Benjamin’s family brought a medical malpractice claim against Dr. Zeichner, alleging the small bowel construction that caused her death was due to Dr. Zeichner’s manipulation of her bowel. They also argued that Dr. Zeichner’s surgery was below the standard of care. They offered an expert witness, Dr. James Shamblin, to testify that Dr. Zeichner breached the standard of care in this case, causing Mrs. Benjamin’s death.

The first court responded by excluding the expert because Louisiana law requires such an expert to have an active license to practice medicine, or be a graduate from an accredited medical school. Dr. Shamblin’s license had expired by the time plaintiffs offered him as an expert, and although there was no dispute that he graduated from Tulane Medical School, plaintiffs could not prove that it was an accredited medical school at the time of Dr. Shamblin’s graduation, in 1958. Without their expert witness, Mrs. Benjamin’s family had no case.

However, unlike the District Court, the Third Circuit decided that Dr. Shamblin could not be disqualified simply because the accreditation status of Tulane Medical School in 1958 was not established in the case. Dr. Shamblin had submitted an affidavit before his license expired, and according to the Third Circuit’s interpretation of the state statute, there is no requirement that the expert be licensed at the time of his testimony. The Court found that because his conclusions regarding Dr. Zeichner were reached while Dr. Shamblin was still licensed, he should not have been disqualified.

All that differed between the courts were their interpretations of when the expert was required to be licensed – at the time the claim arose, or at the time he was testifying. In this case, Dr. Shamblin was licensed when the claim arose but not when he was going to testify. That was enough for the Third Circuit to admit him as an expert.

Predicting how a judge will interpret statutes is difficult even for lawyers. And yet it was the court’s interpretation of the relevant Louisiana statute which made all the difference, allowing Mrs. Benjamin’s husband and children to continue with their claim. Lawyers can influence how courts interpret statutes by presenting persuasive arguments as to the general intent of the statute, presenting research on how the statute has been interpreted in particular cases, and presenting theories for why various provisions within the statute should or should not interact with each other. As you can imagine, getting the best possible legal team is essential to successfully navigating statutes.

The events here are inherently tragic and have permanently changed the lives of all involved. Unfortunately, whether doctors deviate from the standard of care or not, injuries or deaths related to surgical procedures occur all too often. The court system, while never fully compensating families for such injuries or deaths, functions to hold doctors accountable and provide injured parties’ loved ones an opportunity to be heard.

May 11, 2013

How Underinsured Motorist Coverage Applies to Passengers of an Accident

Automobile accidents create questions of coverage and liability - the only problem is how to answer those questions. Who is liable? Are you covered? If you are covered, to what extent are you covered? If you are covered, are your passengers covered? The final point is a more complex question to which recent case law has provided guidance for us.

In February of 2009, an uninsured motorist crashed into a vehicle owned by Ann Bernard. Ann was the driver and she had two passengers with her, Andrea and Norell Bernard, both members of her family not living in her household. Ann filed suit against her insurance provider, Imperial Fire & Casualty Insurance Company in order to obtain uninsured/underinsured motorists coverage under Ann's Imperial policy. This type of coverage was named "UM" coverage. Ann believed that herself, Andrea, and Norell were all "using" the vehicle and were, accordingly, all insured persons as defined under her policy; thus statutorily entitling them all to coverage under Louisiana law.

In her filing, Ann referenced La. R.S. 22:1295 which states, in relevant part:

La.R.S. 22:1295(1)(a)(1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vechicle shall be delivered or issued ... unless coverage is provided ... for the protection of persons insured thereunder who are legally entitled to recover ... from owners or operators of uninsured or underinsured motor vehicles.

However, Imperial did not believe that Norell and Andrea fit the definition of "insured person" under the terms of Ann's insurance policy because they were not operating or "using" the vehicle, and were not member's of her household. In order to receive UM coverage the individual seeking coverage had to, pursuant to the Ann's policy, be "using" the vehicle and be an insured person as defined under the policy. Ultimately, it was the court determined that Andrea and Norell Bernard were insured persons who were using the vehicle, and under the Imperial policy were entitled to coverage.

The upper court looked to public policy to determine what the term "use" meant to determine if Norell and Andrea were insured persons, and to give meaning to the term for future references when dealing with an insurance policy. Public policy is simply the principles of a society, often unwritten, of which social laws are typically based. This theory states that any injury to the public good is a good enough basis for denying the legality of an action. With this focus, the court branded its definition with the public
good in mind. The court looked to the underlying purpose of uninsured motorist coverage, determining that its primary function was "to promote and effectuate complete reparation..." Because Ann Bernard's insurance policy did not define the terms in question, the court had to interpret a meaning. Insurance policies cannot be interpreted in an unreasonable manner - meaning that an interpretation of the terms of a policy cannot be construed in such a way as to unreasonably restrict, or go beyond what can be reasonably contemplated by the terms of the policy. In this particular
situation, the "use" involved is distinguished from the operation of the vehicle.The court posited that "Use" refers to the purpose, not the actual physical operation of a vehicle, meaning that "use" has a much "broader meaning than operation of [a] vehicle and would include any use of the vehicle in a manner that is related to its inherent purpose.

The term "use" is interpreted very liberally by courts, for public policy reasons. "Using" a vehicle not only includes operating a vehicle, but being transported in one as well. The purpose of the vehicle is transportation and it appears courts are willing to stand by this when assessing uninsured motorist coverage. The purpose of having uninsured motorist coverage is to give complete reparation to the injured parties. It would be unjust for a guest passenger to be prohibited from coverage when injured by an uninsured motorist at no fault to the passengers.

The practical implications of this are as such: in the event an uninsured motorist crashes into an individual, and the individual has guest passengers in their car, those passengers can be covered by the insurance of the individual, provided
they have a policy covering an accident caused by an uninsured or underinsured motorist.

If you have been involved in a motor vehicle accident, and you question whether passengers in your vehicle can receive coverage under your insurance policy, contact Berniard Law Firm today.

May 7, 2013

Abandonment Examined by Appellate Court in Construction Lawsuit

A Saint Martinville, Louisiana, construction company, Cole's Construction Crews, Inc., recently had a judgment against it reversed and remanded back to the trial court. Back in 2007, Cole's had filed a lawsuit against J-O-B Operating Company. A few months after filing suit, Cole's requested production of documents and sent interrogatories (or a list of probing questions) to JOB. Almost two years later, in July of 2009, JOB finally answered the requests. Then, in June of 2011, JOB filed a motion to dismiss the suit, claiming that Cole's had abandoned the lawsuit. Ultimately, the motion to dismiss was signed, and Cole's then attempted to get the motion set aside. The trial court denied this attempt, and Cole's appealed the case to the appellate court to get it reviewed.

Cole's claims that granting the motion to dismiss was an error that should be reversed. First, JOB had just answered the interrogatories less than two years earlier, and second, JOB did not file the requisite affidavit with its motion to dismiss. Ultimately, the appellate court disagreed with the trial court's ruling and decided that granting the motion to dismiss had been done in error. They came to this conclusion by considering the various aspects of the complex Louisiana abandonment law, which is discussed below.

In Louisiana, Article 561 of the Louisiana Code of Civil Procedure imposes three requirements on plaintiffs in order for their lawsuit to not be considered abandoned. The first requirement is that the plaintiff has to take some sort of formal action before the court with regard to the lawsuit. Next, this action needs to take place during a court proceeding and must be in the suit's record, unless it is part of formal discovery. Finally, this action has to take place in the requisite amount of time. If three years have passed without an appropriate action as described above taken by either party, then the suit is automatically abandoned. Even though abandonment is self-executing, defendants are encouraged to get an ex part order of dismissal, just like JOB did in this case, to make sure that their right to assert abandonment is not waived.

However, there are two exceptions to the above abandonment rule. One is when a plaintiff is unable to prosecute or take necessary action because of circumstances beyond his or her control. The other exception is if the defendant takes some sort of action that is inconsistent with the intent to abandon. If a defendant takes an action in a case that is contrary to asserting abandonment, he or she in effect waives the right to assert abandonment. Furthermore, deference is giving to the plaintiff and, when at all possible, a case should not be granted dismissal. This is because the plaintiff should be given his or her day in court in order to address any grievances.

Because this case involves a question of law, instead of fact, the appellate court gets to review the case de novo or as if the trial court has not already tried the case. However, the appellate court needs to read the law as stated and apply it as such; it cannot rewrite or reinterpret the law. So, in this instance, the appellate court had to decide whether or not the fact that the defendant answered the interrogatories within the past three years counts as a waiver of its claim of abandonment. This is a tricky question because when the defendant answers the interrogatories, that action does not get recorded on the official court record and it does not take place during a court proceeding. However, it is still part of the discovery process.

