Louisiana Personal Injury Lawyer Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As previously discussed, the Daigle v. City of Shreveport case regards an instance where a woman slips and falls on a freshly painted city sidewalk, that had no markings to indicate it was freshly painted, and she sues the city for negligence damages.

When an individual is injured as a result of an unreasonably dangerous condition existing on a landowner's property, he can recover damages relying on La. Civ. Code Ann. art. 2315, which is the basis of general negligence liability. The owner, or person, having custody of the property has a duty to keep the property in a reasonably safe condition, and must discover any unreasonably dangerous condition on the premises, and either correct that condition, or warn potential victims of its existence. Louisiana's duty-risk analysis is made up of five elements: 1) duty - proof that the defendant has a duty to conform his conduct to a specific standard, 2) breach - proof that the defendant's conduct failed to conform to the appropriate standard, 3) cause-in-fact - proof that the substandard conduct was a cause-in-fact of the plaintiff's injuries, 4) scope of liability - proof that the defendant's substandard conduct was a legal cause of the plaintiff's injuries, and 5) damages - proof of actual damages.

Proof of liability on the part of a public entity, such as a city in this case, is governed by La. Civ. Code Ann. art. 2317, and provides in part that individuals are responsible, not only for the damage occasioned by their own acts, but for that which is caused by the act of persons for whom they are answerable, or of things which they have in their custody.

A city has a duty to maintain its streets in a safe condition for use by the public. To determine whether a defect complained of presented an unreasonable risk of harm, courts balance several factors including the probability and gravity of the harm presented by the risk, against the social utility of the thing involved. There is no standard rule for determining whether a defect presents an unreasonable risk of harm. Instead, the trier of fact determines whether a defect presents an unreasonable risk of harm and that determination is reviewed under the manifest error standard. There must be a dangerous condition that would be reasonably expected to cause injury to a prudent person exercising reasonable care under the circumstances.

A pedestrian has a duty to pay attention and be conscientious of his or her surroundings. However, pedestrians are not required to scrutinize the pavement for irregularities, and it is reasonable for a pedestrian to react to traffic conditions by looking at vehicles instead of at the pavement. A city, when performing work on a curb where pedestrians walk, therefore, must warn of a dangerous condition and the warning must be sufficient to alert an ordinary pedestrian, considering all the circumstances.

The trier of fact is given deference in allocating fault to the different parties and looks at the following factors: 1) whether the conduct resulted from inadvertence or involved an awareness of danger, 2) how great a risk was created by the conduct, 3) the significance of what was sought by the conduct, 4) the superior or inferior capacity of the parties, and 5) any extenuating circumstances which might require one to proceed in haste and without proper thought.

The plaintiff bears the burden of proving special damages by a preponderance of the evidence. In meeting his or her burden of proof on the issue of future medical expenses, the plaintiff must show that, more probably than not, these expenses will be incurred and must present medical testimony that they are indicated and the probable cost of these expenses. General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty. The trial court is afforded much discretion in fixing general damages because of its superior position to evaluate the witnesses' credibility and see the evidence firsthand.

If you or a loved one feel as though you may have been injured due to the negligence of your city, town, or the state, then please contact the Berniard Law Firm to determine the validity of your claim, and for expert advice and legal services.

The Daigle v. City of Shreveport case regards an instance where a woman slips and falls on a freshly painted city sidewalk, that had no markings to indicate it was freshly painted, and she sues the city for negligence damages. A second point of the case, and the first to be discussed, is the sanctioning of the city's attorney for 'wasting' time in attempting to get an unnecessary Independent Medical Examination (IME) from a physician who was highly unattainable, and using this as an improper means to delay the proceedings. Also, the trial judge in this case was placed on the witness list, and the attempt to have the judge recuse himself was also determined to be used as an inappropriate manner for the city's attorney to delay the proceedings.

A trial court's judgment must be found to be clearly wrong or that there was an error in the law. Great deference if provided the trial court and the finders of fact because they are the parties, be it judge or jury, that has the greatest and most humanlike exposure to the witnesses. An appellate court, however, merely has documents pertaining to the facts and witnesses, but cannot personally observe the witness' demeanor, truthfulness, etc. An appellate court determines if the judgment of the trier of fact was a reasonable one, not whether it was the correct one.

When asking the court for an IME, a party must show: 1) that the physical or mental condition of the party sought to be examined is in controversy, and 2) that good cause exists for requiring the party to submit to the examination. In determining if an IME is proper, a court has wide discretion and should determine whether to allow for one on a case by case basis. Courts will consider whether the physical/medical information can be attained by other means, and that a treating physician should be given greater weight than a physician who only examines a patient a couple times or even just once. Continuances for IMEs are discretionary and may be granted if there is good ground for one. La. Code Civ. Proc. Ann. art. 1601.

The duty of a judge is to conduct fair and impartial proceeding, and is presumed to be impartial. A judge shall be recused, for instance, if he or she is a witness in the case that he or she is supposed to preside over. La. Code Civ. Proc. Ann. art. 151(A)(1). A witness is determined to be a material witness to the case according to La. Code Civ. Proc. Ann. art. 1602, if the witness is essential to a party's presentation of its case.

A court cannot impose sanctions on a lawyer simply because a particular argument or ground for relief contained in a non-frivolous pleading was found to be unjustified. La. Code Civ. Proc. Ann. art. 863. An appellate court reviewing a trial court's sanctioning of a lawyer will look at whether the district court abused its discretion in assessing sanctions. But in determining whether a litigant and his counsel made the required, reasonable, factual inquiry as is required by art. 863, a court will look at: 1) time available to the signor or investigator; 2) extent of the attorney's reliance on the client for factual support for pleadings; 3) feasibility of prefiling investigation; 4) whether the signing attorney accepted the case from another attorney; 5) complexity of factual and legal issues; and 6) the extent to which development of factual circumstances underlying the claim required discovery.

An appellate court will determine whether a trial court abused its discretion in administering a sanction on an attorney, but the trial court has considerable discretion in its determination. Four factors that assist in determining a sanction award are: 1) the conduct being punished or sought to be deterred by this sanction; 2) the expenses or costs caused by the violation of the rule; 3) whether the costs or expenses are reasonable as opposed to self-imposed, mitigatable, or the result of delay in seeking court intervention; and 4) whether the sanction is the least severe sanction adequate to achieve the purpose of the rule under which it was imposed.

Each individual attorney must sign a document in his or her own name. La. Code Civ. Proc. Ann. art. 863. Sanctions may be imposed on the person who made the certification, but only on the attorney, and not an entire law firm. As an officer of the court, an attorney has a duty to conduct a reasonable inquiry into the issue of his pleadings before filing them.

For a further discussion of Daigle v. City of Shreveport, and the city's liability please continue reading Part II of this post. If, however, you feel as though you have read all you need and have questions or need expert advice in a potential negligence claim of your own against a town, city, or the state, then please do not hesitate to contact the Berniard Law Firm.

Paul and Anna Moreau thought they were buying a house with a 10-year-old roof. After they moved in, they learned that the roofing tiles were so old that they were no longer made. Their claim against the real estate agent, who represented both sides in the sale, failed at the trial court. In Moreau v. McKenzie, No. CA 11-197 (La. Ct. App. 3 Cir. 10/5/11), the court of appeal agreed with the trial court's dismissal of claims against Kelly Ducote, stating the real estate agent was not liable for failure to disclose defect in sale of house in Alexandria because the agent did not know the seller's statement was misleading.

The Moreaus purchased the home in Alexandria, La., from Mary McKenzie and Priscilla Goudeau. Ducote was agent for both buyer and seller. The property disclosure form that the Moreaus received said that the house's roof had leaked in the past, but it was replaced in 1998-99 with "all new decking & felt replaced with 70 yr. clay tile." A home inspection indicated that the roof was six to ten years old. The inspector found nothing serious. The sale closed. Sales documents warned that the sale was "as is" and without warranty, and Ducote made no warranty on the house or its condition.

When the Moreaus tried to repair a few broken roof tiles, "they learned that the tiles on the roof had not been manufactured for several decades, meaning the entire roof had not been ten years old as they had previously thought." Only the underlying deck and felt had been completely replaced. The old tiles had been reinstalled over the new deck and felt.

With a house that had a "new" roof with 70-year-old tiles, the Moreaus sued the sellers, real estate agent Ducote, and her insurer. The original claims sought damages and voiding of the sale ("redhibition"). The redhibition claim against the agent failed. Ducote moved the trial court to have the remaining claims dismissed. Ducote argued that "the Moreaus had presented no evidence to support the remaining claims of fraud and negligent misrepresentation." Ducote succeeded before the Ninth Judicial District Court, Parish of Rapides.

The duties of a real estate agent are not the same as the seller's duties, the court of appeal explained. The buyer is more limited in claims of fraud or negligent misrepresentation against an agent. Recovery is possible when an agent breaches a duty to provide accurate information that causes damages to the buyer. The agent does not have a duty to disclose what the agent does not know.

This was the case with Ducote. She did not know that the statement on the disclosure form was false or misleading and wrote what the sellers told her. The sellers signed and attested that the disclosure form was correct. The record contains no evidence of negligent misrepresentation, the court of appeal summarized, and the Moreaus admitted in deposition that they had no evidence to show that Ducote knew that the disclosure form was false or misleading. The Moreaus "have never even spoken to the seller to determine any culpability on the part of Ms. Ducote." The court of appeal found only speculation that Ducote breached a duty. That was not enough. No genuine issue of material fact remained, and therefore, the court of appeal affirmed the trial court's dismissal.

The problem with the Moreau's claims could have been reduced. A thorough investigation of potentially liable parties would have narrowed the dispute to the people most responsible. That would have saved time and money. It also may have strengthened all their claims by revealing telling facts. The more facts about who knew what would have shown a court with more clarity the validity of the Moreau's thwarted expectations that justified a claim of misrepresentation. For any claim, an objective assessment of the value lost from 70-year-old tiles on a new roof, or physical damage caused by the broken and aging tiles, would have shown that the misrepresentation harmed the Moreaus and justify compensation.

Even claims that appear to be solid need to be scrutinized. A thorough investigation of potential claims will determine their worth, and later to improve chances of success. A lawyer will ask the right questions. Different parties to a sale may have different duties. An experienced lawyer will recognize those different duties and advise on the necessary investigation and parties to obtain just recovery.

Continue reading "Real Estate Agent Not Liable for Defect in Alexandria Case" »

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

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

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

Unfortunately Breaux’s argument failed for the following reason:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The blog will resume postings in 2012!

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

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

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

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

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

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

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

When an individual files a claim for negligence several factors must be proven to succeed against a defendant. These factors state that, in order for negligence to exist, a defendant must owe the plaintiff a duty, breach that duty, be the actual cause of that breach, be the proximate cause of that breach, and the breach must result in actual harm to the plaintiff. Often, however, questions arise in negligence disputes when the cause of a plaintiff's injury cannot be proven. One of the most controversial of these issues is presumption; whether or not the injury should be assumed to have occurred from the defendant's breached duty. This was the main issue contended in Jones v. Brookshire Grocery Co.

In this case, Jones suffered from gastrointestinal afflictions after eating chicken strips that contained metal flakes from the defendant's store. At trial, the court found that although Mr. Jones's condition did not appear until after his consumption of the contaminated food, it was just as likely that his condition, which usually takes several years to develop, was already present prior to the incident. Therefore, Jones was awarded damages for his anxiety, but nothing for damages related to the gastrointestinal condition. On appeal, Jones contended that Housley, a leading negligence case, should apply in support of his position. Housley states that:

A claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.(Housley, 579 So.2d 973 at 980)

The Court of Appeal, however, found that Housley actually provides support for the argument against Jones. In order for there to be a presumption in favor of the plaintiff, the Housley rule requires there to be a "reasonable possibility of causal connection between the accident and the disabling condition." Yet, Jones's condition could have been present for years without any symptoms, and according to one of Jones's doctors, the condition was unlikely to have developed in the three months between the metal flake consumption and the diagnosis of the condition. Therefore, since Jones failed to provide further evidence establishing that there was a reasonable possibility of causation, the Court of Appeal denied Jones's plea for damages related to his gastrointestinal affliction.

The second issue that Jones appealed was the denial of loss of consortium damages for his wife. In order to succeed on a loss of consortium claim the plaintiff must prove the spouse's damages, the defendant's liability, and the consequential loss of consortium. Loss of consortium is typically defined as a loss of benefits of a family relationship. In addition to overall happiness, loss of consortium may apply if other aspects of the relationship are damaged including love, affection, sexual relations, and the right to support, aid, and assistance. Therefore, if one's husband is injured or killed because of a defendant's liability, the wife may be entitled to the husband's lost future wages as a loss of consortium. In the Jones case, the plaintiff succeeded in showing loss of consortium because Mr. Jones suffered anxiety which was caused by the defendant, and Mrs. Jones had been put through hardship because of that anxiety.

If you have been the victim of an accident caused by another but it is unclear whether or not your injuries are a direct result of the accident, ask yourself whether or not the injury appeared after the accident. If it has, it may be best to consult with a doctor to determine if it is possible that the injury developed before the accident. If pre-accident development is unlikely or impossible, then a court will presume the injury to have resulted from the accident. Likewise, if a family member's injury has affected your relationship with that person, and another is responsible for that injury, you may be entitled to loss of consortium compensation. Consortium incorporates a broad spectrum and should not be forgotten when making a claim. Remember, avoidable injuries hurt not only the victim, but those closest to him or her.

Negligence claims are often complex, requiring deep legal analysis of the facts and the law. This analysis is best left to a licensed practicing attorney.

Continue reading "Alexandria Man's Gastrointestinal Injuries Not Presumed To Have Developed From Defendant's Negligence" »

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

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

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

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

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

Summary judgment can seem like a punishment to the defeated party. Because of the final nature of these judgments, appellate courts review them de novo. This standard of review grants the appellate court the ability to look at the entire record in the court below. The Bates family experienced an additional loss at the appellate level in Bates v. E. D. Bullard Company. They lost at the trial level as a result of a summary judgment and was later affirmed on appeal.

When a judge grants a party a summary judgment he or she is in effect saying that the opposing party has no case as a matter of law and that there will not be a trial. The party that has been defeated will, however, be able to appeal this decision to the higher court. De novo review is necessary when appealing a summary judgment so that the appellate court can make the most educated decision about whether the winning party deserved a summary judgment. This level of scrutiny is higher than most.

In the case in question, it was determined that the plaintiffs did not establish a case as a matter of law against the sand defendant for several reasons. Sand is not a dangerous instrumentality; there is nothing about sand's very nature that makes it explicitly dangerous or harmful. The defendant sold the sand to the ill plaintiff's employer, deemed by the court to be a sophisticated user. If a buyer is sophisticated, there is no duty on the part of the manufacturer to warn the buyer of possible ill effects of certain uses of a product. This is true even though the seller likely knew or should have known that the sand would be used for sandblasting. The sand defendant's knowledge, real or constructive, did not bear on its lack of a duty to warn the sophisticated user buyer because there was no real way of telling what the buyer would do with the sand.

It appears from the discussion in this case that the only duty to the plaintiff runs to the plaintiff's employer. Mr. Bates' employer likely had some duty to warn him about the danger of sandblasting with inadequate respiratory equipment. The court mentions O.S.H.A. requirements that apply to this situation. While the plaintiff may still have been able to file suit against his employer if he did not already do so in this case, the fact remains he did not have cause against the sand seller for any actions that were done improperly.

There are many reasons to apply strict liability to a class of cases. There are also many consequences of doing so. Strict liability makes a person or entity responsible for the consequences of his, her or its actions or inactions regardless of culpability. There are certain portions of human conduct and interaction to which this standard lends itself. Business dealings between sophisticated entities who likely have the assistance of counsel is not one such area.

The sand defendants were entitled to their summary judgment in the eyes of the trial court and the appellate court as there was no basis for the claim against them under Louisiana law under strict liability or negligence. The fact remains that all the sand seller did was sell a relatively innocent product to another company without warning. The court held the other company to a higher standard than if the buyer had been an individual. The duty, if any exists, falls on Mr. Bates' employer as the sophisticated buyer of an non-hazardous instrumentality to notify the users of any potential dangers which may exist. As a result, the plaintiffs failed to recover against the sand defendants.

Continue reading "Summary Judgment on Sand Built of Solid Foundation by Louisiana's Third Circuit" »

Under Louisiana law, a defendant has no specific duty to protect a person against the harmful acts of a third party unless the defendant has a “special relationship” with the victim or some independent accountability for the third party. The concept of respondeat superior refers to the legal construct that an employer is responsible for the actions of its employee, so long as the actions occur in the course and scope of employment. This legal principle can be extremely valuable to plaintiffs who are unable to recover much if anything from an individual employee who commits harm; the vicarious liability of the employer can allow a plaintiff to recover from a presumably deeper-pocketed employer, as well.

Establishing vicarious liability can prove tricky, however: liability does not attach when the "employees" is an independent contractor. Under Louisiana law, "determining whether [an employer-employee] relationship exists, the major consideration is the control or right of control which one party exercises over the other." See Savoie v. Fireman Fund Ins. Co. Thus, the court "may examine the economic relationship of the parties and the right of one party to control the time and physical activities of the other."

Blanchard v. Ogima. In the recent case of Irving v. Rubens, for example, the plaintiffs attempted to establish an employer-employee relationship to reach an additional defendant. In 2008, Ray Manning engaged Richard Rubens to repair flood damage to his house on Prieur Street in New Orleans. Rubens was working on several other houses in the area at the time, and so he hired Robert Irwin as a foreman to oversee his several construction crews. Over the weekend of June 28, an altercation between Rubens and Irwin occurred at Manning's residence. Ultimately, Rubens shot and killed Irwin.

Irwin's family filed a wrongful death action against Manning alleging that he was Rubens's employer and therefore vicariously liable for the harmful acts of Rubens while in the course and scope of his employment. The Fourth Circuit, in reviewing the trial court's granting of Manning's motion for summary judgment, found "no evidence of any special relationship between Ray Manning and Robert Irving that would impose a duty upon Manning to protect Irving from being shot and killed by Rubens in Manning’s home." There was, in the court's view, "no evidence indicating that Manning could be found vicariously liable as Rubens’ employer for Rubens’ killing of Irving." The plaintiffs failed to offer sufficient evidence to show that Rubens was an employee, rather than an independent contractor. In fact, the evidence showed that Rubens "was overseeing construction jobs for other homeowners at the same time he was doing Manning’s house," and that "Rubens selected, hired and directed his own crew."

These facts did not support the conclusion that "Manning had the right to control the time or activities of Rubens." Moreover, the court noted, the plaintiffs certainly did not prove that "the shooting of Irving was within the course and scope of Rubens’s employment," which would have required a showing that Rubens was "acting within the ambit of his assigned duties and also in furtherance of [Manning's] objectives."

Continue reading "New Orleans Shooting Leads to Wrongful Death Action" »

Everyone expects adequate, timely, and complete care from medical professionals in hospitals. However, unfortunately, times come when the expected level of care fails to come to fruition, and an action for medical malpractice arises. In March of 1993, a Tallulah, Louisiana, resident began a series of trips to doctors in hospitals in which his continued back, shoulder, and neck pain eventually led to lung cancer. The Tallulah, Louisiana resident, Mr. Kerry Scarborough, died 2 years later in March of 1995.

