Louisiana Personal Injury Lawyer Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Time is of the essence when it comes to filing a suit to address a grievance. If too much time passes, one may be barred from filing a lawsuit. The time period for filing a lawsuit is known as the "prescriptive time period." For example, a lawsuit for personal injury is subject to a one-year period of liberative prescription, following the date of the accident. The issue may become whether or not the time period has passed or not, thus, keeping a close eye on the calendar is the best way to stay safe when filing a lawsuit.

In a recent Louisiana Supreme Court decision, the court explored the time period in which the plaintiff initially filed to determine whether or not he filed in the appropriate time period. The cases arose from a fire at an oil well site in which the plaintiff was severely burned. The oil well accident occurred on September 27, 2007, thus, according to the prescriptive time period, he had one year from this date to file suit against the defendant(s). The plaintiff was employed by a Well Service Company that had contracted with an additional Mineral Company that produced oil and gas. In turn, the Mineral Company contracted with the plaintiff's direct employer to drill a well. The plaintiff filed a tort suit for his personal injuries against the Mineral Company and its insurer on September 4, 2008, falling within the one-year time period allowed for personal injury lawsuits. The plaintiff sustained injuries during the drilling operations, the well penetrated into formations that were pressurized with hydrocarbons. At the time of the incident, the plaintiff was in charge of circulating water through the well while awaiting heavier drilling mud to be pumped into the well to control the hydrocarbon pressure. His direct supervisor, a Well Service Employee, told the plaintiff to stand away from the well because the level the pressure was dangerous. However, the Mineral Supervisor contradicted the former supervisor's orders and told the plaintiff to get on his station at the pump and to abandon it only after shutting the pump off should the gas escape the well.

To the plaintiff's misfortune, he followed the Mineral Company's supervisor, where shortly after a hydrocarbon gas from down-hole escaped from the water tank sufficientily so that it ignited as the plaintiff was attempting to shut off the pump. This caused the hydrocarbon cloud in which the plaintiff was surrounded by, to become ignited, severely burning his entire body. It was only after the plaintiff filed suit against the Mineral Company that he discovered that the alleged Mineral Company supervisor was actually an independent contractor employed by a separate Pipeline Company. Thus, after the one year period, the plaintiff named the Pipe Company as a defendant in an amended petition. The question became whether or not the amended petition was proper, since the prescriptive period of one year had since passed. Thus, the Supreme Court's responsibility was to explore the lower court's decision which sustained the Pipeline Company's argument that too much time had passed and thus, the plaintiff should not be allowed to add them into the initial lawsuit.

Jurisprudence has recognized three different scenarios in which a plaintiff may rely on to establish that prescription has not run. These three situations include, suspension, interruption, and renunciation. In this case, the plaintiff relied on the theory of interruption to argue that his claim had not prescribed. In Louisiana Civil Code Article 1799 provides,

"The interruption of prescription against one solidary obligor is effective against all solidary obligors."

In addition, Louisiana Civil Code Article 3503 declares, "When prescription is interrupted against a solidary obligor, the interruption is effective against all solidqary obligors." Relying on jurisprudence, the Louisiana Supreme Court affirms the principle that for purposes of prescription, parties are solidarily liable to the extent that they share coextensive liability to repair certain elements of the same damage. As such, the plaintiff sustained severe physical injuries after being directly ordered to engage in dangerous activity by an independent contractor who was employed by the Pipeline Company. The companies are solidarily responsible since they held the supervisor out as a company employee and they were directly involved in the injury of the plaintiff. Therefore, prescription was properly interrupted as process was served upon the Mineral Company within the one year prescriptive time period, and since the independent supervisor involved was a solidary obligor, this initial service interrupted prescription amongst all involved and permits the plaintiff to amend the pleading to add the supervisor despite being past the one year prescriptive time period.

Lawsuits are a complicated process that require more than a grievance, they require proper filing within certain time periods, and serving parties at appropriate times. Thus, acquiring legal representation is highly recommended. This will help to ensure that the prescriptive time periods are followed and your legal argument does not fall between the cracks.

Continue reading "Understanding Prescriptive Time Periods When Filing a Lawsuit" »

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

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

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

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

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

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

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

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

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

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

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

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

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

ELEMENTS OF AN AGE DISCRIMINATION CLAIM

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More information will be provided as it becomes available.

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

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

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

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

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

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

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

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

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

In other words, the analysis very much turns on the specific facts of the incident. Here, the court had only Rhymes's deposition testimony to evaluate, as the store did not offer the manager's deposition or any other evidence. Accordingly, the court found that there were "questions of material fact as to whether the store manager’s actions in grabbing Mr. Rhymes by the neck and wrapping his arm behind his back constituted reasonable force under the circumstances of this case." The judgment of the trial court was reversed and the case remanded for further proceedings.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court went on to advise that an appellate court's primary role is to determine whether a trial court's general damages award amounted to an abuse of discretion. Only if such abuse is found is it appropriate for the appellate court to review prior judicial opinions to determine a range of amounts reasonably applicable in the case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thus, the court makes clear that findings of fact must be supported by solid evidence in order to survive challenge on appeal. If you have been injured due to someone's negligence, it is essential to seek a qualified attorney who is experienced at building the most favorable case possible based on the actual evidence to be presented at trial.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The tort law system is designed to make whole those who have been injured. Since medical science is both an imperfect art and an imperfect science, money is most often the cure for what ails plaintiffs. In each case the jury must decide how much money it takes to remedy the injury the victim suffered? This gets further complicated when considering someone who suffers and will suffer from a permanent condition brought on by another. The issue of damages is strongly linked with the issue of causation. The courts seek to compensate plaintiffs for all of the monetary loss they suffer at the hands of those found liable (those who are found legally responsible). An important aspect of liability is the determination that a wrongdoer was the proximate or legal cause of a plaintiffs injury.

Pain is a somewhat subjective part of the human experience. Torts professors sometimes joke that there is no "Pain-o-meter" for measuring how much something hurts. In our civil justice system, the awarding and amount of pain and suffering awards are a matter for the fact finder. This means that the decision about how much to compensate someone for their pain is often left to a jury of their peers. This is often a difficult decision for jurors to make, especially considering the subjectivity of pain.

Doctors use a chart with a series of faces ranging from one that seems to express mild discomfort to one that has tears dripping down it to figure out how much pain a person is in. That is the height of the technology used to measure pain. Juries are often called upon to answer the question oh what value each of these bring, not for themselves, but for some other injured person. It is the job of the plaintiff's attorney to call for an appropriate standard when compensating for pain. The standards used vary by location. Pain and suffering make up just one piece of an injured person's damages. Juries must also account for lost wages, future wages, medical expense and future medical expenses, among other potential costs.

How much pain is worth $2,654,249.99? That number represents what a judge, in lieu of a jury, granted Ms. Kristin Davis after two corporate defendants and an individual were found liable for her injuries. The trial judge's award contemplated past medical damage, car rental, past lost wages, future lost wages, past household expenses, future household expenses and future medical expenses. The Court of Appeal for the Second Circuit of Louisiana reduced the initial award by a total of $1,782,948. Ms. Davis' award was reduced in part because she failed to prove, in the opinion of the defendants and the Court of Appeal, that she was actually disabled in a way that prevented her from participating in any occupation. The allegation that the accident was caused by the defendant and that these injuries were caused by the accident would both have to be proven beyond a preponderance of the evidence. This means that the fact finder would have to determine that it was more likely than not the injuries were the result of the defendant's negligence.

It was the determination of the Court of Appeal that Ms. Davis did not prove that her alleged future needs beyond a preponderance of the evidence. The court reversed the trial court's findings on these expenses and affirmed a reduced award in the other areas.

Continue reading "No Future Expenses Awards for Ouachita Woman Who Suffered Injuries in Accident" »

For those wishing to be kept abreast of the latest products to receive governmental warnings regarding the safety surrounding their use, feel free to check out SaferProducts.gov. With a list of incident reports from other consumers, this effort by the government hopefully will help enable people to make conscious decisions regarding the products they put in their homes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The health and safety of workers is a pressing concern for both employees and employers alike. When an injury occurs at a job site, many questions arise as to the care of the injured and the responsibility of the employer in regard to that care. As an employee, the question of who pays for the care that may become necessary in the immediate, as well as into the future, is of prominent concern. Also, an injured employee may ask what level of responsibility their employer is held to for the circumstances of the accident and how they can receive compensation for health and living expenses resulting from any injury. What some employees may overlook is that their employment status can often dictate the means and method by which they will be able to recover should a lawsuit become necessary.

The importance of a contract between the employer and the employee who wish to have their relationship classified as statutory cannot be overstated. The recent Louisiana Court of Appeals case out of the Parish of Beauregard, Tilley v. Boise Cascade Corp., illustrates how one's employment status under the law can affect the outcome of a claim for compensation after injury. Tilley, an employee of the BE & K Construction Company, was contracted to work for a Boise Cascade Corp. owned paper mill. While performing work at a machine in the mill, Tilley was sprayed by a scalding liquid and suffered injury. Tilley's contract to work had expired six days prior to the accident.

Tilley filed suit. Soon after, Boise Cascade Corp. claimed immunity under Louisiana Workers’ Compensation Act Title 23 § 1061, arguing that Tilley was a statutory employee who was only entitled to workers compensation benefits and was not entitled to file suit. Hinging their decision on the contract, the Court of Appeals held that the Boise Cascade failed to prove with any certainty that Tilley’s contract had been extended. Therefore, Tilley was not a statutory employee at the time of the accident and she was free to move forward with her suit.

The determination that an employee is a statutory employee can dictate an injured worker’s recovery options. A regular employee is a worker directly hired by a business to perform its trade or operation. Such an employee is covered under the Louisiana Workers’ Compensation Act. The Act mandates that when an employee is injured the employer must pay a certain amount to them under law. In obtaining the absolute benefit of workers’ compensation, the employee forfeits the right to sue for additional damages with the exception of an injury or death caused intentionally by an employer. This immunity covers suits for employer negligence, and the legal result is that an employee receiving workers compensation benefits cannot sue the employer for additional damages not recoverable under workers’ compensation.

A statutory employee is a worker who is contracted to perform a job for a principal employer through a sub-contractor or intermediary. To be classified as a statutory employee under Louisiana law Title 23 §1061, the worker must be performing work “which is a part of [the] trade, business, or occupation” of the principal employer under a contract which indicates their status as a statutory employee. If an employee is classified as a statutory employee the employer enjoys the same immunity from suit as it does with regular employees in the event of death or injury. Thus, if an employee’s status is that of a statutory employee, the employer is exclusively liable for death or injury under workers compensation and enjoys tort immunity. Immunity shields the statutory employer from further suit, preventing the statutory employee from further recovery. Thus, an employee’s status governs the possible methods of legal redress.

Employee status can have great effect on the remedies which can be sought by employees as well as on the duty of care an employer must exercise. If you find yourself faced with an on the job injury you need the services of an effective legal team to help you determine important issues such as the effect your employment status could have on your claim.

Continue reading "The Effect of Statutory Employee Status on a Claim for Injury on the Job" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Further, reasonably anticipated use is defined as, "a use or handling of a product that the product's manufacturer should reasonable expect of an ordinary person in the same or similar circumstances." Lukfin provided evidence that at the time the oil well pump was built, 50 years ago, the sole purpose of the pump was to extract oil. There was never any intent on the part of the company to make its pump available for recreational use. The Supreme Court agreed and stated that on the part of the company, riding the pump would not be a reasonable foreseeable use. Thus, Lufkin had met its burden of proving that it used care when creating its product.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In our last post, we explored the basic elements of class action certification, including the rules that guide a trial court's decision on whether to grant the certification. Although the trial court is granted wide discretion on this question, it must reach its decision through serious analysis; the failure to substantiate its analysis can result in reversal by the appellate court as illustrated in the recent case, Madison v. Chalmette Refining LLC. On January 12, 2007, a group of students, teachers, and parent chaperones visited the Chalmette National Battlefield. During a historical reenactment, the nearby Chalmette Refinery released a significant amount of petroleum coke dust that was carried to the battlefield area. Five individuals (the "Plaintiffs") filed suit in federal court against Chalmette Refining, demanding compensation for a variety of damages including "including personal injury, fear, anguish, discomfort, inconvenience, pain and suffering, emotional distress, psychiatric and psychological damages, evacuation, economic damages, and property damages." The suit sought to represent all individuals who were exposed to the coke dust, specifically:

"all persons entities [sic] located at the Chalmette National Battlefield in St. Bernard Parish, Louisiana, in the early afternoon of Friday, January 12, 2007 and who sustained property damage, personal injuries, emotional, mental, or economic damages and/or inconvenience or evacuation as a result of the incident."

The district court allowed the parties to conduct discovery on the issue of class certification. Chalmette Refining took the deposition of each of the five named class representatives, yet the Plaintiffs conducted no discovery at all. At the hearing on the motion to certify the class, no evidence was introduced; at the conclusion, the district court orally granted the Plaintiffs’ motion for class certification.

Even before the district court issued its written order, Chalmette Refining petitioned the Fifth Circuit Court of Appeals for an interlocutory appeal over the decision to certify the class. The thrust of Chalmette Refining's appeal focused on the district court’s findings of "superiority" and "predominance" as required under Federal Rule 23(b)(3). "Determining whether the plaintiffs can clear the predominance hurdle set by Rule 23(b)(3) requires district courts to consider how a trial on the merits would be conducted if a class were certified." This, naturally, demands a fact-intensive analysis that "will vary depending on the circumstances of any case." The district court's order, in the Fifth Circuit's opinion, revealed that it failed to meet this requirement. Instead, it "adopted a figure-it-out-as-we-go-along approach that ... Fifth Circuit cases have not endorsed." For example, the district court's order provided no evidence that it meaningfully considered how the Plaintiffs’ claims would be tried, or that it weighed whether the case could be “streamlined using other case management tools, including narrowing the claims and potential plaintiffs through summary judgment." The district court also apparently failed to acknowledge or resolve the "significant disparities" among even the named class representatives concerning exposure, location, and mitigation. Thus, the Fifth Circuit concluded that by failing to adequately balance the common issues against the individual issues, the district court abused its discretion in determining that common issues predominated and in certifying the class. The court was careful, however, not suggest that class treatment is necessarily inappropriate for the case; instead, Fifth Circuit precedent simply required a "more rigorous analysis" than the district court conducted. Accordingly, the court reversed the district court’s class certification order and remanded the case to the district court for further proceedings.

The Fifth Circuit leaves open the possibility that class certification may still happen in this case if, on remand, the district court properly engages in the analysis required by the Circuit's jurisprudence and Rule 23. It is interesting to note that no evidence was presented by the Plaintiffs in the district court's original hearing on certification. Perhaps had more evidence been in play at that stage, the court would have had more information at its disposal on which to base its analysis and could have avoided the reversal on appeal. Ultimately, this case demonstrates the complexities of class action litigation and reminds plaintiffs that an experienced attorney is essential.

Continue reading "Chemical Release at Chalmette Refinery Results in Battle Over Class Action Certification (Part 2)" »

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

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

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

If each of these requirements is met, the plaintiffs must then meet two additional burdens. First, they must show that questions common to all the plaintiffs predominate over questions that affect only certain individuals. Also, the plaintiffs must demonstrate that the class action is better than alternative methods for resolving the controversy. Feder v. Elec. Data Sys. Corp. The district court is responsible for determining whether the class will be certified. “The decision to certify is within the broad discretion of the court, but that discretion must be exercised within the framework of Rule 23.” Castano v. American Tobacco Co. The court's "rigorous analysis" of the class question means "going beyond the pleadings ... [to] understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.” This typically involves the court's allowing the parties to conduct discovery specifically on the issue of class certification before rendering the decision.

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

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

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

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

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

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

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

The primary duty of the Louisiana Department of Transportation and Development (DOTD) is to "continually maintain the 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 reasonable prudence." In a recent post, we explored the elements that a plaintiff must prove in order to find the DOTD liable for damages arising out of a highway accident. By placing this burden on a plaintiff, state law attempts to balance the need for roadway safety with the countervailing requirement that DOTD not become "the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway." The case of Schysm v. Boyd offers an interesting example of a jury's misapplication of this balancing test.

On February 22, 2003, Douglas Schysm visited the Isle of Capri Casino in Vicksburg, Mississippi. After consuming three beers, he left the casino around 1:00 a.m. and drove his truck into Madison Parish, Louisiana on I-20. Just outside of the community of Delta, Schysm's truck collided with a horse which, after wandering into the roadway, had just been struck by another car and which lay in the right lane. Schysm's truck shot into the air and landed upside-down next to a guardrail approximately 245 feet beyond the point of impact. Schysm suffered significant injuries as a result of the crash, including broken bones and nerve damage. He sued the owner of the horse, the owners of the property adjacent to I-20 where the horse was kept, and DOTD for damages related to the incident. Schysm argued that the DOTD failed to inspect and maintain a fence along I-20, allowed the fence to be cut for easier (but illegal) vehicle access, and failed to warn drivers that the cut in the fence would allow animals to roam onto the highway. After a trial, the jury assigned 50 percent fault to DOTD, 30 percent to the owner of the horse, and 20 percent to Schysm. It also awarded Schysm damages totaling $884,062. DOTD appealed, disputing any fault.

The Second Circuit reviewed the trial record for the evidence relating to two areas adjoining I-20 where DOTD either did not maintain a fence or did not build one in the first place. The area closest to the horse's pen and where it most likely entered the highway was separated from the road by a fence; however, this fence had been cut by local motorists who used the path as a short-cut to access I-20. The other area apparently never had a fence at all. At trial, the parties offered expert witnesses who referenced the design guidelines published by the American Association of State Highway and Transportation Officials ("AASHTO") which establish fencing recommendations for lands adjacent to interstate highways. The experts disagreed about which version of the guidelines applied in the case, and further about whether fencing was recommended at all due to the particular construction method of the highway near the point of impact. DOTD's witness, with whom the Second Circuit ultimately sided, explained that the purpose of the fencing along I-20 was "to control vehicular access, not to keep livestock off the Interstate." Furthermore, "there was no duty under the 2001 AASHTO guidelines to have a fence along I-20." The court found that if even if DOTD had a duty to construct fencing along the highway, it was only to restrict vehicle access to and from the interstate; "it was not intended to prevent a horse that had escaped from its pen from entering upon I-20." The court observed that the horse's pen was "not adjacent to I-20... In order to reach I-20, [the horse] had to cross a ditch, a gravel road, a paved road, and a grassy area. No unreasonable risk of harm was created for motorists under these circumstances by DOTD's failure to maintain or erect a right-of-way fence in this stretch of I-20." In light of the additional fact that there was no history of animals wandering onto the roadway in the area, the court concluded that the jury was "clearly wrong" in finding that DOTD was in any way at fault for Schysm's collision.

This case reflects the reality that, although the DOTD is obligated to take reasonable steps to create and maintain a safe roadway, the obligation does not extend to exceedingly burdensome or overly expensive measures. Given that DOTD is responsible for maintaining over 16,705 miles of roadway and 894 miles of interstate in Louisiana, it is understandable that the department must apply its limited funds in a way that benefits the largest number of Louisiana motorists possible. Clearly, it is not feasible to build fencing along every mile of highway in the state. Still, DOTD is held accountable for any failures to do what is reasonable to protect the traveling public.

Continue reading "Second Circuit Rejects Jury's Assessment of DOTD's Liability in Madison Parish Highway Accident" »

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

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

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

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

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

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

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

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

On March 13, 2008, Sarah Hollier visited Dr. Gregory Green for treatment of bronchitis. Dr. Green wrote Hollier a prescription, which she took to the Super One Pharmacy in Monroe to have filled. The pharmacist on duty, Katy Buntyn, was not familiar with the particular form of the drug that Dr. Green prescribed because it had been discontinued some four years prior. Buntyn directed her pharmacy technician to phone Dr. Green's office for clarification on how to fill the order. Ultimately, after further confusion over the form of the drug and the dose, Buntyn mistakenly filled the prescription at a dosage which was at more than 2.5 times the "top end" dose indicated on the drug's literature and eight times the dose intended by Dr. Green. When Hollier began taking the medication, she experienced high energy levels, sleeplessness, increased heart rate, and nausea.

Hollier's husband, himself a pharmacist, recognized her symptoms and discovered the erroneous dose after inspecting the prescription bottle. The Holliers reported the problem to the pharmacy and, later, filed suit against the pharmacy and Buntyn. In Louisiana, pharmacists are not subject to the state's Medical Malpractice Act, so the matter was heard in Monroe City Court on September 21, 2009. The trial court entered a judgment for Hollier and awarded her $7,500 in general damages and $827.08 for medical expenses. The defendants appealed, refuting liability.