While Cole's argues that answering the interrogatories is clearly an action that contradicts a claim for abandonment, JOB contends that it does not count as part of formal discovery. JOB answered the interrogatories voluntarily, though, without being compelled to do so. Because of this, the appellate court found that JOB's actions were not consistent with treating the case as abandoned. Answering the plaintiff's interrogatories and serving them on all relevant parties constitutes a step or sufficient action to keep the case from being classified as abandoned, according to the appellate court. Thus, the trial court's judgment was reversed.

From this case, you can see how important it is to have someone who is adept at researching and interpreting the relevant law on your case.

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May 1, 2013

Summary Judgment Rules Brought to Light in Tort Case

A Louisiana volunteer firefighter, Rodney Champagne, who works for the Duson Volunteer Fire Department was injured around June 28, 2010, while testing fire hoses at the fire department. After the hose wall blew out, the hose struck Mr. Champagne in the head, ultimately causing permanent mental injuries. The contact also fractured his skull. In response, Champagne and his wife filed a tort suit, both individually and on behalf of their minor child.

A tort is basically just a wrongful act that someone does that causes them to be legally liable. These acts are not necessarily illegal, but rather, are acts that cause someone else to suffer loss or be harmed unfairly. In this case, the plaintiffs are claiming that the hose wall blowout that led to Champagne's head injuries is the tortious act for which someone should be legally liable.

The plaintiffs filed suit against several defendants, but two in particular, Lavergne (another fire fighter at the same department) and AAIC (Lavergne's insurer), tried to get a motion for summary judgment passed to excuse them from the suit. The motion for summary judgment argued that Lavergne was immune from tort liability because he is a co-employee of Champagne.

The trial court denied Lavergne and AAIC's motion for summary judgment, and the defendants (Lavergne and AAIC) appealed the decision in order to get it reviewed by the appellate court. When reviewing a motion for summary judgment in this manner, the proper standard of review is de novo. This means that the appellate court who is reviewing whether the motion for summary judgment was appropriately granted or not by the trial court looks at the motion fresh as if the trial court had not already reviewed it.

Determining whether or not the motion for summary judgment should be granted in this case is purely a question of law and centers on whether the Louisiana Workers' Compensation Act allows fellow volunteer firefighters immunity from tort liability. Two sections of the Act in particular, 23:1032 and 23:1036, are in question. Section 23:1032 extends tort immunity to co-employees, but section 23:1036 is ambiguous. The defendants want the court to look at the legislative intent behind the two sections, and they argue that doing this will show that the Act is intended to limit a firefighter's remedy to workers' compensation. This, they argue, would make a co-employee immune from liability.

Champagne and his wife, the plaintiffs, argued that the Act only provides for immunity to the fire company and that it should not be read in a way that would suggest this immunity should extend to fellow employees. If the legislature wanted the law to include immunity for fellow employees, the plaintiffs argued that it would have clearly said that in the law. The trial court agreed with the plaintiffs, stating that it could not simply rewrite the law or add to it, but that it must take the law at face value. If the law needs to be changed, it is up to the legislature to change the law.

While the appellate court ultimately realizes that interpreting the law to allow fellow employees to be liable for tortious acts might make people less likely to volunteer, the court acknowledges, just like the trial court, that the law does not clearly exclude co-employees from liability. Therefore, they agree it is up to the legislature to change the law, but for now, the co-employee can be held liable for the tortious act.

This case is just one example of how important it is to have an in-depth understanding of the law and of how difficult laws can be to understand.

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April 27, 2013

Intricate Rules of Procedure Come to Light in Malpractice Suit

Medical treatment is always a sensitive legal issue. In one instance, a patient, Ms. Finley, received an improper diagnosing from her local ER. The trial court granted Ms. Finley’s motion for summary judgment against an Emergency Room (ER) doctor for breaching the standard of care by misdiagnosing her during examination. The Court of Appeals reversed and remanded the case because summary judgment cannot be based on a factual finding. The plaintiff appealed the trial court’s failure to grant a motion to strike the defendant’s opposition to the motion for summary judgment, but was unsuccessful because the trial court has discretion concerning service of process.

Ms. Finley was accepted as a patient at the Christus St. Frances Cabrini Hospital ER of Rapides Parish on August 30, 2002. Although a medical review panel opinioned that Dr. Ugokwe did not breach the standard of care and took all reasonable steps in an attempted diagnosis of a difficult to determine health circumstance, Ms. Finley filed suit on May 11, 2005.

The plaintiff’s motion for summary judgment was based on depositions from the defendant’s expert witness that allegedly agreed with the plaintiff’s expert, proving the applicable standard of care and its breach. Dr. Ugokwe filed his objection and the opposition was left in the mail slot of the Plaintiff’s counsel’s building. The Plaintiff received the opposition and filed a motion to strike.

The basis for this motion relies upon the Louisiana Code of Civil Procedure, specifically the requirement that a motion for summary judgment be rendered at least ten days prior to trial. In the instant case it was rendered eight days prior to scheduled trial. Although that is reversible error, the Court “will not address an error not raised in brief.” It is necessary to file motions at appropriate times, and had the defendants raised this issue, the summary judgment would have been reversed by the third page of the opinion. Thus, it is absolutely necessary that injured persons seek competent counsel fully aware of civil procedure to ensure success. However, this particular appeal merited more discussion since the defense counsel did not raise the issue.

Proper service is controlled by two standards in the Louisiana Code. Motions that set a matter for hearing are held to a higher standard than memorandums in opposition to such motions. Article 1313(A)(2) allows service by “delivering a copy thereof to the counsel of record,” but it does not specify proper delivery. i.e. certified mail. The trial court denied the Plaintiff’s motion to strike for improper service because the judge saw no prejudice (Ms. Finley’s attorney received the memorandum the following day). The Court of Appeal found that holding to properly within the trial court’s scope of discretion.

The standard of review for summary judgment is not abuse of discretion, but is de novo, and the trial court is afforded much less liberal deference. The purpose of summary judgment is to avoid a trial when there is no issue of material fact — securing a just, speedy, cost efficient resolution. The Third Circuit held in Hypolite v. Columbia Dauterive Hosp., that the question of whether a physician’s conduct fell below the applicable standard of care is a factual determination. By definition, factual findings cannot be determined by summary judgment and for this reason, the Court of Appeal reversed the trial court’s grant of summary judgment. The case was remanded for trial on the merits.

This case is illustrative of several issues concerning civil procedure. First, it is important to file motions in a timely manner. A plaintiff’s attorney who files a motion for summary judgment so close to the scheduled trial risks the reversible error of the trial court granting the motion within ten days of trial. Secondly, service of process is essential, but the trial court can allow for service that does not clearly prejudice either party, because one of the fundamental purposes of procedural rules is to prevent prejudice. Lastly, summary judgment is exclusively allowed when judgment is entitled as a matter of law. There must be no issue of fact, and the review is de novo. De novo review allows the Court of Appeal to apply the same standard as the trial court. Therefore, to successfully win on summary judgment it is often necessary to convince the courts of such entitlement at both the trial and appellate levels. Medical malpractice cases are especially fact specific, and whether a physician’s conduct fell below the standard of care is an issue of fact. Thus, it is rare that extensive litigation will not be required in proving such a breach.

If you have been misdiagnosed or victim of medical malpractice, do not waste any more valuable time without qualified legal representation.

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April 23, 2013

Comparative Fault and Reduced Court Fees for Victims

Louisiana, like many other jurisdictions, has adopted the doctrine of comparative fault. Prior to comparative fault, many plaintiffs were denied recovery from a negligent wrongdoer if they also were negligently at fault (according to the doctrine of contributory negligence). Comparative fault alleviated this harsh rule of contributory negligence and, for some time now, Louisiana Law has provided relief for an injured plaintiff, even if said plaintiff was negligent as well. For instance, if an injured plaintiff filed suit and the jury decided that the defendant was responsible for 15% of your injuries, that defendant would be liable for 15% of the damages. Such a rule promotes a fairness, but how does this rule comport with legal fees?

Trial itself isn’t free, and in many cases expert testimony is crucial. The general rule is that the percentage of fault assigned applies to court costs as well.

In a recent case, Davis v. State of Louisiana, there was an automobile accident where the jury found DOTD 25% at fault but the judge, rather than assigning DOTD 25% of the costs, assigned them 100% of expert fees and clerk’s costs.