For a malpractice claim against a hospital, plaintiffs like Mr. Scarborough's mother, suing in her son's name, must prove by a preponderance of the evidence first, that the defendant owed the plaintiff a duty to protect against the risk involved, essentially providing a standard of care that the plaintiff was owed, second, that the defendant breached that duty or standard of care, and third, that the injury was caused by that breach. A hospital can be sued for its own negligence (such as failure to keep its facilities clean), or under a theory of vicarious liability, in which a plaintiff alleges that the hospital is liable for the negligence of one of its doctors. Of course, a medical malpractice action can be extended to any health care provider, including dentists, nurses, hospital workers, physical therapists, radiologists, and more.

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

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., . . . the plaintiff shall have the burden of proving: (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, . . . licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians . . . within the involved medical specialty. (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill. (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Generally, expert testimony is required to establish the degree of care that the defendant must meet and whether that standard was breached, except where the negligence is so clear on its face that an expert is unnecessary. Whether an expert's particular testimony will be admissible depends on whether a trial judge finds them qualified to testify as an expert, analyzed under what is called a 'Daubert standard,' in which the court will look at a variety of factors regarding the expert's background.

In Mr. Scarborough's case, not all his expert's met this standard, and some testimony that could have potentially helped his case was barred and never heard. We understand these complex issues patients face in these types of lawsuits, and are here to help you get through those difficult times. If you feel you were the victim of inadequate medical care, picking experts that will be able to assist in winning your case is critical.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The right to a jury trial for personal injuries may be the difference that allows recovery for a seaman's injury. In a specialized economy in which services are provided by third parties, it may be difficult to determine whether one is considered a seaman under the Jones Act. Becnel's circumstances provide a warning. A trained lawyer will be able to ask the right questions to find out the important facts and how they affect your case.

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

Kerry Becnel was injured while working on a barge, but his relationship with the vessel is not clear cut, making it difficult to determine whether he was a seaman under the federal Jones Act. In Becnel v. Chet Morrison, Inc., No. 2010-CA-1411 (La. Ct. App. 4 Cir. 8/31/11), the Louisiana Fourth Circuit Court of Appeal reversed the St. Bernard 34th Judicial District Court and sent the case back for trial.

Becnel was a cook on a quarters barge owned by Chet Morrison Contractors, Inc. (CMC). One night in 2005, he was walking from one barge to another to reach a water taxi used to get to his living quarters. Before he reached the water taxi, he fell several feet into the water. Becnel claimed that "there was no safety device, railing, chain, rope, or other safety feature to prevent falling from the side of the vessel," and the owner knew this. To add to the danger, the only light near where he fell was not working. He said he could not avoid the danger because he could not see it.

Becnel sued his employer, Coastal Catering, L.L.C., which had contracted Becnel's services to CMC. He also sued CMC and the companies' insurers. The battle became one between the companies and their insurers. Coastal's insurer, State National Insurance Co. (SNIC), claimed that Coastal's maritime general liability insurance policy did not cover CMC's potential liability for Becnel's injuries, but the district court decided it did.

CMC sought recovery against Coastal for Coastal to compensate and defend CMC's claim against Becnel. CMC argued before the district court that the legal definition of a seaman was enough to show that Becnel was a seaman under the Jones Act. It sought resolution in summary judgment, a means to resolve issues without trial when no genuine issue of material fact complicates the analysis. Coastal and SNIC disagreed.

The district court agreed with CMC's motion that no factual dispute prevented Becnel from being considered a seaman under the protection of the Jones Act. It also found that CMC was an additional insured under Coastal's insurance policy with SNIC. Coastal and its insurers have since settled their claims with Becnel.

Insurer SNIC and employer Coastal appealed the district court decision. They asked the court of appeal whether any disputed facts would prevent the district court from concluding that Becnel was a Jones Act seaman. If there were disputed facts, the question would need to go to trial.

To answer the question, the court of appeal analyzed the Jones Act and cases that have explained its coverage. The federal Jones Act allows a seaman who suffered personal injury while employed to qualify for additional means of recovery for damages and a jury trial. The trial is to be located in the court assigned to the district where the employer resides or has its principal office.

But, what is a seaman? The U.S. Supreme Court case of Chandris, Inc. v. Latsis sets out a two-part test for whether someone is a seaman covered under the Jones Act. The first question is "whether the employee's duties contributed to the function of the vessel or accomplishment of its mission." The second question is "whether that employee had a connection to a vessel in navigation which was substantial both in terms of duration and nature."

The first question is easy to answer in most cases. "[A] maritime employee who does the ship's work falls within the purview of the Jones Act." This includes "[a]ll who work at sea in the service of a ship." Becnel was working as a cook on the quarters barge. The parties didn't appear to dispute that Becnel contributed through his work. Becnel worked 17-hour days preparing three meals, cooking, and cleaning in a galley. These tasks were undisputed, and they were enough so that the first part of the Chandris test was not in dispute. Summary judgment, so far, was OK.

But, the second test was more difficult to resolve and ultimately required choosing among too many disputed facts for a reviewing court to decide (see Part 2).

The right to a jury trial for personal injuries may be the difference that allows recovery for a seaman's injury. In a specialized economy in which services are provided by third parties, it may be difficult to determine whether one is considered a seaman under the Jones Act. Becnel's circumstances provide a warning. A trained lawyer will be able to ask the right questions to find out the important facts and how they affect your case.

Continue reading "Court Determines if Injured Temp Qualifies Under Jones Act" »

This post serves as a concluding piece on the Oliver Medical Malpractice case reviewed in our previous two entries:

The higher burden in a medical malpractice case requires that the state show that the discrimination furthers a legitimate governmental interest. The Taylors argued that by including nurses in the categories of medical practitioners who have limited liability, those in Taylor's shoes have inadequate remedy. The state argued that it was creating this distinction for the overall purpose of protecting individuals who are in situations just like Taylor.

Ultimately, the state argued that by creating the liability limit for nurses in the act, it had in mind the future consequences of unlimited liability. They argued that by creating the cap the amount of liability is reduced, which means that it costs less overall for a nurse to practice within the state of Louisiana. The state goes on to argue that this reduction in cost insures that there will be a sufficient number of nurse and medical practitioners who practice within Louisiana. This, they argue, ensures people like Taylor that someone will be there to help them. Moreover, the state argues that a lower liability limit means that nurses like nurse Duhon will have at least enough money to cover the costs up to the cap and that with unlimited liability, it would not be guaranteed that nurses would have the sufficient amount of resources to compensate victims of malpractice.

The court did not agree with this. The court noted that its first objective was to see if the clause which includes nurses can be taken out of the act without destroying the acts underlying purpose. If this can be done, the court must save the act by taking that part out. In this case, the court held that removing nurses from the protection of the act will not have such an effect. The court went on to state that nurses like nurse Duhon are allowed to practice in Louisiana without sufficient training and experience required to be a doctor. As a result, nurses are able to give medical advice without jumping through the hoops that doctors have to. The court stated that individuals like Taylor get advice without realizing that they may be getting wrong advice. Further, he court did not see that there was any legitimate governmental interest which could justify leaving Taylor in the state she is in by nurses who give wrong advice. The court argued that those in Taylor's situation would likely be more than happy to take the chance at suing for malpractice without the liability limit rather than be assured that they will get at least $500,000 but no more. In its conclusion, the court ruled the limitation as it applied to nurses to be unconstitutional.

Medical malpractice cases are inherently complicated and require exceptional legal assistance in order to get the financial judgment you deserve. If you believe you have suffered due to the actions of a medical professional, contact an attorney immediately to preserve your legal rights.

Ultimately, the Olivers sued the nurse practitioner alleging malpractice. A jury awarded them over one million dollars in damages. Eventually, the award of general damages, which in Louisiana included medical and non-medical costs, was reduced to $500,000 as required by the statute. Needless to say the Olivers were distraught at the low value the court ascribed to Taylor's injury.

The Oliver's challenged the constitutionality of the statute by alleging that it violated the principle of equal protection. When a statute is constitutionally challenged one of the most important aspects of the case is what burden the state has in defending the act. If the act does not violate the equal protection clause of the 5th and 14th amendment, the state only needs to prove that the act has a rational basis connected with a legitimate government interest. Generally, this standard is not very hard to meet. On the other hand, if the act violates equal protection, a higher standard is used to evaluate the act. The Louisiana equal protection clause states the following:

"No person shall be denied the equal protection of the law. 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."

If the act does violate any of these categories the state has a higher burden to meet. The state must show that the act furthers a legitimate governmental interest. The defendants argued that the act did meet the rational basis test because the goal was to prevent medical practitioners from being subject to excessive malpractice suits.

The Olivers argued that the act violated the equal protection clause. The court stated that there was in fact a distinction drawn by the act which would appear to violate the clause. The Louisiana equal protection clause states that there should not be any unreasonable discrimination based on physical condition. The court viewed the effect of the act on children like Taylor who are catastrophically and severely injured by a medical practitioner. The $500,000 liability limitation in fact creates a category of those whose injuries are not severe or catastrophic and who will likely be able to be fully compensated for damages done to them within the limitation. The act also creates a category of those victims of medical malpractice who are severely and catastrophically injured and who will not be able to be fully compensated for their injuries.

Taylor had a disease which would be fully treated in 90% of cases if diagnosed at an early stage. Nurse Duhon did not consult with a doctor when Taylor was her patient. As a result, the cancer spread to a point where Taylor would be almost fully disabled for the rest of her life. She is a victim of malpractice who cannot be compensated within the $500,000 liability limit. This disparity of protection in the law is what the court saw as a violation of equal protection. As a result, the higher standard of burden was imposed on the state.

In some states, the legislative branch creates certain protections for classes of residents. These protections can come in the form of protective presumptions, statutory liability limitations, or any other form which the legislative branch thinks is necessary for its state. In most states, statutes protect those in the medical field from unlimited liability. The reality is that these protections are necessary in order to protect doctors and hospitals from being involved in numerous civil cases. If doctors could be sued freely, chances are that the cost of liability insurance would sky rocket. If this happens, medical professionals would be wary to establish a practice in that particular state. Needless to say, this would create a huge crisis in the medical field.

These protections generally do not apply if there has been an egregious act by a doctor. Moreover, these protections do not apply if a doctor has intentionally committed an act against a patient. In Louisiana, for a general claim of malpractice, the award of general damages is limited to $500,000. This protection exists for doctors, hospitals, and some types of nurse practitioners. However, if an exception to the statutes application exists, the shield will not be helpful to medical practitioners.

In a recent case Joe Oliver vs. Megnoila Clinic, the protection did not apply to a nurse practitioner. The statute involved was expanded to include nurse practitioners of the type the defendant was. However, one of the requirements was that the nurse practioner consult with a medical doctor on issues before giving medical advice. Susan Duhon, one of the defendants in the case, was a nurse practitioner. She was seeing the Taylor Oliver who was an infant at the time that she was first brought to Ms. Duhon's office. Taylor was brought in because she was crying a lot and the parents could not figure out what the problem was.

Ultimately, Ms. Duhon rendered an incorrect prognosis and sent the Olivers on their way. In fact, the Olivers returned to the office on a number of occasions because Taylor would simply not get better. Every time the Olivers came to her office, Ms. Duhon made a diagnosis without consulting with a medical doctor, as was required by Louisiana law. Eventually, the Olivers took Taylor to the hospital to see the doctor that Ms. Duhon was supposed to be consulting with all along. The doctor referred the case to a children's hospital where the Olivers' learned that Taylor had neuroblastoma which is a form of cancer that originates from the nerve tissue. It was also determined that Taylor showed signs of bruising around the eye, which is a tell-tale sign of the disease. However, this was not diagnosed until much later after the disease began to manifest.

This topic will be continued in our next entry.

As part of our Constitutional right to due process, an individual is allowed to bring grievances before a court. However, certain judicial policies may be enacted to deny plaintiffs from bringing suits that have already been litigated, are being brought with the intent to harass, or are frivolous. The purpose behind such policies is to make courts as efficient as possible by deterring such actions. A recent case out of the Louisiana Fourth Circuit Court of Appeal shines a light on several of these deterrents.

In Mendonca v. Tidewater, Inc., the plaintiff sought to nullify several final judgments made by the district court. Mendonca's list of suits stretched over four years, with multiple appeals and pleas for annulment. However, none of Mendonca's nullity claims or his appeals were successful. In his final appeal for anulment, the Fourth Circuit Court of Appeals handed down three restrictions that laid Mendonca's long line of cases to rest.

The first of these restrictions was the court's upholding of the defendent's plea of res judicata and failure to state a claim. When res judicata is enacted, the court declares one of two denials. First, that the claim has been subject to a final judgment and thus no longer qualifies for an appeal, or second, that the litigant cannot bring a claim against the same party in a second claim because all claims should have been brought against that party in the initial suit. The policy considerations supporting res judicata is to preserve court resources and protect defendants from being subject to litigation multiple times, with the possibility of having to pay damages more than once. A defendant's plea that a plaintiff has failed to state a claim goes hand-in-hand with res judicata. If res judicata is applicable, then all duplicitous claims cancelled. In Mendonca's case, this means that there were no new claims. Since there were no such claims, the court held that Mendonca's nu
llity actions were a failure to state a new claim.

A second deterrent to brining frivolous, harassing, or duplicitous suits is the possibility of monetary sanctions. Rules of civil procedure require that an attorney make objective inquiries into the facts of a case and the law that pertains to it. These inquiries are held to a high standard as they are seen as an attorney's duty. This means that one's subjective good faith inquiry is not sufficient. When an attorney files a claim, it is important that case history is analyzed to ensure that res judicata does not apply. A failure to inquire about previous claims is a failure to impose the applicable law and is essentially poor lawyering. This was the case in Mendonca's appeal. Any attorney who objectively analyzed the situation would have known that the claim was precluded through res judicata. Yet, Mendonca proceeded. The court interpreted this as an abuse of the judicial system and an attempt to harass the defendant. This abuse justifies the imposition of sanctions.

Sanctions are typically defined as an order to pay to the other party the amount of reasonable expenses through the employment of an attorney. Yet, "reasonable" is not confined to the actual expense accrued by the attorney. Instead, "reasonable" has been interpreted to mean additional costs that act to deter, punish, and compensate. When sanctions are imposed by a trial judge they are unlikely to be appealed. Appellate judges tend to give deference to the trial judge's intimate knowledge of the case, litigants, and attorneys. For these reasons, Mendonca was sanctioned in the amount of $10,000, all of which were upheld on appeal.

A third way that a court can punish an individual as a deterrent is to issue a sanction revoking in forma pauperis status. In forma pauperis is a legal termed used by a judge to allow a poor individual to file a legal case and/or represent oneself at trial. Allowing one to claim this status is to essentially cut most court associated costs for the needy individual in order to ensure due process. Mendonca qualified and was granted this status. However, courts have held that in forma pauperis status is a privilege, not a right. Therefore, any abuse of this status will result in revocation. The most common reason why in forma pauperis status is revoked is because one brings frivolous suits. Mendonca did this in his case and was punished accordingly.

Res judicata, sanctions, and other rules of civil procedure are complicated, requiring a full analysis of the facts and the law. Such situations should only be approached by a licensed practicing attorney.

Continue reading "Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits " »

Although the substantive issues involved in a case are the entire reason litigants make their way to courts, the procedural rules can have a beneficial or detrimental effect upon your case depending on how you use them. For example, a defendant has a limited amount of time to respond to an intial suit brought against him. In most cases, a defendant has to respond within 20 days of receipt of notice of a lawsuit. If he does not respond, the case will likely be decided against him. In evidentiary matters, the rules of evidence can have a serious effect upon litigation strategy.

If a litigant's case rests on one piece of evidence, which for some reason cannot be admitted into evidence, the litigant's entire case will be doomed. Moreover, if the litigant introduces evidence incorrectly, his case could be reversed on appeal. This recently happened in a case out of Louisiana, Porter v. Louisiana Citizens Property Insurance Corporation (LCPIC).

The basic issue in Porter was that Ms. Portner had settled her insurance claim with LCPIC in a settlement agreement after a car accident occurred. Two years after the settlement, Ms. Porter sued LCPIC alleging that part of her insurance claim was not covered under the original settlement agreement. At the trial court level, LCPIC filed an exception of res judicata with the court. An exception is a means by which the party using it claims that the claim of the other party is legally nonexistent. In the case of an exception of res judicata, the contention is that the claim has already been adjudicated before and therefore there is really no existing issue. LCPIC argued that because the settlement agreement already existed, Ms. Porter had extinguished her right to bring suit on the issue. Ultimately, the trial court decided in favor of LCPIC. Ms. Porter timely filed an appeal of the trial court's decision. She alleged that the trial court erred in making its decision and that it erred in not allowing her to have more time to submit and review evidence.

The appellate court agreed with the trial court that a settlement has a res judicata effect. However, the appellate court saw error in the way LCPIC admitted evidence. The issue was that LCPIC attached the settlement agreement to a memorandum, but did not formally admit it into evidence before the trial court. The appellate court cited to case law which indicated that appellate courts can only review a trial court's decision based on properly admitted evidence. Therefore, because the settlement agreement was not properly admitted, the appellate court could not properly review the issues decided by the trial court. This is true even if LCPIC provided a physical copy to the appellate court during the appeal. The appellate court was forced to send the case back to the trial court level to hold an evidentiary hearing. Ultimately, the settlement agreement will have res judicata effect. The real problem for LCPIC is that because the appellate court directed the trial court to hold a full evidentiary hearing, Ms. Porter will get the opportunity to submit and review evidence which she did not get to do at the trial court level. If LCPIC would have correctly admitted the settlement agreement at the trial court level, it would not have to retry issues it already dealt with. Moreover, LCPIC would not have to deal with any of the issues Ms. Porter is more than likely to bring up at the trial court level. In LCPIC's case, if it would have followed proper procedure, it would likely have been secure at the appellate level; instead, it finds itself treading the same path for the third time.

Please call the Berniard law firm for your legal questions.

In 2008, Debra Goulas worked as a bookkeeper for Sunbelt Air Conditioning Supply in Baton Rouge. Jessie Touchet, owner of Sunbelt, and Diane Jones, Goulas's manager, accused her of stealing over $500 from the company during February and April that year. Goulas was tried for felony theft and acquitted. Following the criminal trial, she filed suit against Touchet and Jones in July, 2010 alleging defamation. Specifically, Goulas argued that Touchet and Jones "intentionally and negligently inflicted emotional distress" upon her, and that their accusations were "founded in malice to damage her person and reputation." The complaint sought damages for medical expenses, physical and mental pain and suffering, and loss of wages. The defendants filed an exception of prescription. The basis of the exception was that Goulas's claims were based on the defendants' actions that allegedly occurred during February and April of 2008. By the time Goulas filed suit in 2010, more than one year had passed, thereby prescribing the claims. In October, 2010, the trial judge granted the defendants' exception of prescription and dismissed Goulas's claims with prejudice.

Goulas appealed, alleging error on the trial court's ruling that her defamation claim was prescribed. Goulas reasoned that she could not initiate her defamation action until her criminal trial was concluded in March, 2010; accordingly, she argued that prescription did not begin to run until Frederick Jones publicly accused her of theft when testifying at her trial. The First Circuit noted that Louisiana recognizes a qualified privilege that protects parties from charges of defamation related to statements they make during a trial. "It necessarily follows that, during this time, the one-year period that applies to the filing of a defamation action is suspended." However, the court explained, the suspension of prescription applies "only to allegedly defamatory statements made by parties to a lawsuit." In this situation, Frederick and Jones were not parties to Goulas's criminal prosecution, so the prescription suspension did not apply. The court concluded that "since there has been no suspension of the 2008 alleged defamatory statements," the trial court properly granted the defendants' exception of prescription.

This result was no doubt a painful lesson to the Goulas that prescriptive periods and other rules of Louisiana civil procedure can be complex and confusing. At worst, such as here, missing a deadline can prove fatal to a plaintiff's case. Accordingly, it is critical that victims who think they may have a claim should consult a knowledgeable attorney immediately. Time may very well be of the essence in order to secure a day in court.

