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January 25, 2012

"Law of the Case" Doctrine, Part 2

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" »

January 23, 2012

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

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" »

January 21, 2012

The Plaintiff's Burden in Proving Special Damages

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.

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January 19, 2012

Third Circuit Rejects Trial Court's Apportionment of Fault in Lafayette Auto Accident

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.

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January 17, 2012

Third Circuit Reverses Trial Court in Rare Finding of Abuse of Discretion in Med Mal Action

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.

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January 15, 2012

Medical Malpractice Sued Dismissed in Hospital Error Involving Sponge

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.

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December 23, 2011

Happy Holidays from the Berniard Law Firm

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!

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December 19, 2011

Alexandria Man's Gastrointestinal Injuries Not Presumed To Have Developed From Defendant's Negligence

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" »

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Posted In: Civil Matter , Competent Lawyer , Expert Testimony , IIED (Emotional Distress) , Legal Duty , Litigation , Miscellaneous , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Strict Liability , Trip & Fall Injuries , Wrongful Death

December 13, 2011

New Orleans Shooting Leads to Wrongful Death Action

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."

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December 11, 2011

Inadequate Medical Care and the Legal Ramifications Capable of Causing Life-Changing Problems

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" »

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December 9, 2011

Plaintiff Learns Painful Lesson About Treating Injuries Without Delay

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.

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December 7, 2011

Court Explores Standard of Review in Baton Rouge Car Wreck Case

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.

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December 5, 2011

Louisiana Wrongful Death and Punitive Damages Award in Oil Refinery Release (Part II)

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.

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December 3, 2011

Louisiana Wrongful Death and Punitive Damages Award (Part I)

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.

November 27, 2011

Lawsuit Alleging Medical Malpractice Against Nurse Highlights Cap Limitation Elements

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.

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November 25, 2011

Medical Malpractice in Oliver Case Sees Ruling Highlighting Financial Disparity

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.

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November 23, 2011

Oliver Medical Malpractice Case Sees New Opinion From Courts

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.

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November 21, 2011

Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits

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.

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November 15, 2011

Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription

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.

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November 13, 2011

The Scary Prospect of Inadequate Medical Care and the Legal Ramifications

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.

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.

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November 3, 2011

Baton Rouge Pedestrian Strike Reminds Drivers of Duty to Keep a Lookout

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.

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October 29, 2011

Geismar Wrongful Death Action Focuses on Choice of Litigation Forum

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.

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October 27, 2011

Bossier City House Fire Tragedy Prompts Court's Review of Landlord's Duty to Tenants

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.

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October 25, 2011

Medical Malpractice Case in Louisiana Shows Importance of Panels

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.

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October 19, 2011

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

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.

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October 15, 2011

Second Circuit Second Guesses Trial Court's Apportionment of Fault in Caddo Parish Car Wreck

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.

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October 11, 2011

Court of Appeals Upholds Trial Court Ruling Granting Longshoreman's Workers Compensation Claim

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.

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October 9, 2011

Second Circuit Appeals Court Upholds Caddo Parish Wrongful Death Ruling

The Louisiana Second Circuit Court of Appeals recently affirmed a $550,840 jury-verdict award based on a medical malpractice claim. The verdict accounted for both wrongful death and survival damages, all of which were awarded for the benefit of the decedents 8 surviving children.

In order to prevail in a medical malpractice lawsuit, the plaintiffs must show by a preponderance of the evidence that the hospital, their doctors, nurses and/or staff breached the applicable "standard of care," and that this breach of care was a substantial factor in contributing to the patients injury or death. The applicable standard of care is "the degree of skill ordinarily employed, under similar circumstances, by members of the health care profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case." The standard of care for medical malpractice claims is a comparative one; that is, a member of the medical profession is required to conduct themselves with the same amount of care as would a professional of equal status, under equal circumstances, and within the same community. For example, a nurse practicing medicine in a state-of-the art hospital in New Orleans would be subjected to the standard of care used by similarly situated nurses in similar hospitals, and a doctor would be held to the standard of a similarly situated doctor, etc., etc. Moreover, hindsight or subsequent events cannot be considered when determining whether the standard of care was breached. Instead, the judgment and conduct of medical professionals must be evaluated under the then existing circumstances.

In the instant case, the 75-year-old decedent underwent a colectomy and was recovering in the intensive care unit. She was recovering "fairly well" until December 2, 2003, at which point her condition began to deteriorate. She reportedly was having trouble breathing throughout the day and was pronounced dead at 6:28 P.M. The direct cause of her death and whether or not the hospital was at fault was an issue decided by the jury. The jury returned a 9-3 verdict in favor of plaintiffs, finding that Christus Schumpert Medical Center breached the standard of care in its treatment of the decedent, and the breach in the standard of care was a substantial factor in contributing to the death of the decedent. In reaching this verdict the jury heard testimony that the patient was having significant difficulty breathing throughout the day, and that the children of the decedent had brought this to the attention of the medical staff on several occasions. Moreover, that the attending physician ordered a number of medical tests to better assess the decedent's breathing troubles, and that these tests were not administered by the attending nurse. To be sure, there was some testimony that the attending nurse maintained the standard of care, and that the decedent may have died from a pulmonary embolism, which would have been sudden and unexpected, relieving the hospital of any fault. However, in the end the jurors weighed the volumes of testimony and 9 of the 12 jurors sided with the plaintiffs.

On appeal, the Second Circuit found no error in the trials court's ruling that would have had any substantial impact on the case. Moreover, the Second Circuit found that the jury verdict was reasonable in light of the evidence. It is important to point out that on appeal, the court will not reweigh the totality of the evidence. Instead, the court will only overturn a jury verdict on appeal if the evidence is so overwhelming that no reasonable jury could have decided the case the way that it did.

In fact, the jury verdict was a close 9-3 result - one less juror and the plaintiffs would have lost the trial. Moreover, the standard of review on appeal makes it very difficult to overturn jury verdicts. Thus, if you have been the victim of substandard care or negligent medical treatment, it is important to contact experienced legal representation so that complex matters such as these can be handled properly the first time, and you can secure the financial award you deserve.

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October 7, 2011

U.S. 5th Circuit Court of Appeals Clarifies Theriot Exception to Prescriptive Period Defense

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.

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Posted In: Civil Matter , Competent Lawyer , Expert Testimony , Legal Duty , Litigation , Miscellaneous , Negligence , Prescription/Timing of a Case , Strict Liability , Wrongful Death

October 5, 2011

Iberville Parish Backhoe Accident Sheds Light on DOTD Duty of Care

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.

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Criminal Matter , Expert Testimony , Legal Duty , Litigation , Miscellaneous , Motorcycle Injury , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Semi Truck Accident , Strict Liability , Wrongful Death

October 3, 2011

Supreme Court Finds Sufficient Service in New Orleans MedMal Case

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.

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October 1, 2011

Issues of Law Involving Water Complicated, Require Admiralty Understanding

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.

September 29, 2011

Fireman's Survivors File in Time in Shreveport

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.

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September 27, 2011

Knee Replacement Leads to Debate of Understanding the Difference Between Fact and Law

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.

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Posted In: Civil Matter , Competent Lawyer , Expert Testimony , Legal Duty , Litigation , Medical Malpractice , Miscellaneous , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Strict Liability , Trip & Fall Injuries , Wrongful Death

September 25, 2011

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

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.

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September 21, 2011

St. Landry Parish Accident Results in Reversal and DOTD Responsibility

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.

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September 19, 2011

Statute of Limitations on Medical Malpractice Claims in Louisiana: Information Every Patient Should Know

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.

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Posted In: Civil Matter , Class Action , Competent Lawyer , Expert Testimony , Insurance Dispute , Legal Duty , Litigation , Medical Malpractice , Miscellaneous , Negligence , Prescription/Timing of a Case , Strict Liability , Wrongful Death

September 17, 2011

2nd Circuit Reverses in Part Caddo Parish Med Mal Case Over Causation Issue

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.

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September 13, 2011

Jones Act Lawsuit Fails Under Seaman 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.

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September 11, 2011

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

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.

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September 9, 2011

3rd Circuit Ruling Regarding Workplace Injury - Part 3 of Series

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.

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September 5, 2011

Three Part Series Regarding Workplace Injuries

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.

September 3, 2011

Ouachita Parish Medical Malpractice Case Reminds Litigants of the Importance of Meeting Litigation Deadlines

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.

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September 1, 2011

Court Explores Scope of Employment in Baton Rouge Car Accident

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

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August 30, 2011

Service Crucial in Successful Court Cases

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.

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August 24, 2011

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

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" »

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August 22, 2011

Louisiana Residents' Backhoe Damages Utility Cable on Owned Land a Trespass?

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.

August 20, 2011

American Bar Association Calling for Nominations of Top 100 Lawyer Blogs

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.