The Second Circuit first reviewed the elements of general negligence, but then noted that a "pharmacist has a duty to fill a prescription correctly and to warn the patient or to notify the prescribing physician of an excessive dosage or of obvious inadequacies on the face of the prescription which create a substantial risk of harm to the patient." Buntyn argued that she met this duty by calling Dr. Green's office to inquire about the prescription. But the court disagreed that this action was sufficient to discharge her duty; instead, "the fact that the package insert lists the top end of an initial daily dosage of [the drug] at 9 mg should have aroused Ms. Buntyn’s suspicions that a 24 mg initial daily dosage was excessive." At that point, reasoned the court, Buntyn "should have inquired further." Thus, the court could not find that trial court committed manifest error in finding that Buntyn breached her duty to Hollier by supplying the extremely high dose of the drug, and affirmed the judgment.

The Hollier case makes clear that the law considers a patient's health paramount. Even if some or all of the fault for an erroneous prescription can be traced back to the doctor, a pharmacist is still required to use independent judgment when filling a prescription. Circumstances such as a particularly high or low dose, a call for a drug that's unrelated to the patient's condition, or other irregularity should trigger the pharmacist to investigate further before dispensing the medication. The Hollier case suggests that simply confirming with the ordering doctor may not be sufficient when other common resources, such as the drug manufacturer's package insert, suggest that the doctor's orders are unsafe or inappropriate.

Continue reading "Prescription Drug Overdose Leads Court to Review Pharmacist's Standard of Care " »

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

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

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

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

After reviewing the evidence presented at the trial of the plaintiffs' physical conditions following exposure and considering the testimony of several medical experts, the court concluded the "plaintiffs had a justified fear of future injury," and affirmed the trial court's award.

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

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

Previously on this blog, we have discussed the Louisiana Medical Malpractice Act ("LMMA") and its requirement that "all claims against healthcare providers be reviewed or 'filtered' through a medical review panel before proceeding to any other court." A plaintiff who fails to do this is subject to the defendant's "exception of prematurity," which is a procedural mechanism by which the defendant can petition the court to dismiss the plaintiff's claim until the medical review panel has properly conducted its review. The defendants in the case of Heacock v. Cook attempted to invoke the exception in a case that involved a sexual relationship between a doctor and his patient.

In December of 2005, Margaret Heacock was admitted to the Palmetto Addiction Recovery Center (“Palmetto”) in Rayville for an inpatient substance abuse treatment program. After being discharged in May of 2006, she underwent outpatient treatment which continued through January of 2008. In 2009, Heacock filed two lawsuits against Palmetto and her treating physician, Dr. Douglas Cook. Both suits alleged essentially the same facts: that Dr. Cook "entered into an inappropriate, sexual relationship" with Heacock during the time she was his patient; one suit's theory of recovery was based on intentional tort, the other on negligence. Dr. Cook and Palmetto filed exceptions of prematurity, seeking to have all claims dismissed in the trial court and instead brought before the medical review panel. After a hearing, the trial court determined that Heacock's claims sounded primarily in medical malpractice and therefore required a review by the medical panel. Thus, the trial court dismissed Heacock's suits without prejudice. Heacock appealed, arguing that it was error for the trial court to require the panel's review given that her allegations gave rise to a general tort claim, and not a medical malpractice claim.

The Second Circuit Court of Appeal noted that the LMMA applies only to “malpractice” as defined by the statute, while other tort liability on the part of a health care provider is governed by general tort law. Further, Louisiana statute provides separate and distinct definitions for "malpractice" and "tort," the former extending only to unintentional actions. Thus, "by definition, 'malpractice' does not include the intentional acts of the health care provider." Noting that "Dr. Cook took deliberate action as a physician by becoming involved in a sexual relationship with his patient," the court reasoned that Heacock's claim of intentional tort against Dr. Cook was not “malpractice” as defined by the LMMA. Instead, "this type of deliberate action, a sexual relationship, has been deemed to be an intentional tort, and, as such, not considered a malpractice claim." The court, concluding that the trial court erred in granting Dr. Cook’s exception of prematurity for Heacock's claim of intentional tort, reversed the trial court's judgment as to the intentional tort action and affirmed the trial court's judgment as to the negligence claim.

The Heacock case reveals the limits of the LMMA and its requirement for panel review before a case can proceed to trial. Intentional torts, even when committed by a healthcare provider, are outside of the LMMA's scope. Indeed, only actions in negligence that meet the state's specific definition of "malpractice" trigger the application of the Act. This is a critical point for a plaintiff who, like Heacock, may have several possible theories of recovery against a defendant medical provider. Any action that can be styled as an intentional tort will avoid the delay of the LMMA's review process.

Continue reading "Ouachita Parish Case Examines the Applicability of the Louisiana Medical Malpractice Act to Intentional Torts" »

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

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

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

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

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

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

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

Previously on this blog, we have discussed the Louisiana Medical Malpractice Act ("LMMA") and its requirement that "all claims against healthcare providers be reviewed or 'filtered' through a medical review panel before proceeding to any other court." A plaintiff who fails to do this is subject to the defendant's "exception of prematurity," which is a procedural mechanism by which the defendant can petition the court to dismiss the plaintiff's claim until the medical review panel has properly conducted its review. The defendants in the case of Heacock v. Cook attempted to invoke the exception in a case that involved a sexual relationship between a doctor and his patient.

In December of 2005, Margaret Heacock was admitted to the Palmetto Addiction Recovery Center (“Palmetto”) in Rayville for an inpatient substance abuse treatment program. After being discharged in May of 2006, she underwent outpatient treatment which continued through January, 2008. In 2009, Heacock filed two lawsuits against Palmetto and her treating physician, Dr. Douglas Cook. Both suits alleged essentially the same facts: that Dr. Cook "entered into an inappropriate, sexual relationship" with Heacock during the time she was his patient; one suit's theory of recovery was based on intentional tort, and the other on negligence. Dr. Cook and Palmetto filed exceptions of prematurity, seeking to have all claims dismissed in the trial court and instead brought before the medical review panel. After a hearing, the trial court determined that Heacock's claims sounded primarily in medical malpractice and therefore required a review by the medical panel. Thus, the trial court dismissed Heacock's suits without prejudice. Heacock appealed, arguing that it was error for the trial court to require the panel's review given that her allegations gave rise to a general tort claim, and not a medical malpractice claim.

The Second Circuit Court of Appeal noted that the LMMA applies only to “malpractice” as defined by the statute, while other tort liability on the part of a health care provider is
governed by general tort law. Further, Louisiana statute provides separate and distinct definitions for "malpractice" and "tort," the former extending only to unintentional actions. Thus, "by definition, 'malpractice' does not include the intentional acts of the
health care provider." Noting that "Dr. Cook took deliberate action as a physician by becoming involved in a sexual relationship with his patient," the court reasoned that Heacock's claim of intentional tort against Dr. Cook was not “malpractice” as defined by the LMMA. Instead, "this type of deliberate action, a sexual relationship, has been deemed to be an intentional tort, and, as such, not considered a malpractice claim." The court, concluding that the trial court erred in granting Dr. Cook’s exception of prematurity for Heacock's claim of intentional tort, reversed the trial court's judgment as to the intentional tort action and affirmed the trial court's judgment as to the negligence claim.

The Heacock case reveals the limits of the LMMA and its requirement for panel review before a case can proceed to trial. Intentional torts, even when committed by a healthcare provider, are outside of the LMMA's scope. Indeed, only actions in negligence that meet the state's specific definition of "malpractice" trigger the application of the Act. This is a critical point for a plaintiff who, like Heacock, may have several possible theories of recovery against a defendant medical provider. Any action that can be styled as an intentional tort will avoid the delay of the LMMA's review process.

Continue reading "Ouachita Parish Case Examines the Applicability of the Louisiana Medical Malpractice Act to Intentional Torts" »

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

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

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

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

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

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

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

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

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

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

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

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

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

Previously on this blog, we examined the concept of a "substitute vehicle" for purposes of extending insurance coverage for an auto that is used only temporarily and in place of a policyholder's usual car. In this situation, the insurer is required by state law to extend the same coverage to the substitute car as was in place for the regular vehicle. This requirement, however, does not necessarily apply to a vehicle that a driver simply borrows from another ownerin addition to the vehicle covered by his policy. A vehicle under this arrangement is known as a "non-owned" auto and, as the plaintiff in Burns v. Couvillionlearned, coverage is determined by the language of the owner's policy.

On October 12, 2005, Linda Burns was driving on Highway 1 in Simmesport when she was rear-ended by a bean harvester farm vehicle operated by Burton Dupuis. At the time of the accident, Dupuis was engaged in work for his employer, Victor Lachney. The bean harvester was owned by Ted and Don Couvillion and had been loaned to Lachney for use by Dupuis that day. Burns filed a lawsuit for damages against the parties and also Progressive Insurance, alleging that Progressive had issued a policy to Lachney which applied to the bean harvester. Progressive admitted that it had issued a policy to Lachney that provided coverage on a different vehicle but denied that coverage extended to the bean harvester. The parties filed cross-motions for summary judgment and the trial court granted judgment in favor of Progressive.

On appeal, Burns argued that coverage should apply to the bean harvester because the Progressive policy included an "Employer's Non-Ownership Liability Endorsement," which stated that “[t]he definition of insured auto is modified to include a non-owned auto when you or any of your employees use the non-owned auto in your business.” Progressive countered that the policy had not been modified by the Endorsement because, although it was among the various endorsements and other forms that accompanied the policy, it was not listed on the policy's Declarations Page which specifically identified the forms that modified the policy. In fact, the policy contained the following language:

"All forms in the endorsement section may not pertain to your policy. Please refer to your Declarations Page for form numbers associated with your policy. All other parts of the policy that have not been modified by an endorsement will remain unchanged."

The Third Circuit, applying "ordinary contract principles," noted that the "policy reveals clear and unambiguous language... [and] expressly notes in bold language that not all endorsements pertain to a given policy." Finding that the Employer's Non-Ownership Liability Endorsement did not apply to the policy because it was not among the endorsements and modifications listed on the Declarations page, the court concluded that "Dupuis was not an insured under the Progressive policy and that the [bean harvester] vehicle was not an insured auto under the Progressive policy."

The Burns case reveals a common but potentially troublesome practice among insurers. Many policies are drafted using a standardized, boilerplate template where certain portions may or may not apply to the policy depending on whether they are specifically referenced in the appropriate sections. This can lead to considerable confusion on the part of the insured unless he or she understands the requirements for adding or removing provisions within the policy. This case suggests no hesitation on the part of the court to enforce these types of agreements, so policy owners are well advised to review all insurance documents and confirm they reflect the level of coverage that is expected.

Continue reading "Simmesport Auto Accident Reminds Insurance Policy Holders: Read Your Policy Carefully!" »

Under Louisiana law, an issuer of a property insurance policy is required to follow certain procedures when renewing the policy. Essentially, an insurance company must give a property owner 30 days' notice of either 1) its decision not to renew a policy, or 2) the homeowner's option to renew when it expires. La. R.S. 22:887(G). Case law adds the stipulation that, in most cases, an insurer's failure to provide this notice will result in an automatic renewal of the policy. If there is a dispute, the insurer faces an initial burden to prove that it mailed the required notice, which creates a presumption the insured received the notice. The property owner may rebut this presumption by offering evidence that the notice was never delivered. The ultimate factual determination must be made by the trial court.

The Louisiana Supreme Court recently reaffirmed this approach in the case of Nolan v. Mabray. On June 18, 2005, Wilson Mabray and Marsh Nolan were shooting off fireworks at Mabray's family farm in Union Parish. Wilson shot a bottle rocket which struck and severely injured Marsh. Wilson's father ("Mabray") maintained a farm-owner's policy issued by Shelter Insurance Company. When March sued for his injuries, Shelter disputed that the policy was in effect at the time of the accident, arguing that the policy had lapsed: Shelter asserted that it mailed Mabray a renewal notice on April 28, 2005 which stated the premium was due on June 2, 2005. However, the company did not receive payment until nearly a month late, on June 29, 2005. At trial, a Shelter employee offered testimony about the company's computer-generated renewal notices and automated mailing process. The employee produced records of the company's April 28 letter and also a separate "lapse letter" mailed on June 20 that warned Mabray his policy had been cancelled. Mabray's local agent, who was copied on the lapse letter, personally contacted Mabray on June 29 and collected payment the same day. On the issue of whether he ever received the renewal notice, Mabray testified by way of deposition that he did not remember receiving it, and that if he had, he would have paid the premium right away. However, Mabray testified it was possible he overlooked the notice as April through June were especially busy months on the farm during which he "might have stuff sit on [his] desk for a couple of weeks before it gets opened.” Mabray further stated that “[he] could certainly not swear that it did not come to [his] mailbox and actually get on [his] desk." He also admitted that several other insurance policies with Shelter had lapsed in the past because he did not pay the premium on time. Based on this evidence, the trial court found that Shelter did mail the renewal notice to Mabray on April 28, 2005 and, therefore, the policy was not in effect at the time of the bottle rocket incident because it had lapsed.

The Second Circuit reversed, finding that there was insufficient evidence to support the trial court's conclusion that the renewal notice had been mailed. This decision was based primarily on the fact that Shelter did not introduce evidence of any person's actual knowledge that the notice was mailed. The Louisiana Supreme court disagreed. Applying the manifest error standard of review, the Court held that

"the issue of mailing is a factual issue to be decided by the trial court, and testimony from the person who actually mailed the notice is not required. Our Code of Evidence expressly permits the use of records of regularly conducted business activities as exceptions to the hearsay rule."

The Court continued, "while a factual determination on the notice issue may not be appropriate for summary judgment, it is prime for trial on the merits, where the factfinder’s determination is entitled to great weight." With obvious frustration, the Court admonished the Second Circuit for failing to defer to the trial court's finding:

"The evidence cited by the court of appeal to reverse this factual finding was merely evidence in support of its own evaluation of
the facts, and, as we have instructed courts of appeal numerous times, that is not a
permissible basis to overturn a trial court’s factual finding. Merely because there is
some factual support in the record for a contrary view does not permit an appellate
court to overturn a trial court’s factual finding under the manifest error rule."

. Accordingly, the Court reversed the Second Circuit's decision and reinstated the trial court's judgment.

The Nolan case reminds litigants that the time to settle factual disputes is in the trial court, particularly where the case largely turns on circumstantial evidence. An appellate court must find serious error on the part of a judge or jury in making determinations of fact to substitute its own judgment, even if it feels after reviewing the record that its version of the events in question is more likely.

Continue reading "Union Parish Bottle Rocket Injury Results in Dispute Over Insurance Policy Renewal" »

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

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

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

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

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

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

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

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

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

Costs

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

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

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

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

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

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

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

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

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

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

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

In a recent unpublished opinion, a panel of the Louisiana 1st Circuit Court of Appeal affirmed a trial court's award of additur in a personal injury lawsuit stemming from a low-speed rear-end automobile accident occurring in Terrebonne Parish in October 2005. The plaintiff sued for damages for personal injuries, medical expenses, and loss of wages, as well as loss of consortium for his wife and their two minor children. The jury returned a unanimous verdict allocating 70% of the fault to defendants, a towing company, its driver, and the truck's insurer. They awarded damages to plaintiff and his family for the following: past physical pain and suffering, physical disability, impairment, and inconvenience, the effect of plaintiff's injuries and inconvenience on the normal pursuits and pleasures of life, loss of past income, impairment of future earning capacity, past medical expenses, and loss of consortium.

In this matter, plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV) or Alternatively for a New Trial and/or Additur as to both the allocation of fault and the amount of damages. After a hearing, the trial court granted plaintiffs' motion for additur and increased the general damages award (which includes past physical pain and suffering, physical disability and impairment, the effect of the injuries and inconvenience, mental anguish, and future pain and suffering) from $28,000 to $100,000 and otherwise denied the motion. The defendants in the case appealed the decision, asserting that the jury did not abuse its discretion in awarding $28,000 (which was determined to be the case when the award was increased) in general damages and that the trial court abused its discretion by increasing the general damages award to $100,000. Plaintiffs, on the other hand, asserted that the additur was improperly low, the jury erred in its allocation of fault and damages, the trial court should have granted JNOV, and that the jury's decision was a "compromise" or "quotient jury" verdict. Other procedural deficiencies were noted and eventually corrected.

The main issues upon appeal were: 1) whether the jury was unreasonable in allocating fault 70%-30% between the defendants and plaintiff, 2) whether a general damages award of $28,000 was unreasonably low and whether the trial court's resulting additur to $100,000 was improper, 3) whether the trial court erred in refusing to grant JNOV, and 4) whether the jury compromised its damage awards and did not fully deliberate on all of the issues.

The question of percentages of liability is a factual determination that cannot be overturned unless an appellate court can find from the record that a reasonable factual basis does not exist for the finding and that the record establishes that the finding is clearly wrong. There is a presumption in Louisiana that the following motorist in a rear-end collision is at fault. In this case, however, there was conflicting testimony about whether plaintiff remained stopped the whole time or if he instead stopped, moved forward, and then stopped again. Both the trial court and appellate court were unable to find that the jury acted unreasonably in its allocation of fault.

When a jury awards a damages amount that is less than the lowest reasonable amount, additur becomes proper. Here, the jury awarded nothing for mental anguish or future pain and suffering, which the trial court viewed as unreasonably low given the pain and suffering associated with the surgery and medication needed to correct two disc ruptures. Plaintiff's doctors also testified that the plaintiff's neck would never be the same again and plaintiff testified that he was still in pain but worked in spite of it. Because the trial court found that a general damages award of $28,000 was unreasonable, it had the discretion to raise the award, but only to the lowest reasonable amount. Any further award is an abuse of the trial judge's discretion.

In order to grant JNOV, which is a directed verdict terminating the action without resubmission to another jury, a trial court must find that a verdict is not supported by any substantial evidence. Based on its review of the record, the 1st Circuit panel could not conclude that the evidence pointed so strongly in favor of plaintiffs that its verdict as to the issues other than damages was unreasonable. It therefore affirmed the trial court's judgment in that respect.

Lastly, the plaintiffs claimed that because the jury responded unanimously to all answers to the jury interrogatories, that indicated a decision of consensus and/or quotient (averaging each juror's proposed damage award) rather than a carefully considered verdict. However, neither the trial court nor appellate court could find any evidence indicating that the jury verdict was a quotient verdict.

While much of this is complicated, the issues presented are a great indicator of how complex legal matters can be and the importance of an attorney that can help you receive the award you deserve.

The U.S. Environmental Protection Agency (EPA) recently gave the state of Louisiana a grant of $150,000 to help reduce the public's exposure to asbestos in schools and other state buildings. The money will help building owners comply with statutory requirements, monitor their compliance, and be spent on public outreach efforts.

Under the Asbestos Hazard Emergency Response Act, or AHERA, grants like this one are authorized to protect people who enter public buildings where asbestos may be found. The law requires local education agencies to inspect schools for asbestos and make plans to reduce it where found. The AHERA also created a program to train and accredit individuals who perform asbestos related work. Projects like those authorized and funded through AHERA are so important due to the human risk of asbestos depends on exposure. Contrary to popular belief, removal is not always the best way to reduce exposure. That is where education comes in. Improper removal of asbestos may create danger where none existed before. The EPA only requires removal when it is needed to prevent significant public exposure to asbestos material (example: during building renovation or demolition). If asbestos is discovered, the EPA actually often recommends in-place management, not removal. Management plans can be used to control the release of asbestos fibers when materials are not significantly damaged and not likely to be disturbed.

Beyond providing grants like this one to states to combat asbestos, the EPA plays a broad role in protecting the public from exposure to the toxic fibers. Several EPA Offices deal with asbestos. For example, the Office of Air and Radiation/Office of Air Quality Planning Standards, which has the mission of preserving and improving air quality in the U.S., is responsible for implementing another asbestos law, the Asbestos National Emission Standards for Hazardous Air Pollutants, which sets guidelines for demolition practices and reporting and record keeping requirements for waste disposal. In addition, the Office of Prevention, Pesticides, and Toxic Substances regulates asbestos in school buildings and certain asbestos products and maintains the Asbestos Model Accreditation Plan which is used by states to train and accredit asbestos professionals. This Office also protects workers in states without Occupational Safety and Health Administration (OSHA) Safety and Health Plans.

In 2005, the EPA released an "Asbestos Project Plan" to bring together their actions related to asbestos and provide a framework to coordinate their approach to identify, evaluate, and reduce risk to human health from asbestos exposure. The plan set forth three key areas of focus:

1. Improving asbestos science and advancing EPA understanding of asbestos toxicology, asbestos-related exposures, sample collection, and analysis. 2. Identifying and addressing ways people are exposed to asbestos and how to reduce exposure 3. Assessing and reducing risks associated with asbestos cleanup.