Continue reading "Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription " »

Everyone expects adequate, timely, and complete care from medical professionals in hospitals. However, times come when the expected level of care fails to come to fruition, and an action for medical malpractice arises. In March of 1993, a Tallulah, Louisiana, resident began a series of trips to doctors in hospitals in which his continued back, shoulder, and neck pain eventually led to lung cancer. This unfortunate victim of cancer, Mr. Kerry Scarborough, died 2 years later in March of 1995.

For a malpractice claim against a hospital, plaintiffs like Mr. Scarborough's mother, suing in her son's name, must prove by a preponderance of the evidence first, that the defendant owed the plaintiff a duty to protect against the risk involved, essentially providing a standard of care that the plaintiff was owed, second, that the defendant breached that duty or standard of care, and third, that the injury was caused by that breach. Louisiana revised statute 9:2794 provides the statutory language laying out the plaintiff's burden:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., . . . the plaintiff shall have the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, . . . licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians . . . within the involved medical specialty.

(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.

(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Generally, expert testimony is required to establish the degree of care that the defendant must meet and whether that standard was breached, except where the negligence is so clear on its face that an expert is unnecessary. Whether an expert's particular testimony will be admissible depends on whether a trial judge finds them qualified to testify as an expert, analyzed under what is called a 'Daubert standard,' in which the court will look at a variety of factors regarding the expert's background.

In Mr. Scarborough's case, not all his expert's met this standard, and some testimony that could have potentially helped his case was barred and never heard. We understand these complex issues patients face in these types of lawsuits, and are here to help you get through those difficult times.

Continue reading "The Scary Prospect of Inadequate Medical Care and the Legal Ramifications" »

The case of Jefferson Block 24 Oil and Gas, Inc. v. Aspen Insurance UK Limited highlights an important battle over money set aside for oil spill recovery, an obviously sensitive and important topic in the Gulf Coast. At the federal district court for the Eastern District of Louisiana, the defendants won a motion for summary judgment and the court dismissed the case. The plaintiffs appealed the determination and the United States Court of Appeals for the Fifth Circuit reversed the decision and remanded the case for further hearing.

The plaintiff, Jefferson Block, owned and operated offshore gas leases, pipelines and a platform in the Gulf of Mexico. In November 2007, a drop in pressure in one of the pipelines was discovered that showed that oil was spilling into the Gulf. Jefferson Block cleaned up the oil under the direction of several government agencies and incurred a cleanup cost of approximately $3 million.

At that time, Jefferson Block owned an insurance policy which provided some coverage in the case of a leak, but was limited to the items set out in a "Declaration." This declaration listed the oil interests that Jefferson Block had in the area but did not specifically reference the 16-inch pipeline that was the cause of the spill.

Underwriters, one of the defendants, denied coverage and plaintiff sued in a Louisiana federal court. The policy provided that the governing law was New York law, and under New York law, the policyholder bears the burden of showing that the insurance contract covers the loss. Courts interpret insurance policies like any other contract, and there is a series of steps courts will take to determine what the terms of the contract are.

First, courts look to the express language of the policy, with reference to the subject matter and purpose of the policy. If the terms are unambiguous, the court will determine the parties' intent from the words in the document, and summary judgment is therefore appropriate as a matter of law.

However, if a policy is ambiguous, the burden of proof shifts to the party asking for summary judgment to show that its proposed interpretation of the policy is the correct one. At this point, the court can accept extrinsic evidence of the parties' intent. If the extrinsic evidence does not unambiguously favor the party that filed for the summary judgment, the court looks to the law for guidance. Typically, ambiguities in insurance policies are construed in favor of the policyholder.

In this case, the court found that because of the purpose of the policy, which was to comply with the Oil Pollution Act of 1990, this weighed in favor of finding for the plaintiff. Additionally, the policy referred to facilities "located" within certain areas, and the appellate court agreed with the district court that the word “located” was ambiguous. It also stated that the extrinsic evidence was not so one-sided as to require finding for the defendant.

The district court refused to construe the ambiguities in favor of the plaintiff, and the appellate court held that this was a legal error. For that reason, the court reversed the decision of the district court and sent the case back for further proceedings.

Under the Class Action Fairness Act (CAFA), federal courts have jurisdiction over class action claims. There are exceptions, however, including what is known as the “local controversy exception.”

The plaintiff, Opelousas General Hospital Authority, sued in state court three defendants, located in Texas, Illinois and Louisiana, for violations of the Louisiana Racketeering Act. The defendants removed the case to a federal district court under the Class Action Fairness Act and diversity of jurisdiction. The defendants were able to claim diversity of jurisdiction because they asserted that joinder of the only in-state defendant, LEMIC, was fraudulent. The plaintiffs then attempted to remand the case back to state court, asserting that the case fit within CAFA’s narrow “local controversy exception.”

The “local controversy exception” of the CAFA allows a plaintiff to bring a class action lawsuit in state court rather than federal court when several requirements are satisfied. These requirements are that: 1) more than 2/3 of the proposed plaintiffs (as a class) are citizens of the state in which the action was originally filed; 2) principal injuries resulting from the alleged or related conduct of each defendant occurred in-state, and 3) at least one defendant falls under a very specific category. This category covers defendants who meet all of the following: 1) significant relief is being sought from that defendant, 2) the defendant’s conduct forms a significant basis for the claims, 3) it is a citizen of the originally-filed state, and 4) the principal injuries the plaintiffs suffered happened in the originally-filed state. In such a case, the federal district court will “decline to exercise its jurisdiction” and the case will go back to state court. Additionally, for the 3 years before the original class action is filed, no other similar class action, alleging similar facts, can have been filed against any of the defendants.

Clearly, the plaintiff has quite a hurdle to surpass if it wants to claim the local controversy exception. Because the plaintiff must show that one of the defendants fits the above criteria (and LEMIC was the only possible candidate), it had to show that LEMIC’s behavior formed a significant basis for the claim. At the district court, however, the plaintiff did not present enough evidence to satisfy the appellate court. The fact that LEMIC and the other defendants may have been acting in concert was not enough to show that LEMIC’s behavior was significant enough.

Therefore, the United States Court of Appeals for the Fifth Circuit vacated the order to remand and reinstated the case on the federal district court’s docket. If you face a similar ordeal, it is important to hire the proper attorney to make sure that your case is maintained and that you receive the ruling you deserve.

In a recent Louisiana First Circuit Court of Appeals ruling, a plaintiff successfully appealed an earlier dismissal of his case for failure to properly serve all of the correct parties.

After Hurricane Gustav, Mr, Preston was working on the Southern University campus removing debris, including trimming tree branches, when he slipped and fell into a hole in the ground. He sustained injuries and sued Southern University for negligence, claiming that the campus allowed an unreasonably dangerous condition to exist and it failed to warn him of the dangerous condition.

Under a Louisiana statute (La. R.S. 13:5107), when a plaintiff sues the State of Louisiana or a state agency, he must serve the Louisiana attorney general and the head of the agency. Furthermore, if the suit is a personal injury lawsuit (tort lawsuit), the Office of Risk Management must be notified and served as well, according to La. R.S. 39:1538.

Southern University asserted that although the lawsuit was properly served on the attorney general, it was not served on the head of the department and of the Office of Risk Management, as required by statute. It also asserted that the complaint was too vague because it failed to name the specific parish, state, or location of the Southern University campus where the incident took place. It asked that the plaintiff be required to properly serve all the parties and to amend his complaint to add more specificity.

Mr. Preston amended the complaint, which cured the vagueness defect, but he still failed to serve the head of the department and the Office of Risk Management. His case was then dismissed, but he appealed the dismissal. Southern University claimed that an earlier case, Burnett v. James Construction Group, rendered the appealed issue moot and asked that the case be remanded back down to the trial court. In Burnett, the Louisiana Supreme Court decided that under La. R.S. 39:1538, a dismissal of the case was not required even if the plaintiff had failed to properly serve all of the parties necessary. The First Circuit Court of Appeals ruled that because of the Burnett case, Mr. Preston was entitled to more time to serve the proper parties; Southern University was not entitled to dismissal of the case until Mr. Preston was given an appropriate amount of time in which to serve the lawsuit and failed to do so.

Even in a chaotic environment, this case demonstrates that proper action by an attorney in a filing, as well as careful detailing in a lawsuit, are inherently necessary. If you have suffered a personal injury and need to make sure the lawsuit is done correctly, contact a lawyer at our firm today.

It is well settled in Louisiana law that automobile drivers are required to exercise care to avoid colliding with pedestrians. Motorists are charged with the duty to see what an "ordinarily prudent" driver should see to prevent striking pedestrians in the roadway. In fact, La. R.S. 32:214 requires drivers to

"exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway."

A driver's liability for injury to a pedestrian is based on ordinary negligence principles. The traditional duty/risk analysis is used to compare the driver's behavior to "how a reasonably prudent person [would] have acted or what precautions [he would] have taken if faced with similar circumstances and conditions; the degree of care required is dependent upon the foreseeable dangers facing the driver. It can be particularly challenging for a court to conduct the duty/risk analysis when a victim dies as a result of his injuries and there are no eyewitnesses to the accident other than the defendant himself. The "trier of fact is free to believe in whole or part the testimony of any witness," which means that the a judge or jury may disregard a defendant's own testimony about whether he saw--or should have seen--the victim. Scoggins v. Frederick. However, under Louisiana civil procedure, "a court cannot make [such] credibility determinations in ruling on a motion for summary judgment." This rule of procedure led to the First Circuit Court of Appeals' reversal of the trial court in Woodward v. Hartford Insurance Co.

On October 10, 2005, John Mouton was performing cement work in a parking lot that abutted the north side of South Choctaw Drive in Baton Rouge. Mouton was working about two feet from the edge of the roadway, and at various times crouched down to smooth the concrete that had been recently poured with a hand trowel. Around noon, Albert Champion turned his bus onto South Choctaw Drive. As Champion's bus passed Mouton's location, the bus's side mirror struck Mouton in the face, resulting in his death a short time later. Mouton's family sued Champion and his employer, the Baton Rouge Marine Institute. The defendants filed a motion for summary judgment, which was granted by the trial court. Mouton's family appealed, contending that the trial court erred in dismissing their claims because issues of material fact about whether Champion breached his duty of care to Mouton existed; in fact, the Moutons argued they could "satisfy their evidentiary burden on the material issue of whether Mr. Champion saw or should have seen Mr. Mouton as he proceeded westward on South Choctaw Drive" at trial.

Champion was the only witness to the incident. He provided the investigating police officer a written statement immediately following the accident in which he claimed he had seen Mouton as he approached the point of impact but did not believe at any time that Mouton was at risk of being hit. Conversely, in his deposition, Champion stated that he did not see Mouton at all until he "heard a thump" and saw a man falling toward the sidewalk in his mirror. The First Circuit noted, "[c]learly, the trial court concluded that the explanation Mr. Champion provided in his deposition was more credible than that which he offered in his written statement." However, this conclusion was a judgment that was reserved for the trier of fact and was therefore inappropriate for resolution by summary judgment. "Because reasonable persons could disagree about whether Mr. Champion saw Mr. Mouton ... or did not see him ..., the issue of whether Mr. Champion breached the duty he owed Mr. Mouton to see him and avoid colliding with him is a genuine issue of fact." The court determined, therefore, that "the trial court erred in dismissing the Moutons' claims on this basis."

The Woodward case makes plain that, under Louisiana jurisprudence, questions of fact must be left to a jury or trial judge to decide and cannot be resolved through summary judgment. If you have been injured by someone's negligence, it is essential that you obtain counsel who understands Louisiana civil procedure and who can ensure your case is not improperly dismissed at the summary judgment stage.

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

In a recently published case, a four-judge panel of the Third Circuit Court of Appeal for the State of Louisiana upheld a trial court's determination that the defendants pay all of the court costs, even though they prevailed on the merits of the case. This kind of decision is highly unusual; typically, the losing party pays court costs, which can include, for example, filing fees, expert witness fees, and costs of depositions. They can be substantial, especially in a decade-long court case such as this one. Here, the defendants were ordered to pay court costs of $326,307.09, which they promptly appealed.

In order to appeal a judgment of costs, the costs must be substantial and a hearing on the subject must be held after the case has resolved on the merits. Here, the trial judge, Judge Hebert, did in fact hold a hearing where both sides were allowed to present briefs and arguments as so why the opposing party should be forced to bear the costs.

The judge acknowledged that the lawyers for both sides were aggressive advocates and did not fault them for that. Though Judge Hebert took one of the plaintiff's attorneys to task for losing his temper and throwing a pencil, he also pointed out that the defendants' attorneys engaged in behavior that was calculated to mislead the court, intimidate and harass witnesses, and impede litigation.

Under Louisiana Code of Civil Procedure article 1920, the trial court has discretion in equity to decide which party is responsible for costs. Generally, the rule is to assess costs against the party that lost the case on the merits, but in some situations, the best interests of justice are served by ordering the winning party to pay all costs; the appellate court cited numerous examples. The appellate court found that Judge Hebert did in fact take note of the relevant factors, and noted that he had presided over the case for ten years and was fully aware of all aspects of the litigation.

One of the defendants' in-house counsel wrote a letter to the editor of a scientific journal which was about to publish an article written by a plaintiff's expert, alleging "scientific anomalies" which were found not to exist. The paper was temporarily pulled from publication, but the damage was done and the trial was delayed for several days while the expert was again examined. The defendants' counsel claimed not to know anything about the correspondence, but the questions they asked the expert revealed their guilt.

During trial, one of the plaintiffs and her husband were sued to collect on a debt the day he was scheduled to testify. Defendants' counsel claimed not to be involved in the collection effort, but the trial judge believed that it was done solely to intimidate the plaintiffs, not to further a good-faith debt collection. The trial judge also dismissed the defendants' arguments that they took certain depositions in good faith and that unused depositions should not be counted against them.

On the whole, the trial judge noted a pattern of "overreaching and unduly aggressive behavior" by the defendants' attorneys that justified imposing costs. The appellate court agreed and upheld the decision in full.

A common litigation strategy employed by savvy plaintiffs is choosing the most favorable jurisdiction in which to file a complaint. Favorability can turn on a number of factors including geographical convenience, the perception that a "local" jury may be more sympathetic, or that certain judges are more welcoming to the plaintiff's particular cause of action than others. The choice of forum is governed by a series of procedural rules, but in many instances a plaintiff's case may be properly filed in more than one parish. Or, in a case involving multiple defendants, there may be a need to decide between filing in state or federal court. Generally, state court is preferred by plaintiffs in tort actions, but federal court may be the only available forum when one or more defendants is not a resident of Louisiana. Accordingly, a critical part of the forum selection strategy is deciding whom to name as a defendant. Federal civil procedure rules seek to limit the parties' unfair manipulation of defendants to affect forum choice.

The term "complete diversity" refers to the situation where none of the plaintiffs in a case is from the same state as any of the defendants; this results in jurisdiction by the federal court. A plaintiff who prefers to have his case heard in state court may attempt to name a defendant who resides in his own state in order to destroy complete diversity. The concept of "improper joinder," however, can be employed by a defendant who favors federal court to challenge the plaintiff's inclusion of the in-state, or "non-diverse," defendant. To do so, the objecting defendant must demonstrate either

(1) actual fraud in the pleading of jurisdictional facts, or
(2) [the] inability of the plaintiff to establish a cause of action against the non-diverse party in state court. See Smallwood v. Ill. Cent. R.R. Co.

In the second method, the test is whether "there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against [the] in-state defendant." The federal court is permitted to engage in a summary judgment-style analysis to decide whether the plaintiff has a reasonable basis of recovery under state law. The court may also, through a "simple and quick inquiry," determine the presence of "discrete and undisputed facts that would preclude the plaintiff’s recovery against the in-state defendant."

A recent example of this process can be found in Kemp v. CTL Distribution, Inc. in the U.S. Court of Appeals for the Fifth Circuit. The case involved a wrongful death action filed by the family of Martin Young. Young was employed by the Delta Trailer Company in Geismar, Louisiana where he worked in a truck terminal owned by CTL Distribution. Young died from exposure to toxic fumes that came from chemicals that were improperly left in a tanker trailer. The lawsuit was originally filed in state court and named as defendants CTL, a Delaware corporation with its principal place of business in Florida, and Roger McLelland, a Louisiana citizen and manager of the CTL terminal where Martin Young died. CTL removed the case to the U.S. District Court for the Middle District of Louisiana, alleging that McLelland was fraudulently joined. The district court agreed, concluding that the plaintiffs' executive-officer negligence and
spoliation-of-evidence claims against McLelland would fail in state court. On appeal, the Fifth Circuit conducted its own review of the pleadings and determined that "Plaintiffs have no possibility of prevailing on either claim against McLelland, [and] the district court did not err in finding that McLelland was improperly joined to defeat federal jurisdiction."

If you have been injured by someone's negligence, you need an experienced attorney to help you navigate the complex waters of tort litigation, including the quesion of which court to bring your action.

Continue reading "Geismar Wrongful Death Action Focuses on Choice of Litigation Forum" »

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

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

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

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

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

Is the Failure to Observe a "Do-Not-Resuscitate" Order Medical Malpractice?
A common element in medical malpractice cases we have previously examined on this blog is the role of Louisiana's medical review panel. As a brief review, claims brought against healthcare providers under Louisiana's Medical Malpractice Act ("MMA") must be reviewed by a medical review panel before proceeding to court. The panel's purpose is limited to determining whether the evidence supports the plaintiff's allegation that the healthcare provider failed to observe the appropriate standard of care. If the board determines the standard was not met, it must then decide whether that failure contributed to the plaintiff's injury. The panel's report, though not conclusive, is admissible in any subsequent litigation.

A plaintiff who believes he has been a victim of medical malpractice must first determine whether a particular claim is even subject to the MMA, and therefore whether it must be submitted to a medical review panel prior to litigation. This is an important matter, because a medical malpractice claim against a health care provider is "subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel." The Louisiana Supreme Court, in the case of Coleman v. Deno, identified six factors which are to be considered when determining whether a claim falls under the medical malpractice umbrella. But even with these factors as a guide, the decision may not necessarily be straightforward. A recent case that demonstrates the "grey area" of medical malpractice claims involved a hospital's ignoring a patient's Do-Not-Resuscitate Order ("DNR"). Agnes Liles was admitted to the Northern Louisiana Medical Center ("NLMC") in Ruston on July 10, 2009. A few days later, he went into cardiac arrest. Despite NLMC's knowledge of Liles's DNR, hospital employees resuscitated Liles. The process left him with physical disabilities until his death two months later. Liles's two daughters filed suit against NLMC for recovery of the medical expenses attributable to Liles's post-resuscitation care as well as physical and mental pain and suffering, loss of enjoyment of life, and cognitive decline. They also asserted a claim for bystander recovery. NLMC filed an exception of prematurity in the trial court arguing that the plaintiffs’ claims must be reviewed by a medical review panel prior to litigation. The trial judge overruled the exception after a hearing and NMLC filed for supervisory review of the judgment with the Second Circuit Court of Appeal. The court relied primarily on two cases to ultimately conclude that "the actions by the nursing personnel in failing to honor the DNR order were not covered under the MMA as medical malpractice, but instead should be governed by Louisiana negligence principles of law." The first case contained the Louisiana Supreme Court's pronouncement that

"While clearly an act of malpractice can occur in the
rendition of professional services, the patient must still be in the process of receiving 'health care' from the doctor or hospital when the negligent rendition of professional services
occurs. This means that the act or omission must have occurred 'during the patient’s medical care, treatment or confinement.'" Richard v. Louisiana Extended Care Centers, Inc.