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August 18, 2011

Opelousas Parish Natural Gas Explosion, Part 3: Assigning Fault

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" »

August 16, 2011

Opelousas Parish Natural Gas Explosion, Part 2: Determining Causation

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" »

August 14, 2011

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

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 " »

August 10, 2011

Exploring a No Cause of Action Ruling Shows Power of Appeal

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" »

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Posted In: Civil Matter , Competent Lawyer , Expert Testimony , Legal Duty , Litigation , Miscellaneous , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Strict Liability , Wrongful Death

August 8, 2011

Court Reviews Driver's Duty of Care in Bossier City Car Accident

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 " »

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Expert Testimony , Legal Duty , Litigation , Miscellaneous , Motorcycle Injury , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Semi Truck Accident , Strict Liability , Wrongful Death

August 4, 2011

After Two Car Accidents, Man Denied Damages Due to Testimony of Previous Settlement

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" »

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August 2, 2011

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

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" »

July 31, 2011

Louisiana Supreme Court Changes Apportionment of Fault in Medical Malpractice Case

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.

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July 21, 2011

Court Examines Limits of Uninsured Motorist Coverage in Ouachita Parish Auto Accident

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" »

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Expert Testimony , Insurance Dispute , Litigation , Miscellaneous , Motorcycle Injury , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Semi Truck Accident , Strict Liability , Wrongful Death

July 19, 2011

Injuries, Damages Caused by Defective Sidewalks: City Can Be Held Liable

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.

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July 15, 2011

Asbestos Cases Always Difficult, Involve Negligence and Diverse Defendant Groups

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

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

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

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

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

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

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

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

July 9, 2011

Maritime and Industry Injury Cases Quite Complex

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.

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July 7, 2011

Fourth of July Offers Reminder of Danger of Negligence and Need for Common Sense, Attention to Safety

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!

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June 21, 2011

Understanding Prescriptive Time Periods When Filing a Lawsuit

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

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

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

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

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

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

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

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June 19, 2011

Court Confirms: Daycare Center's Liability has Limits

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

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

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

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June 13, 2011

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

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

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

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

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

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June 9, 2011

Thirty Years of Asbestos Exposure Leads to Death

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

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

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

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June 7, 2011

Contractor Not Liable for Electrocution Death in St. Tammany Parish

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

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

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

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

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

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

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

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

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June 5, 2011

Lafayette City-Parish Consolidated Government Ordered to Pay Damages, Costs to Injured Bus Passenger

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

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

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

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

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

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

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

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

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

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May 30, 2011

Appellate Court Reverses Factually Unsupported Judgment in Car Wreck Case

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

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

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

The Hopkins case speaks to the critical nature of a plaintiff's ability to establish facts that are consistent with her theory of recovery. As the Second Circuit noted in its opinion,
"Although deference to the factfinder should be accorded, because appellate courts have a constitutional duty to review both law and facts, they have the right and obligation to determine whether a trial court verdict is clearly wrong based on evidence, or clearly without evidentiary support... Therefore, it is not the case that a trial court’s factual determinations cannot ever, or hardly ever, be upset.”
Thus, the court makes clear that findings of fact must be supported by solid evidence in order to survive challenge on appeal. If you have been injured due to someone's negligence, it is essential to seek a qualified attorney who is experienced at building the most favorable case possible based on the actual evidence to be presented at trial.

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May 28, 2011

Disabled Man's Death Demonstrates Slipper Slope of Malpractice Claims

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

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

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

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

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

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

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

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May 22, 2011

Court Vacates Jury's Award in Rapides Parish Lost Chance of Survival Case

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

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

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

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

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May 20, 2011

No Future Expenses Awards for Ouachita Woman Who Suffered Injuries in Accident

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

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

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

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

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

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Legal Duty , Litigation , Miscellaneous , Motorcycle Injury , Negligence , Pain and Suffering Claims , Strict Liability , Wrongful Death

May 17, 2011

Product Safety a Concern? Check Out This Government Website

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

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Posted In: Chinese Drywall , Civil Matter , Competent Lawyer , IIED (Emotional Distress) , Legal Duty , Litigation , Medical Malpractice , Mesothelioma/Asbestos , Miscellaneous , Motorcycle Injury , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Product Defect , Strict Liability , Wrongful Death

May 16, 2011

Prescription Runs on Ouachita Parish Medical Malpractice and Wrongful Death Survival Action Claim

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

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

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

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

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

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

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

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

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Expert Testimony , IIED (Emotional Distress) , Legal Duty , Litigation , Miscellaneous , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Strict Liability , Wrongful Death

May 14, 2011

Court of Appeals Rejects Insurance Company's Defense of Nonpermissive Use in Recent Case

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

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

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

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

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

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

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Criminal Matter , Expert Testimony , Insurance Dispute , Legal Duty , Litigation , Miscellaneous , Motorcycle Injury , Negligence , Pain and Suffering Claims , Product Defect , Semi Truck Accident , Strict Liability , Wrongful Death

May 12, 2011

Louisiana Department of Wildlife and Fisheries, Department of Transportation and Development Found Liable for Natchitoches Parish Drowning

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

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

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

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

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

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

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

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Posted In: Admiralty/Maritime , Civil Matter , Competent Lawyer , Expert Testimony , Legal Duty , Litigation , Miscellaneous , Negligence , Offshore Accidents , Pain and Suffering Claims , Prescription/Timing of a Case , Product Defect , Strict Liability , Wrongful Death

May 10, 2011

Successful Appeal for Fairness in Iberia Parish Car Accident Payment

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

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

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

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

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

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

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Expert Testimony , Insurance Dispute , Legal Duty , Litigation , Miscellaneous , Negligence , Pain and Suffering Claims , Product Defect , Semi Truck Accident , Strict Liability , Wrongful Death

May 8, 2011

The Effect of Statutory Employee Status on a Claim for Injury on the Job

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

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

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

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

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

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

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Posted In: Civil Matter , Competent Lawyer , Legal Duty , Litigation , Miscellaneous , Negligence , Offshore Accidents , Pain and Suffering Claims , Prescription/Timing of a Case , Strict Liability , Trip & Fall Injuries , Workers' Compensation , Wrongful Death

May 6, 2011

Court Clarifies Duty of Ambulance Dispatcher in Dropped 911 Call

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

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

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

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

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Posted In: Animal/Dog Bites , Car Accident , Civil Matter , Competent Lawyer , Expert Testimony , Legal Duty , Litigation , Miscellaneous , Motorcycle Injury , Negligence , Offshore Accidents , Pain and Suffering Claims , Prescription/Timing of a Case , Strict Liability , Trip & Fall Injuries , Wrongful Death

May 4, 2011

On Prematurity and a Plaintiff's Case for Damages

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

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

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

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Posted In: Civil Matter , Competent Lawyer , Expert Testimony , IIED (Emotional Distress) , Legal Duty , Litigation , Medical Malpractice , Miscellaneous , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Strict Liability , Wrongful Death

May 2, 2011

Oil Pump Injury Demonstrates Limits of Liability for Child's Injury

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

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

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

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

The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.
Further, reasonably anticipated use is defined as, "a use or handling of a product that the product's manufacturer should reasonable expect of an ordinary person in the same or similar circumstances." Lukfin provided evidence that at the time the oil well pump was built, 50 years ago, the sole purpose of the pump was to extract oil. There was never any intent on the part of the company to make its pump available for recreational use. The Supreme Court agreed and stated that on the part of the company, riding the pump would not be a reasonable foreseeable use. Thus, Lufkin had met its burden of proving that it used care when creating its product.
Although Henry was unlucky in his tragic accident and his ultimate case, one can never know who is legally to blame for an injury caused by a product or a machine.

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Posted In: Chemical/Industrial Spill , Civil Matter , Competent Lawyer , Expert Testimony , Insurance Dispute , Jones Act , Legal Duty , Litigation , Miscellaneous , Negligence , Offshore Accidents , Pain and Suffering Claims , Prescription/Timing of a Case , Product Defect , Strict Liability , Workers' Compensation , Wrongful Death

April 30, 2011

Poor Choice of Venue Following Auto Accident in Lafayette Parish Leads to Dismissal of Suit

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

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

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

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Expert Testimony , Insurance Dispute , Legal Duty , Litigation , Miscellaneous , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Semi Truck Accident , Strict Liability , Wrongful Death

April 28, 2011

Medical Malpractice and the Patient Compensation Fund

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

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

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

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

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

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April 26, 2011

Court Examines DOTD Liability for Lack of Road Shoulder in Ascension Parish Auto Accident

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

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

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

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April 24, 2011

Court Clarifies Procedure for Medical Panel's Review of New Claims

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

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

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

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

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April 14, 2011

Second Circuit Rejects Jury's Assessment of DOTD's Liability in Madison Parish Highway Accident

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

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

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

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

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April 8, 2011

Louisiana Workers' Compensation Act and other Available Remedies

An employer takes a worker as he finds him or her, and a worker who is more susceptible to injury is entitled to no less protection under the Louisiana Workers Compensation Act than a healthy one. This holding comes from a Louisiana Appellate decision that supports the concept that employees, who are injured in the course of employment, are to be provided appropriate compensation and medical care. A recent 2nd Circuit Court of Appeals Decision explored workers compensation in Louisiana, and the elements necessary to obtain compensation, despite underlying health risk that may have helped create the injury in question. In Lloyd v. Shady Lake Nursing Home, the nursing home sought for the court to apply the Louisiana Worker's Compensation Act, in order to avoid having to pay higher damages to the surviving spouse and family under a negligence or tort based remedy.