Although the defendant was only assigned 25% of the fault, the plaintiffs were assigned 0%. The Davises were the parents of a passenger while the other plaintiffs were the surviving children of the driver. The court, seeing that none of these plaintiffs had any "blood on their hands," held that fairness could not allow them to pay. In other words, the interest that a wrongdoer only pay what is proportional to his fault is trumped by the policy that a party with no fault be forced to pay out of pocket.

Of course the defendants posed an argument, and although their motion to have plaintiffs pay their fair share (75%) failed, they appealed. Although the appellate court affirmed the trial court's decision (and assigned costs of appeal to defendant as well), the appeal was useful in giving us a better idea of when the courts might veer from the general rule that a party only pay his or her proportional share.

The Court of Appeals reasoned that the trial court does not abuse its discretion by assigning all costs to the defendant if the defendant is the only guilty party in the room. The appellate court synthesized this rule from reviewing prior cases.

In Starr, a driver negligently crashed while taking a sharp turn. The passengers sued the deceased driver’s estate. The representatives of that estate, however, sued DOTD for negligently failing to place a warning sign for such a dangerous turn. When the jury found DOTD 24% and the driver 76% at fault, the judge granted the driver’s heirs’ motion that DOTD pay all costs. However, in that case, the only living "wrongdoer" was in the courtroom, and the case concerned a single car accident. Therefore, the court found the two car accident of Davis more applicable.

In Davis, the Plaintiff settled with the oncoming driver but DOTD remained in trial until judgment was entered. Even after the jury found that the other driver was 60% of fault, leaving only 40% of fault to DOTD, the trial court assessed all of the costs to DOTD. Upon appeal, the Court of Appeals found this acceptable, given that DOTD was the only remaining defendant. Thus, the trial courts are within the bounds of their equitable discretion when granting motions to assign a lone defendant all costs, rather than the percentage equal to its apportioned to fault.

What does this mean to you?

If you have been injured in an accident and are not personally negligent, costs as a general rule are assigned to the party at fault. However, when multiple parties are at fault each party only pays for its share of the damages. Cases with more parties require more litigation, involving cross-claims and experts, and as a result parties incur more costs. However, these cases provide that the faultless party can be protected from having to pay.

A trial court's decision to assign costs inconsistent with apportioned fault is discretionary, but with proper legal advocacy, the courts seem to favor the innocent plaintiff. Although no defendant is required to pay for more of a plaintiff's damages than that proportional to his apportioned fault, the courts will allow for a well-pleaded motion that pay the total cost. After all, the case is before the court because the defendant required the plaintiff use the court’s authority to make them write the check.

It requires experienced legal representation to properly and effectively avail you to every measure of relief available. If you have a claim but are deterred by the costs of comparative fault litigation, contact the Berniard Law Firm.

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April 21, 2013

Lawsuit Involving Injury Filed Against Wrong Hotel Requiring Amended Petitions

In the summer of 2007, a woman was dining at a hotel restaurant in Alexandria, LA, when she was injured, allegedly by the restaurant’s negligence. Exactly one year later the aggrieved, Ms. Holmes, filed suit, naming Choice Hotels, Inc. as the defendant. Within weeks Choice Hotels responded, asserting it had no connection whatsoever with the hotel where the accident occurred. It seems that, through unfortunate circumstances, Ms. Holmes mistakenly named and served the wrong party.

Within a month of receiving notice of her mistake, Ms. Holmes amended her petition, correctly renaming the defendant. However, by the time they were served with notice, fourteen months had passed since the date of the injury. Granting the hotel owner’s motion for “exception of prescription,” the trial court dismissed the case.

Exception of prescription occurs when the prescribed amount of time to file a complaint expires. It is a procedural rule developed to protect a defendant from the burden of defending stale claims, but since it is developed purely for protecting the defendant against prejudice, where prejudice is absent, Louisiana law provides a doctrine that will allow the amended complaint to “relate back.” An amendment “relates back” to the date the original complaint was filed so long as the action asserted by the amended complaint “arises out of the conduct, transaction, or occurrence” of the action asserted in the original complaint. La.Code. Civ.P. art. 1153. The Supreme Court of Louisiana has set forth specific requirements prerequisite of an amended complaint that mistakenly named the wrong defendant in 1983.

1. It must rise out of the same transaction or occurrence. 2. The newly named defendant must have received notice such that he is not prejudiced. 3. The newly named defendant must know or should have known that if the plaintiff hadn’t made a mistake, they would have properly been named to begin with. 4. The newly named defendant must not be “wholly new or unrelated.”

Ms. Holmes asserted the same exact incident, meeting the first requirement. The second requirement balances protecting the rights of plaintiffs to pursue their claims and the rights of defendants that gave rise to prescription in the first place. Therefore, allowing an amended complaint to relate back is only allowed if it does not prejudice the defendant. For instance, serving a defendant 14 months after an incident might unfairly deny them of the opportunity to investigate the claim or perhaps dispose of crucial documents/evidence. At its core, the rationale is: had the would be defendant known sooner, they would have taken steps to prevent things detrimental to their defense from occurring. However, in the case at hand, the evidence shows that defendant had actual notice of the incident and, thus, is not prejudiced.

When the newly named defendant had actual knowledge, it is practically a given that the third element is met as well. In this instance, the defendant knew Ms. Holmes was injured on their property, and upon realization that she was suing another party, mistakenly thought to be owners, Defendant knew or should have known that Ms. Holmes would have sued them had she known the true owner.

The fourth element seems vague, but courts treat it as a reasonable and honest mistake requirement. The reasoning that Ms. Holmes met the fourth element included her clear intent to sue the correct defendants initially and the reasonableness of the mistake. In essence, the issue is whether the amendment was made to correct a misnomer rather than adding a “wholly new or unrelated” defendant. Furthermore, the court emphasized throughout the opinion that amendments should generally relate back in the absence of prejudice. Thus, although these rules and enumerated checklists are followed, the heart of the issue is whether or not the newly named defendant is prejudiced.

If allowing the amendment to relate back would allow for the a defendant with diminished capabilities of asserting defenses at trial than Defendant would have had if served within the prescribed time, then honest mistake or not, the amendment will not relate back.

It is important to abide by the procedural rules and make all reasonable efforts to render proper service of process, within the prescribed time. If you feel like you have the right to legal action, time is of the essence, and the experienced attorneys at Berniard Law Firm are fully capable of meeting your litigation needs.

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April 19, 2013

Court Amends Damages, Allocation of Fault in Car Accident Appeal

In continuing the last post, an automobile accident took place where a variety of damages awarded to the plaintiff were mitigated by the allocation of fault. After the court of appeals reversed the allocation of fault and rendered that Mr. Artigue was 100% at fault, the court addressed four remaining assertions of error. Ms. Richard asserted that the jury committed manifest error in determining each of the four monetary values defined, arguing that the values were lower than the lowest reasonable value that could be determined by the facts at trial.

The jury's determination of damages is a finding of fact, and much discretion is left to the jury (or judge in a bench trial where he or she is the trier of fact). Therefore, a trial court's finding of fact cannot be reversed unless it is clearly wrong. i.e. that a reasonable factual basis does not exist for the finding. The court of Appeals affirmed the loss of future wages, past wages, and general damages. However, the court held that the award for future medical expenses demonstrated manifest error and amended the judgment for future medical expenses

Ms. Richard also argued that the amount reached by the jury for future earnings was erroneous because it was below what either economist testified to as her future lost wages. However, both estimations assumed that she could not ever work again, and the facts show that Ms. Richard didn’t cease working until slightly over 2 years after the accident (when she was fired). Therefore, the jury could have reasonably found that Richard may return to work in the future.

Another reason the finding was not manifest error or clearly wrong is that facts presented at trial could lead to alternative inferences concerning causation. Psychiatric testimony at trial purported that Ms. Richard could not work again due to stress coupled with her pain from the accident. There was no dispute that the source of Richard's pain is the accident. However, there was a question of fact as to whether the sole source of stress was attributable to the accident.

Richard admitted in testimony that her work had become stressful due to a transfer of ownership. Therefore, the jury could have reasonably found that at least part of the source of her stress that prevented her from working was the change of employer rather than the accident.

The reasonable finding that Ms. Richard’s stress was not solely caused by the accident also was important in upholding the award for past wages lost. Although she was fired two years after the wreck, she still is entitled to lost wages until the time of trial, if her termination was due to the accident causing her inability to work. However, the jury could reasonably conclude that stress was a major factor that caused Richard's inability to work and, as previously stated, that her stress was not entirely caused by the accident. Thus, it could reasonably have found that the money provided was ample consideration.