The other case was the Second Circuit's own prior decision involving an ignored DNR in which it concluded that

"the problems [the deceased] experienced were not 'treatment related' because the problems came as a result of [the nursing home’s] failure to abide by [the deceased’s] wishes not to be resuscitated by CPR. The fact that they 'treated' her after they negligently acted does not bring this case under the MMA." Terry v. Red River Center Corp.

Accordingly, the court found that the plaintiffs' "lawsuit was not premature, and the trial court was not in error in so finding."

This case shows, once again, the complexity of medical malpractice litigation and makes clear the need for a plaintiff to obtain counsel from an experienced attorney.

Continue reading "Medical Malpractice Case in Louisiana Shows Importance of Panels" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A defendant who wishes to challenge a jury's damages award can petition the court for a new trial. As this is often an undesirable path for both the defendant and the plaintiff, Louisiana law offers an alternative approach: when the trial court believes that the verdict is "so excessive ... that a new trial should be granted for that reason only,” La. Code Civ. Proc. art. 1814, it can order remittitur. This option is available only if the plaintiff agrees to it, under the assumption that accepting a lower amount of damages may prove preferable to another trial. The trial court is permitted to order remittitur "only if the issue of quantum is clearly and fairly separable from other issues in the case." The recent case of Great West Casualty Co. v. AAA Cooper Transport offers an instructive example of Louisiana's remittitur statute as applied by the Court of Appeals for the Fifth Circuit. On November 27, 2006, a tractor-trailer which operated by Juan Rodriguez-Salas was struck by another tractor-trailer; the second truck was being driven by Ray Johnson and was owned by AAA Cooper Transportation. Rodriguez-Salas's truck rolled over, and he suffered injuries to his right shoulder as a result. Rodriguez-Salas sued Johnson and AAA Cooper in the U.S. District Court for the Middle District of Louisiana. He sought to recover for his medical expenses and damages for pain and suffering and lost wages. After a trial, the jury awarded Rodriguez-Salas $38,000 for lost wages; $120,000 for pain, suffering, and mental anguish; and $10,000 for loss of enjoyment of life. AAA Cooper, objecting to the damages award, filed a motion for a new trial. The district court entered judgment on the verdict and denied AAA Cooper’s motion. AAA Cooper appealed, seeking a reduction in Rodriguez-Salas's $130,000 general damages award on the theory that Rodriguez-Salas's injuries were to only one shoulder and only required treatment for eight months; in AAA Cooper's view, $40,000 was an appropriate amount.

The Fifth Circuit, in applying Louisiana law, first reviewed the district court's finding that a new trial was unnecessary. The district court determined that sufficient evidence of Rodriguez-Salas’s "injuries, medical treatment and recovery, and the effect of both on his work and daily activities" had been presented at trial "to reach a fair determination of his general damages and lost wages.” The Fifth Circuit agreed, noting that the record included such evidence as Rodriguez-Salas's testimony about his injuries, testimony from doctors about Rodriguez-Salas's condition, and Rodriguez-Salas's medical records. Accordingly, in affirming the trial court's judgment, the Fifth Circuit concluded that "the district court did not abuse its discretion" and that "the award [was] not against the great weight of the evidence."

Although remittitur offers the parties in litigation a more efficient means by which to resolve a dispute over a damages award, it is still subject to many of the same limitations that apply to appeals in general -- that is, that great deference must be afforded a jury's award of damages. Only through a showing of abuse of discretion by the trial court can a defendant prevail on a remittitur action.

Continue reading "Tractor-Trailer Accident on I-20 Leads to Court's Consideration of Request for Remittitur" »

Gambling is a tricky form of entertainment that has very serious legal implications surrounding it despite all of the fun, lights and glamour surrounding these games of chance. One legal issue that is intrinsically tied to gambling is the idea of borrowing and/or the financial backing of a player in a game. Often, casinos extend lines of credit to individuals who are regular patrons at their establishment. This line of credit, however, must be used for gambling purposes at the issuing casino's establishment. The purpose in doing this is to increase the amount of money in play and in return, so the casino hopes, result in higher winnings for the house. Because casino markers are often made for large amounts and are typically interest free, strict laws are in place to protect lending casino's rights to collect on such markers.

These laws came to light when Ms. Strong, a Texas resident, was issued markers at a Shreveport riverboat casino totaling $60,000. After losing the entire amount, the casino tried to collect on the markers owed. However, the markers were returned to the casino by Ms. Strong's bank marked "Not Sufficient Funds." Louisiana law treats casino markers like checks, requiring the collector to make a written demand, sent through the mail, for payment to be made within fifteen working days after receipt of the demand before a suit can be filed. In this case, Ms. Strong failed to make payment within the fifteen days and suit was brought. Ms. Strong's defense relied on her claim that the markers were not enforceable upon several grounds.

The first issue to consider in determining whether or not a casino marker is enforceable is to ask which state's law applies, as some states do not recognize markers as a valid form of payment. This is especially relevant in the riverboat casino context, where several patrons come from out of state. Louisiana law provides that the issue is to be governed by the state whose policies are most seriously affected if its state laws are not applied. Here, if Texas law were used, the casino would not be able to collect its debt because Texas has strong policies against the enforcement of gaming debts. This would be more severe to Louisiana's pro-gaming policies as it would allow those from states with policies similar to Texas to incur gaming debts in Louisiana and avoid them by returning to their home state. This would cause negative implications for both casino profits and state economic development. For this reason, in Ms. Strong's case, Louisiana law applies.

Next, the issue of the markers' enforceability comes to light. Louisiana courts tend to view casino markers as a type of loan rather than a "gambling debt." The reasoning behind this distinction is simple. Whereas a gambling debt accrues when one places a bet and then fails to pay on that debt, a marker is simply an instrument given in exchange for a patron's promise to repay the amount on the marker. The casion does not require that the entire marker amount be spent on gambling, only that if that money is to be used, then it must be used in the casino. In essence, the patron has the option to use the marker funds or not and is the sole decision maker in whether or not to gamble with those funds. Because of Louisiana's pro-gaming laws, casinos are allowed to extend these loan-like lines of credit, thus making the casino markers in this case enforceable.

In addition, in order for a casino marker to be enforceable it must be a negotiable instrument. A negotiable instrument is a writing that promises to pay a fixed amount of money that is payable at the time it is issued, payable on demand or at a specified time, and does not state any further undertaking to be performed by the one promising payment in addition to the payment of money. In other words, a typical marker is enforceable because a patron is promising to pay the casino the amount of the marker at a specified. Nothing else is promised. Yet, even these rules are somewhat relaxed. For example, if a marker does not state a payee, then it is payable to the bearer, which in a casino case would be the casino itself. Also, if a marker does not specify a date of repayment, it is to be repaid upon demand. This deference towards casinos and gaming regulations make it extremely difficult to claim that a marker is not a negotiable instrument, and thus not enforceable.

Though casinos may extend high-end clientele large lines of credit, as in Ms. Strong's case, one need not accept such a line. In fact, casinos allow individuals to personally limit his/her line of credit. However, whether you limit your credit or not, be aware that casino markers are enforceable in most cases.

Continue reading "Louisiana's Second Circuit Holds Shreveport Casino Markers Enforceable Against Texas Gambler" »

When apportioning fault between two or more parties in a negligence action, the finder of fact is given great deference on review. An appellate court may not set aside a trial court's finding unless there is "manifest error" or it is "clearly wrong." Cole v. Dept. of Public Safety & Corrections. In order
to reverse the trial court's apportionment of fault, the appellate court must "find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong." The Louisiana Supreme Court has provided extensive guidance on the trial court's responsibility for allocating fault. The court is "bound to consider the nature of each party's wrongful conduct and the extent of the causal relationship between that conduct and the damages claimed." Watson v. State Farm. Furthermore, in assessing fault, the trial court can consider several factors related to a party's conduct, including:

"(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought."Watson

Although the allocation of fault is "not an exact science," and it is fairly rare for a trial court to commit reversible error in the process, it does happen. One example is the recent case of Burdine v. Robertson, in which the Second Circuit Court of Appeal modified the trial court's apportionment of fault in an auto accident.

Late in the evening on October 24, 2006, Garold Burdine, then 19, was driving his Ford Ranger pickup truck south on Woolworth Road in Caddo Parish. The road had no street lighting. At the same time, L.C. Robertson was driving a very large and heavily loaded log truck on a side road approaching Woolworth Road. When Robertson attempted to turn out into the southbound lane of Woolworth, he realized he was unable to complete the turn without backing up. As he began to make this maneuver, Burdine's truck struck Robertson's log truck. Burdine was injured in the crash, and Robertson was cited by the local policy for failure to yield while entering the roadway. In October of 2007, Burdine filed suit against Robertson and his employer, Bedsole Wood Corp., the owner of the log truck. The defendants responded that Burdine caused the collision and, at the very least, failed to mitigate damages. The trial court assessed 85 percent of the fault to Burdine and 15 percent to Robertson; Burdine's award of $37,985.71, therefore, was reduced by 85 percent. From this judgment, Burdine appealed.

The Second Circuit, mindful of its obligation of deference to the trial court, reviewed the record and performed its own analysis of the Watson factors. The court noted that Robertson "had an awareness of the danger caused by his actions in obstructing the entire road." The length of the log truck and the width of the road "required him to perform a complicated maneuver to enter the roadway." The risk created by this maneuver was "great, especially considering the diminished visibility" given the late hour of the day. In addition, the court found that, relative to Burdine, Robertson's "capacity was certainly superior," and that there were no extenuating circumstances requiring [Robertson] to proceed hastily and without thought." The court reasoned that Robertson could have made use of a safer procedure for entering Woolworth Road (he made "no attempt to warn motorists that he was blocking both lanes of traffic") and, accordingly, it found that "a greater degree of fault must be attributed to Robertson, a professional driver." The court did not relieve Burdine of all fault, though; it concluded that Burdine "failed to exercise sufficient caution and vigilance" when he realized there was "some activity" involving another vehicle in the roadway ahead. In the court's view, Burdine would have been in a better position to avoid the collision entirely if he had braked earlier. The court concluded that "the trial court was manifestly erroneous in its allocation of fault." Thus, it adjusted the percentages of fault by raising Robertson's responsibility to 60 percent and reducing Burdine's to 40 percent.

This case shows, once again, the importance of establishing a solid record of evidence in the trial court. An appellate court can rely only on the trial record when determining whether the trial judge committed error in apportioning fauly. For this reason, a skilled attorney will ensure that all relevant evidence is presented at trial.

Continue reading "Second Circuit Second Guesses Trial Court's Apportionment of Fault in Caddo Parish Car Wreck" »

Transferring from the deck of your boat to an offshore platform in the Gulf of Mexico to begin your day’s work should not be a terrifying experience. While the transfer involves getting into the personnel basket that transfers you onto the platform and little else, the process itself is not as simple as one plain act. Tragically, this simple transfer does not always occur as planned.

In Michael Channette v. Neches Gulf Marine, Inc. and Seneca Resources Corporation, injured seaman Michael Channette was being transferred from the M/V GOLIAD, operated by Neches Gulf Marine, to an offshore platform operated and owned by Seneca Resources. When the transfer went wrong and Channette was injured, Neches Gulf Marine sought indemnity from Seneca Resources. Indemnification is

"The act of making another "whole" by paying any loss another might suffer. This usually arises from a clause in a contract where a party agrees to pay for any losses which arise or have arisen."

In this case, this is exactly what Neches Gulf Marine asserted – that Seneca Resources was contractually obligated to indemnify them. Unfortunately for Neches Gulf Marine, the district court granted a summary judgment motion for Seneca Resources, thus ruling they had no duty to indemnify Neches Gulf Marine. On appeal, the United States Court of Appeal for the Fifth Circuit noted that a maritime contract "should be read as whole, and a court should not look beyond the written language of the contract to determine the intent of the parties unless the disputed language is ambiguous."

Although Neches Gulf Marine attempted to use parole evidence (essentially evidence laying outside the four corners of the contract) during the appeal to show that Seneca Resources had a duty to indemnify, the Fifth Circuit held that since the contracts introduced were unambiguous on their face, Neches Gulf Marine would not be allowed to introduce parole evidence. The court held that the first contract put forth by Neches Gulf Marine was clear and unambiguous in its expiration before Channette’s injury, and held that the second contract asserted by Neches Gulf Marine clearly and unambiguously failed to identify Neches Gulf Marine as a party that could lead to a duty to indemnify by Seneca Resources.

While the transfer from personnel basket to platform is a complicated one, it is not the only maritime process that can go awry. Accidents at sea happen all too often and workers in this dangerous field of offshore activity should know their rights in the event of an incident or injury on the job.

Continue reading "Injury At Sea & Indemnification: Who Pays? " »

The United States Court of Appeals for the Fifth Circuit recently affirmed in principal part, the trial court's ruling granting a longshoreman damages for a workers' compensation claim. Benjamin McCuller and his wife, Miranda McCuller, sued Nautical Ventures, L.L.C., under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905(b), after Benjamin, who was working as a longshoreman, was injured when he fell while descending a ladder on a ship owned by Nautical. Mr. McCuller was working for Halliburton Energy Services at a marine terminal in Fourchon, Louisiana when he was injured after one of the ladder rungs broke during his descent.

The bulk of the appeals court opinion discussed whether Halliburton, Nautical, or Mr. McCuller was at fault for the injuries suffered by Mr. McCuller. First, the appeals court agreed with the trial court that Nautical had breached its "turnover duty" when it deployed a defective ladder, which had been damaged during a sea deployment several weeks before Mr. McCuller's fall. "The 'turnover duty' relates to the condition of the ship upon the commencement of stevedoring operations" and "requires a vessel to exercise ordinary care under the circumstances to turn over the ship and its equipment in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter will be able by the exercise of ordinary care to carry on cargo operations with reasonable safety to persons and property." This specific duty is the statutory basis for the McCullers' claim as codified in the Longshore and Harbor Workers' Compensation Act. In other words, this tort statute places upon the ship owner the duty to discover and fix potentially dangerous ship defects after a ship returns from sea. In the case at hand, the court found that an expert inspecting the ship should have discovered the crack in the ladder. Therefore, the appeals court affirmed the trial court's ruling that Nautical was at fault for Mr. McCuller's injuries because it was negligent in breaching its turnover duty by providing a faulty ladder for his use. However, it should be pointed out that the damages were reduced because Mr. McCuller was found to be 30% at fault for carrying a clipboard down the ladder when he was injured. But, the appeals court made clear that Mr. McCuller in no way had a duty to discover and fix the defective ladder.

However, the appeals court also made clear that there are certain circumstances when Mr. McCuller and/or Halliburton (his employer) would have a duty to discover potentially dangerous ship defects. In other words, there is one significant exception to the “turnover duty.” That is, if the defect causing the injury is or should be "open and obvious" to a reasonable longshoreman or stevedore-employer, than the ship owner cannot be held liable for the resulting damages. However, in the instant case the trial court found, and the appeals court agreed, that the crack in the ladder was not, and should not have been "open and obvious" to a reasonable stevedore and/or longshoreman.

The fact is, determining what constitutes an "open and obvious" defect can be a difficult factual question, which takes lots of time and resources to discover. In the instant case, it took scores of witness and expert testimony to convince the court that the defect was not “open and obvious.” Moreover, in addition to the “open and obvious” exception, there are countless other exceptions to tort laws that could potentially prevent an injured individual from recovering the damages he/she deserves. Therefore, if you have been injured at work it is important you contact an attorney or law firm that has the legal expertise and resources to determine if your injuries were the result of negligence; and if so, to get you the legal compensation you deserve.

Continue reading "Court of Appeals Upholds Trial Court Ruling Granting Longshoreman's Workers Compensation Claim" »

One of the first things that must be determined in any potential tort claim is whether the statute of limitations bars the claim. An otherwise legitimate lawsuit may be invalid simply because the injured party waited too long to file the claim. In the State of Louisiana, the statutory period in which a claim must be filed is referred to as the "prescriptive period." If a case is "prescribed", it is beyond the statutory period. Louisiana has a one-year prescription period for tort claims, which "commences to run from the day injury or damage is sustained." La. Civ. Code art. 3492.

However, there are some exceptions to this strict prescriptive period. One such exception is referred to as the "Theriot test," which originated in the 1979 Louisiana Supreme Court case Allstate Ins. Co. v. Theriot. In Theriot, the Louisiana Supreme Court stated that where a "subsequent claimant is a different person than the original plaintiff then to interrupt prescription (1) the first suit must ... be based upon the same factual occurrence as is the subsequent claim by amended petition or intervention;" and "(2) the subsequent claimant must also be closely connected in relationship and identity of interest with the original plaintiff."

In the recent Fifth Circuit United States Court of Appeals case Southern Pain & Anesthesia, et al v. RF Medical, the court further clarified what is necessary to stop prescription under the Theriot test. In RF Medical the trial court granted summary judgment in favor of the defendants on the grounds that the prescriptive period had run, and the Court of Appeals recently affirmed by refusing to allow the Theriot exception. The facts of the case are rather simple; Dr. Paul Hubbell unsuccessfully performed an annuloplasty procedure on Toni Peavy in February 2004. The procedure used the defendants' medical product "discTRODE" and resulted in significant injury to Mr. Peavy. Mr. Peavy subsequently filed a lawsuit against Dr. Hubbell and the product manufacturer defendants. While Mr. Peavy's suit was pending, Dr. Hubbell filed a separate lawsuit against the product manufacturers.

In affirming the trial courts summary judgment ruling the Court of Appeals determined that Mr. Hubbell's claim was not consistent with the requirements of the Theriot test, and therefore not eligible for an interruption of prescription. First, it found that his claim was not filed by amended petition or intervention as required by the test; instead, he filed an entirely separate lawsuit. Secondly, the court found that Mr. Hubbell did not share a sufficiently close "relationship and identity of interest with" Peavy. The court explained that such an interest is sufficiently close only when the two parties' interests are aligned, such as a decreased defendant and his survivors, or an employer's insurer and employee. Similarly, the court found that the "plaintiffs do not 'share a single cause of action' with Peavy that would warrant interruption." In other words, although each suit is based in part on common facts, the factual basis for each suit is not identical, since each party is attempting to recover for different types of harm, one economic and the other personal injuries. For these reasons, the court of appeals affirmed the trial court's ruling granting summary judgment for the defendants, in effect squashing Mr. Hubbell's claim.

This case demonstrates how important it is to file a claim within the prescribed time period. In Louisiana this period is relatively short, only one year. Therefore, if you are contemplating contacting an attorney regarding any alleged tortious conduct, it is important to contact an attorney sooner rather than later because otherwise legitimate lawsuits are lost for no other reason but procrastination.

The attorneys at the Berniard Law Firm are experienced in dealing with medical malpractice, product liability, and many other types of tort claims. Call the Berniard law firm at 1-866-574-8005 to determine the potential strength of your claim.

When an accident occurs as a result of poor road conditions the question arises whether or not those responsible for the road's upkeep can be held liable. This was the issue at hand when Jesse Brooks was killed after the backhoe he was driving on Highway 30 in Iberville Parish hit a depression in the shoulder and rolled on top of him. The appellate court held that the Louisiana Department of Transportation and Development owed a duty of care to all motorized vehicle operators on state highways and that that duty was breached by a failure to maintain the highway in a safe operating condition. The Supreme Court of Louisiana, on the other hand, reversed the ruling and laid out an outline of when and to whom the DOTD owes a duty of care.