Margaret Caldwell was the focus of the Court's analysis, and her suffered injury and subsequent death. Mrs. Caldwell, was a fifty-four year old woman, known to be suffering from morbid obesity, worked as a Certified Nursing Assistant at the Shady Oaks Nursing Home for over twenty years. One day, as she was cleaning her station, mopping the floors, she spotted a patient out of his room. She asked him to return to his room and it was at this point he attacked her, striking her in the face. Immediately following the attack, Mrs. Caldwell experienced elevated blood pressure levels and was taken to East Carroll Parish Hospital, where only a few hours later she was pronounced dead. The autopsy found the immediate cause of death to be hypertensive heart disease and coronary artery disease, with the underlying cause of death being a physical blow to the face. This last portion became the ultimate point of controversy between Mrs. Caldwell's family and Shady Oaks, as her employer attempted to rely on a specific Louisiana Revised Statute that negates workers compensation benefits for heart related illnesses or death that arises during the scope of employment. The court explores the meaning behind each element of workers compensation and definitional terms in order to formulate their decision.

To begin with, the Louisiana Worker's Compensation Act, provides medical help and/or compensation or injuries or possible death that occurs during the course of employment. However, breaking this down into sections, one must understand what injury/accident legally means, and how it is measured in order to determine whether one is afforded such relief. An accident is defined by La. R.S. 23:1021(1) as follows:

"[A]n unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration."

Such types of injuries are thus, protected and covered by the Worker's Compensation Act. However, there are limitations applied to certain accidents that occur under certain circumstances, even if they occur during the course of employment. of specific relevance is La. R.S. 23:1021(8)(e), which provides,

"Heart-related or perivascular injuries. A heart-related or perivascular injury, illness or death, shall not be considered a personal injury by accident arising out of an in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:

(i.) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and (ii.) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death."

The Court denied Shady Oaks attempt for summary judgment, based on the tenuous argument that the patient's act of striking Mrs. Caldwell should be considered an accident that aggravated her preexisting condition resulting in her stroke and heart attack. The defendants had not shown by the required "clear and convincing evidence," that the work environment was extraordinary and unusual or that the physical stress or exertion she had to perform in the course of her employment, was higher than other types of employment related duties. Thus, the court next had to evaluate the work environment, and whether the incident in question was extraordinary or whether it was a normal happening for Mrs. Caldwell during the course of her employment.

The tragic incident that Mrs. Caldwell experienced shortly before her death, was thoroughly explored by the Court. The specific patient who attacked her did not have a history of attacking nurses, however, testimony given declared such incidents of physical assault were not rare for certified nurse's or staff to experience. The court ultimately determined that reasonable minds could disagree as to whether or not Mrs. Caldwell experienced extraordinary or unusual physical work stress and whether that stress, versus her pre-existing conditions, was the predominant and major cause of her heart-related death. Yet, the court does not end their discussion there, the court desiring compensation for the loss Mrs. Caldwell's family incurred, explore an alternative avenue that is available.

Where an employee is not entitled to a remedy or compensation under the Louisiana Worker's Compensation Act, then there is no immunity in tort for the employer. Remember, that when one is afforded the worker's compensation benefits, they have traded their right and ability to sue the employer in tort for negligence. Thus, if worker's compensation is not available or obtainable, than a tort remedy is available. Thus, her family is able to pursue an intentional tort, such as battery and assault against Shady Oaks for the acts of the patient performed against the late Mrs. Caldwell.

Therefore, there are many available legal routes and avenues to pursue if the unfortunate occurrence happens that one is physically injured or is killed during the course of their employment. Louisiana affords protection to its residents, desiring compensation for losses in order to promote the public policy of having an efficient administration of justice. Thus, if Louisiana Worker's Compensation Act is not available to one who is injured or killed, than tort remedies may be available, thus, providing relief to those who would otherwise be prevented from receiving anything.

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March 27, 2011

Pointe Coupee Parish Owners of Horse Not Liable For Injuries Sustained By Guest

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

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

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

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

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

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

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March 17, 2011

Fatal Vehicle Crash in Hammond Illustrates Potential Liability of Surviving Driver

On June 23rd in Hammond, Louisiana, there was a fatal vehicle crash in the southbound lanes of Interstate 55. A Mercedes SUV, driven by Gwendolyn Jackson, was heading the wrong way and collided with a Hyundai driven by 18 year-old Caleb Perricone. The vehicles collided head on and both Jackson and Perricone were transported to Northoaks Hospital, where Jackson was treated for moderate injuries but Perricone was pronounced dead.

Jackson is suspected of drug impairment and the results of her toxicology test should be soon forthcoming. After she was released from the hospital, she was charged with Vehicular Homicide, Traveling the Wrong Way on a One Way Roadway, and 1st offense Driving While Intoxicated. She was booked at the Tangipahoa Parish Jail in Amite. Though Jackson will have to answer to the State of Louisiana for her allegedly criminal conduct, the result of those proceedings will hardly address the harm and grief inflicted on Perricone and his family.

In order to compensate the people in Perricone's life for the loss of his love, affection, companionship, support, and funeral expenses, the Perricone family might want to consider filing a lawsuit against Jackson and her insurance policy under the theories of Wrongful Death and Survival.

Wrongful Death
A Wrongful Death lawsuit would allow Perricone's family members to recover for the damages they sustained through the wrongful death of the decease: "nonpecuniary loss, variously described as loss of love, affection, companionship, care, attention, nurture, guidance, society, consortium, and like terms." [LAPRAC-PI Sec. 4:210]. Though it's unclear from the story, we know that if Perricone had a spouse, children, or his spouse had children, they would have a primary right of recovery for his Wrongful Death. If he had none, his parents, if surviving, would possess the same right. If he didn't have any surviving parents either, his siblings would possess the right. In the absence of siblings as well, the right to recover for Perricone's Wrongful Death action would fall to his grandparents. [LAPRAC-PI Sec. 4:194].

Survival Action

In the same order, Perricone's family could also potentially recover in what's known as a Survival Action: compensation for damages sustained from the time the injury is known to the deceased up until his death, including damage to his property. Damages would include compensation for Perricone's pain and suffering, which was likely considering the unfortunate fact that he was not pronounced dead until he arrived at the hospital.

The negligence of the potential defendant is important to establish Jackson's liability for the accident. Here, however, there is very compelling evidence because she violated several laws. The prosecution of Jackson for the offenses noted above would help the Perricone Family's cause.

The toll of the death of a loved one, in addition to the knowledge that they did not pass immediately, is an immense burden of loss and pain. Thankfully the law can provides relief to ease some of the financial burdens during this difficult time.

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March 15, 2011

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

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

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

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

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

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

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

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

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

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

Costs

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

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

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

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March 11, 2011

1st Circuit Court of Appeal Panel Affirms Additur and Assessment of Fault in Rear-End Collision Case

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

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

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

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

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

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

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

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

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Legal Duty , Litigation , Miscellaneous , Motorcycle Injury , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Semi Truck Accident , Strict Liability , Wrongful Death

March 9, 2011

EPA Awards Sizeable Grant to Help Stop Asbestos Exposure: The Governments Role in Asbestos Issues

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

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

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

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

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

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

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March 1, 2011

Odd, Sudden Emergency Collision Leads to Discussion of Responsibility in Highway Car Accident

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

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

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

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

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

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

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Expert Testimony , Legal Duty , Litigation , Miscellaneous , Motorcycle Injury , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Semi Truck Accident , Strict Liability , Wrongful Death

February 27, 2011

Court Discusses Prescriptive Period in Medical Malpractice Case

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

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

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

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February 26, 2011

Court Dissects Nursing Home Wrongful Death Case

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

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

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

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

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

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February 25, 2011

First Circuit of Louisiana Allows Lost Chance of Survival Tort Case to Go Forward and Specifies Burden of Proof

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

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

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

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

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

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

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February 23, 2011

Disastrous Results for Plaintiffs that Wait Too Long to File Suit

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

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

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

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

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

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

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February 21, 2011

Transferable Rights and How They Pertain to a Lost Pregnancy

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

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

An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for actions resulting from its wrongful death.
Thus, the Louisiana legislature has codified what rights a fetus has. These rights extend to the moment of conception. However, if the fetus is born dead, all rights that attach to the fetus, except rights that find their origin in the cause of death, are extinguished.
The Louisiana Supreme Court discussed if survival rights attach to an unborn fetus, stating that fetuses can gain rights. However, for most circumstances, the rights attach only if the fetus is born alive. The Court stated that survival action attaches to someone's life. However, under Louisiana law a fetus that is born dead, is considered to never have existed at all. Even though the fetus gained the right to a survival action, because a stillborn fetus is considered to never have existed at all, the survival action, which attaches to a life, is extinguished.