This reliance on perception is noteworthy for two reasons. First, it seems that the jury is allowed to apportion percentage of harm or cause. The appellate court suggests that a reasonable jury could have determined the accident was a partial cause of termination and reduced damages to reflect that. Past wages lost is much less speculative than future earnings lost, and the reasonableness in finding for $10,000 when the only figure proffered at trial was over $40,000 suggests a doubt in causation.

As far as future medical expenses, the jury was presented with conflicting medical testimony. Given the differing opinion of what will probably be necessary and the rate medical costs are increasing, the jury was presented with four separate estimates: (1) $1,323,097.00; (2) $979,536.00; (3) $866,571.00; and (4) $637,888.00. Furthermore, only one expert testified that perhaps an alternate treatment may offer her some relief, and that language did suffice as medical probability (more probable than not) that is required.

In determining this award there was no room for unfounded speculation and the jury could not reasonably have chosen a value less than or higher than the range offered by expert testimony. Therefore, the court reversed the award for medical expenses as manifest error and assigned the lowest of the values given by experts at trial. This illustrates the importance of expert testimony. The jurors are not medical professionals and have no reasonable basis to determine such damages on their own. Thus, there is no reasonable basis to find damages beyond the parameters of the four expert opinions offered at trial.

The final asserted error concerns the general damages. The court has a problem articulating the standard to reverse an award for general damages, and there is good reason. Although an award seems too high or too low according to one’s own opinion, it is not the appellate court’s role to reverse on those grounds. Although the award seemed low for the seriousness of Ms. Richard’s injuries, the court did not find it abusively low.

From this appeal Ms. Richard’s damages were increased and she attained a favorable holding that required Mr. Artigue (more likely his employer and/or their insurance provider) pay 100% of those damages rather than a mere 60%. Effective and well-planned appellate litigation was essential in attaining this holding, and is in most appeals.

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April 16, 2013

Responsibility Examined in Sudden Emergency Car Accident Case in Lafayette Parish

On a rainy morning in Lafayette Parish there was an accident on I-49, and traffic was even more congested than usual. However, a subsequent accident is the subject of this post. Ms. Richard was driving southbound when she came upon the accident and stopped. The vehicle behind her did the same. A third automobile, a truck driven by Mr. Artigue, failed to stop, struck the second vehicle and pushed it into Richard’s vehicle. In the wake of the accident, Richard filed a claim and Artigue subsequently asserted the affirmative defense of sudden emergency.

The Jury determined the damages to be $225,000.00 for future lost wages, $555,833.00 for future medical expenses, $10,000.00 for past lost wages and $325,000.00 for general damages. However, the jury only allocated 60% of the fault to Mr. Artigue. The jury attributed the remainder to sudden emergency/third party fault.

Ms. Richard appealed, asserting seven assignments of error. The first three issues relate to the jury's allocation of fault, and are the subject of this post. The final four relate to the jury's damage awards and are the subject of the following post.

In her claim, Richard noted the trial court committed reversible error by providing a jury verdict form that allowed a sudden emergency/third party fault and by denying plaintiff's Motion for a Directed Verdict against defendant regarding the lack of evidence introduced by the defendant regarding that defense. Ms. Richard also asserted that the jury committed erroneously assessed 40% of the fault to sudden emergency or third party fault.

Although each of these three assignments of error has a different standard of review, they present one issue: whether the facts support a finding of fault by anyone other than Artigue.

In Louisiana, following another vehicle “more closely than is reasonable and prudent,” considering the other vehicle’s speed, traffic, and weather conditions, is prohibited. Therefore, the driver of a vehicle striking another from the rear is presumed negligent. The facts of this case are not such that plaintiff created a hazard that Artigue could not reasonably avoid, but the presumption is still rebuttable if the defendant demonstrates that he had his car under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances. The Court of Appeal found no evidence that Artigue met that burden.

At least two cars came upon the scene of another accident and were able to stop, and Artigue's vision was not obscured. Moreover, the police report shows that Artigue was inattentive and issued a citation for exceeding a safe speed limit. However, Artigue testified that he did not see the vehicles stopped ahead of him until he was one car length from the second vehicle due to the overpass (Gloria Switch Road) obscuring his vision. Nonetheless, Artigue did not present evidence that could satisfy the burden of proof.

At trial an expert witness (civil engineer), testified that Artigue had a minimum sight distance of eight hundred and thirty feet. This was calculated by the elevation of his eyes and elevation of a standard vehicle’s taillights. The expert further testified that, given Artigue's claimed speed, he could have seen a stopped vehicle for more than ten seconds.

The court also found the trial court’s noting that it was raining at the time of accident was irrelevant. The court reasoned that the other vehicles, with less vision ahead due to a lower elevation of eye height, were able to stop despite the rain. Furthermore, the dangerous condition of wet roads was reasonably apparent to Artigue as he knew it was raining. Given Artigue’s failure to present any evidence that could reasonably support his defense, the court of appeals reversed and render that Artigue was 100% at fault for the accident.

The emergency doctrine is essential for fairness, but the mere occurrence of dangerous conditions do not suffice in establishing it. This is why hiring a competent attorney is essential while navigating your rights in the wake of an accident.

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April 13, 2013

The Threshold Issue in Negligence Lawsuits – Explanation of Duty

A lot of personal injury lawsuits are based upon claims of negligence. Negligent torts, in contrast to intentional torts, are not deliberate actions. Individuals become liable for any harm or loss you suffer due to carelessness because that person was placed in position to owe you a duty to take reasonable care to prevent harm.

Here is a case that can help explain the concept of duty: Ms. Ponceti and her daughter, Katilynn, lived in an apartment complex located in Louisiana owned by First Lake Properties (“First Lake”). While Katilynn was playing in the courtyard of the apartment complex, a teenager lost control of his bicycle and injured her. Ms. Ponceti sued First Lake, claiming that it was negligent in allowing the teenager to ride bicycles on the sidewalks of the apartment complex.

This is a personal injury lawsuit based upon negligence theory. In claiming First Lake was negligent, Ms. Ponceti was really saying that First Lake owed her daughter a duty to take reasonable care to prevent people from riding bicycles on its sidewalks and hurt her. Here a critical issue comes into play: does First Lake owe her such a duty?

Notice that we are not talking about whether Ms. Ponceti or First Lake thinks there is a duty, but, rather, whether there should be a duty. The test for determining duty is fairly complex and requires balancing multiple factors. Some factors of the test that we want to highlight are: “A very high degree of foreseeability is required to give rise to duty”. “The foreseeability and gravity of the harm are to be determined by the facts and circumstances of the case. The most important factor is the existence, frequency, and similarity of prior incidents of crime”.

Now we apply them to our case to examine duty. The first sentence tells us that foreseeability is not only one of the factors, but also an important one to prove duty. The next sentence means whether First Lake could foresee Katilynn’s injury depends on many factors. The last sentence says the existence of similar prior incidents is a big factor for showing foreseeability. Ms. Ponceti ended up losing the case. She admitted that she had never seen anyone riding bicycles in the courtyard before her daughter’s injury and First Lake had never received any complaints about individuals riding bicycles in the courtyard. The court concluded from theses facts that Ms. Ponceti failed to show any similar prior incident, therefore Katilynn’s injury was not foreseeable to First Lake and it did not owe her the duty to prevent individuals from riding bicycles on its sidewalks.

As you can see from the example above, duty is examined by a multi-factor test and the test is very case-specific. Its vagueness leaves a lot of room for arguments that can significantly affect the outcome of a case. It is therefore essential to have legal representation to provide you with well-developed arguments in your favor.

April 11, 2013

Nursing Home Attack Highlights Workplace Rights

In order to hear a claim a court must have jurisdiction over the matter. Essentially, that means that the court must be legally able to hear the case. For example, some courts are only legally allowed to hear certain types of cases, like the Tax Court, which only hears tax cases. In addition, some courts may be precluded by administrative agencies. If an administrative agency is supposed to address the issue, then the court is generally not allowed to step in to fill the administrative agency's role. The laws occasionally create small areas where the court can act, but in order to fit in those areas, your case has to have a certain type of very specific facts.

A case arising from the Parish of East Carroll explains these conflicts. In that case, a woman working at Shady Lake Nursing Home was attacked by a resident. The resident was outside of his room when he was not supposed to be, the women told him to go back to his room, and he attacked her in a fit of rage. In this instance, the woman was obese and had high blood pressure. She started having blood pressure issues shortly after the attack and was subsequently rushed to the hospital. She died approximately one hour after the attack.

Because the attack occurred at her workplace while she was working, workers' compensation covered the attack. However, her family also attempted to sue Shady Lake Nursing Home for damages. They argued under two major exceptions to workers' compenstation law: intentional tort law and heart conditions.