In deciding these types of negligence cases, the court invokes an unreasonable risk of harm criterion in an attempt to balance possible harm with social utility, including costs to the defendant of avoiding the harm. Thus, the risk of injury or death, which was high in the Brooks case, will be weighed against factors such as the legality of the vehicle being driven on the highway, the social good that was coming from the highway's use, and the cost of highway maintenance.

Since state funding is limited, it is almost fiscally impossible to require the DOTD to maintain highways in such a state as to be safe for all vehicles, even those not designed for highway use. Thus, the court will first determine if the vehicle involved in the accident was designed for highway travel. In the Brooks case, the backhoe he was driving was not designed for the highway. This fact, along with his excessive speed for such an unbalanced vehicle, outweighed his social good, which was simply moving a backhoe from one business to another. In addition, the cost to fix such minimal highway shoulder defects would burden the DOTD in an unacceptable manner when the risk could have been minimized by Brooks himself through his speed and choice to drive an unsuitable vehicle on the highway. Essentially, the court reasoned that Brooks was taking a more unreasonable risk than the DOTD, and thus ruled the DOTD is not liable for Brooks' death.

Further, the Supreme Court of Louisiana holds that the DOTD is not a guarantor of the safety of all motor vehicle drivers under every circumstance. It is for this reason that it is important to analyze the type of vehicle that was being driven on the highway at the time of an accident. This is crucial because the DOTD only authorizes certain vehicles to travel on state highways and highway shoulders, meaning that a case may hinge on this fact. Amongst acceptable vehicles are cars, trucks, vans, and 18-wheelers. These vehicles are stable and therefore less likely to be affected by minor flaws in the road. The only off-road vehicles that are allowed on highways are those that are used solely for the purposes of farm related activities and that are being used within a five-mile radius of the farm. Under certain circumstances, statutory law allows farm tractors on state roads. Yet, these tractors are defined as a vehicle designed primarily as a farm implement for drawing plows, moving machines, and other implements of husbandry. In the Brooks case, the backhoe fell into neither of these categories and was therefore not permitted on state highways. This fact, coupled with the high speed and minimal social utility highly outwieghed the risk of injury posed by a minor depression in the highway shoulder. For these reasons Brooks illegal use of the highway denied him the duty of care owed by DOTD to other motorists.

If you are injured on a state roadway, be sure to keep the above factors in mind. One should consider who took a more unreasonable risk. If an accident or injury occurred because of a flawed road while driving a proper highway vehicle reasonably, then there may be a justifiable suit. On the other hand, if the injury occurred while driving an improper vehicle, then it is likely that there will be no duty of care owed to you by the state.

Though the information in this post may be helpful it should in no way replace the advice of a practicing attorney. If you have been injured while driving on a state roadway, please contact the Berniard Law Firm for a consultation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Louisiana Woman's

This latter part of the discussion regarding the McGlothlin v. Christus St. Patrick Hospital case is based upon the difference between issues of fact and law, and to who or whom such issues are to be determined. In this case, the issue gets blended with the difference between a lay person's opinion and the opinion of an expert. This difference, though most commonly an issue during a jury trial, where the rules of evidence permit certain statements and opinions specific to either a lay person or an expert witness. A lay person may make statements as to observations based upon the common five senses (sight, sound, tough, taste, and smell) and may not make a statement as to one's opinion regarding a material fact in question, that is the job of the jury. Similarly, an expert is permitted to make statements and observations based upon scientific, scholarly, or professional opinion regarding the facts, but as with lay person testimony, an expert may not make an opinion of the material fact in question, as it is the job of the jury. Thus, the job of the jury is to observe and digest the testimonies and facts presented, scrutinizing and determining whose is most credible, and thus determine, within the parameter of the law, the material fact or facts at issue.

Referencing back to the discussion in Part I regarding the medical review panel, the sole purpose of the medical review panel is to review all evidence and examinations of either party, and then "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." Specifically, the doctors on the panel would determine whether, in their expert opinion as doctors in the field of medicine, and even more specifically orthopedics in this case, if the hospital, doctors, nurses, etc. failed to act according to the proper standard of care owed to patients. Here is where the blur between such an issue between fact and law arises. It appears that the doctors, in their expert opinions, are making a statement to the determination of a material issue of fact, which as discussed is reserved to the jury, however, statutorily, the medical review panel is given the purpose to determine this issue and make its opinion and give reasons, in short, according to whether the evidence supports or does not support the conclusion that the defendant(s) (hospital, etc.) failed to comply with or meet the applicable standard of care. This is very similar to the question a jury would be asked if determining whether a hospital or doctor, etc. committed medical malpractice.

The problem here, and the difference between the ability of the medical review panel to make a decision versus a jury to decide, is in what luxuries each has in examining and analyzing the facts and law to make its decision. The medical review panel, through statute, is allowed only to examine and analyze the facts to make a determination based on an expert opinion, that in its expert opinion, both as a whole and individually, the medical review panel believes that there has, or has not been, an instance or instances of a breach of the duty of care owed to a patient or patients. However, a jury may take into account the mannerisms and demeanor of witnesses, as well as the credibility of those witnesses and testimony, and weigh the facts in accordingly. This ability to utilize judgment in the credibility of witnesses and testimony is not given to the medical review panel. What happened in this case is that the medical review panel came to its unanimous opinion because it did not find the testimony of the injured party (plaintiffs) credible, and thus determined that there was no breach of duty. This, of course, is not an expert opinion then, which violates the statute regarding the medical review panel's authority and role.

To summarize the result of the appeals in this case, the plaintiffs brought an action against the hospital and the findings of the medical review panel were admitted as evidence, which statutorily they are permitted to be, however, the judge allowed the findings into evidence through testimony and documents, but with the language that involves the credibility of the witnesses out. The Trial Court found for the Hospital (defendants). The Appeals Court however, found that the admittance of the findings of the medical review panel was improper and thus reviewed the case de novo, meaning the appeals court reviewed the case as though it was the first Court to hear the case, and found for the plaintiffs. On appeal to the Louisiana Supreme Court, the Court determined that the Appeals Court erred in vacating the judgment of the Trial Court and reinstated its finding in favor of the Hospital (defendants) stating that, although the medical review panel superseded its authority and thus its findings are not mandatorily admissible, the Appeals Court erred in finding that the admission was tainted and in its de novo review, when the Trial Court fixed this problem by not allowing the credibility information in the findings of the medical review panel into evidence.

If you or a loved one feels as though you are victim to the malpractice of doctors and other health professionals, contact the Berniard Law Firm to determine the validity of your claim.

Most people's fear of hospitals is usually justified in that one does not usually go to a hospital unless there is something wrong, or something negative has occurred. Everyone who seeks medical treatment, whether in a hospital or private doctor's office, is seeking an expert's diagnosis and treatment to prevent future, or cure current, ailments, or to have one's body 'fixed' in some way, as in a broken bone. Unfortunately, problems arise and the treatment one seeks does not always fully help, or even makes the issue worse. But sometimes, whose fault it is, that the problem does not subside, or that the problem only gets worse, is up for debate. That is where a medical malpractice issue arises, and the topic that shall be explored here.

The factual and legal basis of this discussion comes from the Louisiana Supreme Court case McGlothlin v. Christus St. Patrick Hospital, decided July 1, 2011. The issue in this case is, "whether [the Louisiana statute in question] mandates the admission of a medical review panel opinion when the panel exceeds its statutory authority and renders an opinion based on its determination of plaintiffs' credibility, not on the medical standard." The following questions must be asked first to clarify the terms and substance of this discussion: What is 'medical malpractice'? And what is a 'medical review panel?'

The term 'medical malpractice' gets thrown around more than it should. It is a specific legal negligence term devised to describe a cause of action that may be brought by a patient of a doctor and/or hospital claiming that the doctors, nurses, and anyone involved with the care and safety of the patient was negligent, and through this negligence, that a harm came to the patient that otherwise would not have occurred. More specifically, 1) a duty of care exists in which those that are employed to care for a patient must maintain the proper diligence in their medical and professional duties, 2) a doctor or nurse, or other individual employed in a professional and medical sense has breached this duty of care through his or her actions, or in the case of a hospital's negligence, through that actions of its employees (doctors, nurses, etc.), 3) that this breach of duty is the cause of the resulting harm to the patient, a harm that otherwise would not have happened and can be linked to the action(s) or inaction(s), of those who owe a duty of care to the patient, and 4) that a harm is the result of that breach that would otherwise not have occurred, and is something not reasonably foreseen so that there is no other cause than the breach of the proper duty of care owed to the patient.

A medical review panel is made up of three doctors and an attorney to hear a claim of medical malpractice in an attempt to curb costs of litigation for both parties involved, patients and hospitals, and more specifically, to curb health insurance costs. The statutory creation of the medical review panel prevents any litigation in matters of medical malpractice unless the complaint was initially submitted to the panel. It is the medical review panel's purpose to hear both sides' case, and issue its expert opinion as to whether it is an instance of medical malpractice. The hope here, is that the medical review panel will filter frivolous claims and potentially foreshadow successes or failures in litigation and lead to settlements outside of court. The sole purpose of the medical review panel is to review all evidence and examinations of either party, and then "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."

What will be further explored, and what is the major issue in this case, is what is the authority of this medical review panel and what happens if and when the panelists overstep their authority and begin to make judgments of fact, stepping into the realm of the juror. This will be discussed in Part II.

Continue reading "Louisiana Woman's Knee Replacement Leads to 'He Said, She Said' Confrontation (Part I)" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A lawsuit can be resolved in many ways. Prior to formal court proceedings, the suit may be dropped voluntarily for one reason or another, or the parties might come to an agreement in mediation. If the case goes to trial, it may be resolved with the judge or jury entering a verdict after a full trial. It may also be resolved before the close of proceedings by way of dismissal. If a case is dismissed it can have serious repercussions for a suit, and often destroys the likelihood of recovery if a dismissal is entered against a plaintiff. There are many types of possible dismissals that can end a proceeding including the involuntary dismissal of a claim.

Louisiana Code of Civil Procedure Article 1627 governs involuntary dismissal. The plaintiff presents their case first, and upon the completion of the presentation of the plaintiff’s case, the defendant may make a motion for involuntary dismissal. The judge then reviews the evidence presented. If he finds the plaintiff has shown no right to relief, he may grant the motion for involuntary dismissal. On a motion for involuntary dismissal, the plaintiff’s testimony should generally be accepted as true. So long as the plaintiff has presented enough evidence to establish his argument by a preponderance of the evidence, a fairly low burden of proof, the case should be allowed to proceed and the motion denied. If the motion is granted, the plaintiff can appeal the decision. A decision granting involuntary dismissal is difficult to overcome on appeal but it is not impossible. The 2011 case of Settle v. Paul illustrates what can happen where a plaintiff successfully appeals an involuntary dismissal.

In 2009, James Settle sued Brenda Michelle Paul, his ex-girlfriend, in a dispute over the existence of a partnership agreement between the parties. Mr. Settle and Ms. Paul formed a construction company and took on several small projects in the company’s infancy. In 2003, Ms. Paul filed the necessary paperwork to have the company incorporated in Louisiana, forming the limited liability corporation Landmark Construction Company of Coushatta (Landmark). She was listed as the sole member of Landmark. Mr. Settle agreed that the parties decided Ms. Paul would be the sole member of the corporation because they wanted the company protected from seizure against Mr. Settle’s child support obligations. The company was profitable throughout the duration of its operation.

Mr. Settle and Ms. Paul’s personal relationship deteriorated, and they separated in 2008. Mr. Settle left the company, and Landmark ceased all operations. Ms. Paul refused to give Mr. Settle access to Landmark records or funds and took the position that she was the owner of the company and that Mr. Settle was merely an employee. Mr. Settle filed his suit seeking recognition as a co-owner of Landmark and a partition of the company’s assets. He argued that, as business partners, he and Ms. Paul each owned one-half of the company. The case proceeded to trial where Judge Peyton Cunningham of the Judicial District Court of Red River Parish granted Ms. Paul’s motion for involuntary dismissal of the case. The court held that Ms. Paul was the sole owner of Landmark based on documentation presented to the court.

Mr. Settle appealed the decision arguing that the court erred in granting the motion, because he had presented enough evidence to establish that a partnership had existed between himself and the defendant. The Second Circuit Court of Appeals of Louisiana agreed. It reversed the dismissal citing evidence presented by the plaintiff that Ms. Paul was listed as the sole owner of the company only to protect it against Mr. Settle’s child support obligations and that there was evidence of intent that the company be owned equally between the parties. The matter was sent back to the trial court for a completion of the trial on the merits. In other words, Mr. Settle was awarded a chance to have the case fully heard in court.

To ensure you receive a full and fair trial based on the merits of your case you need representation with knowledge of the possible outcomes of litigation. If you have a claim for personal injury or an insurance dispute, you need the services of an effective legal team to help you with your case.

Continue reading "The Complexities of the Involuntary Dismissal of a Claim" »

"Plaintiff Lost at Seaman Claim"

Robert Teaver may have fancied himself a man of the sea but the United States Court of Appeals for the Fifth Circuit agreed with the District Court for the Eastern District of Louisiana that there was no way he could establish his status as a "seaman" for purposes of the Jones Act.

When dealing with litigation, especially when making a claim under a premise, words mean everything. To clarify, words mean specific things and those specific definitions are everything. Robert Teaver attempted to sue his employer under the Jones Act. The Jones Act was crafted to protect seamen who are injured in the course of their employment. This statute lays out the elements that must be met in order for a potential plaintiff to file a successful suit under it. Robert Teaver was a crane operator and installer for Seatrax of Louisiana, Inc. This company makes and installs cranes for offshore drilling platforms. Mr. Teaver's work took him over water but he was not employed on a maritime vessel.

Mr. Teaver's first assignment put him on the M/V Chermie, a boat owned by L&M BoTruc Rental, Inc. Mr. Teaver and his brethren were to eat and sleep aboard this vessel during the three days that they were out on this assignment. The team was to disassemble a portable crane on an oil platform 90 miles of the coast of Louisiana. The platform was owned by Mariner, Inc.

Mr. Teaver received injuries that left him permanently paralyzed less than 24 hours into his employment with Seatrax. He fell about 19 feet on to a gangbox, a type of toolbox. Mr. Teaver filed a claim in Louisiana state court under the Jones Act. This would prove to be a mistake. Mariner removed the suit to federal court under the Outer Continental Shelf Lands Act. Federal question jurisdiction was invoked. Mr. Teaver tried to remand the action to state court with no success.

Mr. Teaver was not a seaman as defined in Chandris, Inc. v. Latis, 515 U.S. 347, 369 (1995). The court in Chandris held that to qualify as a seaman under the Jones Act a plaintiff must establish that "(1) his duties 'contribute to the function of the vessel or to the accomplishment of its mission,' and (2) he has 'a connection to a vessel in navigation (or an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.'"

The seaman must be a member of a vessel's crew and not just a land-based employee who happens to be on the vessel. The coincidental nature of Mr. Teaver's presence on the M/V Chermie is not enough to qualify him as a seaman. Louisiana case law prevents a person whose relationship with a given vessel or set of vessels is simply "transitory and fortuitous" from filing suit under the Jones Act. Mr. Teaver did not contribute to the function of the Chermie. He did not take direction from its captain. The Cheramie was simply a supply vessel. The Seatrax workers were not "borrowed servants" under any agreement between Seatrax and Mariner or L&M. No such agreement existed.

Mr. Teaver tried several reaching arguments in an attempt to distinguish his case from the cases that set the precedents in this area of law. The trial court did not agree with his arguments nor did the appeals court after reviewing his arguments de novo. Mr. Teaver may have done himself a disservice by attempting to file suit under the incorrect statute. Had he been successful, having his case defined as a Jones Act case would prevent it from being removed to federal court. There must have been some reason that Mr. Teaver wanted to keep the litigation in state court. Hopefully he has not wasted his chance for justice and compensation by trying the wrong legal maneuver for the situation.

To read more about Mr. Teaver's ill-fated nautical journey read the case here.

Continue reading "Jones Act Lawsuit Fails Under Seaman Claim" »

Plaintiff Sherrie Lafleur was injured in an April 2007 rear-end collision on Ambassador Caffery Parkway in Lafayette. Mrs. Lafleur was waiting for a traffic signal when Brenda Nabours drove her vehicle into the rear of Mrs. Lafleur's vehicle. The low-impact collision caused no damage to Mrs. Nabours' vehicle and no structural damage to Mrs. Lafleur's car.

Mrs. Lafleur filed suit against Mrs. Nabours (and Mrs. Nabours' insurer Shelter Mutual Insurance Company) claiming that she suffered a severe neck injury as a result of the accident. Shelter admitted liability for the collision and the case proceeded to trial without a jury on the issues of causation and damage. The trial court found the debilitaing injuries claimed by Mrs.Lafleur were not a result of the collision and actually predated the accident by many years. The trial court awarded the medical damages incurred by Mrs. Lafleur from the date of the accident through August 2007 in the amount of $5,457.97. The court found Mrs. Lafleur failed to prove by a preponderance of the evidence that her remaining medical treatment was necessitated by the Collision. The trial court also awarded general damages of $10,000. Mrs. Lafleur appealed the award claiming both the calculations for special and general damages were abusively low and contrary to the evidence.

Special damages are awarded to repay you for financial losses you have suffered. In Lousiana, the amount of special damages awarded is a finding of fact subject to the manifest error standard of review. Under this standard, the appellate court looks to whether the factfinder's conclusion was a reasonable one not whether the trier of fact was right or wrong. If the conclusion was reasonable, a reviewing court may not reverse even though convinced it would have weighed the evidence differently. Where the factfinder's determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous.

The appellate court found the evidence at trial showed that since 1990 Mrs. LaFleur complained of neck pain, headaches and tingling in her left arm -- the same complaints she had after the collision. At trial, Mrs. LaFleur attempted to minimize similar symptoms she experienced before the collision. The trial court did find that Mrs. LaFleur did have a degenerative neck condition that was temporarily aggravated by the collision, however, this aggravation was resolved by August 2007 when Mrs. Lafleur traveled to Italy for ten days.

Mrs. LaFleur argued the trial court erred in dismissing the testimony of Dr. Appley that Mrs. LaFleur's symptoms were caused by the accident as there was no evidence of record to rebut that claim. The appellate court held it was not manifest error to dismiss Dr. Appley's testimony as it was based on the incomplete medical history provided by Mrs. LaFleur. The appellate court found no manifest error in the trial court's award of special damages.

Mrs. LaFleur's argument that the court erred in awarding only $10,000 in general damages was also found to be without merit. The trial court is vested with great discretion in awarding general damages and the appellate court will not inacrease such an award absent a finding of abuse of discretion. No such abuse of discretion was found in this case. Therefore, the appellate court upheld the trial court's damage awards.

The trial court has great power in weighing evidence and awarding damages, therefore, it is vital when involved in a car accident to immediately contact an experienced attorney so you can recover the money you deserve. If you have been injured in a motor vehicle accident that may have been caused by someone else, call the Berniard Law Firm today.

Continue reading "Third Circuit Court of Appeals Shoots Down Lafayette Woman's Claim Damages Were Too Low" »

Though Mr. Herbert's primary argument was that he was outside the scope of his employment, he argued in the alternative that, even if the injury occurred within the scope of employment, the Defendants committed an intentional tort. Such a tort is the only recourse available to defeat a workers' compensation defense when the injury occurs within the scope of employment. When making an intentional tort claim one must prove that the act that resulted in the injury was intentional. An intentional act requires the actor to either consciously desire the physical result of the act or know that the result is substantially certain to occur from his conduct. "Substantially" in this context requires more than a probability that an injury will occur and "certain" alludes to inevitability. Negligent, reckless, or wanton action is not enough to satisfy an intentional tort. These high standards make it difficult to succeed in a suit for intentional tort within the workplace.