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

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

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February 18, 2011

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

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

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

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

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

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Expert Testimony , Legal Duty , Litigation , Miscellaneous , Motorcycle Injury , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Semi Truck Accident , Strict Liability , Wrongful Death

February 16, 2011

Court Turns Away Plaintiffs' Mental Distress Claims After Chemical Release in St. Gabriel

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

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

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

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

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Posted In: Chalmette Refinery Release , Chemical/Industrial Spill , Civil Matter , Competent Lawyer , Expert Testimony , IIED (Emotional Distress) , Legal Duty , Litigation , Miscellaneous , Negligence , Offshore Accidents , Oil Rig Explosion/Leak , Pain and Suffering Claims , Prescription/Timing of a Case , Strict Liability , Wrongful Death

February 14, 2011

Legal Remedy for People With Mesothelioma Due to Asbestos Exposure

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

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

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

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

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

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

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Posted In: Admiralty/Maritime , Civil Matter , Competent Lawyer , Expert Testimony , Insurance Dispute , Legal Duty , Litigation , Mesothelioma/Asbestos , Miscellaneous , Negligence , Pain and Suffering Claims , Product Defect , Strict Liability , Workers' Compensation , Wrongful Death

February 9, 2011

Court Reaffirms: No Passenger Responsibility in Car Crash Caused by Drunk Driver

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

Delcambre urged that Schommer should be held liable with Jones in solido under Louisiana Civil Code Article 2324(A), which states:
“He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.”
The Third Circuit, however, in reviewing the trial record, pronounced it "completely devoid of any evidence whatsoever that Mr. Schommer conspired with Mr. Jones to commit any act, intentional or otherwise." The court observed that the only evidence Delcambre offered about Schommer was that "he was so intoxicated that he was blacked out on the side of the road after the accident, unable to speak or even sit up." Agreeing with the trial court's conclusion, the court deemed that Schommer would have been unable to conspire with Jones in his condition. Furthermore, "Schommer’s intoxication alone certainly does not prove the conspiracy" required by the Civil Code to impose in solido liability. Accordingly, the court found no error in the trial court's ruling and affirmed the dismissal of Delcambre's action.

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

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Posted In: Car Accident , Civil Matter , Legal Duty , Litigation , Miscellaneous , Motorcycle Injury , Negligence , Pain and Suffering Claims , Strict Liability , Wrongful Death

February 5, 2011

Passing Poses Problems: Automobile Accident Liability for Passing Vehicles on the Roadways

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

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

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

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

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Expert Testimony , Insurance Dispute , Legal Duty , Litigation , Miscellaneous , Motorcycle Injury , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Semi Truck Accident , Strict Liability , Wrongful Death

January 30, 2011

Asbestos Exposure Case Shows Importance of Early Medical and Legal Prognosis

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

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

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

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

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

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Posted In: Civil Matter , Competent Lawyer , Expert Testimony , Insurance Dispute , Legal Duty , Litigation , Mesothelioma/Asbestos , Miscellaneous , Negligence , Pain and Suffering Claims , Prescription/Timing of a Case , Product Defect , Strict Liability , Wrongful Death

January 24, 2011

Lessons and Warning Signs of Asbestos Exposure and Mesothelioma

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

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

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

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

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

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

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Posted In: Civil Matter , Competent Lawyer , Expert Testimony , Legal Duty , Litigation , Mesothelioma/Asbestos , Miscellaneous , Negligence , Pain and Suffering Claims , Product Defect , Strict Liability , Workers' Compensation , Wrongful Death

January 20, 2011

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

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

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

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

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

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January 16, 2011

Defendant's Motion to Switch Courts is Approved in Negligence Suit Against Hospital

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

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

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

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

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

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

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

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

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January 12, 2011

Teen from Cut Off Dies in Car Accident Where Driver Was Unlicensed

According to Houma Today, a 17-year-old boy from Cut Off was killed on October 22nd when the car he was riding in struck a utility pole. The boy, Edward Domingue, and his 15-year-old girlfriend were going to pick up pizza and movies when she lost control of the vehicle. Questions remain regarding why the girl was driving since she did not have a driver's license. Further, the girl's mother and owner of the vehicle, Gillian Reynolds, adamantly stated that she would not allow her daughter to drive. While the facts are still not clear, civil liability for the accident and Domingue's death are also still up in the air.

Louisiana Revised Statute 32:52 states that no person shall operate a vehicle or allow another person to operate a vehicle owned or controlled by him if the driver is unlicensed. However, the simple fact that doing so is a statutory violation does not necessarily imply that the owner, or the unlicensed driver, was negligent. In Enlow v. Blaney, the Louisiana Third Circuit held that even though a 14-year-old was not licensed to drive, the fact that the vehicle's owner allowed her to drive without a license was "immaterial and irrelevant" to the issue of negligence where her "conduct in driving without a license was not a cause-in-fact of the accident." Following its rationale in Enlow, the Third Circuit ruled that even when the owner allows an unlicensed minor to drive her vehicle, she will not be liable for a resulting accident where evidence suggests that the minor was competent to drive and the fact the driver was unlicensed is not the cause-in-fact of the accident.

However, under general common law principles, if the owner knowingly allows a person who is incompetent to drive, such as by repeated instances of negligent or reckless conduct, the owner may be liable for negligence. This usually requires that the incompetent driver be "on a mission" for the owner, acting as the owner's agent or employee, or the owner is negligent for entrusting his vehicle to the incompetent driver. In order to establish negligent entrustment, a plaintiff must show that the vehicle's owner knew or should have known that the borrower is incompetent to drive. One case of particular interest is the 1993 case of Jones v. Western Preferred Casualty Co. In that case, the Louisiana First Circuit found that a 19-year-old vehicle owner did not negligently entrust his car to a 13-year-old where the 13-year-old had only driven a few times before, had been drinking, and the 19-year-old had never met the 13-year-old before that day.

In the 1953 appellate case Nelson v. Carriere, the Louisiana Third Circuit held that age or inexperience driving cannot "brand" someone incompetent to drive a vehicle or be presumptive evidence of negligence. This is not the case in all jurisdictions. For example, courts of several states including Illinois and Alabama automatically presume that a vehicle owner was negligent in entrusting her vehicle to an unlicensed driver. See, e.g., Chiniche v. Smith (Ala. 1979). In Louisiana, proof of inexperience, past negligence or reckless in driving, or failure to obey driving laws can provide evidence of incompetence but, as noted previously, cannot create a presumption of negligence or negligent entrustment.

Additionally, it is unlikely that Mr. Domingue's conduct in allowing his unlicensed girlfriend to drive will reduce her or her mother's civil liability. In Faulk v. Champagne, the Louisiana Third Circuit found that a passenger was not liable for permitting an unlicensed driver to operate a vehicle since the passenger had no legal duty to prevent the driver from driving and the passenger did not know or should have known that the driver was incompetent. It is not clear whether this was the case here. However, neither Mr. Domingue's girlfriend nor her mother will automatically be negligent simply because she was unlicensed. Instead, a court will consider inexperience as one of many factors in deciding any civil liability.

If you or someone you know was involved in a vehicle accident with unclear liability, consult with an attorney today in order to preserve your legal rights.

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Criminal Matter , Legal Duty , Litigation , Miscellaneous , Negligence , Strict Liability , Wrongful Death

January 8, 2011

Mesothelioma and Asbestos: Part II

This post constitutes part two of an introduction to mesothelioma:

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

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

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

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

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

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

Continue reading "Mesothelioma and Asbestos: Part II" »

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January 6, 2011

Mesothelioma and Asbestos: Part I

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

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

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

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

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

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

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Posted In: Chinese Drywall , Civil Matter , Competent Lawyer , Legal Duty , Litigation , Mesothelioma/Asbestos , Pain and Suffering Claims , Product Defect , Strict Liability , Wrongful Death

December 27, 2010

Court Examines Role of Key Document in Summary Judgment in Baton Rouge Medical Malpractice Case

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

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

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

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

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

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

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

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December 7, 2010

Assessing Responsibility in Tragic Accident on Highway that Kills Two Passengers

According to state police, and reports in LaPlace's L'Observateur, two men died and two others were injured in a car accident a little over a month ago on Louisiana Highway 3127 in Wallace.