First, under intentional tort law, they argued that the patient that attacked the woman was aggressive and Shady Lake Nursing Home knew that, but did nothing to protect the woman. Since intentional torts are not covered under workers' compensation, the court considered whether they had jurisdiction in the case, or if workers' compensation should be the only remedy.

The court first considered the meaning of intent: “either desires to bring about the physical results of his act, or believes they were substantially certain to follow from what he did.” Negligence, even gross negligence, acts cannot rise to intentional. The court pointed out that the nursing home did know of the patient's violent outbursts, but he had never attacked a person prior to the event with the woman. However, he was known to punch holes in walls, and he had impulse control disorder, dementia, associated psychotic disorder from a closed head injury, and a history of chemical dependency and alcoholism.

The people at the nursing home all stated that they were surprised about the attack. The patient had been verbally aggressive and occasionally shoved other nurses, but had never before hit anyone. In fact, the LPN that was assigned to the patient noted that he was housed with other people, seemed to be getting along with everyone, and was gradually becoming more cooperative. The staff in no way thought that the attack was inevitable.

The court concluded, then, that the only failure that the employer had was not creating a safe workplace, which is a complaint that is dealt with under workers' compensation law. However, the women's family went on to argue that heart related issues are not covered under workers' compensation law (La. R.S. 23:1021(8)(c)). The court concedes that while this information is correct, the law explains that the heart condition and related death can be under workers' compensation law if the death results from extraordinary working conditions. Only if the working conditions become “extraordinary” will the case fall in workers' compensation when it involves a heart condition. In addition, the stress of work, not some other preexisting condition must be the major cause.

The court explains that the purpose of the law is “intended to exclude from workers' compensation coverage those employees who just happen to suffer a perivascular or heart-related injury at work.” Therefore, the women's family needed to prove that the stress at work was extraordinary in this instance, thereby triggering her heart condition. The other workers that testified explained that it is somewhat common for residents to hit their nurses, but the altercation between this patient and the woman was very unusual. Therefore, the court determined that the action was unusual, so it satisfied the first part of the test regarding workers' compensation and heart conditions. Then, the court determined that the hit was the underlying cause of the death. The hit aggravated her condition, and she would have been fine if she were not hit. Therefore, the court concluded that it was the working condition, and not the preexisting condition that was the major cause of her death.

The family in this case tried to get around workers' compensation law so that they could get a higher amount of damages. The law binds the court to only operate in its subject jurisdiction, which means that their rulings are limited by administrative agencies.

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April 7, 2013

Excessive Force and Qualified Immunity of Police Officers Discussed in 5th Circuit Ruling

In the previous post, we looked at the background and majority opinion in Khan v. Normand, et al, which involved the tragic death of Nayeem Khan after he was hog-tied by deputies of the Jefferson Parish Sheriff’s Office. This post will delve into the dissent written by Judge Garza.

Judge Garza wastes precious little time in strenuously objecting to the majority’s conclusion. He writes:

The district court in this case concluded that the facts surrounding Khan’s death fell somewhere in between Gutierrez and Hill, but that Hill ultimately controlled. The majority has taken a different route to the same conclusion, opining that Gutierrez was a narrow holding that cannot be extended to the facts of this case, and that our decision in Hill makes it difficult to say that the law was clearly established.

Judge Garza states four reasons that he believes the majority’s ruling was flawed.

First, he argues that the majority failed to adequately distinguish this case from Hill because, unlike Ms. Loggins, Mr. Khan was visibly upset and in some type of psychotic episode at the time the restraint was applied to him. This is a major point of divergence for the two cases in Judge Garza’s opinion, yet the majority failed to adequately way this point.

Second, Judge Garza posits that the majority placed too much weight on the Gutierrez court’s emphasis of the San Antonio Police Department’s failure to adequately monitor Mr. Gutierrez’s condition. Unlike Mr. Gutierrez, Mr. Khan was supervised continually during this episode. However, Judge Garza says that other factors must be weighed in the decision about whether or not law enforcement actions were appropriate.

Third, Judge Garza argues that the majority inappropriately relied on a scientific study regarding alleged dangers posed by four-point restraints that was not placed in the record for this case, and therefore should have no bearing on the outcome of the case.

Fourth, Judge Garza points out that this was a case where law enforcement was faced with a person who was clearly in some type of psychotic state.

Finally, Judge Garza faults the majority for needlessly using the fact the Mr. Khan and Mr. Gutierrez were under the influence of two different narcotics (methamphetamine and cocaine respectively) as a distinguishing point between the two cases. Judge Garza argues that what specific drug Mr. Khan was on is irrelevant; rather the fact that Mr. Khan was under the influence of a narcotic was the important factor.

Weighing all of these factors leads Judge Garza to state that “although the Gutierrez case was ‘very limited’, it applies squarely to the facts of this case.” He then determines that this means the 5th Circuit recognized a clearly established rule that the use of four-point restraints on one who is a "drug-affected person in a state of excited delirium" may present a risk of serious bodily injury or death and can therefore constitute excessive force.

Having dealt with the “clearly established right” prong of the test for qualified immunity, Judge Garza moves to the other prong which requires that the plaintiff show that a reasonable officer would know that his actions violate a clearly established right. Note that the majority opinion did not address this prong at all as they concluded that there was no clearly established right violated in this case.

Judge Garza argues that the lower court improperly asserted itself as the decider of facts in this case by summarily dismissing expert testimony that the specifics of this case meant the use of a four-point restraint on Mr. Khan posed an added danger and amounted to the use of deadly force. He further states that the importance of this testimony should have been weighed by a jury and not by a judge because in the 5th Circuit, “whether a particular use of force is ‘deadly force’ is a question of fact, not one of law.”

Judge Garza also regarded the decision by the officers to take Mr. Khan outside of the store, where he claimed people were trying to kill him, as an action that a jury could reasonably conclude was unreasonable.

These two issues are enough for Judge Garza to conclude that the plaintiffs raised genuine questions of material fact for both prongs of the qualified immunity test.

Judge Garza goes on to recommend that the 5th Circuit prohibit the use of four-point restraints in all cases where a person is in a visible state of diminished capacity because, “the law should ... take account of the fact that these individuals may be uniquely susceptible to harm from a four-point restraint.” Establishing such a rule would make future cases much easier to resolve, and would add stability and coherence to the law surrounding such cases.

In the end, Judge Garza finally concludes that he felt the Khans had raised genuine issues of material facts, and that he disagrees with the majority’s opinion stating that “Nayeem Khan’s family brought claims that, under this court’s clearly established precedent, should have survived summary judgment.”

If you or anyone you know has suffered some type of injury or harm at the hands of a government official, please contact the Berniard Law Firm. Legal help can be just a phone call away.

April 5, 2013

5th Circuit Affirms Dismissal of Suit Alleging Excessive Force by Jefferson Parish Deputies - Qualified Immunity

Precedent is an absolutely vital part of American jurisprudence. Judges look to previous court cases to help guide them through their decision making process. Judges attempt to distinguish cases that are different, and analogize similar cases. Precedent adds an amount of stability to our justice system. But what happens when the outcomes of seemingly similar cases appear contradictory? The case of Khan v. Normand, et al. helps illustrate the importance of precedent in the context of the tragic death of a man in police custody and illustrates how judges can look at the same precedents and reach very different conclusions.

On July 17, 2007, Nayeem Khan, a man with a history of mental illness, began to run around a grocery store yelling that people outside were going to kill him. While visibly upset and delusional, Mr. Khan was also suffering from a drug-induced psychosis at the time of this incident. After managing to handcuff him, store security guards, and an off-duty sheriff’s deputy that happened to be in the store at the time of the incident, contacted the Jefferson Parish Sheriff’s Office. When deputies began to remove Mr. Khan from the store, he physically resisted. Eventually deputies restrained Mr. Khan by handcuffing both his hands and legs behind his body and connecting his hand and leg restraints with another pair of handcuffs. This meant Mr. Khan was in a four-point restraint which effectively hog-tied him. Mr. Khan began to have great difficulty breathing almost immediately, and deputies removed the restraints and administered CPR until an ambulance arrived. Mr. Khan began to breathe again, but tragically died later that night.

Mr. Khan’s parents sued the Jefferson Parish Sheriff’s Office and the individual deputies involved in their son’s restraint alleging excessive force and violations of Nayeem’s constitutional rights. The Jefferson Parish Sheriff’s Office sought a summary judgment alleging that the deputies were protected from liability on the basis of qualified immunity. The district court agreed, and granted the motion for summary judgment on the grounds of qualified immunity which prevents government officials from being sued while in the course of performing their official duties.