For more information about what the EPA is doing in our Region (6-which encompasses Louisiana, Texas, Arkansas, New Mexico, Oklahoma, and 66 Tribal areas) you can visit the EPA's website by clicking here. If you feel your health has been compromised from being exposed to asbestos, contact an attorney immediately to discuss your legal rights. Timing can be of the utmost importance in cases relating to asbestos and taking action quickly is essential.

Court systems are very highly burdened. Currently, there are too many cases compared to the number of judges and judicial staff. This phenomenon of law will not likely change any time soon. Therefore, the judicial system had to come up with ways to counter the overflowing process. One of the most logical methods of ending too much litigation is to limit the amount of time a case can sit in the judicial system without action. This is a process called abandonment. In Louisiana, if a case has not progressed, through prosecution or defense, for three years, the case will be thrown out of the court system and will be banned from further action.

The impact of such a rule is significant on any litigation. However, overcoming this outcome is very easy. Any significant action taken on behalf of any party in the case will re-start the time period. Therefore, the only cases that are hurt are cases where the plaintiff has filed a suit and has forgotten about it or has found better things to occupy time with. These cases remain on the books, and when, a few years down the road, the plaintiff remembers that the case is still pending, the case will be denied access to the courts.

Additionally, lawyers and clients should be aware that not all action intervenes on the three year time period. Some action will not stop the clock from running. LSA-C.C.P. art 561 states in relevant part:

This provision shall be operative without formal order, but on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.

Then the statute goes on to describe what types of actions will constitute a step in the process of litigation:

Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

Any discovery will end the clock for abandonment. In a recent case, Mary Brown v. Michael Borg, a court discussed what will constitute a step. The action began with a typical car accident. The plaintiff, Ms. Brown, sued Michael Borg and his insurance company after Mr. Borg, while operating his vehicle, collided with Ms. Brown's vehicle. After the action commenced, the parties relayed discovery requests back and forth. On August 18, 2005, Ms. Brown commenced her action. Attached to the petition was a request for discovery and interrogatories. On October 19, 2005, the defendants responded to the petition and also made discovery requests of their own. Ms. Brown responded to the defendants discovery request on July 17, 2006. On November 28, 2007, Mr. Borg's counsel wrote to Ms. Brown and her counsel, requesting the discovery that was sent on July 17. On December 10, Ms. Brown's counsel reported that all the requested documents and answers were already sent. No other actions were taken by either party. On October 16, 2009, Mr. Borg filed a motion to dismiss the petition due to abandonment. Ms. Brown argued that the communication on November 28, 2007 and December 10, 2007 were actions taken by the parties in furtherance of the prosecution and defense of the petition. However, the Court looked at the circumstances differently.

The Court classified the communication by the parties as indications that action would be taking. The Court argued that the communication indicated that no actions had been taken and that no actions would be done in response. The Court stated that the last action taken by either party was on July 17, 2006 when Ms. Brown responded to the defendants request for discovery. By the time Mr. Borg filed to dismiss the claim on October 16, 2009, by the Court's decision, no action had been taken for over three years. Therefore, there was no longer any case pending, and Ms. Brown had lost her chance to file a petition.

If you have a claim, it is essential that you speak to an attorney as soon as possible. Competent legal counsel will provide continuous and consistent legal representation. If a case is pending for too long without action, Ms. Brown's case demonstrates what can happen.

Continue reading "Plaintiff Takes Too Long in Civil Case, Suffers Consequences" »

In civil litigation, the defendant is responsible for the damage caused to the plaintiff(s) when found responsible for causing harm. This damage may be either physical or property damage. If a defendant is found to be at fault, the next question is usually to what extent the defendant is liable for any resulting injuries. In normal circumstances, experts provide testimony concerning physical and property damage, and any intangible damages such as lost wages, mental distress, etc. In some circumstances, the plaintiff may have a preexisting condition. This preexisting condition may make the damages the plaintiff suffers more likely. Further, the injury or accident may exacerbate the preexisting condition. There is a civil law maxim that "the defendant takes the plaintiff as he is at the time of the accident." This is commonly referred to as the eggshell rule. In a recent case, Miriam Dyess vs. State Farm Insurance Co. ET AL., the Court describes how the eggshell rule relates to an award for damages.

In this case, Dyess was driving in Alexandria, Louisiana, when another car pulled in front of the plaintiff's car. The result was that Dyess ran into the back of the other vehicle. The driver of the other vehicle was insured by State Farm Insurance. Plaintiff was insured by Farmer's Insurances (Farmers). As a result of the injury, Dyess suffered injuries to the neck, shoulder, hand, back, right leg, and has headaches, foot pain, and numbness. The plaintiff was also awarded $103,000 in damages. Farmers appeals the decision stating (1) there was only $1,500 worth of damages, (2) plaintiff denied any injuries at the scene of the accident, and (3) plaintiff's injuries were as a result of a pre-exisiting carpal tunnel syndrome and fibromyalgia. Farmers appealed to set aside or reduce the $103,000 award as manifestly erroneous, and that the court erred in awarding damages and medical expenses for injuries other than those to plaintiff's neck.

The basis of the award that the trial court gave plaintiff was the eggshell rule. The trial court stated that plaintiff was an eggshell victim who already had some medical problems. But, as such, you must take the victim as you find them. The Appellate Court's applicable standard of review is that it cannot set aside findings of fact unless it is manifestly erroneous or unless it is clearly wrong. Where the jury's findings are reasonable, in light of the record viewed in its entirety, the court of appeal may not reverse. Although, there was some inconsistent evidence, plaintiff provided uncontroverted evidence that her preexisiting condition was exacerbated due to the accident. Defendant's liability is not mitigated by the fact that plaintiff's preexisting physical infirmity was responsible in part for the consequences of plaintiff's injury by the defendant. It is clear that the defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortous conduct. However, plaintiff fails to carry the requisite burden of proving causation if the pre-accident and post-accident conditions are identical in all meaningful respects. Thus, because the plaintiff provided uncontroverted evidence that the injuries exacerbated any pre-existing condition, she has met her burden.

These are the facts upon which the trial court awarded $103,000 in damages. The role of the appellate court is not to fix an award that it deems appropriate to the case, but, instead, to determine whether, based on the effect of the partiuclar injuries on the particular plaintiff in the particular circumstances which plaintiff finds himself in, the award is an abuse of discretion of the trier of fact. The eggshell rule and exacerbated symptoms were reasonable enough factual and legal reasons to find that the trial court's award was within its discretion.

Continue reading "Appellate Court Outlines Standard of Review for Damage Awards" »

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

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

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

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

In the court's view, the evidence presented at trial showed that the hospital acted reasonably to discover and correct any dangerous condition that might arise and in doing so discharged its duty to exercise reasonable care for the safety of visitors. Finding that the "record supports a finding that the hospital met its burden of proof and therefore absolved itself from liability," the court concluded that the trial court erred in holding the hospital liable for Terrance's injuries and reversed the judgment.

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

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

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

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

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

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

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

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

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

In several previous posts on this blog, we have explored cases involving premises liability where the plaintiff is injured while visiting a
"restaurant", "store", or other "business". But what about a plaintiff who is injured on his own property by a device that is owned by another party but which is on his property for his own benefit? This situation can arise in the case of utilities, where the dangerous conditions are created by electric power lines, natural gas lines, propane tanks, and the like. The case of Flowers v. Entergy Corp. offers an example.

On January 5, 2001, just outside of Springfield, Louisiana, Randall Flowers parked his truck and trailer in the driveway of his home. He parked the vehicle near a small pump house that served as a water source for washing the truck. When Flowers climbed on top of the trailer to wash it, he came into contact with a power line that provided electricity to his house and was severely injured. Flowers sued Entergy Corp., the local utility that owned and maintained the power line. At trial, both parties produced experts who testified about the National Electric Safety Code (the "Code"), which, though not officially adopted by the state of Louisiana, was relied upon by utilities for minimum safety standards. The Code set minimum heights for power lines in various applications so as to provide clearance for people and equipment passing below. Flowers' expert testified that the power line over the driveway failed to meet the Code requirements for the location where it was installed in that it sagged one and one-half feet too low at its midpoint. He also offered the opinion that Entergy should have performed more frequent inspections, which would have allowed the company to discover the problem sooner. Entergy's witness, who was certified as an expert in electrical engineering, Code interpretations, and accident reconstruction, read the Code differently and established that the height of the power line did not violate the Code. Ultimately, the jury found no fault on the part of Entergy and assigned 100 percent fault to Flowers.

On "appeal", Flowers argued that the jury's verdict was clearly wrong, and that Entergy's failure to maintain the lines at the height suggested by his expert witness was the cause-in-fact of his injury. The First Circuit focused its analysis on the issue of whether Entergy breached a duty it owed to Flowers, which was related to its maintaining the proper height of the power line. The court stated,

"from our review, the record provided the jury a reasonable basis for finding that Entergy ... could not have reasonably foreseen or anticipated plaintiff's choice of location for his chosen activity. Even if the duty or standard of care was breached by the height of the power line, the risk that materialized is not easily associated the breach. ... Thus, the risk was not contemplated by or within the scope of the breached duty, and therefore, not the legal cause of the injury."

The court concluded that, based on the trial record, the jury's verdict could not be considered "clearly wrong" and affirmed the trial court's judgment.

This case reminds property owners that the duty-risk analysis relied on by the courts in these cases does not place all responsibility on the utility company for the safe operation of power lines and other dangers. Indeed, "an electric company is not under a duty to safeguard against occurrences that cannot be reasonably expected or contemplated." In fact, "operators of power lines are not required to anticipate every possible accident which may occur and are not the insurers of safety of persons moving around power lines in the course of everyday living." Clearly the jury in the Flowers case determined that the plaintiff's truck-washing did not fall within the activities that Entergy should have "reasonably expected" would occur around its power lines, and the Court of Appeals did not find this conclusion unreasonable.

Continue reading "Springfield Injury Reminds Homeowners to Use Caution Around Power Lines" »

In many circumstances, state and federal governments are protected by governmental immunity. In some circumstances, e.g. where government acts as a market participant, these immunities are set aside due to the nature of the actions taken by the government. In Louisiana, the Lafayette Consolidated Government (LCG) runs a bus service for its citizens. On one bus drive, a customer of a LCG run bus was injured due to the malfunction of a pull cord that came loose striking the customer in the eye. In Willie Mae Scott (plaintiff) v. LCG, the Appellate Court upheld a trial court decision that granted summary judgment to LCG.

In August of 2006, plaintiff was riding a bus run by LCG. Another customer of the bus pulled on the cord to inform the bus driver that he should stop. Upon pulling the cord, a clamp holding the cord in place came loose striking plaintiff in the eye causing damage needing medical care. Plaintiff sued LCG as a common carrier and argued that, due to LCG's common carrier status, it was under a stronger duty of care than most.

The issues in the case were summarized by the Appellate Court as follows: (1) whether LCG had actual or constructive notice of the pull cord (2) whether LCG was a common carrier, subjecting it to a higher duty of care and (3) whether the existence of other pull cord defects created a genuine issue of material fact. The trial court granted summary judgment in favor of LCG stating that there was no genuine issue of material fact. At the appellate level, the Court views the case de novo under the same summary judgment standards used at the trial court level.

Plaintiff argues that LCG had constructive notice of the pull cord defect. As such, they argued that this notice exists due to a lack of plan to check the pull cords. However, the Supreme Court of Louisiana has held in the past that as it relates to governmental entities, a lack of plan to inspect cannot lead to constructive notice. According to La.R.S. 9:2800, constructive knowledge is the existence of facts that infer actual knowledge. To argue that by not planning to check the pull cords LCG had constructive knowledge of the defect is a counterintuitive argument. Plaintiff further alleges that the standards set out by 9:2800 are irrelevant because LCG is a common carrier and is thus subject to a higher duty of care. However, the Appellate Court stated that statutes are supreme law that trump any common custom or usage. 9:2800 speaks directly to the issue of governmental liability in cases like LCG. Therefore, the statute overrules any common law ideal or custom within the legal community. Plaintiff also brought forth evidence that there was three other occasions where a defective pull cord injured a bus passenger. The first circumstance occurred at a time and place that no one could identify. Thus the impact of this evidence was ineffective. The other two incidents occurred on buses manufactured by companies other than the one that manufactured the bus in issue. Therefore, this evidence was irrelevant. The Appellate Court upheld the trial court's holding that there was no genuine issue of material fact.

While this case did not go as the plaintiff hoped, each case is different and there may still be something an intelligent, well-versed attorney can do. If you have been injured to the negligence of another driver, or defect in a vehicle, you may have a claim to damages.

Continue reading "Court Upholds Lower Level of Standard of Duty for Louisiana Governments" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thus, the Louisiana legislature has codified what rights a fetus has. These rights extend to the moment of conception. However, if the fetus is born dead, all rights that attach to the fetus, except rights that find their origin in the cause of death, are extinguished.

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

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

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

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

Taylor Oliver was born on September 5, 2000. Shortly after birth, Taylor began experiencing health problems and was brought to the Magnolia Clinic, where she was treated exclusively by Susan Duhon on thirty-two occasions. Since Nurse Practitioners are required to collaborate with a physician, Duhon agreed to collaborate with Dr. Jennette Bergstedt, M.D., when providing primary care from the Magnolia Clinic. Taylor was in the clinic several times per month with various complaints, including repeat infections, persistent abdominal pain, nausea, vomiting, diarrhea and anemia. Despite her statutory duty to consult with a physician when needed, Ms. Duhon did not collaborate with Dr. Bergstedt concerning Taylor’s condition. Instead, she verbally reassured Taylor’s mother and prescribed over thirty medications to treat the child’s multiple complaints and observable symptoms. Additionally, Duhon stated that Taylor only needed to see Dr. Bergstedt in connection with admission to a hospital.

After no progress in her condition, Taylor’s mother eventually brought her to Women & Children’s Hospital in Lake Charles, where she was treated for the first time by Dr. Bergstedt. Taylor was diagnosed with neuroblastoma, a form of childhood cancer originating in the nerve tissue. The records maintained by the Magnolia Clinic revealed at approximately six months, Taylor developed severe bruising around the eyes – one of the signs of childhood neuroblastoma. If neuroblastoma is diagnosed within the first year of life, a child has a ninety percent chance of an event-free survival. Fortunately, Taylor survived the cancer, but the quality of her life has been severely diminished. The tumor advanced into her long bone, face, eyes, ears, skull and spine leading to a variety of physical defects and vision difficulties. What's more, her bones have become weakened and brittle and she struggles each day to overcome learning disabilities.

As a result, the Olivers pursued medical malpractice claims and a jury returned a verdict against Duhon in favor of the Olivers, on Taylor’s behalf, for $6,000,000.00 in general damages, $629,728.24 in past medical expenses, and $3,358,828.00 in future medical expenses. The jury awarded Mr. Oliver $33,000.00 for loss of consortium and Ms. Oliver $200,000.00. Unfortunately, the MMA malpractice insurance coverage limited recoverable damages to $500,000.00 and the Olivers petitioned the court to have the MMA declared unconstitutional. A trial court found that the MMA was constitutional and subsequently reduced the jury’s award to conform to the limitation on general damage recovery and other restrictions of the Louisiana Medical Malpractice Act. The Olivers appealed the trial court’s decision and the appellate court found that the cap on general damage awards unconstitutionally disadvantages and discriminates against Taylor and her parents because of the severity of Taylor’s physical condition when compared to other malpractice victims who receive full recovery for their injuries.

In the opinion, the court examined whether the MMA violated the equal protection clause of the Louisiana Constitution which provides, in part: "No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations." In fact, the legislature is constitutionally free to limit damage recoveries or to grant immunities from suit as long as there is a rational basis for the discriminatory treatment that is reasonably related to the governmental interest. While the state insisted that the legislative purpose of the MMA cap was to assure available and affordable malpractice insurance for healthcare providers, the Court did not agree. The court noted that when the state chooses to provide an adequate remedy to provide an "adequate remedy" to some members of a class of victims and denies it to other members of the same class because of their physical condition, it creates a separate classification. Essentially, limiting the recovery of victims whose injuries exceed $500,000 creates two classes of victims and, as a result, "classifies individuals because of their physical condition." Victims with minor injuries are allowed to fully recover while those harmed the most recover minimal damages in comparison.

This opinion modifies the statutory scheme that limits damages recoverable by victims of medical malpractice. As the court noted, "[a] statute may be constitutionally valid when enacted but may become constitutionally invalid because of changes in the conditions to which the statute applies. A past crisis does not forever render a law valid." As such, victims of medical malpractice should consult experienced attorneys to assist them in recovering damages from medical malpractice as well as understanding medical malpractice statutes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Louisiana courts have consistently held that a guest passenger is not responsible for a driver’s negligence. “This jurisprudential rule recognizes the fact that an automobile passenger is generally incapable of influencing the driver’s behavior: it is unrealistic to hold ... that the occupant of a motor vehicle has factually any control or right of control over the driving of the operator.” See Adams v. Sec. Ins. Co. of Hartford, 543 So.2d 480, 485 (La. 1989). Despite this well-settled rule, the plaintiff in the case of Delcambre v. Jones attempted, unsuccessfully, to impute the defendant driver's negligence to his passenger. On September 24, 2006, Stephen Delcambre was stopped at a red light on U.S. Highway 90 in St. Martin Parish when his car was struck from behind. The errant car, which had been rented by Jeffrey Schommer, was being driven at the time by Thaddeus Jones while Schommer was a passenger. Jones was drunk at the time of the accident and later pled guilty to DWI. Delcambre filed suit against Jones and Schommer, and eventually settled with Jones. During a trial in the continuing action against Schommer, Schommer's counsel moved for dismissal after the close of Decambre's evidence. The trial court granted this motion. Delcambre appealed, claiming as the sole assignment of error that the trial court erred in failing to find that Schommer was bound in solido (both together) in liability with Jones.

Delcambre urged that Schommer should be held liable with Jones in solido under Louisiana Civil Code Article 2324(A), which states:

“He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.”

The Third Circuit, however, in reviewing the trial record, pronounced it "completely devoid of any evidence whatsoever that Mr. Schommer conspired with Mr. Jones to commit any act, intentional or otherwise." The court observed that the only evidence Delcambre offered about Schommer was that "he was so intoxicated that he was blacked out on the side of the road after the accident, unable to speak or even sit up." Agreeing with the trial court's conclusion, the court deemed that Schommer would have been unable to conspire with Jones in his condition. Furthermore, "Schommer’s intoxication alone certainly does not prove the conspiracy" required by the Civil Code to impose in solido liability. Accordingly, the court found no error in the trial court's ruling and affirmed the dismissal of Delcambre's action.

Although one can sympathize with Delcambre's desire to maximize his recovery for the personal injuries and property damage he sustained at the hands of Jones, Louisiana’s long-held rule that a driver’s negligence is not imputed to a guest passenger defeated his attempt to obtain compensation from a passenger. Merely renting a car and surrendering the keys to another driver--even one who is intoxicated--are not enough to invoke in solido liability for the driver's negligence.

Continue reading "Court Reaffirms: No Passenger Responsibility in Car Crash Caused by Drunk Driver" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A recent Louisiana 1st Circuit Court of Appeal decision has raised many eyebrows by overturning a large portion of a lower courts award of $1 million to a group of residents in Baton Rouge's University Place subdivision. The 360 plaintiffs joined in alleging that the nearby Sewage Treatment Plant was causing them numerous problems. Specifically, the plaintiffs were alleging that the "operation and maintenance of the waste treatment facility caused petitioners personal inconvenience, mental suffering, embarrassment, and personal injuries. Plaintiffs also alleged a grave threat to health and safety by exposure to contaminated air and increased risk of serious disease to themselves, their family, and their progeny." The plaintiffs further contended that their property value had been permanently damaged by the presence of the sewage treatment plant. The court ultimately held that only one plaintiff out of the 360 plaintiffs initially named in the suit deserved compensation. The court came to this decision after the plaintiffs did not pass procedural requirements and/or missed vital legal requirements in order to remain in the suit. Exploring this case will illustrate that if proper procedural steps are taken and legal requirements understood and applied then case decisions are more likely to be affirmed and not overturned.

One of the major issues the court explored was the issue of prescription. The law governing the prescriptive period in this matter is La. R.S. 9:5624, which provides, "When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to fun after the completion and acceptance of the public works." This affected the plaintiff group's case due to the fact that the treatment plant had been originally built in 1960, yet, had been expanded several times, the last expansion began in 1997 and was completed in 1998. Thus, the time period of the last expansion to the filing of the suit would be the determined to be the legal time period in which plaintiffs would be allowed to complain and allege damages. This led the lower court to find that the last expansion of the sewage plant must be viewed as a new public work event for purposes of La. R.S. 9:5624, stating, "After all, it would neither be equitable nor just to hold parties responsible for filing a suit within two years of the plant's original completion date (i.e. 1960) when their property was not damaged until the plant was expanded in 1998." Thus, damages had not prescribed when the suit was filed; however, only the time period in which the last expansion was completed to the time the plaintiffs filed their claim would count towards calculating any potential damages.