Mr. Herbert was unable to succeed in his alternative argument because no proof was provided that either Industrial or GMI desired to harm Mr. Herbert or that the companies were substantially certain that the injury would occur from the companies' acts. The court concluded that there was no evidence to prove that safety modifications made to the helicopter were an intentional cause of the injury. Neither the Plaintiff nor the Defendants felt that the safety harness used was unsafe, which defeated any claim that the Defendants knowingly acted to cause harm to Mr. Herbert.

In addition to the intentional tort, Mr. Herbert also claimed that the Defendants were responsible for spoliation of evidence. Spoliation of evidence is an intentional tort that impairs a party's ability to prove a claim due to negligent or intentional destruction of evidence. In essence, the ability to make a claim for spoliation of evidence protects not only the claimant's rights to suit, but also the court's ability to provide justice. The key question in these claims is whether or not the defendant had a duty to preserve the evidence for the plaintiff. A duty of preservation may arise through contract, statute, special relationship, agreement, or an already acted upon undertaking to preserve the evidence. Because spoliation of evidence can be satisfied by an act under a negligence standard, this claim is easier to succeed on than one for any other intentional tort.

For the above reason, the trial court's ruling in favor of the Defendants in the Herbert case was reversed on appeal. The 3rd circuit found that defendant Richards did not seek out a missing piece of lanyard and a carabineer attached to Mr. Herbert's safety harness that fell out of the helicopter with Mr. Herbert. Though it is indeterminable whether or not Mr. Richards failed to seek out the missing safety components in an attempt to sabotage Mr. Herbert's claim, a question of fact remained that required the issue to be remanded.

When an injury occurs in the workplace, it is important to consider whether or not the injury was a product of the employment. If not, then you may sue your employer for a variety of torts. However, even if the injury happened while within the scope of employment, a suit may lie if the tort was intentional. When within the scope of employment, this is the only way to defeat workers' compensation tort immunity.

Though the above article may be helpful in deciding a course of legal action, it should not in any way replace the advice of a practicing attorney. If you have questions about your personal injury claim, please contact the Berniard Law Firm.

The issue of injuries within the scope of employment is not always black and white. Two concepts have somewhat complicated the matter: the borrowed employee and joint employment. Under the borrowed employee doctrine, a permanent employer may loan an employee to another, temporary employer. While under the temporary's employ, the employee's actions are that of the temporary employer. This doctrine means that if an employee is injured while working for the temporary employee, the questions regarding scope of employment apply only to the temporary employer. If the injury falls within the scope of the temporary employment, then the temporary employer may invoke workers' compensation as an affirmative defense to tortious liability.

Figuring out whether an employee is borrowed or not is not always easy. Several questions can be asked to help classify the employment: Who has control over the employee? Who is paying the employee's wages? Who has the right to terminate the employment? Who furnished the necessary tools and location for the employee's work? How long was the temporary employment? Whose work was being done at the time of the injury? Was there an agreement between the permanent and temporary employers? Did the employee agree to the new temporary employment? Did the permanent employer relinquish control over the employee? The answers to these questions should paint a clear picture of whether or not the employee was in fact a borrowed employee. As in the Herbert case, if an employee agrees to do work for a temporary employer only because he is afraid of being fired by his permanent employer for refusal and is paid by the regular employer, then the employee has not fully acquiesed to the new job and the permanent employer has not relinquished control over the employee; it is still responsible for paying the employee's wages. If this were the case, an injury that occurred while conducting the temporary employer's work would fall outside the scope of employment because the employee is not a borrowed employee and the work would not be consistent with typical work conducted by the employee for the permanent employer. However, remember that the answer to each question proposed above is not determinative but rather should be analyzed within the totality of the circumstances.

In Herbert v. Richards, the court found that because GMI had no payroll, no equipment, and no contracts for leased land where the deer netting took place, the company was not an entity separate from Industrial. Since GMI was not a separate entity, it was not possible for GMI to have borrowed Mr. Herbert from Industrial. Thus, the court of appeals reversed the trial court's grant of summary judgment in favor of Defendants with regards to the issue of borrowed employee status.

The second concept to keep in mind is "joint employment." Joint employment occurs when two or more employers work together under a common enterprise and control an employee for the benefit of all the employers. It is important to distinguish joint employment from a borrowed employee. If an individual is injured while a borrowed employee, a suit may still exist against either the permanent employer or the temporary employer. However, if an injury occurs during joint employment and the activity that caused that injury is found to be within the scope of that employment, then all joint employers will be immune from tort liability through each employer's workers compensation insurance. In order to distinguish the two concepts, revisit the questions posed above. If the answer to several of the questions is more than one employer, than there is a likelihood that there was joint employment. In the Herbert case, the court simply points out that joint employment is a possibility because Industrial provided resources, such as helicopters, that could be argued to have made the excursion a joint effort for the benefit of both companies. The issue was remanded to the trial court.

While the court of appeal's ruling on the scope of employment helped clarify the issue, it still had to deal with Mr. Herbert's alternative arguments.

3rd Circuit Uses Helicopter Injury Case to Clarify "Injury Within the Scope of Employment"

Injuries in the workplace occur frequently and thus many states have forced employers to purchase workers' compensation insurance. Under workers' compensation, the employer's insurance agrees to pay for any lost wages and medical bills as a result of the employee's injury. In exchange for this security the employer may use workers' compensation as an affirmative defense with the burden of proof on the employer to insulate the employer from tort liability. This essentially minimizes an injured's claim. However, as Herbert v. Richard illustrates, it is vital that one consider whether or not the injury occurred while within the scope of employment. Depending on the answer to this question, an employer may be barred from using workers' compensation as an affirmative defense to protect itself from tort liability, resulting in a potentially greater claim by the injured.

In Herbert v. Richard, an employee fell from a helicopter while netting deer in Mexico on behalf of a game management company, Game Management Inc (GMI). Though the deer netting enterprise was GMI's, the employee worked for Industrial Helicopters, Inc., a company owned by the same family that owned GMI. Mr. Herbert, the employee, had been a fuel truck driver for twenty nine years and had only been on GMI's netting excursions once before the injury. Industrial sought to invoke a workers' compensation affirmative defense arguing that Mr. Herbert was either within the scope of his employment, was a borrowed employee from Industrial, or, alternatively, that Industrial and GMI were joint employers.

There are two issues that must be considered when determining if an injury has occurred within the scope of employment. The first gauge is whether or not the employee was engaged in the employer's business at the time of injury. If the injury occurred while acting on behalf of the employer's business, then it is likely that the injury falls within the scope of employment. For example, if an employee at a warehouse is responsible for loading the company truck and making deliveries to regional retail stores, an injury that occurs while loading the truck at the warehouse would fall under scope of employment. However, if the injured occurred while participating in business not related to the employer, then the injury would fall outside the scope of employment.

The second way an injury falls within the scope of employment is if the obligations of the employment caused the employee to be at the site of the accident at the time the accident occurred. Applying this to the example above, we see that if the truck driver was injured while unloading the company truck at a retail store his injury would fall within the scope of his employment because his job requires him to unload trucks at various stores. Even an injury obtained from an accident while in route to the retail store in this example would fall within the scope of employment because the truck driver is en route to the store only as a part of his employment. In these instances the employer would be able to use workers' compensation as an affirmative defense and therefore protect itself from tort liability unless the tort was intentional.

The following questions also may be helpful in determining whether an injury has occurred within the scope of employment: Was I doing the act on behalf of my employer? Had I done that type of task for my employer before? Was I being paid for the work that was being completed at the time of the injury? Is this the type of work my employer regularly asks its employees to take part in? In addition to these questions, it is important to consider whether the injured was a "borrowed employee" or was working under "joint employment."

These issues will be discussed in our next post.

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

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

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

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

After working at his job as a recruiter for the U.S. Army, Sergeant Sean Fowler went out drinking with friends on the evening of February 4, 2008. He returned to the recruiting station in Covington briefly to pick up some personal belongings before heading home, as he had the following day off from work. At about 12:30 am early Mardi Gras morning, Fowler fell asleep at the wheel of his government-owned vehicle ("GOV").

At the intersection of Harding and Howell Boulevards in Baton Rouge, he collided with a car driven by Fartima Hawkins. Fowler, who submitted to a breathalyzer test at the scene, had a blood alcohol content of 0.112%, which was over the legal limit in Louisiana of 0.08%. Hawkins, who sustained serious injuries in the crash, sued Fowler and the U.S. government in federal district court. Her complaint asserted that Fowler was acting within the course and scope of his employment at the time of the crash and, therefore, the government was liable under the doctrine of respondeat superior. The district court granted the U.S. government's motion for summary judgment. Hawkins appealed, arguing that a genuine issue of material fact existed over whether Fowler was acting within the scope of his employment at the time of the accident.

The U.S. Court of Appeals for the Fifth Circuit conducted a de novo review of the district court's decision. Hawkins's case against the federal government was premised on the Federal Tort Claims Act (FTCA), which limits responsibility for injury to that which is “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Under the FTCA, the question of whether a negligent act occurred within the course and scope of a federal employee’s duty is settled according to the law of the state in which the alleged act occurred. See Garcia v. United States. Thus, the Fifth Circuit applied Louisiana jurisprudence in its analysis. Generally, an employee’s conduct is within the course and scope of his employment if it is (1) of the kind of conduct that he is employed to perform; (2)it occurs within the authorized time and space of employment; and (3) it is initiated, at least in part, by a purpose to serve the employer. See Orgeron v. McDonald. The default approach in Louisiana is the “going and coming” rule: that is, when an employee is involved in a car accident on his way to or from his place of employment, it is considered to be outside of the course and scope. An exception to the rule is when the employee uses an employer-owned vehicle in the "performance of an employment responsibility." Factors that influence the analysis include: (1) whether the employee’s use of the vehicle benefitted the employer; (2) whether the employee was subject to the authority of the employer at the time of the accident; (3) whether the employee was authorized to use the vehicle; and (4) whether the worker was motivated to use the vehicle, at least in part, by the employer’s concerns. Brooks v. Guerrero. The court found "no evidence ... that Fowler’s use of the GOV was related to any employment responsibility or was of any value to the Army." Instead, the court found that "Fowler was going home for the Mardi Gras holiday at the time of the accident" and, accordingly, was not acting within the course and scope of his duties as an Army recruiter. Although the court recognized that Fowler's "permission to use a GOV on the evening of the accident [was] genuinely disputed," it held that the settlement of that issue was not essential to determining the course and scope of employment. Thus, the court concluded that "no genuine issue of material fact exists that might preclude entry of summary judgment in favor of the United States."

This case shows the state's policy of requiring more than the showing of an employee/employer relationship to trigger the employer's liability for the employee's misconduct. Although the concept of respondeat superior is alive and well in Louisiana, the ability of the plaintiff to prove that the defendant's conduct was within the course and scope of employment is essential. I

Continue reading "Court Explores Scope of Employment in Baton Rouge Car Accident" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Plaintiffs have the right judicially, to assert a legal action against a defendant that consists of operative facts giving rise to the plaintiff's complaint. The issue for the court may become whether the plaintiff does in fact, have a cause of action. If the law does not support the facts alleged, the defendant may have the opportunity to file a peremptory exception of no cause of action. This exception questions the basis of the plaintiff's complaint, does the plaintiff allege an injury, harm, or sustained damage that is able to be remedied under the law? Or, does the plaintiff's complaint lack the vital element of legal support in order to become "whole again" under the law? These questions were explored recently by the Second Circuit Court of Appeal in Louisiana. The Court reviewed the trial court's judgment finding that the plaintiff's had no cause of action against the defendants as a result of an apparent absence of legal support. However, the appellate court found differently, explaining in detail the reasons for which they reversed the trial court's decision and allowed the plaintiff's case to move forward against the defendants.

The plaintiffs in this case experienced every parent's worst nightmare, the death of their daughter. The question for the court was who should be ultimately responsible for the death considering the tragic circumstances. The facts include the victim and two class mates who allegedly bullied her severely, to the point the young girl transferred to a different high school in order to avoid the emotional distress. One day, while exiting the bus after school, the young girl was approached by the two former class mates she had tried so hard to avoid. A heated altercation ensued, in which the young girl was pushed in front of an oncoming school bus where she was quickly run over and died as a result of her injuries. The young girl's mother brought the suit against the school board, State Farm Mutual Insurance, the superintendent of the school board, the principal of her daughter's former high school, the bus driver that struck her daughter, the mothers of both of the involved former classmates, and three "on duty" teachers. The plaintiff argued that the defendants were negligent in numerous ways, including the failure to supervise, failure to timely respond to the fight and failure to adequately staff the bus are with teachers or school personnel. Further, the complaint alleged that the bus driver saw or should have seen the fight and failed to stop his vehicle, disregarding the safety of the children aboard the bus and the children in the school bus zone. However, the defendants asserted the plaintiff had no cause of action against the school board employees in their individual capacities under Louisiana Revised Statute 17:439 which reads,

"Except as otherwise provided in this Section, no person shall have a cause of action against any school employee based on any statement made or action taken by the school employee provided that the action or statement was within the course and scope of the school employees' duties as defined by the school board in which the school employee is employed and was within the specific guidelines for school employee behavior as established by that school board."

The trial court granted the exception of no cause of action as to the school board superintendant, the principal, and the "on duty" teachers, dismissing those parties at the cost of the plaintiff based upon the Louisiana statute. However, on appeal, the "no cause of action" judgment was carefully reviewed and reversed, the appellate court found that there was in fact an issue presented and the issue would be triable.

A petition should not be dismissed for failure to state a cause of action unless it appears beyound a reasonable doubt that the plaintiff can prove no set of facts in support of any claim which entitles him to relief. In fact, the allegations set forth i a plaintiff's petition are accepted as true. The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Here, the question is, did the defendants prove beyond a reasonable doubt that the complaint lacked any legal support or basis? The answer is no. The statute provided at the trial level stated "no person shall have a cause of action against any school employee based on any statement made or action taken..." This fails to state that an employee may not be liable for any omission to act. In fact, the plaintiffs support their complaint with Louisiana revised Statute 17:416.4 that declares "If school board employees are sued for damages based upon any action or statement or the omission of any action or statement, the school board has the duty to defend and indemnify the employee." The plaintiffs claim that they allege at least 25 instances of failures or omissions on the part of school board employees which are clearly outside the specific guidelines for school employees behavior established by the school board. Thus, the legislature did not intend to limit or restrict causes of action against the school board employees for omissions of any action or statement by enacting the subsequent statute that protects school employees from liability from any actions or statements thereby made. If the legislature had intended that result, it would have included the omissions language in the subsequent statute in order to protect school employees from further liability. Yet, the newer statute lacks any such language, thus, the appellate court found that the teachers omissions to act under numerous circumstances prevented affirming the trial court's "no cause of action" ruling.

This case illustrates the oftentimes complicated legal issues that may arise even at the onset of a lawsuit. A skilled and knowledgeable attorney is necessary to help a client create the complaint against the defendant(s) and support the allegations with strong legal arguments.

Continue reading "Exploring a No Cause of Action Ruling Shows Power of Appeal" »

Louisiana law requires that the driver of a motor vehicle maintain a safe distance from other cars and that the driver "not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway." A driver who rear-ends another car is "presumed to have breached this duty" and, therefore, is assumed to be negligent. To challenge this presumption, the driver must prove he was not at fault for the collision by establishing two facts: 1) that he had his vehicle under control, and 2) closely observed the lead vehicle and followed at a safe distance under the circumstances. See Broussard v. Zurich American Ins. Co. The driver can also avoid fault by showing that the driver of the leading car "negligently created a hazard which could not reasonably be avoided. In the case of a multi-car accident, "the fact that the second driver is able to see and avoid an emergency situation ahead sets the standard of care applicable to the other following drivers." Anderson v. May.

A three-car accident was at the center of Ebarb v. Matlock, a case recently decided by Louisiana's Second Circuit Court of Appeal. On December 3, 2008, Yolanda Ebarb was driving her Kia Sorento in the left east-bound lane of I-20 in Bossier City. As she approached the overpass at Old Minden Road, she observed that the traffic ahead in both lanes had stoped. She applied her brakes and came to a complete stop safely behind the vehicle in front of her. A moment later, David Terry, driving his Jeep Cherokee also in the left east-bound lane of I-20, approached the same location. Terry noticed the stopped traffic and safely stopped his vehicle directly behind Ebarb's.Then, Terry's Jeep was hit from behind at high speed by a Ford F-250 pickup truck driven by Phillip Matlock. The Jeep pushed forward, rolled over, and collided with Ebarb's Kia. Ebarb suffered a serious spinal injury as a result. Matlock was cited for following to closely at the scene. Ebarb sued both Terry and Matlock. The trial court granted summary judgment against Ebarb in Terry's favor and against Matlock in Ebarb's favor. Matlock appealed. The Second Circuit reviewed the law on rear-end collisions in Louisiana and the presumption of negligence against the driver. The court applied a duty-risk analysis to the circumstances and to Matlock's conduct, which was bolstered only by his "self-serving statements" that he had his vehicle under control, closely observed the lead vehicle, and followed at a safe distance under the circumstances." The court concluded that Matlock failed to meet the standard of care "established" by Terry and Ebarb when they were both able to safely stop their cars after coming upon the stalled traffic. The court noted that "to rebut the objective evidence that two other drivers were able to safely stop and avoid a collision, Mr. Matlock has failed to offer any competent evidence." Because Matlock "failed to establish that he will be able to rebut the presumption of his own negligence at trial," the court affirmed the trial court's judgment for Ebarb.

The facts of this case left Matlock with little opportunity to rebut the presumption of his negligence in rear-ending Terry's Jeep. That Ebarb and Terry both managed to stop safely when they realized the traffic was stopped ahead suggests that any reasonable driver in control of his vehicle should have been able to do the same. Without evidence of any mitigating circumstances, Matlock's defense was overcome by the presumption of his negligence.

Continue reading "Court Reviews Driver's Duty of Care in Bossier City Car Accident " »

Car accidents are a common occurrence and when a car accident is caused by another party, you want to receive the appropriate relief for doctor's bils, aches, pains and other accruing expenses. Just because an individual has received damages owed to him from one car accident should by no means preclude him from getting the deserved amount from a subsequent accident.

John Clyde Deville was involved in a car accident as a result of being hit by a mail truck that ran a red light. From the scene of the accident, Deville was taken to the emergency room complaining of neck, shoulder and back pain. At the hospital he was diagnosed with both cervical and lumbar disc herniations. Upon seeing a family physician, Deville was prescribed pain medication and sent to physical therapy. With little success, he was then referred to an orthopedic surgeon who suggested that epidural steroid injections may be the only viable option to alleviate the pain. While the first round of injections produced a small round of relief, Deville began to feel a noticeable reduction in pain with the second round.

Just as things were getting better and Deville began to feel relief, he was involved in another accident where he was sideswiped by another vehicle. While the impact from this vehicle was not extreme, his car was still thrown from his lane of travel and onto the sidewalk. As a result of this accident, Mr. Deville began to feel an increased tightness and pain in his back, pain that had originally subsided from the previous accident. He chose not to seek medical treatment immediately because he had food in his vehicle which had to be delivered. When he finally saw his physician, the severe pain had returned and this time, the injections did not help. Finally, based on advice from his doctor lumbar surgery was performed. However, the results were mixed and Deville still complained of a gnawing pain in his lumbar spine.