At about 5:14 p.m. on Friday, September 24th, James Davis and Kerry Rodrigue of Plaquemine were killed when the Chevy Silverado they were riding in collided with an unoccupied, parked vehicle. Neither of the men were wearing a seat belt. Colby Landry, the driver of the truck, and front passenger Reggie Daigle sustained moderate injuries, and consequently, were wearing seat belts. According to investigators, Landry was trying to pass another vehicle when he lost control of the truck and crashed into the other vehicle, which was parked on the shoulder of the highway. Speed appears to be a factor in the crash.

This tragic accident brings questions to mind as to what liability attaches to a driver who acts negligently to bring about the death of his passengers? Also, in Louisiana, is liability reduced at all if the two passengers who were negligent themselves in not wearing their seat belts?

Here, the families of the deceased passengers may be able to bring a claim against the driver if the evidence supports that he is at fault for the accident, that is, if he acted negligently. Negligence occurs when someone's action falls below the appropriate standard of care for a given situation and that action or inaction hurts someone else, to which they owed a duty. A driver has a duty his passengers (and other drivers on the road) to obey the law and drive at an appropriate level of speed. If he did not, and that action was the actual and proximate cause of the passengers' deaths, he was negligent. A variety of damages can be collected in this type of wrongful death action, including: funeral and medical expenses (actual damages), as well as compensation for the wages the victims would have earned, and compensation for pain and suffering.

In addition, Louisiana is a pure comparative negligence state. La. Civ. Code Ann. Art. 2323. This means that individuals' damages are reduced by whatever percentage they are deemed at fault for an accident. So, if the driver is found to be 80% at fault for the death of his two passengers due to his negligent behavior, but the deceased passengers are found to be 20% at fault for not wearing their seat belts, damages the survivors of the passengers can collect from the driver will be limited to 80% of the total damages recoverable. The question is, does not wearing a seat belt constitute negligent behavior? There is a good chance it might..

Under Louisiana law, seat belt use is mandatory for anyone riding in a car. If an individual breaks a law, it is easier to prove that they have acted negligently under the doctrine of negligence per se. While in a typical negligence action, it must be proven that the defendant owed a duty to the claimant and that duty was breached, causing injury to the claimant, in a negligence per se case the elements of duty and breach are presumed. Now obviously, no one will be bringing a negligence claim against the deceased drivers arguing they are at fault for the accident here. However, their negligent action would be taken into account when it is time to apportion fault between the parties.

If you were injured in an accident and are not to blame, it is important to choose an attorney who will be able to convince a court that you were not at all fault for any of the damages, in order to maximize your recovery. At the Berniard law firm our attorneys are experts in accident injury law and would be happy to talk to you about your case.

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Criminal Matter , Legal Duty , Litigation , Miscellaneous , Negligence , Strict Liability , Wrongful Death

November 10, 2010

"Medical Malpractice" Case Dismissed for Failure to Follow Louisiana MMA Requirements

A recent Louisiana Court of Appeals decisionshows that the question of which type of claim to file after an injury, general tort or medical malpractice, can make or break a case against a health care provider.

In February 2008, Helen Williams was a patient receiving oxygen at Pointe Coupee General Hospital ("PCGH") in New Roads, Louisiana. Early one morning nurses noticed smoke coming out of a piece of radiology equipment and the fire department was called. By the time the fire department got there, the hospital sprinkler system had already put out the fire which had been confined to the radiology department. However, the decision was made to move patients to the east side of the hospital, behind fire doors. Physicians discussed which patients could be discharged or moved to a local nursing home. They chose to move Ms. Williams to Lakeview Nursing Home in New Roads. She died later that day.

Ms. Williams children and grandchildren ("plaintiffs") filed an action alleging that PCGH failed to properly provided oxygen for their mother as she waited in the hallway, was removed from the hospital, and was transported to the nursing home. They claim that the Ms. Williams death resulted from negligence, not medical malpractice, and as such the case did not need to be submitted to a Medical Review Panel prior to going to court. PCGH disagreed and filed a prematurity exception claiming the allegations involved medial malpractice and must be submitted to a Medical Review Panel under the Louisiana Medical Malpractice Act ("MMA") La. R.S. 40:1299.41et seq. After a hearing, the trial court maintained PCGH's exception , found that the case was premature, and dismissed the plaintiffs' suit.

On appeal, the court considered whether the hospital's inability to properly evacuate a patient and failure to provide oxygen to a patient who needed oxygen falls under the MMA. Under Louisiana Code of Civil Procedure article 926 (A)(1), the purpose of the objection of prematurity is to slow the progress of an action, but not defeat it. A premature suit is one that has been brought before the right to enforce the claim has accrued and is determined by the facts that exist at the time the suit is filed. The objection is usually used when the applicable law or contract has provided a procedure for someone to seek relief before resorting to judicial action. Under the MMA, medical malpractice claims against qualified health care providers must go to a Medical Review Panel for consideration before a civil action may be commenced in any court. The exception of prematurity is the correct procedural mechanism for a health care provider to invoke when a medical malpractice claim is not submitted to a medical review panel first. Here the burden or proving prematurity is on PCGH--they must show that the allegations fall under the MMA.

Only torts that "arise under medical malpractice," are covered by the MMA. In addition, the Louisiana Supreme Court has held that any ambiguity as to whether the MMA applies should be resolved against finding that the claim is medical malpractice.

The MMA defines "malpractice" as:

Any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient . . La.R.S. 40:1299.41 (A)(13).

The Louisiana Supreme Court has set forth six factors to help courts determine whether a claims is medical malpractice:
1. The wrong is "treatment related," or caused by a lack of professional skill.
2. The wrong requires expert medical evidence to determine if the standard
of care was breached.
3. The act or omission involved assessment of the patient's condition.
4. The incident occurred in the context of a physician-patient relationship in
the scope of activities the hospital is licensed to perform.
5. The injury would not have occurred if the patient did not seek treatment.
6. The alleged tort was intentional.

In this case, the Court of Appeals concluded that when the six factors are applied to the evidence, the proper conclusion is that the claims asserted fall under the purview of the MMA. As such the dismissal for prematurity was proper and the Court of Appeals upheld the trial court's decision.

If you believe you have a claim against a medical provider it may or may not be a medical malpractice claim. As this case shows, under the Louisiana Medical Malpractice Act, additional steps must be taken if the nature of the claim indicates that the MMA applies. If these steps are not taken, the claim will fail. A general tort claim, however, does not have the additional statutory requirements. This is just one more reason why the success of your case depends on a bright, experienced attorney, who understands the intricacies of medical malpractice law.

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November 6, 2010

Heart Stent Procedures Done Without any Need

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

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

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

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

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

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

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

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

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November 4, 2010

Substantial Jury Award Upheld in Jeep Accident Involving Defective Vehicle

Substantial Jury Award Upheld in Jeep Accident

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

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

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

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

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

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

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Expert Testimony , Legal Duty , Litigation , Miscellaneous , Negligence , Pain and Suffering Claims , Product Defect , Strict Liability , Wrongful Death

November 2, 2010

Louisiana Car Accident Statistics Show Safety Precautions Necessary When Driving

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

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

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

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

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Criminal Matter , Legal Duty , Litigation , Miscellaneous , Motorcycle Injury , Negligence , Pain and Suffering Claims , Semi Truck Accident , Strict Liability , Wrongful Death

October 31, 2010

Berniard Law Firm Unveils New iPhone Application

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

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

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

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

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

To download the application, click here.

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October 27, 2010

Morehouse Parish Case Illuminates Vitality of the 'Two Contract Theory' and the Exclusivity of the Workers Comp Remedy

The case of Dugan v. Waste Management, Inc., was recently handed down by the Second Circuit Louisiana Court of Appeals. It is a tragic case, involving the deaths of two garbage truck employees, and the wrongful death suit that followed. In June 2007, Lamare Kindle and Wallace Bradley were riding in a garbage truck owned by Waste Management. Mr. Kindle and Mr. Bradley were both garbagemen, performing waste reduction services for Waste Management. Mr. Bradley was driving the garbage truck, while Mr. Kindle rode as passenger. As the garbage truck came upon a railway crossing, Mr. Bradley is alleged to have failed to yield and the two were both struck and killed by an oncoming freight train.

Mr. Kindle's parents, including Ms. Bonita Dugan, subsequently filed a wrongful death suit to recover for their son's death. Their theory was that, because Mr. Bradley was a direct employee of Waste Management and was acting in his scope of employment at the time of the accident, Mr. Bradley was thereby an agent of Waste Management. Moreover, because an employer can be held legally responsible for its agent's negligent actions, the parents stated that Waste Management should be held directly responsible for Bradley's negligent driving.