The number of plaintiffs steadily declined as the lower court progressed due to the fact that they either did not follow legal requirements or they were not legally recognizable. The first 148 plaintiffs who testified gave conflicting testimony or testified that the expansion of the sewage treatment facility produced little or no change in their prior circumstances. Thus, most of these class members failed to establish that the action taken by the City-Parish in so far as expanding the treatment plant had caused them any health problems or defects that did not exist prior to the expansion. Essentially, the plaintiff's needed to allege that the expansion, which was what was legally at issue, was the main source of their problems, problems which did not exist prior to the expansion. A further dilemma the plaintiffs faced was that their expert testimony further supported the Court's conclusion that the plaintiffs had not proven by a preponderance of the evidence that they had suffered any legal damages caused by the sewage treatment plant. One expert even stated that it was hard to have a sewage treatment plant without an odor. Additionally, many plaintiffs lived in the area prior to the expansion without bringing suit. As a result, these individuals were aware of the various odors and impacts the sewage plant had upon the neighborhood. Therefore, the court held that since the plaintiffs gave conflicting testimony, did not prove their claims, and did not have supporting expert testimony, the 148 testifying plaintiffs should be dismissed from the case.

Additionally, more plaintiffs were dismissed based on legal requirements in which they failed to satisfy. Specifically, 209 plaintiffs were dismissed for failure to appear at trial and an additional 38 plaintiffs were dismissed because they were renters and not home owners. The reason renters were not allowed to bring a claim against the sewage treatment plant was because the court found that the renters "knew or should have known that a waste treatment facility was situated in close proximity to the apartments they chose to rent and that problems such as odor could be associated with this type of plant." Thus, at this point in the case, 247 plaintiffs had been dismissed for a lack of legal standing or for missing key procedural steps in order to "stay alive" in the suit.

Moreover, the appellate court held that damages should be awarded only for the time period after the treatment facility's last expansion and only awarded to those actually harmed and/or effected by the presence of the expanded facility. This factor gave many plaintiffs problems, for the court held that the majority of plaintiffs did not live in close enough proximity to actually be harmed or impacted in any major way. Further, the plaintiff group's complaint that their property values had been significantly impacted by the facility also failed legally. Instead of calculating the property values for the time period right after the facility's last expansion, the plaintiff group's experts were adding the total effect of the sewage treatment plant, which had existed since 1960. Thus, the court could not award the expert's suggested amount because it was not appropriate for the case. Only one plaintiff ultimately was held to have suffered any actual harm by the expansion of the treatment plant and that person was Greg Mitchell.

Mr. Mitchell suffered actual damage because of his home's close proximity to the plant. His damages were legally cognizable because his property was impacted as a direct result of the plant's expansion. In fact, the sewage plant's expert in real estate valuation acknowledged that "the Mitchell home had been damaged by the expansion of the treatment plant because prior to 1997, his residence was directly across the street from BREC park, whereas after the expansion, there were trickling filters (large tank structures) facing his home. It was his opinion that only the Mitchell home had been damaged by the expansion." Therefore, out of initially 360 named plaintiffs, only one ultimately prevailed because he satisfied legal requirements and procedural steps necessary for the court to recognize his allegations and ultimately find for him.

This case illustrates that were the 359 plaintiffs alleging the appropriate damages for the legal time period necessary to have a case, they might have been awarded damages like Mr. Mitchell. The fact that they were alleging damages for merely living near the treatment plant did not hold water legally, missing key legal requirements in making claims may cause the entire case to fail for a plaintiff. Thus, if the plaintiffs alleged that they had been impacted directly after the treatment plant's last expansion, they might have remained in the case. However, many plaintiffs failed to even show up when required for trial, thus, pulling themselves out of the case without any force whatsoever by the court. If a plaintiff is properly guided and advised by a legal representative as to what legal rights they have, what steps they should take, and what requirements they need to satisfy, a plaintiff will be much more likely to remain in the case and possibly be awarded.

Mar'Kirney Holland, only four years old, died tragically in Orleans Parish after allegedly receiving negligent medical care in Lincoln Parish six years ago. This story provides a lesson on how important procedural motions are to a case. Plaintiffs often choose a certain jurisdiction because of different factors. Sometimes certain jurisdictions are chosen because of ease and convenience to parties and witnesses. Other times, plaintiffs have heard that certain courts or judges are more amenable and therefore, more likely, to rule in their favor. No matter the reasoning, deciding which court to proceed in is an essential decision that plaintiffs and plaintiffs' attorneys must make. In this case, Holland v. Lincoln General Hospital, No. 2010-CC-0038 (La. Oct. 19, 2010), Defendants were successful in having the case moved from Plaintiffs preferred location of Orleans Parish to Lincoln Parish.

Mar'Kirney was born prematurely on November 12, 1999, and from an early age suffered from hydrocephalus, a condition where cerebrospinal fluid pools in the brain. At Tulane Hospital in New Orleans, doctors inserted a shunt to drain this fluid. Most, if not all, of the treatment related to the shunt took place at Tulane Hospital. The most recent "shunt revision" took place at Tulane Hospital two weeks before her death.

However, when Mar'Kirney began to suffer headaches, nausea, and vomiting, her mother, Latisha Holland, took Mar'Kirney to the closer hospital, Lincoln General Hospital. There, after fruitlessly waiting an hour, leaving, and coming back, Latisha claims that the doctor diagnosed Mar'Kirney with an upper respiratory infection. This was not the case. Mar'Kirney worsened and had to be transferred to Tulane Hospital after CT scans revealed that the shunt was blocked. Mar'Kirney died less than 24 hours after arriving at Tulane's Pediatric Unit. Latisha brought a wrongful death and survival action against Lincoln General Hospital.

Generally, where proper venue lies in more than on parish, as in this case where Mar'Kirney was treated in both Lincoln General Hospital and Tulane Hospital, plaintiff may choose whichever venue to pursue the case. However, defendants may seek to move the case to another court because of the doctrine known as forum non conveniens. Although plaintiff's initial forum choice is given deference, the court may grant this motion if defendant is able to show why. This procedural doctrine is set forth in La. Code of Civ. Proc. art. 123(A). provides that:

For the convenience of the parties and the witnesses, in the interest of justice, a district court upon contradictory motion, or upon the court's own motion after contradictory hearing, may transfer a civil case to another district court where it might have been brought; however, no suit brought in the parish in which the plaintiff is domiciled, and in a court which is otherwise a court of competent jurisdiction and proper venue, shall be transferred to any other court pursuant to this Article.

Essentially this provides three factors which a court will consider in deciding whether to keep the case with itself or to move it to another court. These three factors are (1) convenience of the parties; (2) convenience of the witnesses; and (3) interest of justice.

In this case, Defendants were able to persuade the Supreme Court of Louisiana that these three factors weighed in their favor. They were able to show that Plaintiffs were residents of Lincoln Parish, Lincoln General Hospital's principal place of business is in Lincoln Parish, and the doctor involved in the initial diagnosis is a resident in the neighboring parish. Further, several of the key witnesses are residents of Lincoln Parish or neighboring parishes. The distance between Ruston and New Orleans is approximately a five hour drive and Defendants were able to show that it would be overly burdensome for them to travel this distance to litigate. Further, Plaintiff did not properly introduce evidence of witnesses who were living in New Orleans. Ultimately, the Court decided that in the interest of justice, the case should be moved to Lincoln Parish, granting Defendants' motion.

It is important to seek knowledgeable legal assistance as this case shows. Bringing a wrongful death and survival action is difficult and fraught with emotion. It is made more difficult by procedural tricks that sophisticated defendants utilize to have an advantage in the case. Further, if you believe you have a claim against a medical provider it may or may not be a medical malpractice claim. As an earlier blog entry discussed. Under the Louisiana Medical Malpractice Act, additional steps must be taken if the nature of the claim indicates that the MMA applies. If these steps are not taken, the claim will fail and is just one more reason why the success of your case depends on a bright, experienced attorney, who understands the intricacies of medical malpractice law.

Continue reading "Defendant's Motion to Switch Courts is Approved in Negligence Suit Against Hospital" »

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

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

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

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

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

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

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

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

This post constitutes part two of an introduction to mesothelioma:

Tissue changes resulting from asbestos exposure cause fluid to become trapped between the lung and the chest wall. This trapped fluid induces three symptoms which are often the initial symptoms a patient notices comprising coughing, chest pain, and shortness of breath. The trapped fluid creates uncomfortable pressure between the chest wall and lungs which the patient describes as chest pain under the rib cage. Coughing may accompany these symptoms which are typically the initial symptoms a patient experiences.

Additional symptoms may begin developing over several decades. For instance, weight loss may occur which is a symptom often seen in conjunction with cancerous tumors. Also, anemia may result when mesothelial cells comprising the pleura (lungs) and pericardium (heart) are involved. Blood clotting abnormalities typically present only in severe mesothelioma cases.

Fluid buildup in the abdominal cavity is also problematic for several reasons. First of all, the mere fact that the fluid buildup occupies space causes the patient to experience pain and swelling. Both this fluid buildup as well as tumor formation interfere with the functioning of the digestive tract and nearby organs. Another unpleasant negative consequence is bowel obstruction and the associated difficulties.

Metastasis occurs when cancer moves from the original body part initially afflicted to another body part and thus creates even more problems. If the mesothelioma metastasizes, it may move to the head and neck area causing swelling in the area and possibly difficulty swallowing.

In addition to mesothelioma (cancer of the mesothelium surrounding an organ), asbestos exposure may cause lung cancer wherein the tissue inside the lung itself is involved. Another distinguishing factor between the two asbestos cancers is the prevalence of lung cancer from other causes. In contrast, the only known cause of mesothelioma in the United States is exposure to asbestos.

While any physician can assist you with questions or diagnoses, it may be helpful to interact with a physician specialist. Pulmonologists specialize in lung diseases and oncologists specialize in cancers with some oncologists even focusing particularly on asbestos cancer.

Continue reading "Mesothelioma and Asbestos: Part II" »

Asbestos was recognized to be a toxic substance as long ago as the 1890's although it was not linked with specific diseases until recently. A multitude of lawsuits have been filed against asbestos manufacturers since 1929 with cases even traveling up to the United States Supreme Court. Nonetheless, no Federal Laws were ever created to address compensation for those suffering as a consequence of asbestos exposure leaving many sufferers without any assistance at all. Compensation is meant to address not only medical costs but also the pain and suffering resulting from the asbestos exposure as well as loss of income.

Although asbestos exposure is often 'on the job' exposure, a spouse simply washing the clothes of a family member subjected to 'on the job' asbestos exposure is likewise subjected to inhalation of asbestos dust and fiber. Even such seemingly minimal asbestos exposure places the spouse at risk for also succumbing to asbestos induced health problems. Residents living near factories or mines utilizing asbestos are also at risk for developing asbestos inhalation health disorders.

Unfortunately, asbestos inhalation may trigger a multitude of health problems. For example, a condition termed asbestosis refers to an inflammatory, chronic and prolonged lung disease that may inflict permanent lung damage. Moreover, asbestos exposure places an individual at risk for developing cancer. Due to the ubiquitous nature of asbestos and the magnitude of the damage it inflicts, compensation for asbestos related injuries lies in the billion dollar range. In general, the symptoms of asbestos related diseases include, but are not limited to, shortness of breath, wheezing, hoarseness, a persistent cough and/or coughing up blood, difficulty swallowing, chest pain, loss of appetite, weight loss, fatigue, or anemia.

One form of asbestos cancer affects mesothelial cells. The associated cancer is termed mesothelioma, or more specifically, malignant mesothelioma. Asbestos was definitively linked as the causal agent of mesothelioma by observing that a group of mine workers were succumbing to mesothelioma after working in an asbestos mine during a specific time period which was the only activity all of them had in common.

Mesothelial cells form a tissue termed the mesothelium which protects organs by producing a lubricating fluid. Location within the body sometimes dictates the name given to the mesothelium. For example, the pleura lines the lungs and internal chest walls, the peritoneum lines the abdominal cavity, and the pericardium surrounds the heart. While the pleura (mesothelium lining lungs and internal chest walls) is the mesothelium most commonly affected by asbestos exposure, the other mesothelial tissues may also succumb to asbestos cancer.

Mesothelioma may have a latency period which is a period of time after the patient is exposed to asbestos but before the cancer is detected and the patient is primarily asymptomatic (without symptoms). In fact, mesothelioma may have an unusually long latency period even ranging from ten to sixty years. Over time, the patient begins developing symptoms with some symptoms taking decades to present.

In August 2007, Dwight Phillips was dropping off his step-son, Joseph Shelvin, at school. The school’s principal, Louella Cook, noticed that Phillips’ vehicle was in the school’s bus-unloading area. After noticing Dwight’s vehicle, Phillips approached Dwight and informed him that he was unloading the child in the wrong area. She then directed him to the car drop-off area. According to Cook, Dwight then began screaming at Cook. During this screaming, Dwight told Cook that he would return and "get her." Cook contacted the police because she feared for her safety as well as for the safety of the staff and visitors of the school.

When the police arrived, the investigating officer interviewed both Cook and Dwight. According to the officer, Dwight admitted that he threatened Cook and Dwight was subsequently arrested for disturbing the peace by threats. Sometime prior to this incident, a bus driver reported that during a bus stop, a man, who was talking loudly, got on the bus and refused to get off. Cook and her staff questioned the students who were on the bus during the incident including Joseph Shelvin, Dwight Phillips’ step-son. After speaking with the students, Cook and her staff learned that the man was Dwight Phillips. After Phillips’ arrest, Shelvin, Phillips and his wife Joy filed suit against the Lafayette Parish School Board and Dr. Louella Cook. On appeal to the fifteenth judicial district court, the court only examined the claims against the Board and Cook for Dwight Phillips’ defamation and Shelvin’s emotional distress.

To successfully assert a claim for intentional infliction of emotional distress (IIED), the person bringing such a claim must show an (1) intent to cause (2) severe emotional distress by (3) extreme and outrageous conduct. According to Louisiana courts, "[t]he conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Because tortious or illegal conduct does not rise to the level of extreme and outrageous, "[t]he distress suffered must be such that no reasonable person could be expected to endure it." Essentially, one cannot be liable for IIED for "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." In this case, the Phillip’s and Shelvin failed to successfully assert a claim for IIED. There was no evidence that Cook’s conduct was extreme and outrageous or that she intended to cause Selvin severe emotional distress. In relation to the "drop-off" incident, Cook never spoke to Shelvin about it. When Shelvin and the other students were questioned about the incident where the man refused to get off the bus, Cook was never alone with any of the students. Moreover, none of the interviews lasted over ten minutes.

Louisiana courts have consistently held that IIED claims must deal with extremely outrageous conduct and not just offensive behavior. Thus, it is important for persons interested in pursuing IIED to an attorney to evaluate the viability of such claims and examine the nature of the complained of conduct.

Continue reading "Understanding Claims Involving Intentional Infliction of Emotional Distress" »

In 1988, Louisiana enacted the Louisiana Products Liability Act (LPLA) which provides for strict liability causes of actions against manufacturers of alledgedly defective products. This case is important because the ruling provides a guideline in which lawyers can litigate their client's cases and attempt to provide them the financial recovery they deserve.

Under the LPLA, set forth in La.R.S. 9:2800:53(A):

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

The cause of action against a manufacturer must identify whether the manufacturer fits into the LPLA's definition of manufacturer. Louisiana Revised Statutes 9:2800:1(a)-(c) provides that a manufacturer is:

a person or entity who is in the business of manufacturing a product for placement into trade or commerce ... producing, making, fabricating, constructing, designing, remanufacturing, reconditioning or refurbishing a product ... labels a product as his own or who otherwise holds himself out to be the manufacturer of the product... incorporates into the product a component or part manufactured by another manufacturer.

A manufacturer can also include

A seller of a product who exercises control over or influences a characteristic of the design, construction or quality of the product that causes damage [or a] seller of a product of an alien manufacturer if the seller is in the business of importing or distributing the product for resale and the seller is the alter ego of the alien manufacturer.

The second part of the cause of action against a manufacturer is whether or not the product was unreasonably dangerous. The Louisiana Revised Statutes 9:2800:53(B)(1)-(4) further provides that a product is "unreasonably dangerous" when the product is unreasonably dangerous in construction or composition, in design, when not provided with adequate warnings, or when the product does not conform to an express warranty.

The third part of the cause of action against a manufacturer must determine whether the damage is arises from a reasonably anticipated use of the product. As with all torts, a plaintiff must show causation. This is a subject that can be found discussed thoroughly in earlier blog entries.

The LPLA governs litigation against manufacturers and is, in fact, the exclusive remedy against manufacturers. The LPLA also provides a standard that if all the elements are not met may allow manufacturers to try to dismiss the case completely. This can be seen in the following case heard recently by the Court of Appeals, Third District.

On March 9, 2004, four boys in rural Rapides Parish were walking through the woods and found an oil well pump attached to a moving pendulum. Two boys attempted to "ride" the pendulum, but only one succeeded. However, this thirteen year old boy's high spirits and adventure only ended in injuries when his pants became entangled in the other parts of the pump while the pendulum continued to move upward. The mother of this boy brought suit in her name and her son's name against the manufacturer of the oil jack pump, Lufkin Industries, as well as other defendants. In response, Lufkin Industries filed a Motion for Summary Judgment.

As the Third Circuit Court of Appeals explained, "[a] motion for summary judgment is a procedural device to avoid a trial on the merits when there is no genuine issue of material fact." Lufkin Industries argued that the mother failed to show that riding the pendulum was a "reasonably anticipated use" of the oil well pump and supported this argument by assertions that the oil well pump was for the sole purpose of extracting oil and did not "reasonably anticipate" that the pendulum would be ridden. The Court also explained that in a Motion for Summary Judgment, Lufkin Industries, as the moving party only has to "point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." By doing that, the burden of proof shifts to the mother.

The mother demonstrated that Lufkin Industries should have reasonably expected that children would try to "ride" the pumping unit by presenting testimony that an employee of Lufkin Industries had heard of a fatal accident in Shreveport where another teenager attempted to "ride" a pumping unit as well as introducing evidence of three cases in other states where children were injured "riding" a pumping unit. The trial court determined that the mother's evidence was insufficient and granted the manufacturer's Motion for Summary Judgment. On appeal, the Third Circuit reversed allowing the mother to continue the case.

As is illustrated by the above case, the LPLA and the trial process is complex. Failure to prove one element can act as an end point on the entire case. If you or someone you know has been injured by a product, please seek legal help.

Continue reading "Mother Successfully Appeals Motion for Summary Judgment Against Her Case " »

As we have discussed previously on this blog, summary judgment is a procedural device for expediently resolving a case without a full trial where there is "no genuine issue of material fact." Johnson v. Evan Hall Sugar Co-op, Inc., 836 So.2d 484, 486. (La. App. 1st Cir. 2002). It is well settled in Louisiana that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact" and that party requesting judgment is entitled to it as a matter of law. See La. Code Civ. P. Art. 966(B). A trial court's analysis of whether summary judgment is proper can involve the review of a considerable volume of documents which may contain conflicting information. The First Circuit Court of Appeals recently ruled on a summary judgment motion in a medical malpractice case that turned on the trial court's treatment of the defendant doctor's deposition and subsequent affidavit.

On June 9, 2007, Percy Bethley, 80, was admitted to Baton Rouge General Medical Center Mid-City ("BRGMC") with breathing difficulties. He had a five-year history of serious heart and lung disease. Bethley underwent various treatments in the hospital and received a pulmonary consultation by Dr. Reza Sheybani. After examining Bethley, Dr. Sheybani decided to replace the Bethley's tracheostomy tube. A respiratory therapist, Cecilia Eason, was brought in to perform the replacement. Eason had great difficulty with the procedure and, sadly, as a result of a series of further complications, Bethley expired.

Following Bethley's death, his widow and children (the plaintiffs) filed a medical malpractice complaint with the Louisiana Patients' Compensation Fund. The panel found that the evidence supported the possibility that Dr. Sheybani failed to meet the applicable standard of care and that his conduct had been a factor in Bethley's death. The plaintiffs then filed suit against BRGMC and Dr. Sheybani, alleging that Dr. Sheybani and the hospital employees who treated Bethley negligently contributed to his death. BRGMC answered and filed a motion for summary judgment. Dr. Sheybani responded with a pleading that opposed summary judgment and which included a personal affidavit that contained his own expert medical testimony. This testimony was offered to prove that genuine issues of material fact existed in the case: Dr. Sheybani alleged that Eason, a BRGMC employee, had been negligent in her treatment of Bethley. BRGMC then filed a motion to strike the affidavit of Dr. Sheybani, which the trial court granted after a hearing. The trial court also granted BRGMC's motion for summary judgment, and dismissed with prejudice the plaintiffs' claims against BRGMC. Dr. Sheybani filed a motion for devolutive appeal.