Deville filed a petition for damages as a result of the second accident but at trial, the jury did not award him the appropriate damages. Even though the fault of the defendants was determined, as a result of his testimony about the damages awarded from the previous accident, he was initially unable to recover for the second accident. Defendants from the second accident elicited from Mr. Deville that he had previously received a settlement from the first accident, and the jury found that he was not injured as a result of the second accident.

Not only was Deville hit by another vehicle, but the pain which seemed to have subsided, returned. When he was unable to recover for the second accident, Deville appealed his case the court stated that letting the jury know the amount from the previous settlement was inappropriate. The second accident was a separate occurrence which was no fault of John's, and he should have been able to recover for the damages caused to him. Ultimately, the medical expenses Deville incurred since the first accident amounting to a total of over $93,000, but he was only awarded half this amount. While it was not clearly established which accident caused the majority of John's physical pain and suffering, it is clear that after the first accident John's pain had significantly subsided, if not eliminated completely. It was due to the second accident that John once again began to experience severe pain and discomfort.

If you or a loved one are owed damages or know someone who is, contact professionals who understand your pain and can help you get what you are entitled to.

Continue reading "After Two Car Accidents, Man Denied Damages Due to Testimony of Previous Settlement" »

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

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

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

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

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

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

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

Hospitals, their staff, and doctors must treat patients in accordance with an established "standard of care." A standard of care is generally the amount of care a reasonable person would exercise in a particular situation. For doctors and nurses this means that they must act in a manner similar to a reasonable person with similar training and skills in that profession. They must conform their conduct to the customs of their profession.

In the seminal case, Belinda and Jonathon Johnson ("the plaintiffs") filed a lawsuit against Morehouse General Hospital and Ms. Johnson's treating doctor. The plaintiffs alleged that the negligent care provided by the treating doctor and the hospital staff to Ms. Johnson resulted in injuries to plaintiffs' son.

Belinda Johnson is an insulin-dependent diabetic and, because of this condition, her pregnancy was considered high-risk. In such high-risk pregnancies, delivery is usually accomplished through a C-section once the baby's lungs have sufficiently developed. When Ms. Johnson was approximately 36 1/2 weeks pregnant, she made an appointment with her treating doctor because she had become concerned about the baby's health. Over the course of the next four days, Ms. Johnson received care from Morehouse Hospital staff and her treating doctor because of continuing concerns regarding the Ms. Johnson's baby. According to the trial court jury findings, both the Morehouse Hospital staff and the treating doctor were negligent in their care of Ms. Johnson. Ms. Johnson's son was born with brain damage and cerebral palsy which were caused by lack of oxygen to the brain during the delivery process.

The jury found that the actions of the hospital staff and the treating doctor fell below the applicable standard of care which resulted in injury, loss, and damage to the Johnson's son. A determination of fault in a medical malpractice suit requires a fact-specific analysis in each case. Based on the evidence presented, the jury apportioned 80% of the fault to Morehouse hospital and 20% of the fault to the treating physician. This finding was appealed. The court of appeal found that "the jury was manifestly erroneous" in its findings and re-apportioned the fault, finding Morehouse Hospital 20% at fault and the treating physician 80% at fault. The Louisiana Supreme Court reviewed the case to determine if the court of appeal properly modified the jury verdict.

When a party brings a medical malpractice lawsuit against a doctor or a hospital, that party, known as the plaintiff, must establish that 1) the established standard of care governing the doctor's and/or hospital staff's actions; 2) the doctor and/or staff failed to practice within that standard of care and therefore acted negligently; and 3) that the doctor and/or staff's actions were the cause of the resulting injuries to the plaintiff.

Nurses are held to the same standard of care as doctors. In an action against a hospital, the plaintiff must demonstrate that the hospital staff provided sub-standard care which resulted in injury to the plaintiff. In cases where two or more parties are accused of causing injury to the plaintiff, a jury may apportion the fault among the parties accused, based upon each party's relative negligence. A party may be relieved of its responsibility for its negligence, if after that party's conduct has ceased, but before the plaintiff has suffered injury, an intervening cause, such as another's negligence, comes into play and alone causes the plaintiff's injuries. However, if the original party should have known that his or her negligence could result in injury, he or she will still be liable for negligence, even if there is an intervening cause. If a jury finds that multiple parties are at fault for a plaintiff's injuries and that case is later appealed to a higher court, and that court of appeals finds that the jury's apportionment of fault is "'clearly wrong,'" that court should adjust the award using certain factors.

In the Johnson's case, the Louisiana Supreme Court used the factors laid out in a 1985 Louisiana Supreme Court case, Watson v. State Farm Fire & Casualty Insurance Co., to reapportion the fault between the treating doctor and the hospital after finding that the jury's apportioning 80% of the fault to the hospital and 20% of the fault to the physician was incorrect based on the evidence presented. As stated in the supreme court's decision, the five factors an appellate court should consider in determining the degree of fault are: "(1) whether the conduct resulted from inadvertence or involved
an awareness of the danger; (2) how great a risk was created by the conduct; (3) the
significance of what was sought by the conduct; (4) the capacities of the actor,
whether superior or inferior; and (5) any extenuating circumstances which might
require the actor to proceed in haste without proper thought." After weighing these five factors, the court reapportioned the fault, allocating 50% to the doctor and 50% to the hospital.

This case demonstrates the importance of facts and court discretion in the awarding of damages in a medical malpractice lawsuit. The evidence regarding individual negligence, and the manner in which that evidence is presented, is very important to both trial court and appellate court proceedings. Not having the proper legal representation may lead to such issues being mishandled and a ruling less favorable than you deserve.

Continue reading "Louisiana Supreme Court Changes Apportionment of Fault in Medical Malpractice Case " »

The plaintiff, Linda Garcie, filed a claim against the city of Shreverport after she sustained multiple injuries from tripping over an elevated portion of a sidewalk within the city. Ms. Garcie was walking her dog when she tripped over a crack in the sidewalk. The sidewalk was located outside the residence of Ms. Emily Pasquier, and was maintained by the city of Shreveport. After the pain in her right shoulder continued to bother her days after the accident, Ms. Garcie decided to seek medical treatment for her injuries. The court found the city to be 75% liable for Ms. Garcie’s injuries, while the court determined that the remaining 25% of liability was from Ms. Garcie’s own fault. In filing its appeal, the city contended that the trial court erred in finding that the city was at fault for its failure to maintain the sidewalk on which Ms. Garcie tripped because the city had no knowledge of the apparent defect in the sidewalk.

The determination for a city’s liability over public objects, like a sidewalk, rests on three key factors: knowledge, opportunity, and neglect. LSA-R.S. 9:2800 states that in order to find a public entity liable for damages based on the condition of objects within their control, the public entity must have had actual or constructive notice over the condition of the object, have had a reasonable opportunity to remedy the defect, and have failed to do so. In Lee v. State, the court determined that in order for an individual to recover against a public entity, the plaintiff must show by a preponderance of the evidence that (1) the thing that caused damage was in the defendant’s custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) the defendant possessed actual or constructive notice of the defect, yet did not take corrective action within a reasonable period of time; and (4) the defect was a cause in fact of plaintiff’s harm. The court in Graves v. Page established that in order for the appellate court to overturn the decision, the appellate court must determine whether the trial court’s conclusion is reasonable based upon the record as a whole.

Unfortunately for the city of Sherveport, the evidence presented at the trial court was heavily stacked against them. During the trial, it was discovered that Mr. Pasquier contacted the city on multiple occasions to notify them of the sidewalk’s condition. Originally, the Pasquires reported a three inch crack in the sidewalk, which was later repaired by the city. However, Mr. Pasquire testified that sometime between 2006 and 2007 a one inch crack in the same sidewalk reappeared. Again, he called the city to request a repair of the sidewalk. However, Mr. Pasquire also testified that the newly formed crack in the sidewalk was obvious to him and he had walked multiple times across the sidewalk without tripping. The city’s superintendent of street and drainage was responsible for the intake of street issues, like Mr. Pasquire’s report of the reoccurring sidewalk crack. The superintendent, relying on the city’s C-CAR complaint system, stated that at no time did Mr. Pasquire’s new sidewalk complaint ever appeared in their system. The system relied on an operator to input all public complaints requiring city maintenance. Due to Mr. Pasquire’s vague recollection of reporting the second sidewalk issue, and the failure of the city’s complaint system to not recognize any complaint by Mr. Pasquire, the city questioned whether the complaint was made at all. The city argued that Ms. Garcie failed to establish all elements of liability necessary to hold the city responsible because there was sufficient evidence to show that Mr. Pasquire’s sidewalk issue was never reported to the city, therefore preventing actual or constructive notice by the city of the defect.

The 2nd Circuit, following Graves v. Page, failed to see any evidence presented by the city that the trial court was clearly wrong in finding that Sherveport received actual notice of the defective sidewalk prior to Ms. Garcie’s fall. The trial court found Mr. Pasquire to be a creditable witness, and the failure of the computer system to recognize a complaint by Mr. Pasquire could reasonably be concluded as a failure of the operator to input the complaint. The requirement to hold a city like Shereveport responsible for defective sidewalks is by no means an easy case. However, the apparent failure of Shereveport to repair a sidewalk that had been reported as defective, resulting in injury, was enough to find the city liable in Ms. Garcie’s case.

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

Continue reading "2nd Circuit Affirms City of Shreveport’s Liability for Failure to Maintain Sidewalks " »

This post continues from yesterday:

The trial court relied on the testimony of Mr. Williams’ account of events leading up to his injury in making its conclusion of what occurred. While the trial court did hear testimony from an IESI employee who stated that the garbage trucks did not have flaps on the top of the garage truck capable of causing the damage to the cable box, the trial court felt that the demeanor and testimony of Mr. Williams made him a credible witness. Though there were a few inconsistencies with Mr. Williams’ story, the trial court was confident in his consistency with the major details of the incident to rely on Mr. Williams’s testimony about the garage trucks flap. The appellate court concluded that there was no manifest error in the trial court’s ruling that there was a flap rising form the top of the truck.

The appellate court dismissed IESI’s second argument because the court failed to again find any clear error made by the trial court in its conclusion that Mr. Williams had in fact met his burden to show that IESI had breached their duty. Benjamin v. Housing Authority of New Orleans notes that, through the question of whether a defendant had a duty to the plaintiff is a question of law, the question of whether the defendant breached that duty is a question of fact. IESI did not dispute that they owed a duty to Mr. Williams, only that the evidence was insufficient to show that IESI had breached that duty. Again, the appellate court is required to apply the manifest error doctrine to determine whether a trial court clearly erred in its factual determination of breach.

The court once again determined that IESI failed to show sufficient evidence that a clear error occurred in the trial courts conclusion. The court of appeals noted that the trial court was highly suspect of the garbage truck workers who, immediately after the incident, returned to the office so that they could “chit chat” before resuming their route in Mansura. The suspicious behavior, coupled with the factual finding that there was indeed a flap on the truck that caused the accident, was enough information for the appellate court to find that the trial court had made a reasonable conclusion in their factual finding of breach.

IESI’s final argument, an interesting one to say the least, was unsuccessful because IESI failed to meet the burden of proof required to hold a third--party liable for injury. In filing its answer to the court prior to the trial, IESI claimed “third party fault” by asserting that it was in part the fault of the cable company for the accident. IESI argued that the cable company was at fault for the incident for failing to maintain their cable box in compliance with Louisiana regulations, and therefore should have been apportioned fault for the injuries to Mr. Williams. When a defendant believes that a third-party to a suit is at fault, the burden is then on the defendant to show, by a preponderance of the evidence, that the third party was a cause in fact of the damage. As stated in Terro v. Casualty Reciprocal Exchange, a party who attempts to utilize a comparative fault defense bears the burden of proving by a preponderance of the evidence that such negligence was a cause-in-fact of the accident. Like the prior arguments to the appellate court, the manifest-error standard shapes the appellate court’s review of a trial court’s ruling as to whether sufficient evidence was presented to rule in favor of the claimant-defendant.

Unfortunately for IESI, like the prior arguments before it, the appellate court saw no manifest error made by the trial court in its determination that IESI failed to meet its burden of fault on the cable company. No evidence was presented to suggest that the cable company had any duty to maintain the wires which caused the accident, makings IESI argument completely baseless. Therefore, the appellate court had no problem in finding that no manifest error existed in the trial court’s refusal to assign any percentage of fault to the cable company.

Reversal by the appellate court is a tough sell, and with the manifest error standard in place, an appellant’s argument must show clear error in order to receive a judgment in their favor. Too many questions were raised against IESI’s actions during Mr. Williams’ injury for there to be a clear error made by the trial court, and IESI now faces a $50,000 pay-out because of it.

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

Continue reading "Freak Garbage Truck Accident Still Has Real Consequences, Monetary Damages to Victim" »

Freak incidences occur every day that do have very real consequences for the responsible party. While some things may seem unavoidable for the victim, the party which caused the injury must go before a court and try to prove their innocence. One recent case, involving a garbage truck and down cable wire, helps illustrate how even unusual chains of events can have real consequences.

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.

A wide variety of events can occur to cause injury. The courts, when faced with a civil litigation involving a personal injury, are forced to narrow the cause of said injury in order to determine how much damage was caused by an incident. When a person has a series of injuries, or has a less than sterling claim, the courts are forced to decide just how responsible the incident was for the pain suffered.

A recent case involving a malfunctioning bridge and a questionable "victim" helps highlight this problem. The plaintiff in this case, Ms. Trahan, was stopped at the Highway 14 Bridge in Abbeville, Louisiana as a boat passed under. The bridge, owned and operated by the defendant Louisiana Department of Transportation & Development, failed to correctly fall in place once the boat had safety passed. The bridge incorrectly sat between 3 to 7 inches above the road’s surface. Ms. Trahan hit the raised area while traveling approximately 15 miles per hour. Ms. Trahan claimed that she had sustained severe back pain as a result of the collision. The state argued that they were in fact liable for the defect in the bridge, but the injury sustained by Ms. Trahan was not at all related to the defective bridge. The trial court agreed with the state department and dismissed the case. In its conclusion, the trial court found the credibility of Ms. Trahan to be highly suspect, and was presented with evidence that suggested alternative possibilities for Ms. Trahan’s injuries. Ms. Trahan’s sole appeal rested on the fact that the trial court erred when it failed to find that the injury to Ms. Trahan was a direct result of the bridge incident.

A necessary element to a claim of liability is not simply that an injury exists, but that the factual evidence sufficiently shows that the defendant was the actual and proximate cause of that injury. In ruling on questions of fact, like the one presented in this case, the appellate court follows the manifest error standard when determining whether to affirm or reverse the trial court’s decision. At the trial court, Ms. Trahan was required to show by a preponderance of the evidence that her back injury was a direct result of the bridge’s defect. Because the trial court determined that Ms. Trahan failed to meet that burden, the manifest error standard, as stated in Lewis v. Department of Transportation & Development, requires the appellate court to determine only if the trial court’s factual conclusion were reasonable. The decision is only reversed if it is found that the trial court’s finding was clearly wrong or manifestly erroneous. The case of Orea v. Scallan puts the standard in perspective, stating that the appellate court may not reverse simply because it is convinced that, had it been determining the facts as they were presented in the trial court, it would have come to a different outcome. Additionally, when a trial court’s findings are based on the credibility of witnesses, Rosell v. ESCO establishes that the trial court’s reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed upon review by the appellate court.

In following the manifest error standard, the 3rd Circuit affirmed the trial court’s conclusion by finding that the trial court had a reasonable factual basis for its finding. During the trial, it was revealed that Ms. Trahan suffered from spondylolysis, a congenital condition that causes structural weakness in the spine. Doctors close to Ms. Trahan testified that Ms. Trahan found herself in multiple situations prior to the bridge incident that could have caused the injuries. Throughout the trial, Ms. Trahan presented different accounts to different doctors about the nature of her back condition, leaving the trial court to determine Mr. Trahan’s credibility to be “highly suspect.” Ms. Trahan case shows the importance of an individual to not only show that an injury exists when filing a negligence claim, but also that the injury was the actual and proximate cause of the alleged negligent actor.

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

Continue reading "Court Dismisses Case Relating to Spine Injury on Abbeville Bridge" »

In a previous post, we discussed Uninsured/Underinsured Motorist ("UM") coverage provisions in auto insurance policies. In short, UM coverage is intended to protect the policyholder in cases of injury or loss inflicted by another driver who has inadequate insurance or no insurance at all. UM coverage is not without limitation, however, as most policies apply the coverage only to the named policyholder himself and in cases when the loss or injury occurs through use of the vehicle covered by the policy. But, an insurance policy is "a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code." Cadwallader v. Allstate Ins. Co. Thus, the policy language will control the details of UM coverage, so long as any limitations in the provision do not violate public policy.

The general rules of contract interpretation were applied by Louisiana's Second Circuit Court of Appeal in the case of Kottenbrook v. Shelter Mutual Insurance Co. On June 29, 2009, Jack Kottenbrook, an Ouachita Parish sheriff’s deputy, was involved in a car accident while riding as a passenger in a police cruiser. He suffered serious injuries in the crash and eventually settled with the at-fault driver and the driver's insurer. Kottenbrook then filed a lawsuit against Shelter Mutual Insurance Company, alleging he was covered under the underinsured motorist provision in a policy for which he was identified as an "additional listed insured." This policy was issued to Jack Armstrong, Inc., a corporation, and specifically covered a Ford Mustang owned by the corporation.

Shelter disputed that the policy's UM coverage extended to Kottenbrook, given that he was not "occupying" the "covered vehicle" at the time of his injuries. The Second Circuit declared that "the coverage extended to Kottenbrook is defined and limited under the policy." A reading of the definitions contained within the policy led the court to find that UM coverage "was limited to Kottenbrook’s use of the [Mustang,]" not any other vehicle such as the police cruiser. The court found nothing impermissible about this limitation from a public policy perspective, and affirmed the trial court's judgment for Shelter.

As we have seen in other cases involving insurance disputes, Louisiana courts are inclined to enforce insurance policies--including all lawful limitations to coverage--as written. Policyholders are therefore well advised to read their policies carefully so as to understand exactly the nature of the coverage offered in exchange for premiums paid.

Continue reading "Court Examines Limits of Uninsured Motorist Coverage in Ouachita Parish Auto Accident" »

Cities and towns are responsible for the maintenance and upkeep of streets and sidewalks. The issue arises though, when such streets and sidewalks fall into disrepair and injure residents. Yet, no person shall have a cause of action against a public entity (such as a city) for damages caused by the condition of things within its care and custody unless such entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had reasonable opportunity to remedy the defect and has failed to do so. Louisiana revised Statute 9:2800. To recover against a public entity such as a city for damages certain requirements have to be met. Thus, unless the legal requirements are all fulfilled a plaintiff may or may not be able to recover depending on the circumstances.

In a recent Louisiana Second Circuit Court of Appeal decision, the court explores the requirements that a plaintiff must meet in order to recover for injuries sustained as a result of a defective thing in the city's custody and care. The facts of the case involve a plaintiff who was walking her dog along a city sidewalk in Shreveport, Louisiana. While walking her dog she tripped over an elevated portion of the sidewalk and fell to the ground. The fall caused her substantial pain in her shoulder which led her to seek medical treatment the day after the incident at the emergency room of Willis Knighton Health Center. She eventually filed a petition for damages against the defendant city of Shreveport and was awarded $964.99 for medical expenses and $20,000 in general damages. The City appealed the decision on the basis that the requirements for a lawsuit against a city were not fulfilled.

To recover against a city for damages due to a defective thing, such as a sidewalk, the plaintiff must prove by a preponderance of evidence four things.
1. The thing that caused the plaintiff damages was in the defendant's custody;
2. the thing was defective due to a condition that created an unreasonable risk of harm;
3. the defendant possessed actual or constructive notice of the defect, yet did not take corrective action within a reasonable period of time; and
4. the defect was a cause in fact of plaintiff's harm.