In spite of this usually sound legal theory, the wrongful death suit was immediately complicated by the peculiar employment relationship Mr. Kindle held with Waste Management. While Mr. Bradley, the driver, was a direct employee of Waste Management, Mr. Kindle, the passenger, subcontracted his labor to Waste Management through a temporary employment agency. A question arose: notwithstanding the subcontractual relationship, was Mr. Kindle an "employee" of Waste Management or an "employee" of the employment agency instead?

Under Louisiana law, when a plaintiff is injured during the course of his employment, he cannot directly sue his employer for harms caused by negligent or non-intentional acts. Instead, the employee must use the state's workers comp system to resolve his claims against his employer. On the other hand, if the plaintiff is not an "employee" of the defendant, the plaintiff is free to seek a typical civil remedy from the courts. As a generality, workers comp remedies tend to be modest and limited in scope, while civil remedies allow for greater monetary damages.

In the absence of a direct employment arrangement, a worker can nevertheless be an "employee" of the defendant. This scheme is referred to as "statutory employment." In Louisiana, there are two ways to be a "statutory employee." First, if a written contract expressly recognizes the defendant as a "statutory employer", then by the terms of the contract, the plaintiff is a "statutory employee" and can only seek the more modest workers comp remedies. Likewise, if the defendant satisfies the "two contract theory," (to be expained later) the plaintiff will be deemed a "statutory employee" as well. In the instant case, the court noticed that the written contract between Waste Management and Mr. Kindle did not expressly refer to Kindle as a "statutory employee." Therefore, the first method of achieving statutory employment was not met. However, a subsidiary question remained: was Mr. Kindle a "statutory employee" under the two contract theory?

The two contract theory occurs when a defendant is the principal in the middle of two contracts. More specifically, the two contract defense applies when (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to peform the work, the principal enters into a subcontract for all or part of the work performed.

In this case, Waste Management met each element of the two contract theory. First, it had contracted with Morehouse Parish, a third party. Second, the terms of the contract specified that Waste Management should dispose of solid waste in the parish, which was "work to be peformed." Finally, Waste Management subcontracted with the employment agency to fulfill its contractual obligation with Morehouse Parish. Accordingly, the court ruled that Mr. Kindle was a "statutory employee" of Waste Management under the two contract theory. This meant that workers comp was the sole remedy available, and Kindle's parents' wrongful death claim was barred.
As the Dugan case shows, the two contract theory can prevent a plaintiff's typical recovery for injuries incurred while on the job. Even temporary workers may be precluded from suing for workplace injuries, despite the fact they were never directly hired by the defendant-employer. On the other hand, "independent contractors" are not employees, and they are not confined to the workers compensation system. Indeed, they can sue in civil court for more extensive remedies resulting from on the job injuries.

If you've sustained injuries while working and are unsure of whether you are an "employee" or an "independent contractor" of the business that hired you, it's important to consult an experienced attorney before making any legal decision. Lawyers at the Berniard Law Firm can examine the various factors that define your relationship with the entity you are working for and can thus conclude whether you must file a workers comp claim or can pursue a civil remedy. Contact Berniard Law Firm today to ensure your workplace rights are adequately upheld.

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Posted In: Civil Matter , Competent Lawyer , Legal Duty , Litigation , Miscellaneous , Negligence , Workers' Compensation , Wrongful Death

October 13, 2010

East Feliciana Accident Demonstrates Importance of Children Wearing Seatbelts

On Saturday, July 24, 2010, tragedy struck in East Feliciana Parish as a 9-year-old girl died in a car accident. Reports state that the young girl, Tobiya Kato, was killed when the car driven by her mother, Jamet Kato, veered off the road and flipped before coming to a rest on its roof in a wooded area. This tragic event serves as a reminder of the importance of all passengers wearing seatbelts, especially young children seated in the back of a vehicle.

According to reports, the young girl, whom was seated in the back seat, was thrown from the vehicle during the accident due to not wearing her seatbelt. Police noted that in addition to the 9-year old girl, three other children, ages 6, 5, and 2, were also in the back of the vehicle, not wearing seatbelts, when the accident occurred. However, Jamet Kato, along with a 12-year-old sitting in the front seat, were both wearing their seatbelts at the time and only suffered minor to moderate injuries in the crash.

The sheer number of deaths that could be prevented by properly buckling up in a vehicle are staggering. According to NHTSA's study, in 2008 there were 25,351 accidents involving the death of passengers in the United States. Of those, 12,865, or 50.7%, passengers were not utilizing safety restraint devices, such as a seat belt or car seat for younger children. The statistics for Louisiana residents are similarly shocking. Of the 669 passenger deaths in 2008, 59.2%, or roughly 400 passengers, died in accidents in which they were not buckled.

Accidents like this serve as a reminder for all individuals to wear seat belts when riding in a car, whether in the front or back seat. Restraint devices, such as a seat belt or car seat for younger and smaller children, serve to protect the individual in the event of an accident. Beyond this, though, is the fact that there is a very real legal duty on the part of a parent, guardian, babysitter, etc., to make sure that minors are properly restrained in a vehicle. This legal duty can lead to a significant share of liability in the event of an accident like the one mentioned above. Failing to make sure that a child is properly buckled into a vehicle can lead to both criminal and civil court consequences that could have been avoided with a couple seconds of effort.

When a parent or babysitter fails to remind children, whether in the back or front seats, to buckle in, they may be breaching a duty owed to protect their young passengers due to negligence. This means that the driver must not only remind children to buckle in, but also ensure that children are actually buckled in, before driving. The state laws around the country may vary slightly, but the consensus remains that it is the adult driver's responsibility to ensure the safety of the young passengers. In addition, criminal charges may be brought against adult drivers that endanger the welfare of young children unable to know the dangers of failing to buckle in. The importance of wearing a seatbelt is clear: whether you are a parent, relative, or babysitter, always ensure that children are buckled before leaving the driveway. The obvious physical harm from not doing so is substantial and the legal consequences afterwards are clear and considerable.

If your child is injured in an accident such as this, an attorney that specializes in these areas can help you determine any remedies that you might have.

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Posted In: Car Accident , Civil Matter , Criminal Matter , Legal Duty , Litigation , Miscellaneous , Negligence , Strict Liability , Wrongful Death

October 11, 2010

Fatal Collision in Pearl River Illustrates Elements of Semi-Truck Negligence

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

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

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

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

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

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

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

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

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Criminal Matter , Expert Testimony , Legal Duty , Litigation , Negligence , Semi Truck Accident , Strict Liability , Wrongful Death

September 23, 2010

Lincoln Parish Truck Crash Demonstrates Need for Attorney Assistance

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

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

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

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

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

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

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

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

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Posted In: Car Accident , Civil Matter , Competent Lawyer , Expert Testimony , Legal Duty , Litigation , Negligence , Product Defect , Semi Truck Accident , Strict Liability , Wrongful Death

September 21, 2010

Oil Rig Drilling Mud a Source of Asbestos Exposure for Workers in the Petroleum Industry

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

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

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

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

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

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

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Posted In: Civil Matter , Competent Lawyer , Expert Testimony , Legal Duty , Litigation , Mesothelioma/Asbestos , Negligence , Pain and Suffering Claims , Wrongful Death

September 17, 2010

New Technology Providing Plaintiffs Chance to Recover Due to Accidents with Tricky Circumstances

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

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

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

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

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

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Posted In: Berniard Law Firm news , Car Accident , Civil Matter , Competent Lawyer , Expert Testimony , Insurance Dispute , Litigation , Miscellaneous , Motorcycle Injury , Negligence , Pain and Suffering Claims , Product Defect , Semi Truck Accident , Strict Liability , Wrongful Death

September 9, 2010

Delay and Lessening of Charges in Criminal Trial Shows Complexities in litigation

In the town of Duson, a mother of a child slain in a car accident is frustrated and discouraged by the legal system after years of delay in the prosecution of the responsible driver. What's more, there now remains the possibility that charges may be lessened against the man charged in her son's death. This situation is an extremely unfortunate one but does illustrate the differences between civil and criminal litigation, as well as the standards involved.

21-year-old Shawn Lancon was killed when the driver of the vehicle in which he was a passenger drove their vehicle into oncoming traffic while attempting to make a left turn. The driver, the man charged in Lancon's death, was under the influence of alcohol and drugs at the time of the accident. This accident took place in 2007. Three years later, delays in going to trial are still anticipated and now the defense is trying to lessen the criminal charges from vehicular homocide to a first-offense OWI. The OWI charge comes with considerably less jail-time, leading to the anger being expressed in the community.