On appeal, BRGMC argued that the trial court's granting of its motion for summary judgment was proper because "the affidavit of Dr. Sheybani was self-serving and drafted in an attempt to create a false issue of material fact sufficient to defeat summary judgment." BRGMC relied upon Douglas v. Hillhaven Rest Home, Inc., 709 So.2d (La. App. 1st Cir. 1998), for the point that a party's affidavit which contradicts his prior deposition testimony is not sufficient to create an issue of fact which precludes summary judgment. BRGMC also relied on Wheelock v. Winn-Dixie Louisiana, Inc., 822 So.2d 94 (La. App. 1st Cir. 2002), as authority for the position that "where there are unexplained inconsistencies between deposition testimony and a subsequent affidavit, the affidavit is not sufficient to create a genuine issue of material fact ... in order to defeat a motion for summary judgment."

In response, Dr. Sheybani justified his affidavit by citing La. Code Civ. P. Art. 967. This article establishes that, as the adverse party to a motion for summary judgment, he cannot "rest on mere allegations or denials," but "must respond by affidavit to provide evidence of a material dispute that precludes the granting of summary judgment." Given the trial court's failure to assign specific reasons for its ruling, Dr. Sheybani urged the court to presume that the trial court's striking of the affidavit resulted merely "from arguments put forth at the hearing by BRGMC." Furthermore, Dr. Sheybani asserted that the statements in his affidavit did not contradict his earlier deposition testimony, but rather "merely clarified or supplemented [his] previous deposition testimony," which, according to Terrebonne v. Floyd, 767 So.2d 754 (La. App. 1st Cir. 2000), would require the trial court to consider the affidavit when determining genuine issues of material fact.

After reviewing the record, the court sided with Dr. Sheybani. It concluded, "since the statements made by Dr. Sheybani in his subsequent affidavit merely clarified and were not inconsistent with testimony given ... in his earlier deposition, we conclude the affidavit and the attached exhibits were admissible." Dr. Sheybani's affidavit "should have been considered by the trial court in evaluating BRGMC's motion for summary judgment... [W]e conclude that there are genuine issues of material fact regarding whether BRGMC and/or its employees failed to meet the applicable standard of care with respect to their treatment of Mr. Bethley." The court reversed the trial court's granting of BRGMC's motion to strike Dr. Sheybani's affidavit and remanded the case for further proceedings as to Dr. Sheybani's meeting the standard of care in treating Bethley.

This case further demonstrates the complex nature of tort litigation, especially when multiple parties may have been negligent and at fault for harm to the plaintiff. Dr. Sheybani sought to defeat BRGMC's motion for summary judgment in the interest of his own defense; by pointing to the negligence of the respiratory therapist, he could potentially reduce or even eliminate his own blame. This path would have been foreclosed if BRGMC had been dismissed from the action at summary judgment.

Continue reading "Court Examines Role of Key Document in Summary Judgment in Baton Rouge Medical Malpractice Case" »

A Union Carbide Corporation plant facility in Taft, Louisiana, leaked a toxic chemical compound for at least seventeen hours on September 10th and 11th in 1998. Rainwater accumulation from Tropical Storm Frances caused partial collapse of the floating roof on a large tank storing liquid naphtha. Consequently, a tank seal broke allowing escape of liquid naphtha which volatilized and exposed workers and surrounding residential areas to naphtha fumes including the towns of Montz and Killona. An estimated 4.6 million pounds of naphtha vaporized before application of a chemical foam to the tank roof effectively stopped the volatilization hazard.

In the case of Howard v. Union Carbide Corporation, the Supreme Court of Louisiana reduced to negligible amounts the already decided damages awarded to plaintiffs exposed to the naphtha fumes. Specifically, original damages awarded were $3,500, $2,500, and $1,500. However, the Supreme Court reduced these damages to amounts of $500, $250, 150, and $100 based on proximity to the leak with higher awards to those within the plant and lower awards to those in the surrounding residential areas.

Exhibiting a controversial impression of the dangerous chemical involved, as well as defining exposure injuries, the Court concluded "simply no reasonable relationship" exists between the injuries and the original damages awarded. Assuming all fumes are equal regardless of the vastly different compounds which any given chemical leak may constitute, the Court cited other negligible awards in other cases despite the fact that the other cases involved unrelated chemicals.

In fact, the Court categorized exposure injuries to the vaporized naphtha as "mere annoyances." Acute naphtha exposure symptoms may include irritation of the eyes (stinging sensation in the eyes, tearful eyes), nose irritation (stinging sensation in membranes lining nasal passages), sore throat, and coughing. Notably, the Louisiana Supreme Court determined that immediate exposure symptoms are the only consequences of exposure to toxic chemicals. On the contrary to some specialists, forms of naphtha may be carcinogenic. In addition, naphtha has been determined to be a central nervous system depressant, which is the mechanism for the reported headaches, nausea, dizziness, and the sensation of being inebriated (drunk). Further, components within the naphtha often possess additional harmful qualities.

Finally, the Louisiana Supreme Court uses as support for reducing damage awards the lack of professional medical attention and evacuation, noting that, oftentimes, acute exposure symptoms were self-treated because plaintiffs were not provided with adequate nor accurate exposure details.

If you have faced a similar situation, it is important that you contact an attorney immediately to get the legal advice you deserve. When facing a situation like this, an individual who has been injured must be careful with the lawyer you select because it can mean the difference between recovering your losses and being left in the dark. Call our offices today for a free consultation on your legal rights.

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

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

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

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

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

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

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

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

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

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

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

The parties to a legal dispute, such as the payment of damages resulting from a car accident, can reach an agreement between themselves to resolve the matter and avoid litigation. This agreement, under which the parties "give and take" to arrive at a solution that is satisfactory to both, is called a compromise. Under Louisiana law, a compromise is considered a contract which must be made in writing, but there is no specific requirement as to the form. What is important is that a compromise resolves only those differences that the parties clearly intend to settle, which under general contract law requires a "meeting of the minds."

Louisiana courts have recognized that a check can serve as a compromise if it recites that it is in full payment for all claims and the check is endorsed and deposited by the payee. But as the parties in the case American Century Casualty Company v. Sale, discovered, the courts will scrutinize a compromise based entirely on the endorsement and deposit of a check to ensure both parties' objectives were in alignment.

On August 9, 2008, a car accident occurred between Dr. Charles F. Sale and Michelle Barett. Barrett, who was at fault, was driving a vehicle owned by her parents and insured by American Century Casualty Company (ACCC). A short time thereafter, an ACCC representative contacted Sale and discussed settlement. ACCC then mailed the following to Sale: a letter describing the steps that Sale would be required to take to resolve the claim; a settlement and release form; and a settlement check in the amount of $1,820. The enclosed letter directed Sale to sign the release and return it to ACCC, at which point ACCC would issue the settlement check. (Although the letter indicated that a settlement check would follow a "properly executed release," ACCC erroneously mailed all three documents in the same envelope at the same time to Sale.) The front of the settlement check included the following text: "CHARLES SALE, ONLY: IN F/F SETTLMT/RELEASE OF ACCC/... BARRETT FROM ANY/ALL CLMS/LNS ON D/L 8/9/08, CLM 10995-9." Sale, finding the amount of the settlement check insufficient, put the documents aside. Later, Sale's wife discovered the check and deposited it without his knowledge. When Sale filed suit against Barrett and ACCC in August of 2009, ACCC filed a motion for summary judgment contending that Sale had previously compromised and released his claims against the company and Barrett by endorsing and depositing the settlement check issued to him. The trial judge granted summary judgment in ACCC's favor and found that Sale had released all future personal injury claims. Sale appealed.

The Second Circuit declared that "a review of the entire record, including the settlement documents sent to Dr. Sale by ACCC, indicates that there was not a 'meeting of the minds' between Dr. Sale and ACCC as to what they intended when the purported compromise was reached." Additionally the court found, "it is apparent from the statements made by Dr. Sale during his deposition that he believed that his claims would not be settled or compromised until he signed the release form," which he never did. The court noted that the wording of ACCC's letter, which directed Sale to sign the release if he wanted to accept the offer to settle the claim for the amount on the enclosed check, further indicated that an endorsed check, alone, was insufficient to form a compromise. Accordingly, the court reversed the trial judge's decision and remanded the case for a trial.

The Sale case serves as a reminder that even out-of-court settlements can be confusing and potentially disastrous for plaintiffs who proceed without solid legal advice. Although Sale was ultimately able to move ahead with his lawsuit, the appellate process added considerable delay to the resolution of his claims. Had Sale referred the letter from ACCC to his attorney immediately, this appellate proceeding would likely never have been necessary.

Continue reading "Court Examines the Use of a Settlement Check as a Compromise and Release " »

Time is of the essence when filing a claim; a person can essentially lose the case before it even begins if the claim is not filed "in time". But the question is when is a claim "on time?" In the recent case holding of Casborn v. Curran and Northshore Regional Medical Center, the court explained that under Louisiana Revised Statutes 9:5628, "no action for damages for injury or death arising out of patient care shall be brought unless filed within one year from the date of discovery of the alleged act." What has become an issue for many to understand is from what point does the court consider a person to have "discovered" the injury or wrongful act? Exploring the cases' analysis sheds some light on the issue and hopefully provides an answer to this dilemma.

Prescription is a legal term that is a powerful tool that many litigants utilize to dismiss a case. Specifically, prescription is defined as "the loss or forfeiture of a right, by the proprietor's neglecting to exercise or prosecute it during the whole period, which the law hath declared to be sufficient to infer the loss of it." The prescription clock starts ticking as soon as the person who feels they have been damaged discovers the alleged injury; if they wait too long, the time limit is up and the clock stops ticking, resulting in the loss of their claim.

In the case of Cosborn, prescription ultimately ended the case before it even began, causing the plaintiffs to be completely out of luck in obtaining any relief. Dates are extremely important when a court explores the issue of prescription, which is why the dates of the plaintiff's alleged injury, eventual discovery, and final act of filing is vital in the analysis. The plaintiff, Mrs. Casborn, went to the Northshore Regional Medical Center on May 5, 2007, suffering from severe tongue swelling and difficulty breathing. The examining staff physician, Dr. Curran, administered the medication Benadryl —however, Mrs. Casborn continued to suffer and the symptoms actually began to grow worse. Eventually, she had to be taken into surgery and had a mechanical ventilator inserted, where it remained until May 18, 2007. In total, Mrs. Cosborn stayed in the hospital for almost an entire month, suffering from other complications including pneumonia, anemia, and acute renal problems.

On May 23, 2008, Mrs. Cosborn filed a medical malpractice complaint alleging that Dr. Curran's failure to administer the proper medication in the face of an acute allergic reaction was a breach in the medical standard of care. However, this is where the plaintiff's claim has a hiccup: Cosborn filed her complaint over one year after the date of the alleged negligence. The plaintiffs argued that the time did not start ticking until the ventilator was removed and she had regained her ability to speak, and that she did not discover the malpractice until a frame of between May 24, 2007 and June 1, 2007 when she was able to ask questions. The defendants immediately filed an exception of prescription claiming that the clock had stopped ticking and her time was up, alleging she had lost her right to complain since she waited for over one year past the allowed prescriptive time period.

The court held that Mrs. Casborn failed to specify certain facts that could have allowed her case to move forward. Thus, she had lost her ability to file a complaint against Dr. Curran and Northshore Regional Medical Center. Mrs. Cosborn never stated why she was unaware of the malpractice prior to the date of the alleged discovery and any evidence to emerge did not support the argument that she inquired into the issue as soon as she was able. What the court did focus on was the fact that Mrs. Cosborn remained on a ventilator until May 18, 2007 but she did not file her complaint until May 23, 2008. Therefore, her argument that she inquired into the situation as soon as she could speak does not explain or justify why she took over one year to file a claim.

Thus, prescription can be a sharp sword that can do away with a claim before it is even heard. While many individuals may be hesitant to bring a suit, the lesson of the day is if you feel that you have been injured, damaged, hurt, and seek legal guidance in order to ascertain if you have a claim, thus evading prescription. If you have questions or need legal representation feel free to contact our firm any time for a free consultation.

Resuming where we last left off in this important case...

The court then turned to the deposition of Rigoberto Garcia, an employee of Maxum. Garcia had testified that while he was at work the day before the accident, all safety barricades were set up. He said that Maxum employees never removed the safety barricades when they worked around or passed through the holes. Instead, they would climb over or through the cables. Garcia finally stated that he left work every day at 5 p.m. The depositions of two other Maxum employees supported Garcia's testimony. The combined testimony of these Maxum employees tended to show that the removal of the cables occurred when Maxum workers were not on site.

Finally, the court examined the testimony of Glenn Russo, an employee of Corrosion. Russo testified that his foreman, also an employee of Corrosion, had confirmed he'd been the one to place the plastic sheeting over the manhole. This admission effectively eliminated Maxum as the culprit behind the plastic sheeting that obscured the hole from Cotone's view.

Based on the above pieces of evidence and testimony, the court concluded that the removal of the safety cables occurred sometime in the evening. Because Maxum employees were typically away from the barge hole during the day, and home from work at night, it was not probable that a Maxum employee had removed the cables. This was buttressed by the Maxum employees' consistent testimony that neither of them removed the cables, nor ever witnessed them removed at any time. Furthermore, the admission of the Corrosion employee that the company's foreman had placed the plastic over the hole removed from the realm of possiblity the idea that a Maxum employee was to blame for that particular action.

Because the depositions and invoice showed that there was no genuine issue of material fact in regards to Maxum's alleged involvement in the removal of the safety cables and placing of the plastic, the Court of Appeals affirmed the district court's dismissal of the company from the case. Accordingly, Corrosion was left to defend the suit by itself.

The Cotone case is instructive because it showcases the "divide and conquer" strategy a plaintiff can implement when he sues multiple defendants. For instance, once Corrosion and Maxum were named in the suit, Maxum ran for the exit door, as opposed to uniting its legal energies with Corrosion against the plaintiff, Cotone.

Whether or not a defendant will choose to become advesaries with another codefendant is often a matter of risk analysis. If the defendant in question is confident it can escape from the suit without much financial harm or exposure, it will likely do just that. On the other hand, if the facts squarely suggest some sort of negligent behavior on behalf of the defendant, it will often join forces with the other codefendant to create a united front against the plaintiff--or at the very least try to keep the more "innocent" codefendant from exiting the suit. After all, misery loves company.

A skilled attorney can a help a client determine which defendants should be sued when there are a multitude of negligent individuals available to choose from. By strategically selecting defendants who are solvent and who have a high likelihood of opposing one another, lawyers can maximize the recovery for their client.

Continue reading "Part 2: Case of Barge Accident Reveals Strategy to Prevent Plaintiff's from Winning Case" »

The Third Circuit Court of Appeals for Louisiana released their decision in Cotone v. Corrosion Control Systems, Inc. The case highlights the importance of the plaintiff's "divide and conquer" strategy when litigating against multiple defendants. Additionally, it illuminates the challenges defendants and plaintiffs may both face in lawsuits involving injuries occuring in settings controlled and occupied by multiple parties.

In 2006, Timothy Cotone was employed by Superior Derrick Services as a shipyard supervisor on a Lousisiana river barge. Superior was tasked with converting the barge into a drilling rig. In order to accelerate the conversion, Superior subcontracted temporary workers supplied by Maxum Industries to perform welding and fitting services. Meanwhile, Corrosion Control Systems was hired separately by the barge owner to provide sandblasting and painting services. Superior and Corrosion were separate companies otherwise unaffiliated with one another.

On November 3, 2006, Cotone stepped into an open hole on the barge and suffered injuries. Typically, the hole was barricaded by safety cables. However, when Cotone stepped into the hole, no such safety cables were in place. Furthermore, plastic had been placed over the whole, preventing Cotone from noticing the opening. Naturally, Cotone concluded that one of the other barge workers must have negligently removed the safety cables and placed the plastic over the hole. Consequently, he sued to recover for his injuries.

Faced with multiple actors who occupied and controlled the hole in question, Cotone originally sued only Corrosion. Later, by amended pleading, he added Maxum to his suit. Cotone's amended lawsuit alleged that either a Corrosion or Maxum employee had negligently removed the safety cables, and both companies should therefore be jointly and severally liable. (Notably, Cotone did not name is own employer, Superior, as a defendant in the suit).

In a game of legal "hot potato," Corrosion and Maxum each denied responsibility and implied that the other was to blame for Cotone's injuries. When Maxum filed a motion for summary judgment to remove itself from suit, Corrosion resisted. Corrosion wanted Maxum to remain in the suit so it could share the cost of any damages award a jury might award to Cotone.

Maxum alleged that it had presented enough evidence to show that no trier of fact could conclude that a Maxum employee had removed the cables or placed the plastic over the hole. Because Maxum, as a defendant, would not have to bear the burden of proof in a subsequent trial, Maxum only needed to "point out that there [was an] absence of factual support for one or more" elements essential to an adverse party's claim. Convinced of Maxum's motion, the district court dismissed Maxum as a defendant. In response, Corrosion appealed.

In determining whether the dismissal of Maxum should stand, the Third Circuit Court of Appeals looked to the depositions of Cotone and Maxum employees, as well as documentation submitted by the company during the discovery phase of the litigation.

The court first looked to Cotone's deposition. In it, Cotone noted that he was the last person to leave the barge on the evening before his accident. This fact suggested that the person responsible for removing the safety cables and adding the plastic committed the negligent act sometime in the evening between Cotone's departure for the previous day and his arrival on the day of the injury. Cotone further asserted that Corrosion's crew worked on the barge during the evenings.

Next, the court looked to an invoice provided by Maxum. The invoice showed that during the week surronding Cotone's injury, the majority of Maxum's workers completed assignments in the shipyard and away from the barge. Because most of Maxum's employees were not working around the hole Cotone fell in, the liklihood of a Maxum employee removing the safety cables and adding the plastic was diminished.

Check out the blog tomorrow for more information on this important case.

In June, The Louisiana Court of Appeals published their opinion for Watts V. Scottsdale Ins. Co., a case involving a trip-and-fall that occurred at a restaurant in Minden, Louisiana. In the decision, the court articulated the plaintiff's standard for prevailing in trip-and-fall cases that occur within the state.

The facts of the case are simple enough. In this case, 82 year old plaintiff Mildred Watts tripped over a metal strip located in the path between a restaurant parking lot and front entrance. Ms. Watts contended the metal strip, due to its dark coloration, was shaded by the shrubbery around it and therefore she couldn't see it before her resulting fall. As a consequence of her trip-and-fall, Ms. Watts sustained serious injuries to her mouth and teeth. Accordingly, Watts sued the restaurant and its liability insurance carrier on a theory of negligence.

Before ruling on the matter, the court explained that trip-and-fall negligence cases brought against merchants in Louisiana are governed by La. R.S. 9:2800.6. This statute requires a plaintiff to prove, among other elements of her claim, that (1) a condition present on the defendant's property presented an unreasonable risk of harm and that the harm was reasonably foreseeable; (2) the defendant created the condition, or had actual or constructive notice of the condition prior to the plaintiff's trip-and-fall; and (3) the defendant failed to excercise reasonable care. In order to win her case, the court explained that Ms. Watts must prove all three of the La. R.S. 9:3800.6 elements by a preponderance of evidence.

The court first looked to the question of Element (1), whether the metal strip presented an unreasonable risk of harm. While there is no firm rule for determining whether a condition is unreasonably harmful or not, the court made clear that if a condition's social utility outweighs its alleged harm, it often cannot be "unreasonably dangerous." Furthermore, if a condition's risk of harm is so obvious to the plaintiff that she can avoid it, the condition likely does not present an unreasonable risk of harm. In light of the presented facts, the court concluded the metal strip that caused the fall was not unreasonably dangerous. The court reasoned that because the metal strip was used to hedge a flower bed near the restaurant and was considerably separated from the pedestrian entranceway, it had a reasonable, useful, and non-dangerous function. The metal strip's utility outweighed its harm to patrons. Moreover, the court was not swayed by Ms. Watt's allegation that she could not see the strip. Instead, the court stated that because the strip was elevated several inches above the surface of the ground, it should have been obvious to Ms. Watts when she was walking near it before the fall. Indeed, Ms. Watts testified she had seen the metal strip in her prior visits to the restaurant.