The majority states that in order to successfully overcome a claim of qualified immunity by a government official, a plaintiff must show two things:
1) the official in question violated a statutory or constitutional right, AND
2) the right was clearly established at the time of the challenged conduct

If the plaintiff fails to meet both of these prongs, then their case cannot proceed and, as the 5th Circuit did here, the decision to grant a motion for summary judgment for the defendants may be affirmed.

In this case, the majority found the second prong to be dispositive. The majority explains that in order for a right to be clearly established, “the contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right.”

To determine whether or not the use of a four-point restraint constituted excessive force, the majority then looked to two prior 5th Circuit cases where people died after being hog-tied.

First, in the Gutierrez case, the 5th Circuit held that in certain limited circumstances, the use of a four-point restraint may rise to the level of excessive force and placed a special emphasis on the “danger of hog-tying a drug-affected person.” Mr. Gutierrez, who was visibly in the midst of drug-induced episode, died while in the back of a patrol car after being hog-tied. During a portion of his time hog-tied in the patrol car, Mr. Gutierrez was left unmonitored by the police. Mr. Gutierrez’s family filed suit, and the suit survived a motion for summary judgment filed by the San Antonio Police Department. The 5th Circuit concluded that Mr. Gutierrez’s family had raised issues of material fact as to whether or not the police’s use of a four-point restraint rose to the level of excessive force, and that the use of such restraints was not necessarily objectively reasonable.

In the Hill case, the 5th Circuit affirmed a lower court’s grant of a motion for summary judgment for the Carroll County Sheriff’s Department in Mississippi. The plaintiff the case was the administratrix of Debbie Loggins who died after being hog-tied and placed in the back of a cop car after getting into an altercation with deputies. Expert testimony indicated that while Ms. Loggins was under the influence of narcotics at the time of her restraint, this influence was not readily apparent to those on the scene. This was enough for the lower court to rule in favor of the Sheriff’s Department and grant their motion for summary judgment.

The majority used the two very different outcomes of these cases to determine that, in the 5th Circuit, the use of a four-point restraint was neither objectively reasonable per se, nor objectively unreasonable per se. Thus the majority concluded that there was no clearly established right against being placed in a four-point restraint, and the lower court’s ruling was upheld.

This is the first of a two part post, with the next entry discussing Judge Garza’s strong dissent in this case. As always, if you need legal advice, please contact the Berniard Law Firm.

April 3, 2013

5th Circuit Affirms Dismissal of Claims of Excessive Force and Unlawful Arrest

42 U.S.C. Section 1983, better known simply as Sec. 1983, is an extremely important federal civil rights law that allows people to seek damages for violations of their civil rights by state actors (those who work for the government). Such claims frequently arise from alleged excessive force or unlawful arrest by police officers. The recent 5th Circuit case of Walter v. Horseshoe Entertainment provides an interesting example of how Sec. 1983 claims work in real life.

On March 12, 2004, Rose Walter and Sylvester Shelton were involved in an incident at the Horseshoe Casino and Hotel in Bossier City. After getting into two altercations with other casino patrons, Walter and Shelton were told to leave the casino for twenty-four hours. The casino's assistant security supervisor, Mr. James, called for police assistance from the Bossier City Police Department and Officer Estess arrived on the scene. After yet another altercation with Officer Estess and Mr. James, Walter and Shelton were forcibly restrained, handcuffed, and arrested. The two were subsequently charged and convicted in a Bossier City court for remaining after being forbidden and resisting arrest.

After their convictions, Walter and Shelton filed a petition in state court against Bossier City, Officer Estess, the Casino and the Casino's parent company, Horseshoe Entertainment. Walter and Shelton claimed that they were falsely arrested and that Officer Estess and Mr. James had used excessive force in restraining them. The state court granted Bossier City and Officer Estes their motions for summary judgment. Horseshoe Entertainment removed the Sec. 1983 claim against them from state court to federal district court, where their motion for summary judgment was also granted.

Walter and Shelton appealed the district court's decision to the 5th Circuit who affirmed the district court's decision to grant Horseshoe Entertainment summary judgment. The 5th Circuit held that Walter and Shelton’s Sec. 1983 claims were barred under the Heck rule.

The Heck Rule comes from the Supreme Court case of Heck v. Humphrey and requires that before a plaintiff can proceed with a Sec. 1983 claim, their conviction or sentence has to either be reversed on appeal or the actual legal basis or factual validity of their conviction or sentence has to be brought into question. As the 5th Circuit explains the Heck rule, "A Sec. 1983 claim that would invalidate a conviction is barred by Heck." In other words, a Sec. 1983 claim itself cannot be an attempt to invalidate a conviction or sentence but, instead, be keyed on this specific issue provided. The Court then goes on to apply the Heck rule to the false arrest claim and the excessive force claim, finding that both are barred.

In order to be successful in a false arrest claim, a plaintiff has to show that there was no probable cause for their arrest. The 5th Circuit held that Walter and Shelton's convictions of resisting arrest and remaining in a place after being forbidden "necessarily implies that there was probable cause for the arrest." Applying the Heck rule to the false arrest claim, the 5th Circuit held that since successfully winning their false arrest claim would invalidate their conviction for resisting arrest, such a claim was barred under the Heck rule. More clearly, it would be impossible to overturn a wrongful arrest given the fact they had been found guilty of violating the law.

The 5th Circuit also held that the Heck Rule barred Walter and Shelton’s excessive force claim since their "convictions for resisting arrest and their claim of use of excessive force stem from a single interaction." Similar to the false arrest claim, if Walter and Shelton won their excessive force claim, the validity of their conviction for resisting arrest would be brought into question. This would be barred under the Heck Rule as discussed above.

One final issue the Court had to deal with was the setting aside of Walter and Shelton's criminal convictions under Article 984 of the Louisiana Code of Criminal Procedure. Article 984 allows a criminal court judge to set aside a misdemeanor criminal conviction (except for criminal neglect of family or stalking) or suspend sentencing upon their discretion. Walter and Shelton argued that the Heck Rule should not apply to their case because their convictions were set aside under Article 984. The 5th Circuit disagreed, stating that "granting relief under Article 984 does not invalidate the conviction or call into question the court’s finding of guilt." The Court points to statutory language that specifically states that even after a conviction is set aside under Article 984, such a conviction "may be considered as a first offense and provide the basis for subsequent prosecution of the party as a first offender." The Court analogizes the use of Article 984 to an "act of grace to one convicted of a crime." The Court finally holds that since setting aside a criminal conviction under Article 984 is not the same as attacking the validity of the conviction itself, the Heck Rule applied and Walter and Shelton’s claims of false arrest and excessive force were barred. The Court concludes by affirming the district court's grant of summary judgment for Horseshoe Entertainment.

All of these matters are inherently complicated and show that an exact knowledge of the law is necessary from the point of first counsel to the end. While questions of the law must be decided in the court, feeling comfortable with your attorney is important. Legal explanations like the one above should be readily available from your lawyer and can be expected any time you call our firm requesting legal advice.

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April 1, 2013

Understanding the Duty of Care and Liability in Contracted Work

Duty, causation, breach, and damages…what do these four little words mean to you? They could mean everything if you are litigating a claim of negligence because these terms represent the elements that must be satisfied in order to successfully prove your case. Negligence suits have historically been analyzed using these four elements and it is important to note that if a plaintiff fails to prove even one element of his claim, he loses on the entire tort claim.

The duty of care refers to the circumstances and relationships which the law recognizes as giving rise to a legal duty to prevent foreseeable harm from occurring to others. A failure to take such care can result in the defendant being liable to pay damages to a party who is injured or suffers loss as a result of their breach of duty of care. The idea of establishing a duty played a pivotal role in, Bloxom v. The City of Shreveport, a highly controversial case taking place in DeSoto Parish in 2010.

In Bloxom v. City of Shreveport, David McFarlin, the president of Blue Phoenix Trading Company interviewed Brian Horn for a cab driver position. Horn, who had previously served time on a conviction for a felony of sexual assault and was a registered sex offender, was hired by McFarlin and drove a cab marked “Action Taxi.” In March of 2010, Horn posed as a young female and lured a young boy into his cab; Horn later murdered the boy and dumped his body in a wooded area off Hwy. 171 in DeSoto Parish. Horn is currently awaiting trial for capital murder. Meanwhile, the boy’s mother filed a wrongful death suit against both David McFarlin, individually, and his Blue Phoenix Trading Company. More information as it relates to the facts of this case and on the capital murder charge can be found here.