The reasons for all of these issues are varying. The defense is attempting to lessen the criminal charges by insisting that the blood alcohol level is not high enough for a vehicular homicide, and also that the positive drug test should be excluded because the drugs detected by the drug test does not prove that the drugs were "active" at the time of the accident. Procedural delay is slowing the calendar for trial, due to courts having to postpone cases in Lafayette, Acadia, and Vermillion parishes due to a legal dispute within the court system regarding the allotment of judges.

The delay is importantly going to also delay the plaintiff's ability to sue in civil court.
After a criminal conviction, the plaintiff is often able to bring suit in civil court under
negligence and wrongful death causes of action. In civil court, the plaintiff may bring suit under a negligence cause of action. In a case of negligence, the plaintiff must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the acual and proximate cause of the injury, and damages.

Also under civil law, wrongful death statutes provide a legal remedy for being responsible for the death of another human being. Historically, under common law, a wrongful death cause of action was not available and only criminal law was an option. Under statutory law, however, a person can be held responsible in civil court in addition to criminal court for wrongful death.

The applicable Louisiana Civil Code wrongful death statute is under Book 3, Title 5, Chapter 3, Article 2315.2. The Code Article states

If a person dies due to the fault of another, suit may be brought [...] to recover damages which they sustained as a result of the death." Under the statute, among the claimants that may bring suit under the statute include the mother of the deceased child in this case.

The burden of proof in a civil case is also a lesser standard when compared to criminal cases. In a civil case, the plaintiff must prove guilt by a preponderance of the evidence. For example, in a negligence case the plaintiff must establish by a preponderance of the evidence that a duty of care has been breached. The burden of proof in a criminal case has a much higher threshold. In a criminal case the plaintiff must prove guilt beyond a reasonable doubt. The lower threshold when suing the responsible party directly makes it easier for the plaintiff to recover in civil court.

If you have a case in criminal court, remember that a civil case can also be brought and that you will need a knowledgeable attorney experienced in civil law matters to assist you in recovering the damages that you deserve.

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Posted In: Car Accident , Civil Matter , Criminal Matter , Legal Duty , Litigation , Negligence , Wrongful Death

September 1, 2010

Understanding the Law: Bystander Recovery After Tragedy Strikes

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

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

Those four elements are:

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

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

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

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

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

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

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Posted In: Animal/Dog Bites , Car Accident , Civil Matter , Criminal Matter , Legal Duty , Litigation , Motorcycle Injury , Negligence , Offshore Accidents , Oil Rig Explosion/Leak , Pain and Suffering Claims , Semi Truck Accident , Strict Liability , Wrongful Death

August 14, 2010

Looking Back at Toyota Recall: Product Liability Explained

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

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

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

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

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

Although it is no excuse for car accidents, if drivers are injured, they have legal redress.

In Louisiana the party at fault for an accident is responsible for all damages. This includes the cost of current and future medical care for anyone injured, property damage, compensation for lost wages, or even compensation for pain and suffering. If someone has died in an accident, their survivors may pursue a wrongful death claim against the party at fault. Wrongful death damages that may be collected depend on the relationship between the person who has been killed and the person bringing the claim. For example, a parent who loses a child may recover for loss of companionship or a spouse may recover for future lost wages.

If a Toyota driver is in an accident while driving a recalled vehicle, the case becomes one of products liability. Product manufacturers, retailers, or anyone else who has come in contact with a product may be liable if the product malfunctions and the malfunction causes an injury. There are typically three types of products liability cases: manufacturing defect, design defect, and failure to warn. Manufacturing defects occur during the manufacturing process and typically involve poor materials or workmanship. Design defects occur when the product design is inherently dangerous. Failure to warn problems involve products that have inherent, non-obvious dangers. Products liability issues are very complicated and require extensive research to prove each element of liability.

If you feel that you have been injured while driving a recalled Toyota vehicle or have been injured in any auto accident that was not your fault it is imperative that you have an attorney experienced in the intricacies of accident injury law. Please call the Berniard Law Firm Toll-Free at 1-866-574-8005.

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Posted In: Car Accident , Civil Matter , Expert Testimony , Legal Duty , Litigation , Negligence , Pain and Suffering Claims , Product Defect , Semi Truck Accident , Strict Liability , Wrongful Death

August 11, 2010

Toyota Has Reportedly Been Able to Duplicate Acceleration Problems

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

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

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

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

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

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

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

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

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

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

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Posted In: Breaking News , Car Accident , Civil Matter , Expert Testimony , Legal Duty , Litigation , Miscellaneous , Negligence , Product Defect , Strict Liability , Wrongful Death

July 31, 2010

Understanding Informed Consent in Medical Malpractice Cases

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

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

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

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Posted In: Civil Matter , Expert Testimony , Legal Duty , Litigation , Medical Malpractice , Pain and Suffering Claims , Strict Liability , Wrongful Death

July 19, 2010

Crash on Highway 117 Results in Damages for a Lost Husband and Father

A two-car collision on Highway 117 in Natchitoches Parish led to a lawsuit and an appeal regarding the amount of damages awarded, among other things. On the morning of October 25, 2002, Edward Raymond was travelling north on Highway 117, returning from work. He was a firefighter at Fort Polk. That same morning Stephen Taylor was traveling south on the same highway. Taylor was on his way to New Orleans to get a sea card to work on tugboats. He was detouring to his girlfriend's mother's house in Leesville to pick up his birth certificate. It was raining that morning and during Taylor's maneuver to pass a loaded log truck, he saw the headlights of Raymond's vehicle. Taylor attempted to drive onto the shoulder to avoid a collision, but Raymond also tried to avoid a wreck by driving onto the shoulder; the cars crashed head-on and Raymond died as a result of the accident. The site of the crash was in a no-passing zone. The jury determined that Taylor was 75% at fault and the Louisiana Department of Transportation and Development (DOTD) was 25% at fault (mostly for failing to place a no-passing pennant sign at the start of the no-passing zone where the accident occurred).

The jury awarded the following damages
(1) $5,421.20 for funeral expenses; (2) $1,904.00 for medical expenses; (3) $1,514,747.79 for loss of past earnings, future earnings, and earning capacity; (4) $50,000.00 for the conscious pain and suffering and anguish of Mr. Raymond; (5) $1,500,000.00 for the damages suffered by Barbara Raymond for the loss of her husband; and (6) $750,000.00 to each of [Raymond's] four children for the loss of their father.

These include two types of damage awards: general and special damages. Special damages are those which have a "ready market value." They can usually be determined with relative certainty and include costs such as medical expenses and lost wages. These are "out of pocket" costs and usually have some concrete evidence to determine an appropriate amount. When there is an appeal regarding the amount of special damages the appellate court must review the record as a whole and satisfy a two-step process in order to disturb the findings at the trial level. First, there must be no reasonable factual basis for the trial court's conclusions. Second, the finding must be clearly wrong.

General damages refer to most other damages, typically subjective loss and suffering, that cannot be fixed to a monetary amount with certainty. There are no receipts or bills to indicate how much a person should be compensated with regard to general damages, though that does not mean damages for suffering are not justified. When an appellate court reviews general damages the charge of the appellate court is not to decide what it considers to be the appropriate reward. The appellate court should only review the exercise of discretion that is allowed to the trial court. Just because an appellate court would have set the damage award at a different amount does not mean the award should be disturbed. Even when review of the record supports that the lower court abused its discretion, the appellate court may only change the award to the extent of lowering it to the highest point which is reasonable or raising it to the lowest point which is reasonable within the discretion the lower court is allowed (basically, the appellate court may bring the award to just within a range reasonable to the record).

A judge or jury at the trial level is given a great deal of discretion to assess the amount of damages to be awarded. The trial level decision makers have the benefit of live witnesses and experiencing the trial. The appellate court sees only the "cold" record. Plus, the function of the trial level judge and jury is to determine questions of fact and the appellate court should be careful not to make its own fact findings. Thus it is important for potential plaintiffs not only to present a claim well at the trial level, but also to afford a convincing line of evidence so that any challenge to the amount of damages at the trial level will be well supported for review at the appellate level. Plaintiffs should seek a skilled attorney to ensure that the damages sought are supported with hard evidence (like receipts and bills when possible) and other convincing evidence when there are no market equivalents to determine losses or other costs.

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Posted In: Car Accident , Civil Matter , Litigation , Wrongful Death

June 25, 2010

Legal Responsibility for Accidents/Harm in Orleans Parish Nursing Homes

Admitting your elderly mother into a nursing home is supposed to relieve stress and lift a burden from your shoulders. You believe she is going to receive the proper care she needs that you are unable to provide.

Unfortunately, for Edward Lewis, tragedy happened after he made this tough decision. His 93-year old aunt, who Lewis considered a mother, drowned in a whirlpool at Easthaven Rehabilitation Care Center in 2002. The nursing home told Lewis that his aunt died peacefully in her sleep but it wasn't until one month later he learned the truth — an employee had placed his wheelchair-bound aunt in a whirlpool unsupervised, even after Lewis told the staff he did not want her in the water. Sadly, actions that cause harm or even death to a nursing home resident can generate minimal response from the state.