In reviewing the question of Element (2), the court next looked at whether the restaurant had any notice of the strip's alleged propensity to cause trips, falls, or other similar harms. Testimony revealed that the restaurant owner was never made aware of any prior accidents involving the metal strip in the nine years he owned the restaurant, and he therefore did not have actual notice of the metal strip's dangerous condition. Secondly, the strip was visibly separated from the regular pathway to the restaurant, and the restaurant thereby had no constructive notice of of any harm because it was not foreseeable to restaurant ownership that patrons would walk on the metal strip, as opposed to the regular pathway. Finally, because the ownership did not encourage patrons to walk in the flower bed by creating stepping stones or other alternate pathways near the metal strip, the restaurant did not create the dangerous condition. Accordingly, the court ruled the restaurant neither created the alleged dangerous condition, nor had any constructive or actual notice of harm associated with the metal strip.

Lastly, the court quickly dispensed with Element (3), whether the restaurant used reasonable care. The court determined the restaurant did use reasonable care because it kept the metal strip out of the restaurant entrance pathway and otherwise kept it in normal condition.

Because Ms. Watts could not prove all three elements of La. R.S. 9:2800:6, the Louisiana Court of Appeals concluded that Ms. Watts could not recover for her injuries sustained in the trip-and-fall at the Minden restaurant.

As the Watts case shows, plaintiffs have a weighty burden when attempting to recover for injuries suffered as the result of a trip-and-fall on business property. Nevertheless, recovery for a trip-and-and fall is not impossible. Indeed, many of the required elements of La. R.S. 9:2800:6 are not clear cut and may actually play out differently than Watts did.

Plaintiffs can take proactive action to ensure the viability of their own trip-and-fall case. First, plaintiffs should always use designated pathways when possible while on merchant property. Second, plaintiffs should use reasonable care to be aware of and avoid obviously dangerous conditions, such as large holes in concrete sidewalks or the like. Third, in the unfortunate event a trip and fall does occur, plaintiffs should immediately report the fall to the merchant management regardless of injury severity. Finally, and most importantly, before talking further with the merchant or the merchant's insurance carrier about potential settlement of the trip-and-fall claim, the plaintiff should always consult and retain an experienced attorney. The attorney can examine the factual circumstances of the trip-and-fall and properly frame the facts for negotiation and possible litigation with the merchant.

If you have recently experienced injuries suffered from a trip-and-fall, please do not hesitate to contact Berniard Law Firm. Our firm's experienced attorneys will guide you through the trip-and-fall legal process and will be sure to maximize your rights throughout the process.

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

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

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

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

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

On May 22, 2006, Patricia Case was driving on Oday Road following a tractor driven by Barry Frederick, an employee of Burt Oubre of Burt Oubre Farms. She then decided to pass the tractor at the same time that Barry Frederick was turning left across Mrs. Case's path. The two vehicles collided.

Following the collision, Mrs. Case "experienced back pain radiating into her legs." Utimately, Mrs. Case received lumbar microdiskoctomy and laminectomy from Dr. Louis Blanda in 2007. Dr. Blanda testified that Mrs. Case would have some permanent restrictions on her activity level. For example, Mrs. Case was determined to not be able to participate in lifting involving objects over 50 pounds. Dr. Blanda also testified that the surgery was a minimally invasive procedure; in his opinion, Mrs. Case should be
able to return to work within limitations.

The Cases sued Frederick, Oubre, and Shelter Insurance Company for the injuries they sustained in the crash. Mrs. Case was awarded $49,998.00 in general damages. She then appealed the award, arguing that the trial court's ruling was "manifestly erred in awarding $49,998. in general damages."

The Third Circuit identified that the fixing of general damages by a jury is discretionary. Then the Third Circuit reviewed the abuse of discretion standard for general damages, noting

"Our jurisprudence has consistently held that in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion."

In examing the trial record, the court observed that Mrs. Case suffered a herniated lumbar disc caused by the accident. Because she continues to suffer periodic back pain, the surgery that she received was invasive. Since, per the case of Este v. State Farm, the aggravation of a pre-existing, asymptomatic, spondylosis and bulging disk can be awarded a minimum of $75,000.00 in general damages, the court concluded that "an active herniation fo a disk with surgical intervention warrants a general damage award of $100,00.00;any amount below that would be considered an abuse of the jury's vast discretion." Accordingly, the court amended the general damage award to $100,000.00 in favor of Mrs.Case.

This case shows how heavily the appellate court relies on previous cases to test whether the award is an abuse of discretion. Clearly, while the plaintiff suffered more but was awarded less compared to the previous ruling, this is a clear abuse of discretion.

By hiring a highly skilled attorney you can be assured that extensive legal knowledge and skill will be utilized to make sure that relevant precedent is utilized in your favor. A solid attorney will understand what is required to amend the damage award in the client's favor and will be able to assess the likelihood that a court will be able to do so as well. The Berniard Law Firm has had extensive success using the law to earn our clients the judgments they deserve and will be happy to educate callers on their legal rights regarding any matter of law they might be looking for more information on.

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

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

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

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

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

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

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

In a tort action for a car wreck, the court is authorized to award a successful plaintiff two types of damages. Special damages are intended to reimburse a plaintiff for the quantifiable costs and expenses he incurred as a result of his injuries. Medical expenses and car repair costs fall into this category. To recover special damages, the plaintiff is required to show the amounts he paid and show that they were the consequence of the accident. General damages, on the other hand,

"involve mental or physical pain and suffering, inconvenience, loss of intellectual or physical enjoyment, or other losses of lifestyle which cannot be measured exactly in monetary terms." Robbins v. State ex rel. Dept. of Labor, 728 So. 2d 991 (La. App. 2d Cir. 1999).

Naturally, arriving at an amount for general damages is far less precise, and so Louisiana law leaves "much discretion ... to the judge or jury" in setting the award amount. La. C.C.Art. 2324.1. In fact, in order for an appellate court to modify a general damages award, the trial record "must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and individual circumstances peculiar to the case under consideration." Youn v. Maritime Overseas Corp., 623 So. 2d 1257 (La. 1993).

An appellate court's deference to a trial court's judgment on the amount of general damages was aptly shown in the case of Pittard v. Lewis, No. 45-412CA (La. App. 2d Cir. 2010). On March 15, 2007, Robert Pittard was driving his mother's car on Interstate 220 in Bossier City. As he took the off-ramp to La. Highway 80, a car driven by Jonathan Lewis collided with Pittard's vehicle. Pittard was transported to the Willis-Knighton Bossier Health Center where he received treatment for a concussion and a severe facial laceration. At the trial, Pittard put on evidence that, after the accident, he began experiencing back and neck pain. He visited the Spine Institute of Louisiana where he was diagnosed with a lumbar and cervical strain and underwent physical therapy. Pittard's pain continued throughout the fall of 2007, at which time he enrolled at the University of Mississippi. He testified that he continued having problems with his middle and lower back, especially after long drives and while playing sports. The following summer, Pittard returned to the Spine Institute where he was diagnosed with mid back pain, thoracic facet dysfunction, upper lumbar pain, and mild L5-S1 spondylosis. Further physical therapy was recommended.

Lewis did not dispute his liability for the accident, so the only issue before the trial court was the quantum--or amount--of Pittard's claim. At the close of the trial, the judge issued a written ruling that awarded Pittard $7,818.75 in special damages and $18,000 in general damages. In the order, the judge explained that he was "convinced that the back problems presently experienced by Pittard were directly caused by the automobile accident." Lewis filed an appeal asserting that the general damages award was excessive.

The Second Circuit, in observing that an abuse of discretion would be required to overturn the trial court's decision on damages, noted that a "finding of an abuse of discretion must be based on the particular injuries sustained and their effect on the particular injured person." Montgomery v. Kedgy, 21 So. 3d 980 (La. App. 2d Cir. 2009). Accordingly, the court reviewed the record and focused on such evidence as Pittard's testimony that he had been actively playing tennis and soccer since high school but that he had not experienced any of his current back pain prior to the accident. The court noted that Pittard explained that his back problems had gotten progressively worse after his initial release from the Spine Center. Additionally, the court considered the testimony of Pittard's doctor, who offered the opinion that the accident was a contributing factor to Pittard's continuing pain. The court concluded that "based upon the testimony and medical evidence contained in the record and considering the particular injuries sustained by Pittard and their effect on his physical condition and lifestyle, we cannot say the trial court's award of $18,000 in general damages is beyond the amount reasonably within the fact-finder's vast discretion," and affirmed the trial court's award.

The lesson of the Pittard case is that the plaintiff's time to make a claim for general damages is during the trial. Had Pittard not substantiated his non-monetary damages during the trial with testimony and medical evidence, leading the trial court to award him the$18,000, he would not have been able to look to the Court of Appeal for a remedy. Likewise, as we saw here, a damages award by the trial court is extremely difficult to reduce or reverse on appeal, so it is essential that the plaintiff capitalize on the opportunity to present all evidence available on damages at trial.

Continue reading "Bossier Parish Car Accident Explores the Court's Role in Setting General Damage Awards" »

Louisiana Court Stresses Importance of Constructive Notice in Trip-And-Fall Cases

In Smithwick v. City of Farmerville, the Second Circuit Louisiana Court of Appeals affirmed a trial court's dismissal of a plaintiff's trip-and-fall case for failure to prove that the municipal defendant had actual or constructive notice of a shallow depression in the city-maintained right-of-way.

The plaintiff, Carol Smithwick, was waiting at a street corner in Farmerville, Louisiana for her child's school bus to arrive. Smithwick was traversing a sidewalk, and as she stepped off the sidewalk and onto the street, she tripped on a depression in the street's shoulder. The depression was shrouded by grasses growing around it, and the depression was not immediately visible to Ms. Smithwick at the time. Accordingly, she tripped, fell, and sustained immediate injuries that later caused reflex sympathetic dystrophy.

Under Louisiana Civil Code, Article 2317, a municipal defendant cannot be held liable for damages caused by dangerous conditions unless the municipal defendant had either actual or constructive notice of the condition, and had a reasonable opportunity after receiving such notice to remedy the condition and then failed to do so. Consequently, Article 2317 required the Louisiana Appeals Court to examine whether the City of Farmerville had actual or constructive notice of the shallow depression that caused Ms. Smithwick's fall.

The court explained that actual notice is "knowledge of dangerous defects or conditions" by an employee or officer of the municipality that has a duty to keep the property involved in good repair or to report defects and dangerous conditions to authorities. An example of actual notice would have been a city road supervisor inspecting the road and noticing the depression before the fall. This is because a supervisor would have a preexisting duty to report the condition to the proper authorities, and because a supervisor is often acting as an agent of the city itself (as opposed to a mere employee). However, because no such discovery was previously made by any such muncipal actor, the court ruled that the City of Farmerville did not have actual notice of the depression.

The court next went on to explain the concept of constructive notice. Referring to La. R.S. 9:2800, the court stated that constructive notice is "the existence of facts which imply actual knowledge." In other words, circumstances involving pedestrians' behavior in the area of the depression or circumstances stemming from physical conditions around the depression could lead to constructive notice. The concept of constructive notice is a more complicated notion than that of actual notice.

In determining whether the City of Farmerville had constructive notice, the court noted that throughout the school year, 35 people regularly gathered in the area of the depression twice a day to wait for their own school children. Of that mass of people, none had ever reported to the City of Farmerville the existence of the depression. Furthermore, the court acknowledged that the City of Farmerville regularly mowed and trimmed the area around the depression and no city maintenance employee had ever previously noticed the shallow depression. As such, the state appellate court ruled that the City of Farmerville did not have constructive notice of the shallow depression either.

Because Ms. Smithwick could not show that the City of Farmerville had either actual or constructive notice of the depression, the court affirmed the lower court's decision that she should not recover.

The first lesson of Smithwick is a blunt one: In trip-and-fall cases, if the defendant has not received prior notice of the dangerous condition that caused the fall, Louisiana courts will not hold the defendant responsible for the plaintiff's corresponding injuries. Defendants have no duty to remedy dangerous conditions they do not have prior reasonable notice of. The second lesson of Smithwick is a more subtle one: The issue of constructive notice can often be a "dealbreaker" in the success or failure of a plaintiff's trip-and-fall claim. Constructive notice is a murky concept that is not always immediately apparent soon after the injury occurs.

Because constructive notice is both an important and little-understood concept, it is imperative that plaintiffs who have recently experienced a trip-and-fall contact an experienced attorney. An attorney is vital in requesting and examining documents that may or may not indicate existing constructive notice. By knowing which questions to ask of the defendant, an experienced attorney can accurately pinpoint whether the defendant had prior notice of the dangerous condition that caused the fall.

Continue reading "Case Demonstrates Slip/Trip and Fall Accidents Can Be Complicated, Require Skilled Attorney" »

In Louisiana, a study shows that crash rates continue to rise for drivers under the age of 25 despite outlawing text messaging while driving. In three other states, crash rates were shown to have actually increased after the enactment of anti-texting laws, and, in all four states researched, there were no reductions in crashes after the enactment of these laws.

The study, conducted by the Highway Loss Data Institute (HLDI), was carried out in Louisiana, California, Minnesota, and Washington. Researchers compared statistics of crashes before and after the texting bans were enacted in these states. The four states' data was then compared to the states that do not have texting bans. The results were obviously not the expectation of lawmakers and has left many troubled by what can be done to counter the dangers technology is creating.

HLDI says that one possible explanation for the increasing negligence and rise in crash levels could be that people are continuing to text in spite of these laws.

Adrian Lund, president of the HLDI and the Insurance Institute for Highway Safety, suggests that noncompliance with the laws specifically is not the reason for the spike in crashes, but perhaps how people may be trying to hide their behavior. He suggests, rather, that the increase in negligence could be due to drivers hiding from plain view their text messaging activities. "If drivers were disregarding the bans, then the crash patterns should have remained steady. So clearly drivers did respond to the bans somehow, and what they might have been doing was moving their phones down and out of sight when they texted, in recognition that what they were doing was illegal. This could exacerbate the risk of texting by taking drivers' eyes further down from the road and for a longer time."

The applicable text ban Louisiana statute is Title 32, Chapter 1, Part IV, Subpart L, Sec. 32:300.5 that states: "A.(1) [...N]o person shall operate any motor vehicle upon any public road or highway of this state while using a wireless telecommunications device to write, send, or read a text-based communication." The statute provides exceptions to police officers, firefighters, and emergency vehicle operators while engaging in the performance of their duties. The statute also does not apply to those drivers who, among other exceptions listed in the statute, are (1) texting to summon medical or other emergency help, or are (2) using a global positioning device for navigation. Pursuant to the statute, the first violation is punishable by a fine of up to one hundred seventy-five dollars ($175). Subsequent violations are punishable by fines of not more than five hundred dollars ($500). Moreover, by law, any violation is considered a moving violation.

Another Louisiana statute specifically targets minors in Title 32, Chapter 1, Part IV, Subpart L, Sec. 32:300.7: "B. [...N]o person who is seventeen years of age or younger shall operate a motor vehicle on any public road or highway in this state while using any wireless telecommunications device to engage in a call or write, send or read a text-based communication." Like the prior statute, certain exceptions are permitted. For example, a minor can use a wireless communications device (more commonly known as a cell phone or smart phone) to report a (1) traffic accident, (2) medical emergency, (3) serious road hazard, (4) situation where minor's personal safety is in jeopardy, or (5) criminal act against the minor or another person. A minor may also use a cell/smart phone if the motor vehicle is lawfully parked. Violation of the statute carries fines, which are slightly less than the statute directed to all drivers. The first violation is punishable by a fine of up to one hundred dollars ($100). Subsequent violations are punishable by fines of not more than two hundred fifty dollars ($250). If the minor is involved in a motor vehicle accident while using a wireless communications device, then the applicable fine is doubled. Violations of this statute are considered non-moving violations.

If you or someone you know is involved in an accident in Louisiana, including when the accident is caused by the careless use of cell/smart phones while driving, remember that you will need an experienced and knowledgeable attorney to assist you in navigating the complexities of the law so that you are compensated for your injuries. The courts tend to rely heavily upon criminal punishments relating to an accident when coming to their judgment of responsibility in civil proceedings, and anyone injured due to the negligence of another driver, especially one texting, should be compensated for the damage they've suffered due to the accident.

Continue reading "Negligence on the Rise in Louisiana in Spite of Texting Ban" »

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

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

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

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

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

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

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

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

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

Substantial Jury Award Upheld in Jeep Accident

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

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

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

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

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

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

In 2009, over 800 people were killed in motor vehicle crashes in Louisiana. An additional 73,000 persons were injured in car crashes. The applicability of these statistics are obvious: you and too many other drivers and passengers are at risk every time you get on the road in Louisiana. However, there are steps you can take to protect yourself each time you get in a vehicle that can increase your safety and limit the effects of a crash on your health and the health of others in the car.

Sadly, almost 50% of fatal car crashes involve alcohol. A conviction for driving under the influence of drugs and/or alcohol results in a mandatory ignition interlock hardship license and additional penalties including, but not limited to, a permanent criminal record, 6 months in jail, $1,000 fine plus court costs, and losing your driver’s license for 90 days. Furthermore, after three misdemeanor DUI convictions, these charges become felonies. Felonies are even more serious than misdemeanors and involve harsher penalties. These very real criminal penalties pale in comparison to the financial and emotional hardships those who cause a serious accident while impaired will suffer.

While hazards like a drunk driver are, at times, nearly impossible to avoid, there are some things you can do to protect yourself and your passengers while you are driving. Efforts that will minimize your exposure to serious harm include, but are not limited to, driving the speed limit, wearing your seat belt, and, when appropriate, wearing a safety helmet. Safety helmets reduce the risk of death by 29% and the risk of fatal head injury by 40%. It is important that you make sure that you and all of your passengers are wearing your seat belts before you start driving because more than 65% of drivers who are killed in crashes were not wearing their safety belts. Young drivers and passengers are especially resistant to wearing seat belts. A Louisiana study shows that 14% of all high school students report that they rarely or never wear seat belts when riding with someone else. By making sure you and your teen wear your seat belts, you will be saving money not only through perks like those offered by car insurers but overall as a taxpayer. Louisiana residents spend almost $6 billion annually paying for car crashes, which comes out to about $2,000 per licensed driver. If all residents of this state were to make sure to secure their seatbelt before driving, a lot of money could be saved solely through practicing safe driving techniques.

A majority of accidents on the roads are just that: accidents. Unavoidable and merely a reality due to unforeseen circumstances, these incidences have a wide variety of results that almost always require some sort of legal process, whether an insurance investigation or litigation. However, drunk or reckless driving almost always requires either the driver, or the victim(s), to pursue legal action due to the devastating consequences involved. Should you be in an accident with a drunk driver, we hope that you utilized the simple tips mentioned in this blog regarding a seat belt and careful driving as these will often mitigate the personal damage caused. Not every injury is avoidable, though, and it is important that, if you are injured in a drunk driving accident, you retain the best legal counsel available to insure your damages, however great, are compensated.

Continue reading "Louisiana Car Accident Statistics Show Safety Precautions Necessary When Driving " »

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

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

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

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

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

To download the application, click here.

Common in Louisiana middle schools is a disciplinary program that requires students who engage in acts of moderately serious misbehavior to stay after school in "detention." To reinforce the punitive nature of the program, many schools require a student who stays late for detention to find his or her own means of transportation home. Presumably, this requires the involvement of a parent or other responsible adult who would then be made aware of the student's misbehavior, and who could help the student correct the problem. The scope of a school's responsibility for a student's safety after she left school grounds following detention arose in the case of S.J. v. Lafayette Parish School Board, No. 2009-C-2195 (La. 2010).

On November 4, 2004, a twelve-year-old, female sixth-grader, "C.C.," stayed after school at Lafayette Middle School to serve detention. When detention concluded at around 4:00 PM, C.C. left the school with another student and walked to a nearby fast food restaurant. The two girls parted ways at the restaurant and as C.C. made her way home, she was attacked and raped by an unknown male assailant. C.C. and her mother filed a lawsuit suit against the school board, arguing that the board, through its employees at Lafayette Middle School, had failed to exercise reasonable supervision over C.C., which resulted in her being assaulted. The trial court granted the board's motion for summary judgment on the basis that the board "had no duty to safeguard a child's well-being after the child leaves the school property," and dismissed the action. The Louisiana Court of Appeal affirmed this decision, but it was then reversed by the Louisiana Supreme Court and remanded for trial. After a bench trial, the court found no negligence on the part of the school board and dismissed the plaintiffs' action. In particular, the court noted that the school discharged its duty to C.C. and the other students who stayed for detention by ensuring that none of them was left behind at the school after detention concluded without a way home. On appeal, a three-judge majority of the five-judge panel of the Court of Appeal reversed the trial court. The panel found liability on the school board's part based largely on a Louisiana statute that requires schools to provide transportation to students who live more than a mile from campus. La. Rev. Stat. 17:158(A)(1). The panel concluded the school breached its duty to C.C. by disallowing her from riding home on the after-hours bus, which was reserved for students who stayed after school for non-disciplinary reasons, and further by denying her access to a school telephone to call her mother for a ride.