The owner of the home that was located directly in front of the sidewalk testified that he did in fact contact the city in regards to the condition of the sidewalk. Specifically, the owner stated that he reported the crack to the City, which initially repaired the sidewalk. However, over time the sidewalk condition deteriorated until a one-inch crack appeared in the same area that was in disrepair originally. Again, the owner called the City to request a repair of this new crack in the sidewalk. This second phone call to the City took place nearly ten months prior to the plaintiff's fall. Yet, the City did not take action until after the plaintiff's incident. The City argued that the crack was apparent and that a reasonable person would have seen it and avoided it, thus, relieving them of liability. The owner of the house testified that noting obstructed a person's view of the crack in the sidewalk, that the one-inch crack was obvious to him and that he had walked on that part of the sidewalk many times without tripping. A conflict arose in the testimony, when the City Superintendent of Streets and Drainage testified that the public complaint system named "C-CAR," which collected residents' reports of defective streets and sidewalks and not received a complaint until after the plaintiffs accident. Thus, the City argues that the plaintiff failed to present sufficient evidence to prove that the City received notice of the defective sidewalk because the owner of the property where the sidewalk was located could not specify exactly when he called the City and his testimony was directly contradicted by the City Superintendant.

The trial court heard both sets of conflicting testimony from both the owner of the property where the sidewalk was located and the City Superintendant of Streets and Drainage. The evidence presented showed that although the owner of the property was unable to recall the exact dates on which he called the City to report the sidewalk defect, he testified that he was beyond certain that he had reported the problem many months before the plaintiff's fall and the subsequent repair of the sidewalk. Further, despite the lack of record of any complaint prior to the plaintiff's fall, the court found that he could reasonably had notified the City, even if the C-CAR system did not have any record of such complaint. Thus, the City could not support their argument that they did not have actual or constructive knowledge of such defect in the sidewalk prior to the plaintiff's fall, thus, they are liable for the plaintiffs damages.

In conclusion, if you have been injured as a result of a defective street or sidewalk you should obtain legal representation. It is with earned experience that individuals can be confident that their problems will be addressed and zealously argued for in order to effectively receive what they deserve.

Continue reading "Injuries, Damages Caused by Defective Sidewalks: City Can Be Held Liable" »

In Darren Dugas, et al v. Bayou Teche Water Works, et al, the Third Circuit Court of Appeal for Louisiana (“Court”) provided guidance on Louisiana statute La. R.S. 9:5624, which limits the liability of any government entity in Louisiana in connection with a public works for a two-year statutory period. The plaintiffs, the Dugas family (“Dugas plaintiffs”), sued Bayou Teche Water Works, Inc. (“Bayou Teche”) and its insurer for damages they allegedly sustained from Bayou Teche's dumping of brine into an irrigation canal.

The Dugas plaintiffs owned a stretch of farmland along an irrigation coulee in Iberia Parish, and used the irrigation water for their farming operations. Bayou Teche, the defendant, runs a potable water treatment plant nearby. According to the petition, the Dugas plaintiffs notified Bayou Teche immediately upon discovering the discharge, but Bayou Teche continued to discharge the brine into the waterway for about a year after. After the Dugas plaintiffs brought suit, Bayou Teche answered their petition by merely stating that it was a Louisiana corporation that complied with all applicable statutes and regulations in its operation. The company subsequently filed an exception of prescription, which the trial court granted. In granting the exception, the trial court relied on La. R.S. 9:5624, which states that “[w]hen 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 run after the completion and acceptance of the public works.” As discussed previously, the statute was adopted to limit governmental exposure from claims for damages to property when the damage is caused by a public work. Nuckolls v. Louisiana State Highway Department. The policy behind the statute is to encourage projects that provide a public purpose or benefit. The statutory period begins to run when the damage is discovered. In other words, the suit must be brought within two years after damages are sustained. Therefore, any suit that is not brought within the two-year period is barred. By granting the exception, the trial court concluded that the Dugas plaintiffs did not bring their lawsuit within the period of time set by the law.
Since the burden of proving the exception of prescription is on the movant, the ultimate issue on appeal was whether Bayou Teche met its burden of proof. After reviewing the record, the Court concluded that Bayou Teche failed to meet its evidentiary burden. The Court reasoned that the evidence introduced at the lower level only addressed the defendant's allegations that the plaintiffs' own negligence caused their damages. At the hearing, Bayou Teche failed to argue how it satisfied the particular elements of the statute. It did not assert it was a government entity nor explain how its water treatment plant and the dumping of brine serve a public purpose.

This case is another classic example of how essential it is to seek a competent attorney who is knowledgeable and experienced at defending your claim.

Continue reading "Louisiana Third Circuit Court of Appeal Reverses Grant of Exception of Prescription" »

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

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

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

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

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

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

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

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

The Louisiana Court of Appeal for the Second Circuit recently upheld a trial court decision finding a Monroe motorist negligent following a minor collision in which she was rear-ended by a police cruiser as she was pulling across five-lane Forsythe Avenue. The plaintiff, Cathy Griffin, sued the City of Monroe and Police Officer Jeffrey Pilcher following the July 2008 collision.

The Trial Court held Griffin was clearly negligent, noting that Griffin barely avoided a collision with a westbound vehicle when she pulled her car out onto Forsythe. The Court held she then crossed the lanes of travel and entered the outside lane where the collision occurred. After taking the matter under advisement to determine whether any fault should be assessed against Pilcher, the trial judge found no fault on his part. The trial judge concluded that Pilcher was doing what was necessary to apprehend a speeder and was not driving with reckless disregard for the safety of others, whereas Griffin pulled onto Forsythe without seeing what she should have seen, namely, Pilcher’s approaching patrol car with its emergency lights flashing.

Griffin appealed both the Trial Court's finding that she was negligent as well as the determination that Pilcher was not negligent.

The accident occurred as Officer Pilcher, who was conducting a speed enforcement patrol on the 35 mph highway, observed a vehicle traveling 53 mph. Pilcher activated his lights and dashboard video camera, pulled from the parking lot he was in and began pursuit of the speeding motorist. Just as Pilcher began the pursuit, Griffin was preparing to exit the parking lot of a Chase Bank located on the westbound side of Forsythe. Griffin wanted to turn left across Forsythe and get all the way to the outside eastbound lane so that she could then take a right at Oliver Road.

At trial, Griffin testified that she had looked to her left (east) and then to her right (west) prior to entering Forsythe. She waited for a westbound truck coming from her left to pass and then entered the roadway. Because nothing had been coming when she looked right, Griffin did not look to her right again or stop in the turn lane to check for oncoming traffic before entering the eastbound lanes. Griffin testified that she did not see Pilcher’s patrol car traveling eastbound until it hit her from behind. However, an accident reconstruction expert testified that if Pilcher could see Griffin move across the westbound lanes of Forsythe, then she could have seen him approaching if she had looked in Pilcher’s direction. He also stated Griffin was turning at an angle and that her vehicle never got completely straight in the outside eastbound lane before the accident occurred.

In upholding the Trial Court's Opinion, the Court of Appeal relied upon La. R.S. 32:124 which provides that a “driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building ... shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.” Additionally, drivers are required to yield the right of way upon the immediate approach of emergency vehicles making use of audible or visual signals. This statutory duty arises when a motorist observes or hears (or should have observed or heard) the audible or visual warnings.

Griffin also contended Pilcher's speed, lack of siren and use of a cell phone violated the duty of ordinary care. Louisiana law provides the driver of an emergency vehicle, when responding to an emergency call, or when in pursuit of an actual or suspected violation of the law may exceed the maximum speed limits so long as he does not endanger life or property but must not due so without reckless disregard for the safety of all persons. The appellate court held Pilcher's actions were not grossly negligent and he did not act with reckless disregard for the safety of others. Pilcher's speed was necessary to apprehend the speeder and occurred on a flat straight roadway when the traffic was not heavy. Moreover, the Court found Pilcher's hands-free cell phone conversation did not contribute to the accident.

It is important when involved in a car accident to immediately contact an experienced attorney so you can recover the money you deserve.

Continue reading "Motorist Found Negligent Following Collision with Police Cruiser in Monroe, LA " »

In Catalyst Old River Hydroelectric Limited Partnership v. Ingram Barge Co.; American River Transportation Co., the 5th Circuit revisits the decision made by the U.S. Supreme Court in Robins Dry Dock Co. v. Flint, 275 U.S. 303(1927): a foundational precedent for both maritime law specifically, and modern negligence law, generally. In Robins, the Supreme Court articulated a rule that has endured to this day and has significantly influenced general negligence jurisprudence; namely "there can be no recovery for economic loss absent physical damage to or an invasion of a proprietary interest." In TESTBANK (1985) the 5th Circuit reaffirmed the Robins rule that the court has consistently applied whenever circumstances necessitate doing so. After reviewing the rules from Robins and TESTBANK, the court in Catalyst applies these rules to the facts of the case.

On December 24, 2007, two tug boats with barge tows collided on the Mississippi River 2.5 miles upriver from the intake channel to the Sidney A. Murray hydroelectric plant. M/V Dan McMillan and its tow was operated by Defendant ARTCO, and M/V John Donnelly and its tow was operated by Defendant Ingram Barge Co. Several barges broke free from the tow of the Dan McMillan, including Barge TILC-37. Barge TILC-37 then drifted down river into the intake channel of Catalyst's facility and became grounded on the east bank of the intake channel, lodged against the station and abutment. The physical presence of Barge TILC-37 obstructed the intake channel which provides water to the turbine/generators of the electric power generation facility."
Because of the location of the barge, Catalyst had to reduce the flow of water in the intake channel to the turbines; and thus its output of electricity. This was necessary to prevent the barge from sinking and to allow safe access to the barge for its removal. Catalyst had to shut down six of the turbines and reduce the output of the remaining two because of the decrease of water coming into the intake channel. This allowed for the safe removal of the barge. Catalyst restored normal capacity to the plant at 6:30 p.m. on the 25th.

It is important to note that the power station is located "in a channel off the river. Catalyst owns the station and the surrounding property necessary for its operation. This includes the banks of the Mississippi River, the intake channel and the abutment on which the dam structure sits. The intake channel and a small island located in the mouth of the intake channel where it meets the Mississippi River are functional elements of the hydroelectric facility, acting as a pipe would to direct water into the station's eight turbines in order to produce electricity."
Catalyst filed a suit in Louisiana state court seeking damages for the value of the electrical power it was unable to generate due to the intrusion of the barge. The Defendants removed the case to federal district court. The defendants motioned for summary judgment and it was granted. Catalyst appealed and the 5th Circuit decided the appeal.

The Defendants' argued that Catalyst did not suffer any physical harm, and cited Reserve Mooring Inc. v. American Commercial Barge Line 251 F. 3d 1069 (5th Cir. 2001) as a controlling precedent. In Reserve a barge sank while anchored to a midstream mooring facility on the Mississippi River, blocking the site and rendering it unavailable for use by other vessels for 3 months. Reserve sued seeking lost revenue. "Because the sunk barge only interfered with Reserve's business expectancy by preventing other vessels from mooring at the facility for a period of time, this court (5th Circuit) concluded that Reserve's claim for purely economic damages must be denied."

The main thrust of the Defendant's argument is that there was no physical damage done to the intake channel or the rest of Catalyst's facility. Thus, they argue that Catalyst did not suffer any physical injury to a proprietary interest which is the requirement for recovery of economic losses. Also, the Defendants "presented no evidence that the barge did not disrupt the water flow, which everyone agrees is critical to Catalyst's operations", nor did they contest "the basic facts of the ownership and design of the facility": both of which are essential features of the support for Catalyst's claim.

Catalyst argued that its facility did suffer physical damage because "the presence of the barge in the intake channel, which is a functional component of Catalyst's hydroelectric facility interfered with the unobstructed continuous flow of water in the channel, impairing the ability of the facility to operate as designed." The following from an answer by Catalyst in the Defendant's Statement of Uncontested Material Facts sums up the reasons that Catalyst suffered property damage to a proprietary interest.

"The intake channel is Old River's private leasehold property and is the conduit portion of the facility which directs water into the turbines which power the Old River Station. The barge's physical entry into Old River's private leasehold property, its running aground on Old River's leasehold property, the physical recovery effort to secure and remove the barge from Old River's private leasehold property obstructed the conduit, thereby damaging it and physically preventing Old River from using its only source of power for its generators"

The court recognized that the interference with the water flow to the intake channel, hindered Catalyst's use of the facility. The court also recognized the recovery effort as a reason to support Catalyst's claim of damages. Remember, the water had to be restricted to the degree that six turbines were shut down and the remaining two reduced in power output so that the barge could safely be recovered by a tug boat. The decision states "the physical recovery effort to secure and remove the barge from the intake channel required a reduction in the flow of water necessary for the turbines to operate properly and generate the power they were designed to generate." A rule distilled from these facts was articulated by the court in the following: "Acts taken in mitigation to prevent permanent physical damage can serve as the physical damage requirement in the TESTBANK rule." Also, "costs incurred to mitigate damages satisfy the physical damage requirement of TESTBANK."

The court decided for Catalyst and concluded "that the entry of ARTCO's barge into Catalyst's privately owned hydroelectric facility caused physical damage to Catalyst's property and invasion of its proprietary interest. As co-licensees of the Sidney A Murray hydroelectric plant, the people of the town of Vidalia should be happy with the decision.

The Town of Vidalia and the Parish of Concordia have the honor and distinction of being the beneficiary and location, respectively, of the largest prefabricated power plant in the world and the first hydroelectric power plant in the State of Louisiana. In 1990 the Sidney A. Murray Jr. hydroelectric station was prefabricated at the Avondale Shipyard in New Orleans, and floated 208 miles upriver to its current location: 40 miles south of Vidalia. The facility sits one mile north of the Army Corp of Engineers Old River Control Complex between the Mississippi River and the Red Atchafalaya River, producing 192 megawatts by utilizing the flow of 170,000 cubic feet per second of water past eight hydroelectric turbines. The project is remarkable not just because it is the first hydroelectric plant in Louisiana, and the largest prefabricated hydroelectric plant on the planet; but it is also the product of a multinational collaboration, it produces clean and renewable energy for Vidalia, and the town of Vidalia is a co-licensee of the project. In addition to the obvious benefits of clean and renewable energy and the employment that the Sidney A Murray Jr. project bestows on Vidalia and the Parish of Concordia; the citizens of Vidalia also benefit from "stabilized energy rates" that they receive with the operation of the plant.

Catalyst Old River Hydroelectric Limited Partnership v. Ingram Barge Co.; American River Transportation Co. is a particularly interesting case for those living in Concordia Parish because it is a maritime tort case involving the Sidney A. Murray Hydroelectric Plant. The case is important because it includes a review of the standards for damage requirements established in Robins Drydock and Repair Co. v. Flint 275 U.S. 303 (1927) and reaffirmed in Louisiana ex. rel. Guste v. M/V TESTBANK 752 F.2d 1019 (5th Cir. 1985). After reviewing Robins and TESTBANK, the 5th Circuit then applies the Robins test to the particular facts of the case. This will be a two part discussion: the first part will identify and discuss the test developed in Robins and evaluated in TESTBANK. The second part will discuss how the 5th Circuit applied the Robins test to the facts of the Catalyst case.

In 1927 the United States Supreme Court decided Robins Dry Dock and Repair Co. v. Flint. This case established "the general proposition that claims for pure economic loss are not recoverable in tort." This decision has profoundly impacted not just maritime tort law, but general negligence law as well; with extremely broad implications and applications that resound to this day, over 80 years later. " No single decision in American tort law has more dominated the analysis of liability for pure economic loss than Robins Dry Dock Repair Co. v. Flint." Justice Holmes "denied the plaintiff, a time charterer recovery for financial loss which resulted from the defendant's interference with the plaintiff's use of the chartered vessel." The following hints at the scope of the effects of the decision.

"As many have noted, this denial of liability went sharply against the current of the overwhelming tendency of modern negligence law 'that pushed liability for physical injuries toward the full extent of what was foreseeable and shattered ancient barriers to recovery based on limitations associated with privity of contract and similar restrictive concepts'. Yet in the face of modern negligence law and notwithstanding that Robins was a case of admiralty, the decision remains, overwhelmingly, the majority view and represents the longest standing and most influential statement in American tort law of what has come to be called 'the economic loss rule'".

In the present case, the 5th Circuit articulates the Robins rule in the following: "It is well settled under the general maritime law that there can be no recovery for economic loss absent physical damage to or an invasion of a proprietary interest."

To resolve the issue in Catalyst, the 5th Circuit has to apply the Robins rule to the facts of the case. An analysis of the application of this rule to the facts will be discussed later. However, the Court very succinctly makes the relevance of Robins to Catalyst clear in the following statement in, and about, Catalyst:

"the question in this case is whether Catalyst suffered such damage to its proprietary interest in its hydroelectric station as to satisfy this test and justify the recovery of the economic damages Catalyst seeks in this court."

As the above quotation about Robins makes clear, the Robins decision "remains, overwhelmingly, the majority view" that has existed since 1927. Curiously and serendipitously, the same court deciding Catalyst, the 5th Circuit of Louisiana, "engaged in an extensive debate over the continued vitality of Robins and concluded (despite five dissenters) that it remained good law." In the State of Louisiana ex. rel. Guste v. M/V TESTBANK (1985) two ships collided on the Mississippi River, resulting in a toxic chemical release and the closure of an outlet on the Mississippi River for approximately 19 days. A variety of entities were adversely affected by this closure which compelled those adversely affected to file numerous lawsuits. These lawsuits were "consolidated before the same judge in the Eastern District of Louisiana". The defendants were granted summary judgment "on all claims for economic loss unaccompanied by physical damage to property." On appeal an en banc panel of the 5th Circuit affirmed the decision.

In TESTBANK, the 5th Circuit reaffirmed Robins; articulating specifically that "physical damage to a proprietary interest is a prerequisite to recovery for economic loss in cases of unintentional maritime tort." The 5th Circuit described the rule in Robins as a pragmatic rule that prevents "open ended liability" in cases where "a plaintiff has no proprietary interest in property that is physically damaged." The court recognized the Robins rule as effective in helping the trier of fact to avoid arbitrary judgments by having a "bright line rule" that places a "determinable measure on the limit of foreseeability" and that "allows for extensive losses....to be spread over first party or loss insurance." The court emphasized the pragmatic effects and benefits of the Robins rule in TESTBANK.

In Catalyst the 5th Circuit revisited both the Robins decision (by applying the rule) and its own decision in TESTBANK (the reaffirmation of the Robins rule). The Court relied upon Robins and TESTBANK as precedents for Catalyst, creating consequences for the Parish of Concordia and the town of Vidalia. In Catalyst, the 5th Circuit cites Kaiser Aluminum and Chemical Corp. v Marshland Dredging Co,. 455 F.2d 957 (1972), Dick Meyers Towing Service, Inc. v. United States, 577 F. 2d 1023 (1978), and Louisville & Nashville Railroad Co. v. M/V BAYOU LACOMBE, 597 F. 2d 469 (1979) as examples of the "consistent application of the rule stated by the majority in TESTBANK 'that there can be no recovery of economic loss absent physical injury to a proprietary interest.' "

A significant dimension of Catalyst is the review of Robins and TESTBANK standards for recovery. Considering the influence of Robins and the fact that this rule was perpetuated and reemphasized in TESTBANK, the combination of these cases provide powerful precedents that will demonstrate their influence in Catalyst. The application of these precedents to the facts of Catalyst will be very interesting and compelling.

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

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

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

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

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