As it pertains to the wrongful death suit, the question for the Louisiana Second Circuit Court of Appeals was whether McFarlin owed a personal duty to the parents of the son to protect him from the risk of assault at the hands of a cab driver whom he had employed. The Court employed what is referred to as a duty-risk analysis to resolve McFarlin’s liability under La. C.C. art. 2315. The analysis, as laid out in Lemann v. Essen Lane Daiquiris Inc., comprises five elements:

(1) does the defendant have a duty to conform his conduct to a specific standard (the duty element); (2) did the defendant’s conduct fail to conform to the appropriate standard (the breach element); (3) was the defendant’s substandard conduct a cause in fact of the plaintiff’s injuries (the cause-in-fact element); (4) was the defendant’s substandard conduct a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element); and (5) were there actual damages (the damage element).
In applying these principles to the Bloxom case, the Court found that McFarlin had no personal duty in the matter. The Court reasoned that imposing personal liability on McFarlin for the torts of his employees would frustrate the benefit of the business organization and that, although a corporation may be liable for the sexual assaults of its employees under La. C.C. art. 2320, this is not the same as imposing personal liability on officers. Further, the Court concludes that a corporate officer making a hiring decision is primarily acting on behalf of his or her company and that he or she owes duty of reasonable care does not extend to all torts that all employees might commit.

Remember, though, that a breach of duty is not limited to professionals or persons under a written or oral contract; all members of society have a duty to exercise reasonable care toward others and their property.

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March 29, 2013

Second Circuit Appeals Affirms Department of Transportation Case Involving Multi-Car Accident

In Louisiana, the Department of Transportation and Development (DOTD) is responsible for the maintenance of public roadways "in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and resonable prudence." In order to accomplish this goal in a safe and legal manner, the DOTD follows guidance defined in the Manual for Uniform Traffic Control Devices (MUTCD). The issue in the case of Morales v. Davison Transportation Services arose out of a tragic multi-fatality multi-car accident in Madison Parish. The legal issue the Second Circuit Court of Appeal faced was whether or not to affirm a lower court's granting of the DOTD's Motion for Summary Judgment.

On November 7, 2007, a DOTD team was performing road grading on the inside shoulder of a flat and straight section of westbound I-20 in Madison Parish. A motor grader was scraping built up vegetation and dirt from the highway, and a shadow vehicle was following behind. The shadow vehicle was a truck that had an arrow board on top of it directing traffic into the next lane, a set of strobing lights and a sign cautioning drivers of the slow moving vehicle ahead. Records showed that the two DOTD vehicles were traveling approximately 3-5 miles per hour down the highway while performing their work.

The accident occurred when a semi-truck that was rapidly approaching the DOTD vehicles in the inside lane while trying to pass another semi swerved into the right lane but ended up clipping the back of the DOTD truck. The truck then hit the motor grader and ricocheted the first semi into opposing traffic were it collided head-on with an SUV. Both occupants of the SUV were killed, the semi driver suffered permanent brain damage and the DOTD truck driver was also injured. The children of the SUV occupants, the guardian of the semi driver, and the DOTD truck driver all brought suits for damages.

The DOTD filed a motion for summary judgment seeking to dismiss the suits and claimed that their compliance with the MUTCD meant that the department could not be held liable for damages. The various suits were consolidated and a lower court granted the DOTD's motion for summary judgment.

The most important issue that the court dealt with in this case was whether or not the DOTD followed the requirements set forth in the MUTCD, which defined the legal way the vehicle could conduct business, deciding whether or not the DOTD could be held liable for damages.

The MUTCD establishes three levels of guidance for the DOTD to consider. The first level establishes standards which are mandatory. The second level establishes guidelines which are suggestions based on principles of engineering. The final level establishes options which are optional but may be utilized by DOTD if deemed necessary. It is crucial to the outcome of this case to keep in mind that only the standards are mandatory, whereas guidelines and options are suggestions for proper business and not mandatory.

In this case, the road grading work that DOTD was performing at the time of the accident was classified as that of a "mobile work zone" because it was work that "moves intermittently or continuously". The only applicable safety standard found in the MUTCD for mobile work zones is the use of a single arrow board. A guideline that suggested the use of two different shadow vehicles was in the MUTCD, but was not a mandatory standard. As such, the lack of a second truck could not be used against the department in terms of liability.

The DOTD maintained that since it was in compliance with the only requirement that was applicable to the road grading work in question, the department could not be held liable for damages. The Assistant District Administrator for Operations for the DOTD testified that the MUTCD did not even require the use of single shadow vehicle. The Administrator further testified that the use of the arrow board, flashing lights, the shadow vehicle and the caution sign was more than the MUTCD required of the DOTD while performing such work. The plaintiffs' own expert witness also testified that DOTD was in compliance with the only standard applicable to the road grading work in question.

Compliance with the standards set forth in the MUTCD is complicated in this case as the court states that "compliance with the provisions of the MUTCD... is prima facie proof of DOTD’s absence of fault when an injured motorist attempts to predicate DOTD’s liability on improper signalization." The court further states that prima facie proof is sufficient to maintain a motion for summary judgment "only if not rebutted or contradicted."

Despite arguments by those suing that the DOTD should have increased the amount of warning given to drivers, the court supported the lower court's decision to grant DOTD’s motion of summary judgment stating that "DOTD supported its motion with evidence of compliance with the MUTCD in warning the motoring public of the slow moving grading operation at issue. Nowhere do Plaintiffs' experts rebut sufficiently rebut this evidence." As such, the court agreed that there was nothing more expected from the department and dismissed their liability in the unfortunate events.

These factors are all inherently important due to the fact that they are key to the verdict and require keen awareness by an attorney. In this instance, it would be very difficult for an attorney to have changed the minds of both courts because the minimum standard was exceeded by the Transportation Department. However, knowing the factors involved is crucial because another set of circumstances may not have been met otherwise.

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March 27, 2013

Apportioning Blame Important, Especially in Rear-End Car Accidentes

The rule of thumb to the average driver is that the driver of the car that rear-ends another is always at fault. Although that may be the case generally, there are exceptions.

While Louisiana law states that a driver is not allowed to follow more closely that is “reasonable and prudent,” considering the vehicle’s speed and traffic conditions. As such, a rear-end collision only creates a presumption of negligence. Thus, the driver is afforded the opportunity to rebut that presumption by showing the driver of the other vehicle was driving unpredictably and, thus, that the situation could not have reasonably anticipated.

A little over three years ago, in Hessmer, LA, there was a rear-end collision that the District Judge held was the fault of both drivers. What is more striking is that the Judge allocated 75% of the fault to the driver that was rear-ended.

The first important take-away of this case is that if you rear-end a vehicle, the facts of your case might not only rebut the presumption that you were negligent, but more likely, lead the court to find you both were negligent. Thus, you can recover damages proportional to the fault assigned the driver in front of you.

Comparative negligence, or “apportionment of fault,” is always interesting. The appellate court has a specific standard to adhere to when they hear an appeal alleging an erroneous apportionment of fault. First, it must clearly be wrong. Secondly, the courts can only raise or lower the apportionment to the respective bounds of the trial court’s discretion. For instance, if the trial court allegedly assigned fault to a party was clearly too high, the appellate court must look to the facts and decide what the highest apportionment of fault could have been without being clearly wrong. Whatever figure that is must be the judgement.

In determining whether the trial court was “clearly wrong,” the court first looks to the facts of the case. In this case, the plaintiff admitted that he had actual knowledge of Ms. Franks’ erratic “stop-and-go” driving. After recognizing Ms. Franks’ indecisive driving, he failed to maintain a safe distance despite being in position to prevent the accident. Next, the court addressed reallocating the fault.

Appellate courts are not designed to address questions of fact such as this. Therefore, the trial court is allowed discretion but the higher court must address clearly wrong determinations lying beyond that permissible range. Since the Court of Appeals believes the trial judge assigned an impermissibly low percentage of fault to the plaintiffs, the court must determine the lowest number permissible and assign that. The court used five factors in this analysis, and held the plaintiff was at least equally at fault. Thus, the court apportioned 50% fault to both the plaintiff and defendant.

There are a series of questions necessary to examine in order to understand the proper attribution of fault:

1) Was the plaintiff actually aware of the danger?
As noted above, the driver was aware of Ms. Frank's erratic driving.

2) How great of a risk was created by his conduct?
3) How significant was his purpose for acting the way he did?

The second and third factors make most sense when evaluated together. This is commonly referred to as “the BPL analysis.” It is a balancing act of “what was the burden of him slowing down?” weighed against “how much would him slowing down decrease the likelihood and/or severity of a resulting crash?”