On appeal, the Louisiana Supreme Court reviewed the elements a plaintiff must prove in a negligence action (duty, breach, causation, and actual damages), and noted that "whether a duty is owed is a question of law; whether a defendant has breached a duty owed is a question of fact." The court began its analysis by observing that "it is well-settled that the duty imposed on a school board with regard to children in its care is one of 'reasonable supervision.'" La. Civ. Code Arts. 2315; 2320. With respect to the question of whether this duty is expanded by the statute requiring school boards to provide free transportation for students to and from campus, the court answered that it does not. Doing so would "make a school board responsible for any and all injuries sustained by 'any student,' regardless of time, distance, and intervening factors, when those injuries would not have been suffered if the student had just been provided a free ride home."

The court noted that its review was conducted according to the "clearly erroneous" standard and that, accordingly, it was limited to determining "whether the trial court manifestly erred in finding that plaintiffs failed to prove a breach of the School Board's duty of reasonable supervision owed to C.C. in proportion to her age and the accompanying circumstances." In reviewing the facts produced at trial, the court found that the evidence supported the trial court's determination of witness credibility as well as its factual conclusions that C.C. was not denied access to a telephone and that she failed to make use of numerous alternative options for getting home. Thus, in the opinion of the court, Lafayette Middle School did not violate the duty of reasonable supervision it owed to C.C. Accordingly, the court reversed the Court of Appeal's decision and reinstated the trial court's judgment which had dismissed C.C.'s action.

Although the procedural details of this case are convoluted, it is instructive to note that its resolution ultimately turned on the basic principles of Louisiana negligence law. Once the extent of the duty owed to C.C. by the school was confirmed by the state Supreme Court (a question of law), the trial court's determination that no breach occurred (a question of fact) was deemed appropriate and left intact. For any plaintiff, the expertise of counsel well versed in negligence law is invaluable to winning the case.

Continue reading "Lafayette Parish School Board Case Provides Lesson on Duty of Care Owed to Students Who Stay After School for Detention " »

A very recent Louisiana Court of Appeals decision arises from a lawsuit filed by Lloyd and Dotris Bordelon to recover damages stemming from a pedestrian-vehicle accident that followed a vehicle-vehicle collision.

The first accident occurred in September 2003, when John Vercher and his wife were going north on Highway One in Avoyelles Parish to Mr. Bordelon's house. Mr. Desselle was also going north on the highway and was attempting to pass the Verchers, unaware that Mr. Vercher was going to turn left into Mr. Bordelon's driveway.The vehicles collided. Mr. Bordelon came out of his house to see what happened. After determining no one was hurt, Mr. Bordelon walked out to the highway to direct traffic. Mr. Bordelon reported that he heard someone asking him to move the vehicles, at which point he turned around and said they should not be moved. When Mr. Bordelon approached Mr. Vercher's car, it lurched forward and hit Mr. Bordelon, throwing him into the post of his carport and an aluminum building. Mr Bordelon sustained injuries to his brain, face, and stomach. The Bordelons filed suit against both Mr. Vercher and his insurer and Mr. Desselle and his insurer for injuries he sustained as a result of the initial crash and resulting collison. The lawsuit against Mr. Vercher was dismissed prior to trial. After trial the court found that Mr. Desselle was one hundred percent at fault for the collision between him and Mr. Vercher and that both Mr. Desselle and Mr. Vercher were fifty percent at fault for Mr. Bordelon's injuries, ordering Mr. Desselle and his insurer to pay the entire $50,000 with no reference to the assignment of fault. On the first appeal, the trial court executed a judgment allocating fault and damages equally between Mr. Desselle and Mr. Vercher. Mr. Desselle argued in this appeal that the trial court should not have found Mr. Desselle even fifty percent at fault for Mr. Bordelon's injuries.

The defendants reasoning for reversing the judgments include the separate nature of the two accidents, the time and distance between them, and the fact that Mr. Desselle owed no duty to Mr. Bordelon.

The Court of Appeals agreed with Mr. Desselle and vacated both judgments. Under La.Civ.Code art. 2315 (A), "every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it." A duty-risk analysis is applied to determine whether liability exists under this law, wherein four questions are asked:

First, did the conduct in question (here, Mr. Desselle's actions in causing the first collision) bring about the harm that occurred?

Second, did the defendants owe a duty to the plaintiff?

Third, was the duty breached?

Fourth, was the risk, and harm caused within the scope of the duty that was breached?

In this case, there is no evidence to dispute that two distinct accidents occurred--a two vehicle accident and a vehicle-pedestrian accident. If the duty risk analysis is applied to the second accident, the appropriate conclusion is that Mr. Desselle is not liable for Mr. Bordelon's injuries. The proximate and legal cause of the second accident was Mr. Vercher's operation of the vehicle. Even if Mr. Vercher was trying to move his car as instructed by Mr. Desselle, the request did not cause the accident. Even if a duty could be established on the part of Mr. Desselle, Mr. Bordelon being struck by the Vercher vehicle is not within the scope of that duty. After the first accident, Mr. Vercher's vehicle was stopped and remained stopped for a period of time until he inexplicably struck Mr. Bordelon. Even though the witness accounts conflict somewhat--all agree that Mr. Vercher came to a complete stop and that some time lapsed before Mr. Bordelon was hit.

When the trial court imputed liability to Mr. Desselle they found that he was negligent in telling Mr. Vercher to move his vehicle, knowing that Mr. Vercher was in shock immediately following the first accident. The Court found that Mr. Desselle owed a duty to innocent people in the area and breached that duty in telling Mr. Vercher to move his car. The Court of Appeals absolutely disagreed, and found that Mr. Desselle was not the legal cause of the second accident, because undisputedly, it did not occur until after the first accident was over, the vehicles had stopped, and time passed. Mr. Desselle was in the road directing traffic at the time the second accident occurred and Mr. Bordelon's injuries only resulted from the negligent actions of Mr. Vercher.

In accident injury law, damages are only recoverable if the defendants' actions are a legal cause of the injuries sustained. This requires proving the elements of negligence, the most difficult of which is typically proximate cause, or the proximity of the behavior in question to the injury. An act that is too far removed from the injury is not a legal cause. An attorney who is an expert in these types of cases will be able to know what it will takes to prove negligence in each particular situation.

Continue reading "The Complexities of Multi-Accident Lawsuits: Court of Appeals Vacates Judgment in Avoyelles Parish Case" »

When filing a complaint, the attorney needs to make sure that they are bringing in the correct parties and including the right claims with their legal action. Mistakes can result in losing the entire case before it even begins thus focusing on even the smallest details can save a complaint from utter failure.

As careful as one may try to be in forming a complaint, mistakes do happen. This aspect was explored in Glasgow v. Par Minerals Corporation, where an oilfield explosion and subsequent fire at a wellsite near Kinder, Louisiana, significantly injured a direct employee of Therral Story Well Service (TSWS). Par Minerals had contracted with several companies to drill the well for oil and gas, one of the companies being TSWS. The employee who was injured initially filed a tort suit against Par Minerals alone, including Avery Graves as the on-site supervisor for Par. The latter part of the petition was wrong as Avery Graves was the president and sole-shareholder of Pipe Services.

This mistake resulted in two supplemental and amended petitions, leaving Par as the sole defendant. Over one year later, a third supplemental and amended petition added to Par, Pipe Services and its insurer, Colony Insurance Company. Thus, the final petition had three defendants, one named within one year of the accident, and two named over one year after the accident. The timing of the amendments and petitions are extremely important, because had the latter of the two defendants been named within one year of the accident, the entire result of the case may have come out differently. Again, focusing even on the smallest details can help save a case from failure.

Overlooking details, including dates of decisions rendered within the case, can have enormous consequences. Specifically, the direct employee/appellant mistakenly appealed the wrong judgment in the motion for devolutive appeal, the employee stated he had been "aggrieved by the ruling rendered and signed on December 28, 2009, where the Court granted Pipe Services exception to prescription." The only problem with that appeal was that December 28, 2009, was not the grant of an exception to prescription. Rather, the exception to prescription was granted on December 5, 2009.

The appellant did catch a lucky break, however, when the Court ruled that the situation was analogous to Kirkby - Natus, where the defendant also appealed the wrong decision. The Court held that appeals are highly favored by the courts, and should not be dismissed unless there is substantial cause and, unless the grounds urged for dismissal are free from doubt, the appeal will be maintained. So, the question was whether or not appealing a decision based on the wrong date of decision could still be maintained even though there was a blatant mistake in the appeal. The court held that the appellant was clearly intending to appeal from a judgment different than the one identified in the petition for appeal, and both parties treated the appeal as if it were taken against the intended judgment, and it is apparent that the error was neither misleading nor prejudicial to either party.

Timing is everything in a case, and whether or not the time requirements are met determines the life span of the case. Louisiana has specific time requirements that must be met in order for a complaint to survive. For example, for a delictual action, there is a liberative prescription period of one year. Essentially, this means that if a complaint has not been made with all relevant parties within one year of the incident in question, prescription may bar the suit. Prescription may be interrupted, however, by filing suit in a court of competent jurisdiction, and this interruption is granted for the solidary obligor as well as their successors. But, it is important to note that the parties must be named in order for the prescription to be interrupted. This was the problematic issue the Court explored as well in Glasgow v. Par Minerals Corporation. The appellant added parties after one year, thus failing the necessary time requirement to interrupt prescription when he filed the initial suit. The appellant attempted to rely on the argument that since he filed a tort suit against his statutory employer, Par Minerals, the running of prescription in favor of the sub contracted company, Pipe Services, was interrupted. However, there is absolutely no case law to support his argument, in fact, case law holds to the contrary.

Courts have allowed interruption of prescription when the initial claim was failed as a worker's compensation suit. This was the case in Williams v. Sewage & Water Board of New Orleans, when an employee was killed after his crane came into contact with a power line, and electrocuted him to death. The successors of the deceased employee filed a worker's compensation claim and then subsequently, past the one year prescriptive time period, attempted to add the manufacturer of the crane he had operated at the time of the incident. The Court held that the timely filed worker's compensation suit interrupted prescription as to the following claims against the third party tort-feasor for damages. After the Williams decision, Louisiana's jurisprudence has maintained (Layman v. City of New Orleans, 753 So.2d 254, 98-705 (La.App. 4 Cir. 1998),; and Williams v. Holiday Inn Worldwide, 816 So.2d 998, 02-762 (La.App. 4 Cir. 2002)) that a tort suit filed against a statutorily immune employer does not interrupt prescription as to third party tort-feasors. Thus, the court will not allow a party to add parties after the one year prescriptive period when they initially filed a tort suit.

Thus, the Courts may forgive but they do not easily forget. Human error, such as making the mistake in terms of a date of a decision, is one thing. However, attempting to circumvent prescriptive periods are another. Therefore, as mentioned at the beginning of this piece, do not overlook the small details as it may be the small things that can destroy a case before it even begins. By hiring an experienced attorney that is careful with these matters and makes sure to cover these issues, you can make sure that you do not fall victim to these problems.

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

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

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

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

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

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

A July CNN report has brought to light a lawsuit filed against Louisiana school officials for repeatedly handcuffing and shackling a 6 year old. The lawsuit has been filed by rights advocates and the child's parents on behalf of children in the Louisiana Recovery School District, a statewide entity managed by the Louisiana Department of Education. The superintendent of the district, and school officials and security officers at the school, Sarah T. Reed Elementary, were named in the lawsuit as well.

According to the suit, the 6 year old boy was handcuffed and shackled for "minor offenses," involving a shoving match with another student. The School District stands behind the behavior of their employees and has indicated that the incident was an isolated one. They did not arrest the student or terminate the employee involved. The school principal, Daphyne Burnette also defended the school's action, going so far as to state that it is school policy to handcuff "out of control" students, and that if children fail to follow rules in the future, they will be handcuffed. The plaintiffs in the lawsuit disagree with this policy and have argued that the punishment methods crossed the line and that the conduct was "unreasonable and excessively intrusive."

The child's father, Sebastian Weston, claims that his son's life has been forever changed because of the incident.

What do you do if your child is somehow hurt by overzealous school officials? And what if the damage is not physical? Can you recover damages for emotional harm caused to your child at school? If there was intentional conduct on the part of the school or official and the conduct resulted in extreme emotional distress, the answer is yes.

Intentional Infliction of Emotional (or mental) distress is a tort claim that allows for recovery of damages if a defendant:

1. Acted intentionally or recklessly;
2. The conduct was extreme or outrageous;
3. The action was the cause of distress to the injured party;
4. The emotional distress was severe.

The intent of the act does not need to be to bring about emotional distress to qualify. For example, here, if school officials did not intend to cause the child severe emotional distress but had reckless disregard for the likelihood that such conduct could cause emotional distress that is sufficient.

The conduct also needs to be extreme and outrageous, which means that it goes beyond the standards of civilized society. Illegality of the conduct is irrelevant. Here, it may be legal for school officials to handcuff a child to a chair under corporal punishment laws. However, most would agree that to handcuff and shackle a 6 year old for failing to follow directions is heinous conduct that is intolerable in civilized society. Courts look at several factors to determine if the extreme and outrageous standard was met, several of which could easily apply in this case, including: whether there was a pattern of conduct, whether the plaintiff was vulnerable and the defendant was aware of that fact, whether the defendant was in a position of power.

Finally, the emotional distress suffered must be severe. The severity is quantified by the intensity, duration, and physical manifestations of the distress. Calling an expert witness or professional psychiatrist would be very helpful in this type of claim to prove the severity of the emotional duress since physical manifestations are sometimes difficult to pinpoint.

If you or your child has suffered severe emotional distress due to someone else's extreme or outrageous conduct you may have a claim for damages. Because the claim requires proving such subjective elements as "extreme conduct" and "severe emotional damages", having an experienced attorney on your side who will do the leg work to collect all necessary background information and ensure the best experts will testify on your behalf is absolutely necessary.

Continue reading "Class Action Lawsuit Filed Against Louisiana School Officials for Handcuffing and Shackling Student" »

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

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

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

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

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

Louisiana courts, like those in most other states, enforce a prohibition in jury trials known as the "golden rule." During a closing argument, the plaintiff's attorney may not ask the members of the jury to imagine themselves in the place of the plaintiff when deciding how much to award the plaintiff in damages. The rationale for prohibiting such a request is that the jury's sympathy may be unfairly invoked, resulting in an inappropriately large award of damages. So, while the jury should not be asked to imagine themselves going through the same experience that the plaintiff endured, the plaintiff's attorney may simply direct the jury to consider the pain and suffering the plaintiff has been through.

An alleged violation of the golden rule was one basis of the appeal in Tingle v. American Home Insurance Co., No. 10-71 (La.App. 3d Cir. June 11, 2010). On March 5, 2006, Brian Montgomery was driving his tractor-trailer while intoxicated in Lake Charles. He ran a red light and slammed into the car of Levi and Tasha Tingle. The Tingles' two-year-old daughter, Madison, who was also in the car, was killed; her parents suffered severe injuries. The Tingles settled with Montgomery's employer, Boots Smith, for the limits of his primary liability insurance policy. The Tingles then filed suit against Smith's excess insurance carrier, American Home Insurance Co. At the trial, the jury awarded the Tingles over $10 million in damages, of which approximately half were punitive damages.

On appeal, American argued that the trial court erred in permitting the Tingles' attorney to "implore the jury to put themselves in the [Tingles'] shoes." (The court did not include in its opinion exactly what the Tingles' attorney said in his closing argument.) But the court declared that it "prefer[s] to allow the trial court latitude to conduct a trial," citing a line of Louisiana cases espousing the view that

"Great latitude is permitted in argument before a civil jury, subject to regulation by the trial court whose duty is to confine argument within proper bounds." Temple v. Liberty Mutual Insurance Company, 316 So.2d 783 (La.App. 1st Cir. 1975).
"Unless the contrary is shown, the trial court's rulings regarding alleged improper argument are presumed to have been made within the trial court's discretion. Luquette v. Bouillion, 184 So.2d 766 (La.App. 3rd Cir. 1966).

Incidentally, the court also dismissed by the same reasoning American's similar argument that the trial court erroneously permitted the Tingles' counsel to prejudice the jury by emphasizing that Montgomery was from out-of-state. The court noted that American objected to this "home cooking" during the trial, but the trial judge apparently "did not find [it] particularly inflammatory." As a result, the court found "no abuse of the trial court's great discretion" in overruling the objection.

Although this appeal was ultimately resolved with the Tingles' receiving sizable damage awards, things could have turned out quite differently if the trial judge had found their attorney's statements inflammatory or prejudicial. With so much discretion afforded the trial judge, it would be foolish for a plaintiff to risk making an argument that could result in a mistrial at such a late stage, only further delaying a damages award. For this reason, a plaintiff should always select competent trial counsel who can deliver a compelling and persuasive closing argument while avoiding the prejudice minefield.

John C. Elliott, 26, of Zavalla, Texas was driving a 1999 GMC pickup east on LA.8 and he lost control while passing another vehicle in a curve. He collided with several trees before the truck stopped on La. 8 facing the other direction. Elliot was injured seriously and taken to Lake Charles Memorial Hospital. There were two passengers in the car.

As reported in the Leesville Daily Leader

His two passengers,19-year-old Susie Dixon and an infant, both of Zavalla, Texas, suffered minor injuries and were transported to Byrd Regional Hospital.

Police believe Elliott was impaired by narcotics. He was charged with driving while impaired, child endangerment, careless operation, no driver’s license, and passing in a no passing zone.

In addition to having to deal with criminal charges, Elliott will most likely face civil repercussions from the accident. In Louisiana the person found to be at fault for an automobile accident is financially responsible for all damages created by the accident. Damages that can be collected include compensation for medical expenses, property damage, and pain and suffering. The situation as to who is at fault may be more complicated when there are two drivers who contribute to the accident. Because Louisiana is a comparative fault state if an injured party is found to be partially at fault for his accident, his damages are reduced by his percentage of fault.

Here, however, there was only one car involved in the accident. If the driver, is found to have acted negligently in causing the accident he will be found at fault and will be liable for injuries to his two passengers. Negligence means that the driver’s standard of care fell below that a reasonable person would be expected to exercise in the situation. Negligence has several elements, proving them requires research and an excellent understanding of the facts of the case. There are other places to look for support for a fault finding as well. For example, if a police report has been filed and there is any mention of a traffic law violation or careless driving it can show the driver was at fault.

A civil lawsuit is very different from criminal charges. A criminal case is filed by a state prosecutor and if convicted the defendant can face fines, incarceration, or other penalties. If a defendant is found guilty in a civil suit they must pay restitution to the plaintiff who was injured by their negligent action. In a civil lawsuit the plaintiff must prove by ‘preponderance of the evidence’ that the defendant committed the negligent action and that the action caused damages. Preponderance of the evidence means that the plaintiff’s version of the facts is more likely to be true than not true. This standard is lower than the standard required to be successful in a criminal case.

If you have been injured in a car accident and believe that your injuries were caused by the negligent action of another person, you may be entitled to be compensated. It is vital that you have a hardworking, dedicated attorney on your side.

In certain situations, a person that witnessed another get physically injured has a legal claim against the person that caused the physical injury—even when the witness suffered only mental anguish, without any direct physical injury. The rule allowing this recovery is known as the bystander recovery rule.

Louisiana’s bystander recovery is governed by Louisiana Civil Code Article 2315.6 and the Louisiana Supreme Court case of Trahan v. McManus. As stated in Trahan, the bystander recovery rule does not "compensate for the anguish and distress that normally accompany an injury to a loved one under all circumstances." Rather, the bystander recovery rule is more limited and has four requirements in order for a bystander to recover damages for his mental anguish from witnessing another’s injuries.

Those four elements are:

1. The bystander must be closely related to the injured person. Specifically, the bystander must be the spouse, parent, grandparent, child or grandchild of the injured person.
2. The injured person must suffer a significantly grave harm so that it’s reasonable to expect the bystander to suffer serious mental anguish or emotional distress from witnessing the incident.
3. "The bystander’s mental anguish or emotional distress must be severe, debilitating, and foreseeable," as quoted from Article 2315.6.
4. The bystander’s mental distress must immediately, or almost immediately, follow witnessing the defendant’s actions that caused the direct victim’s injury.

The best way to explain the basics of the bystander recovery rule is by example. A good example of failing to satisfy the bystander rule is the Trahan case. In Trahan, a child was in the hospital. The doctor negligently elected to not treat the child and told his parents that the child would be fine. The parents then took the child home, where he later died.