In this instance, there was no significant purpose in failing to slow down, and the risk of collision unquestionably was increased by his failure to do so.

4) Did he possess superior knowledge or inferior capacity?
No, but this is neither addressed nor applicable to these facts. This is definitely an interesting topic for a future post, but not today.

5) Were there any extenuating circumstances meriting his driving?
Was his wife in labor? Did his neighbor call to inform him that his house was on fire? Did he realize he forgot to DVR the Saints game?

Remember the applicable rule is that a driver who rear-ends another is presumed negligent, and can only rebut that presumption by showing that the other driver was driving unpredictably and the situation couldn’t have reasonably been anticipated. Thus, the court held that when a driver knows the driver in front of him is driving in an unpredictable manner, fails to take precautions and has no justifiable reason to continue at high speed, that driver should at a minimum be apportioned an equal amount of fault as the unpredictable driver he hit.

It is all too common that more than one party is at fault in automobile accidents. If you have recently been injured in an auto collision, contact the Berniard Law Firm. Providing experienced litigators, our firm is fully capable of advocating to minimize or avoid an apportionment of fault to you in your claim. Every percentage point apportioned is a percentage less you recover.

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March 26, 2013

Ripeness: Why Can Seemingly Good Cases Get Thrown Out?

In a fairly publicized case, three people were killed in 2008 by a diving boat explosion off the coast of Louisiana. This case is still working its way through the courts and got a little further from resolution in Jillian Morrison, LLC v. Sonia because of an obscure legal concept: ripeness.

Lawsuits need several parts to get off the ground. There has to be a plaintiff with claim with a valid legal basis, you need to have defendant that is liable for the claim. There can't be any successful defenses, there has to be a court with jurisdiction and finally, the claim must be "ripe."

Ripeness is a technical concept. For a case to be ripe it means that the cause of action being alleged has to have moved beyond the "abstract or hypothetical." If the only question remaining is whether the law applies, you have a case. If there are still facts that need to develop to decide the case, then it will be determined to lack "ripeness."

What was left in this case? Three people died, others were injured as a result of abandonment of a nearby pipeline off the coast of Mexico. Naturally, the owners of the boat filed a Limitation Action to try and reduce their legal exposure as a result. The Limitation of Liability Act exists to limit the liability of vessel owners to the value of the vessel and the pending freight. TransCanada USA Services, Inc. went to court to ask a declaration that the insurance companies would protect them from any claims filed.

The problem? No one had yet named TransCanada as a defendant in any lawsuit.

Why do we care about Ripeness? What is the downside of hearing the case when it is brought in front of the court? TransCanada almost certainly would be sued in the near future, so wasn't it a waste of time to dismiss the suit? This was on appeal even, meaning it had been through multiple courtrooms already.

It seems counterintuitive that courts are required to reject a case even when they know is going to show up again in a few weeks or months. So why is this required? The answer is found in the role of the courts. The Constitution of the United States gives courts jurisdiction over all "cases and controversies" arising under the Constitution. In order for there to be a controversy, the Supreme Court has interpreted, there must be a non-hypothetical claim. The reason for this is we don't want the Court system giving advice on things that should happen, but rather interpreting actions that already have. If the Courts ruled in favor of TransCanada, they would essentially be determining what the facts could or should be, rather than interpreting them as they are. Until there is an actual case filed, the court simply said no controversy had yet occurred. So to the question earlier, no it isn't efficient, but it is what is required by the Constitution of the United States.

Like anything in the law, there are always exceptions. If you think you might have a case, contact a lawyer to determine your rights and liabilities.

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March 22, 2013

Understanding Your Rights After a Car Accident Crucial to Damages Award

You are sitting in your car, stopped at a stop sign, patiently waiting for the right moment to go. Suddenly, the distracted driver behind you rear-ends you. You go through the hassle of filing a report and you exchange information. Shortly thereafter, feeling some slight pain from the accident, you head over to a medical center just to make sure that everything is okay. To cover the costs of the medical bills, you file a lawsuit against the reckless driver.

While the lawsuit in this case seems pretty straight forward, you need to make sure that you hire a competent attorney that will claim the requisite damages on your behalf. This is especially important because if the damages are not requested at the appropriate times, these damages may be waived. Once a trial court has made its findings of fact, unless those findings are blatantly wrong or were made in manifest error, a reviewing court cannot reverse them.

Because the trial court has the duty to hear the findings of fact, the plaintiff’s attorney must submit any testimony or evidence of damages at this level and in a timely manner. At the trial court level, evidence needs to be submitted regarding not just medical bills, but also testimony and any evidence of lost wages, lost earning capacity, the full extent of any medical injuries, and any pain or suffering if these damages are to be awarded. A plaintiff can recover more than just the exact medical bills that have been paid to that point, but the proper evidence and/or testimony need to be presented. If any general damages are sought, they must be requested at the trial court level and entered into the record. If any on-going physical therapy will be required, records of this need to be presented so that it can be properly taken into account. If the plaintiff will not be able to work because of injuries incurred, evidence of this must also be presented so that the trial court can make a proper judgment.

Here is a brief example of how a plaintiff in a personal injury case may needlessly forego his full award of damages: A young college student hits an older man in Louisiana who is stopped at a stop sign. A report of the accident is filed by police, information is exchanged and the man goes to the hospital to have x-rays taken because of back and neck pain that stemmed from the accident. After finding that the student who hit him does not have insurance, the older man brings his claim to court in order to recover damages. He submits some medical bills, but that is all. His attorney does not help him submit any indication of general damages, any evidence of lost wages or any testimony of pain and suffering. Once the testimony has been heard and the evidence submitted, the trial court simply awards damages in the amount of the medical bills, nothing further. Upset over the judgment, the man appeals, claiming that the evidence was incomplete.

However, it is unlikely that the man will have any success with his appellate claim. As long as the plaintiff had adequate time and opportunity to present his evidence, the judgment will likely not be reversed on appeal. The trial court is best suited to review the facts of the case, and the appellate court will not reverse the findings of the trial court unless the findings are found to be clearly wrong or lacking a reasonable factual basis.

In most cases, this means that if the proper evidence of damages was not presented to the trial court, the plaintiff will be unable to collect on those damages. To help avoid a situation like this, you must make sure that you hire an attorney well versed in the area of personal injury law, who can properly advocate on your behalf and help you present appropriate and complete evidence and testimony to the trial court.

If you have been involved in a personal injury case, make sure that you obtain suitable representation that will help you receive the full extent of damages owed to you.

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March 19, 2013

Lead Berniard Law Firm Attorney Demonstrates Expertise with CLE Instruction

The Berniard Law Firm’s principal attorney, Jeffrey Berniard, recently taught an Introduction to Personal Injury course. Having been an active part of Continuing Legal Education (CLE), Mr. Berniard was selected to teach the topic due to the firm’s specialization in medical malpractice, first party insurance disputes, and premises liability claims. Some of the topics covered included: Personal Injury Protection and First Party Benefits in auto policies; medical records disclosure including mental health and substance abuse treatment records; recoverable personal injury damages.

Under many state’s no-fault insurance laws, a claimant’s insurance company will only pay for Personal Injury Protection, or the first $10,000 out-of-pocket expenses. The remainder of expenses must be recovered from the Defendant. Many auto insurance companies do offer First Party Benefits packages, an optional supplement that will cover all medical expenses in the event of an accident for the policyholder or anyone else listed on the plan. However, many auto insurance companies also use a computer program that performs a calculation to value the severity of a victim’s injury. The program does not take into consideration the stress, pain, inconvenience, loss of enjoyment of life that a victim may have suffered.

Medical records unrelated to a victim’s injury, but pertaining to his/her health, are discoverable if “good cause” can be shown. Both state law and the federal Health Insurance Portability and Accountability Act (HIPAA) apply to a consent for release of medical records. The consent must contain ten items, including a statement that the health care provider cannot condition treatment upon the signing of the consent for release. However, because of the broadness of the item language requirements, HIPAA, and state law, a health care provider may refuse to honor the consent. If a consent cannot be obtained from the patient, HIPAA continues to allow health care providers to release information with a court order or a subpoena. If an attorney issues a subpoena without a court order, the health care provider will not release information unless certain assurances are made.

HIPAA also applies to mental health and substance abuse treatment records. If such records are sought by an attorney not representing the patient, the consent must be accompanied by a "subpoena duces tecum" because a consent does not necessarily compel release. To obtain psychotherapy notes, an attorney should obtain both a consent for the release of mental health records as well as one specific to the psychotherapy notes.

Some of the damages that a victim can recover are pain/suffering, medical bills, compensatory, and loss of consortium. Pain and suffering damages include compens