Although the first three requirements of the bystander rule were met, the fourth requirement was not: The parent’s mental anguish from witnessing their child die occurred well after the doctor’s negligent failure to provide medical treatment. "There was no observable harm to the direct victim that arose at the time of the negligent failure to treat, and no contemporaneous awareness of harm caused by the negligence."

Conversely, the following is a good example of satisfying the four elements of the bystander recovery rule. A mother is playing in her front yard with her eight year old son. A drunk driver veers off the road and into their yard, killing the child but leaving the mother untouched. Unlike the Trahan example above, here, the mother suffers from mental anguish immediately after the defendant’s action of crashing his car into her son.

If you’ve witnessed a traumatic event and, as a result, suffered mental anguish, it’s imperative that you seek legal representation. Cases involving bystander recovery involve many legal questions, such as whether the mental anguish was foreseeable, whether the mental anguish was sufficiently contemporaneous and more.

Continue reading "Understanding the Law: Bystander Recovery After Tragedy Strikes" »

On April 17, 1968, Doris Brantley of Oak Grove, Louisiana was involved in an automobile accident when her car struck by a vehicle driven by Albert McKee. Mrs. Brantley was immediately taken to a local hospital and was released the next day. Her painful injuries included numerous abrasions, bruises, and lacerations, as well as trauma to her neck, back, and knees. She received care from a general practitioner for several weeks following the collision and then sought treatment from an orthopedic surgeon in Greenville, Mississippi.

At the time of the crash, Mrs. Brantley was 40 years old and in good health. She worked at the Lamont Glove Factory in Oak Grove as an inspector, where she earned $1.92 per hour. The trial court awarded Mrs. Brantley $5,000 for her personal injuries resulting from the accident, and an additional $1,313.85 for her lost wages and expenses she incurred in repairing her car. Mr. McKee, the other driver, appealed the judgment on the sole basis that the damages awarded by the trial court were excessive.

The principle that "much discretion" must be afforded the trial judge or jury in awarding tort damages has been a part of the Louisiana Civil Code since 1825. (Currently, the provision resides in Section 3 of Article 1934.) According to William A. Sherwood, who wrote about this matter in a note that appeared in the Tulane Law Review in 1974, its inclusion in the Code

demonstrates a legislative recognition that damages for the repair of [tort] offenses . . . are necessarily arbitrary and incapable of exact measurement. Hence, much discretion in their assessment is left to the trier of fact who can directly observe and evaluate the witnesses, their demeanor, and their credibility.

The Louisiana appellate courts have similarly embraced this idea. For example, in the case of Walker v. Champion, 288 So.2d 44 (La. 1973), the Louisiana Supreme Court affirmed a trial judge’s award of $100,000 for the plaintiff, an 18-year-old who lived in Clarence, who lost an eye when the defendant threw a beer bottle at him.

In Mrs. Brantley’s case, the Court of Appeal reviewed the trial judge’s analysis of her losses due to the wreck, stating that "having a firm conviction that it is the duty of our courts to take a realistic approach to the quantum of awards . . . we conclude the trial court did not abuse its discretion in awarding Mrs. Brantley $5,000 for her injuries" Brantley v. Employers Liability Assurance Corp., 232 So.2d 825, 826 (La. App. 2d Cir. 1970). The court also found that the damages for lost wages and expenses were proper, and upheld the trial judge’s total award.

A jury’s discretion in setting tort damages continues to be well recognized in modern litigation. The victim of a car accident or other catastrophe needs a lawyer who can clearly establish the extent of her pain, suffering, lost income, property damage, and other challenges for the jury so its members can award her the judgment she deserves.

Continue reading "Juries Afforded Much Discretion in Awarding Tort Damages From Car Accidents" »

Louisiana workers' compensation law creates a system that provides medical treatment and monetary income to employees who suffer injuries while on the job. The law is designed to benefit both employees and employers. Workers are protected against the difficulties that result from job-related injuries such as the expenses of medical care and lost wages from being unable to work. An injured employee can receive bi-weekly income payments and free medical treatment, but must forfeit any right he may otherwise have under the law to sue his employer over the injury. The employer benefits by avoiding a potentially costly and unpredictable lawsuit in exchange for accepting limited liability under the structured system that seeks to protect the interests of both parties. Under this system, the issue of fault or negligence is not at issue—it is enough for the employee to show that he suffered an injury while performing work for his employer.

One important procedural obligation on the part of an injured worker is that he must report the injury to his employer in a timely manner. According to Louisiana statute,

No [claim] for compensation shall be maintained unless notice of injury has been given to the employer within thirty days after the date of the injury or death. This notice may be given or made by any person claiming to be entitled to compensation or by anyone on his behalf. La. R.S. 23:1301.

Although notice is always required, the 30-day window is not absolutely inflexible. Louisiana statute further provides:

A notice given under [the workers’ compensation law] shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, nature, or cause of the injury, or otherwise, unless it is shown that the employer was in fact misled to his detriment thereby. Lack of notice or delay in giving notice shall not be a bar to proceedings … if it is shown that the employer, or his agent or representative, had knowledge of the accident or that the employer has not been prejudiced by such delay or lack of notice. La. R.S. 23:1305.

The sufficiency of notice given well outside of the 30-day statutory window was central to the case of Hammock v. Weyerhaeuser, 917 So. 2d 733 (La. App. 2005). In this case, David Hammock worked at the Weyerhaeuser lumber mill in Dodson, Louisiana. Hammock’s job required him to move 3,000-pound loads of wood from a conveyor belt to a stacking machine using a motorized buggy. In August, 2002, a load of wood fell off the stacking machine; Hammock and a co-worker were then required to manually move the load back onto the machine. Hammock claimed that in the course of this operation, he felt "a popping in [his] lower back and a tingling in [his] legs." Hammock did not report the incident, but mentioned to his co-worker that he thought he felt "something" in his back. Over the next several months, Hammock told other co-workers about the incident and complained about back pain but did not make a formal report the incident until January 6, 2003. In his report, he wrote "do not know" in the field for "Date of Accident" and wrote "3 mos. ago" in the field for "Time of Accident." Weyerhaeuser disputed that Hammock’s injury was work-related and sought to avoid providing Hammock with workers’ compensation benefits in part based on the late notice of injury.

At the hearing before the Workers’ Compensation Judge (“WCJ”), Hammock testified that one of the reasons he didn’t immediately report his injury is that he worried it would prevent him from being offered a promotion. Further, Hammock feared that a reported injury might lead to the closure of the Dodson plant. The WCJ concluded that Hammock “was, in fact, involved in a work-related accident." And that his "perception that the reporting of accidents was unfavored by [Weyerhaeuser] had a plausible basis and it cannot be used to preclude workers' compensation benefits." The WCJ ordered Weyerhaeuser to pay benefits to Hammock, awarded him attorneys fees, and required Weyerhaeuser to pay a $2,000 penalty for unreasonably denying Hammock’s claim. Weyerhaeuser appealed the WCJ’s decision to the Louisiana Court of Appeal.

The Court of Appeal confirmed that under Louisiana law, "a plaintiff in a workers' compensation action has the burden of establishing a work-related accident" Graham v. Nissan 907 So. 2d 213 (La. App. 2005). After reviewing the statute that requires an injured worker to give his employer notice of an injury within 30 days, the court explained that a delay in reporting an injury is "not fatal to a claim" for benefits. "This is especially true," the court continued, "when the delay is of a relatively short duration."

The court acknowledged that Hammock’s reporting delay was "not of a short duration," and further found Hammock’s fear of retaliation by Weyerhaeuser was not justified. Nevertheless, the court conceded that his worry the accident would be held against him was a "genuine and honest explanation for his failure to report the incident for three months." The court concluded that "despite the extended delay in reporting the accident, [Hammock] carried his burden of proving that he suffered a compensable injury as a result of a work-related accident,” and affirmed the award of compensation by the WCJ.

Although the court’s ruling ultimately turned out favorably for Mr. Hammock, this case demonstrates the critical nature of the worker’s responsibility to report an injury within a reasonable time. Had Mr. Hammock reported his injury to Weyerhaeuser within 30 days of the incident, he would likely have received his benefits without the need for a lengthy judicial process that concluded more than three years after the injury occurred.

If you have been injured on the job, talk to an attorney who can help you understand your rights and responsibilities under the workers’ compensation law and help you get the benefits your deserve without delay.

Continue reading "Workers’ Compensation Case at Dodson Lumber Mill Shows Importance of Reporting a Work-Related Injury in a Timely Fashion" »

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

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

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

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

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

Although it is no excuse for car accidents, if drivers are injured, they have legal redress.

In Louisiana the party at fault for an accident is responsible for all damages. This includes the cost of current and future medical care for anyone injured, property damage, compensation for lost wages, or even compensation for pain and suffering. If someone has died in an accident, their survivors may pursue a wrongful death claim against the party at fault. Wrongful death damages that may be collected depend on the relationship between the person who has been killed and the person bringing the claim. For example, a parent who loses a child may recover for loss of companionship or a spouse may recover for future lost wages.

If a Toyota driver is in an accident while driving a recalled vehicle, the case becomes one of products liability. Product manufacturers, retailers, or anyone else who has come in contact with a product may be liable if the product malfunctions and the malfunction causes an injury. There are typically three types of products liability cases: manufacturing defect, design defect, and failure to warn. Manufacturing defects occur during the manufacturing process and typically involve poor materials or workmanship. Design defects occur when the product design is inherently dangerous. Failure to warn problems involve products that have inherent, non-obvious dangers. Products liability issues are very complicated and require extensive research to prove each element of liability.

If you feel that you have been injured while driving a recalled Toyota vehicle or have been injured in any auto accident that was not your fault it is imperative that you have an attorney experienced in the intricacies of accident injury law. Please call the Berniard Law Firm Toll-Free at 1-866-574-8005.

Some time ago in Louisiana a young Reserve boy fell asleep on his school bus and awoke to find himself alone in the parking lot of the St. John the Baptist Parish School District central office. The upset kindergarten student stumbled into a school board meeting in progress and interrupted the proceedings with a frantic knock on the door. His parents were called and he was taken home unharmed, but the incident was a cause for concern among the School Board. So much so that Superintendent Courtney Millet called an emergency meeting with district bus drivers shortly thereafter.

As noted in an L'Observatuer article,

Millet said at the well-attended meeting she went over a list of notes concerning bus safety.

"They play such an important role," said Millet.

She said she wanted to gather everyone together to make sure they were all on the same page.

"In our system, we all have to work together," she added.

The meeting provided an opportunity to go over the safety procedures every driver in the district must follow. Particularly, checking the bus before a route begins and again after a route ends to ensure all children have safely gotten off the bus. Formal disciplinary action will not be taken about the bus driver in this case because he was a substitute. However, according to Millet, he will not be substituting again.

Even though the young child was not physically injured here, he easily could have been. In any event, important legal issues have been raised regarding possible legal claims the child or others in similar situations may have.

Negligence is a tort (or "civil wrong") that is generally defined as conduct that falls short of what a reasonable person would be expected to do to protect another individual from harm in a given situation. If successful in a negligence lawsuit, the injured party may obtain financial compensation for physical and mental injuries from the negligent party. This could include include coverage of medical expenses, compensation lost wages, or payment for pain and suffering.

It is of particular importance that compensation for mental as well as physical harm is recoverable in a negligence lawsuit. Here, if the child suffered harm to his mental well being due to the trauma of being stranded on the bus he may be able to recover financially. His parents may have also suffered mental harm when they did not know where there child was when he did not come home after school.

Proving negligence requires proof of four elements. First, the negligent party must have owed a duty to the injured party. Duty implies a special relationship or can be established by law. Second, the duty must have been breached. Third, the breach must have caused the injury. There are two elements of causation; actual and proximate cause. Actual cause or cause in fact means that the injury would not have occurred but for the negligent action. Proximate cause goes further and requires that the injury was forseeable given the breach of duty; that the injury naturally resulted from the breach. Fourth, Damages must have resulted from the injury. While damages must be proven in the claim they are not the focus of a negligence lawsuit.

Continue reading "Cautionary Tale of Boy Left on School Bus Helps Explain Negligence Cases" »

In the late evening of May 28, 2006, Grant Lee Williams and his girlfriend, Lisa Lobrano, visited the Saddle Ridge Bar at the Louisiana Boardwalk in Bossier Parish. Also at the establishment was Michael Moore, who at one point approached the bar where Lobrano was sitting and tried to pick her up. Williams observed that Moore inappropriately touched Lobrano and hurried over to fend him off. Williams told Moore that he was Lobrano's boyfriend and warned him to leave her alone. After this exchange, Williams and Moore turned together toward the exit and within a moment, Moore struck Williams in the face. Williams, having sustained multiple fractures to his face and a broken nose, sued Moore for battery.

Much conflicting evidence was presented at the bench trial. Lobrano testified that she did not see either man hit the other, but that as she got up from the bar she turned to see Williams with blood on his face before he fell onto the floor. At that point, according to Lobrano, Moore kicked Williams several times in the ribs. Williams admitted in testimony that he may have pushed or bumped Moore as they walked away from the bar, but that he was blindsided by Moore's punches. Williams also testified that Moore kicked him in the ribs after he fell to the floor. Moore denied ever touching Lobrano and testified that Williams approached him at the bar, pushed him, and then punched him in the eye. Moore explained that he swung at Williams and admitted he must have hit Williams since it was clear that Williams was injured. Several other bystanders offered testimony, but none saw exactly who threw the first punch.

The trial judge did not determine who hit first, but found that both Williams and Moore were equally at fault for the altercation. The judge awarded Williams general damages in the amount of $40,000 and $30,901 for medical costs, but reduced the total award by half in light of Williams's own fault.

On
appeal, the Second Circuit Court of Appeals observed that "an appellate court generally reviews the factual findings of a trial court according to the manifest error standard of review." Powell v. Regional Transit Authority, 695 So.2d 1326 (La. 1997). In other words, the appellate court must give great weight to factual conclusions of the trial judge. Where there is conflict in the testimony of witnesses, the trial judge's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are just as reasonable as the trial judge's.

In his appeal, Moore argued that he acted in self-defense. This is an "affirmative defense" which could have excused Moore from fault, but because he failed to raise it at the trial, the appellate court could not consider it. Instead, the court noted that "it is undisputed that Moore hurt Williams and that Williams did not deny initiating contact with a 'bump'" and concluded that "if only different choices were made by both parties during the heat of the moment, the altercation could have been avoided." Accordingly, the court affirmed the trial judge's holding that Moore and Williams were equally at fault, and upheld the award of damages to Williams in the amount of $35,450.

The failure of Moore's self-defense claim on appeal demonstrates the importance of making all available and proper arguments at the trial level so they are not foreclosed in future proceedings. Retaining competent trial counsel can ensure that no critical arguments are overlooked at the stage when they must be put forth or lost forever.

Continue reading "Louisiana Fist-fight Illustrates Appeal Process, Injuries and Damages" »

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

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

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

Jeanine Pryor of Lake Charles was injured when she fell exiting bleachers at a football came and filed a claim for damages due to injuries she sustained. Her claim was denied at the trial court level and in < ahref="http://www.leagle.com/unsecure/page.htm?shortname=inlaco20100616295">a recent decision, the Louisiana Third Circuit Court of Appeals reversed the trial court and awarded Ms. Pryor a significant damage award (over $500,000), even after reducing her damages by 30% due to a finding that she was partially at fault for the accident.

Ms. Pryor, of Lake Charles, went to New Iberia to watch her grandson's team play a playoff football game at Lloyd G. Porter Stadium. The facility is owned by the Iberia Parish School Board. Spectators at the field sit on either west or east side spectator seating. According to reports the west side, where home team fans sit, is a much nicer facility made of concrete that sits well off the ground and has ramps leading to the seats. The east side of the field, where visiting teams traditionally sit, contains metal frame bleachers with wood seat boards and foot boards and rails around the rear and upper portions. The bleachers have no aisles for walking up into the stands or rails to help someone walking up rows.

When she arrived at the stadium, the 69 year old Ms. Pryor walked to the visitor side of the stadium, balancing on the uneven ground with her daughter's help. Because the players and cheerleaders standing on the sidelines blocked the view of the game from the bottom rows, Ms. Pryor needed to climb up into the stands. Because she could not step up the eighteen inches from the first board to the second she had to grab the second board and lay on her side to swing up her legs one at a time. During halftime, Ms. Pryor needed to use the restroom so, again, with her daughter's help, she walked down the bleachers. When she came to the second seat board, she stepped down slowly the extended distance to reach the first board and fell back. She dropped her daughters hand and suffered a broken leg and other injuries.

Ms. Pryor was transported to Dauterive Medical Center where she was told she would need surgery. She chose to return to Lake Charles where she could be cared for by her own orthopedic surgeon. Following the surgery, Ms. Pryor suffered many complications and sued the school board, alleging that the bleachers were defective. The trial court found that the school board was the custodian of the bleachers in question but that they did not present an unreasonably dangerous risk of injury to Ms. Pryor, noting that:

in premises liability actions, the absence of an unreasonably dangerous condition of the thing implies the absence of a duty on the part of the defendant.

From the trial court's perspective, the probability of injury because of the missing rung between the first and second bleacher did not greatly outweigh the social utility of the missing bleachers, especially considering that the school board made special provisions to reserve a safe and accessible location for persons with disabilities on the west side of the field. The trial court also found that Ms. Pryor chose to straddle the second seat board at her own risk because she could have sat on the bleachers on the west side and thus failed to use reasonable care.

Louisiana Civil Code article 2317.1 explains the obligations of those who own land and buildings and provides that an owner is "answerable for damage... only upon a showing that he knew, or in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care..." Under La.R.S. 9:2800 this principle is extended to public entities such as the school board.

Ms. Pryor's obligation under these statutes was to prove that the stadium and bleachers were in the control of the school board, that there was a defect that created an unreasonable risk of harm, that the injury was caused by the defect, and that the school board had actual or constructive knowledge of the condition.

The trial court's dismissal of the claim hinged on their belief that the defect in the bleachers did not make them unreasonably dangerous because the school board provided safe seating for handicapped persons on the home team side of the stadium and because there was not a history of past accidents on the bleachers.

According to the Court of Appeals, the role of the trier of fact in cases like this is to decide if the social value and utility of the hazardous justifies the potential harm to others. The Louisiana supreme court has provided several factors to be considered in this risk-utility analysis, such as:

1)The claims and interests of the parties
2) The probability of the injury occurring.
3) The gravity of the risk injury.
4) The burden of making adequate precautions.
5) Societal rights and obligations.
6) The social utility involved.

Here the Court of Appeals disagreed with the trial court with respect to unreasonable risk of harm and found that the fact that there was safe seating on the home team side did not outweigh the great risk of harm caused by the obvious defect where visitors were directed to find seating on the day of a sporting event. The court agreed with Ms. Pryor that there is no social value in exposing patrons to an 18 inch differential between seat boards, one that clearly violated general safety principles. The utility of the bleachers and the defect they pose when weighted against the cost of removing the danger does not favor the school board's decision to expose stadium visitors to the risk. In addition, the lack of accident history does not change the Court of Appeals' conclusion that there was an unreasonable risk of harm. As such, the Court of Appeals found that the trial court erred and the school board should be held liable for Ms. Pryor's injuries.

Because Louisiana is a pure contributory negligence state, damages are awarded to parties according to their percentage of fault. As such, under analysis, if Ms. Pryor is deemed to be at all at fault, her damage award would be reduced. Various factors can be considered in determining the degree of fault of parties, such as: whether the conduct of the plaintiff resulted from inadvertence or an awareness of danger, how great a risk was created by the conduct, the significance of what was sought by the conduct, the capacities of the plaintiff actor, and any extenuating circumstances. Here, the Court of Appeals found that although the majority of fault should be assessed to the school board, Ms. Pryor was aware of the drastic height differential and if she had shown the same care descending the bleachers as she had ascending them, the accident could have been avoided. Ms. Pryor was deemed 30% at fault for the accident, with the school board 70% at fault.

Despite a history of medical problems, due to the accident and her subsequent surgery, the Court of Appeals found Ms. Pryor is now significantly impaired and her quality of life has deteriorated. She is unable to work or travel long distances. She will likely require three additional surgeries. The Court of Appeals found that the appropriate general damage award here is $300,000, as well as $80,745.79 for past medical expenses and $150,000 for future medical expenses.

This case is a great example not only of how punitive damages can be greatly influenced by a court's belief on risk and danger but also how the appeals process can rectify an improper judgment. It is important when facing such a legal battle to select an attorney capable of illustrating the wide breadth of issues relating to the matter and can help you receive the compensation you deserve.