In Louisiana, nursing homes are required to report all "suspicious deaths." Per a NOLA.com article approximately 4,500 nursing home residents die every year in Louisiana and of 250 wrongful deaths reported from 1999-2005, only 15 of those deaths were labeled as "suspicious." Steven Miles, a University of Minnesota professor who published a 2002 report called "Concealing Nursing Home Deaths," said almost half of the reported cause of deaths in nursing homes across the nation is wrong. For example, back in 1998 in Arkansas one 78 year old nursing home resident
suffocated while in restraints. The nursing home had claimed he died from natural causes and failed to report the death for nearly two months. The nursing home was only fined $500. Arkansas then became the only state to require a nursing home to report a resident death. No other state, including Louisiana, has enacted such a law.

In 2005, the Times-Picayune reviewed 250 nursing home wrongful death claims. They found that 52 residents died after being dropped by a staff member or falling, 42 suffered a fatal infection from an untreated bed sore, and 22 died from malnutrition or dehydration. NOLA.com says that inspection reports show that most of Louisiana's 300 nursing homes have been cited from 1999 to 2005 for mistakes that harmed or endangered residents. Additionally, during those six years, at least 760 residents have been harmed
by poor care. However, facilities in Louisiana often pay little or no penalty for fatal errors

Family members in Louisiana are starting to mobilize and speak up for their elderly relatives who were wronged in the facilities they were supposed to be comfortable in. From 1999-2005, at least 250 wrongful-death lawsuits were brought against nursing homes, resulting in 88 settlements or jury awards. Experts say nursing homes are less likely to break the rules when they know they'll be punished.

What types of claims can you make for a disappointing experience with a nursing home? Wrongful death is a prominent one. This means that the nursing home's negligence caused one of the elderly resident's death. The tragedy involving Lewis' aunt would be characterized as a wrongful death because not only did the nursing home put her in the whirlpool when she should not have been, but they failed to supervise her, leading up to her drowning.

Additionally, after Hurricane Katrina, a multitude of nursing home residents died as a result of the storm. Several wrongful lawsuits are pending that blame the nursing homes themselves for not mobilizing and evacuating the residents. At Lafon in Orleans Parish, nuns that were in charge of the residents were able to evacuate, but somehow the elderly were left on the first floor of the home, as water seeped in to the home, covering three feet.

More so, a classic negligence claim is possible. Here, the nursing home is careless but thankfully, no death results, just injury. An example would be mixing up medications for patients or leaving residents unsupervised and a potential fight or argument breaks out, leaving some residents with injuries.

Therefore, if you think a loved one died from a wrongful death in a nursing home, contact the Berniard Law Firm Toll-Free at 1-866-574-8005 and an attorney will be more than happy to help you.

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Posted In: Civil Matter , Legal Duty , Litigation , Negligence , Pain and Suffering Claims , Strict Liability , Wrongful Death

June 23, 2010

A General Overview of Negligence and Wrongful Death Claims

Wrongful death. Negligence. We hear these terms thrown out all the time when we read the newspaper or watch TV. Both terms have a similar connotation. We know something "bad" happened to someone, something that should never have happened. However, most people don't really know what these terms mean.

The legal concept of negligence means that someone has suffered physical and/or mental injuries caused by someone else being careless. Negligence is not derivative of an accident - someone else was not diligent and that failure to act properly was the cause of the injury. An example is featured on when a family suffered damage to their home because of an inspector's negligence in failing to report defects in the house.

A wrongful death claim arises when the victim died as a result of someone's negligence. This type of claim, the victim's surviving family is eligible for the amount of damages. This differs from a typical negligence claim because there, the actual victim is alive and able to receive the damages. Originally, a wrongful death claim was nonexistent because presumably the claim for damages died with the victim. Today, luckily, that is not the case and the grieving family is eligible for compensation for their loss.

The elements for a wrongful death claim are the following: (1) the death was caused by the conduct of the defendant; (2) the defendant was negligent for the victim's death; (3) there is a surviving spouse, children, beneficiaries or dependents; and (4) monetary damages have resulted from the victim's death.

For a regular negligence claim the four elements are similar except instead of "victim's death" the appropriate term is "victim's injuries": (1) the defendant owed a duty to the victim; (2) the defendant breached the duty owed to the victim; (3) The defendant caused the victim's injury; (4) damages/injury have resulted.

Types of wrongful death claims include auto accidents, medical malpractice, and chemical leaks. Negligence claims include those same examples and can include less serious and less life-threatening acts such as a slip and fall.

There is typically a statute of limitation of one year for wrongful death claims. That means the family of a victim has up to one year after the victim's death to file suit against the defendant. One reason for a statute of limitation is to ensure the memories stay fresh in the minds of all parties involved. Therefore, there is not an abundance of time to act as soon as you suspect foul play when considering a loved one's death. The law requires you act fast. If you suspect a loved one died due to another's negligence, or you yourself were injured as a result of another's negligence, call the Berniard Law Firm Toll-Free at 1-866-574-8005 and an attorney will be more than happy to help you.

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Posted In: Car Accident , Civil Matter , Litigation , Negligence , Wrongful Death

June 4, 2010

Understanding Medical Malpractice Insurance

Medical malpractice insurance is a big expense for health care providers. The average award in 2006 for medical malpractice claims was $521,560. To alleviate the financial burden on individual providers, the State of Louisiana created the Louisiana Patient's Compensation Fund.

Under Louisiana Revised Statutes 40:1299.44:

State health care providers are automatically entitled to be covered by the fund. Private health care providers are eligible for coverage as well. The liability of each qualified health care provider is limited to $100,000 plus interest, per patient, per incident. Any judgments, settlements, or arbitration orders in excess of $100,000 per provider are paid out of the Patient's Compensation Fund.

To illustrate how the fund works, we look at a 2003 Court of Appeals case involving the Southwestern Louisiana Hospital Association in DeRidder, Louisiana. Divorced parents brought individual actions against a doctor for his negligence in causing their son's death. The doctor admitted fault and paid $100,000, the maximum amount he is individually responsible for. The Compensation Fund then paid $250,000 to the father, and an additional $400,000 to the mother, bringing the total damages to $750,000.

The total amount awarded in this case actually exceeds the $500,000 maximum damages amount in a medical malpractice case. Section 1299.42 states:

The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.

The single $500,000 cap applies collectively to all claims which flow from one act of malpractice resulting in a victim's injury or wrongful death. Future medical costs are paid as they are incurred from the Patient's Compensation Fund.

Because the $750,000 award in the above case was well beyond the limit, the damage award was reduced to reflect the $500,000 limit on medical malpractice damages. The mother's award was subsequently reduced from $400,000 to $150,000 to reflect the limit.

Louisiana Patient's Compensation Fund Recap:

(1) Medical Malpractice awards limited to $500,000
(2) $500,000 cap applies collectively to all claims which flow from one act malpractice
(3) $100,000 maximum liability for individual health care providers
(4) Future medical expenses are covered by the fund

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Posted In: Civil Matter , Insurance Dispute , Litigation , Medical Malpractice , Wrongful Death

June 3, 2010

How the Law Approaches Medical Malpractice in Pregnancies

More than 98,000 people are killed each year as a result of medical errors. The rights of the deceased are protected in court through what is called a survival action, which allows the relatives to file a claim in place of the deceased for conscious pain and suffering, damage to person/property, and medical expenses. Survival actions are commonplace where a doctor's negligence caused someone's death.

The law was unsettled, however, on whether parents could bring a survival action for an unborn/stillborn child. A 2010 Louisiana Court of Appeals case addressed this very issue:

Carli Long, 7 months pregnant, was injured in a car accident. She was pinned in her vehicle and was ultimately diagnosed with a hip fracture. She was admitted to the ER shortly after the accident where the attending nurse charted a fetal hart rate of 120. Two hours later, nurses were unable to detect a fetal heart rate. Long underwent a cesarian section to deliver the stillborn child. She subsequently filed a survival action on behalf of her unborn child.

Louisiana Civil Code article 26 provides that

An unborn child shall be considered as a natural person for whatever relates to its interests fro the moments of conception. If the child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death (does not include survival actions).

In 1997, a Louisiana court, addressing the issue of an unborn child's right, stated

A cause of action can be pursued only if the fetus is subsequently born alive. A survival action for damages suffered by a stillborn fetus clearly does not fit within this first exception because the stillborn fetus is not born alive. Because it is born dead, it is as though it had never existed and the cause of action it acquired became conditional on its live birth. (Wartelle v. Women's and Children's Hospital, Inc.)

A survival action is based on the victim's right to recovery being transferred upon the victim's death to the beneficiary. Therefore, a baby's rights transfer to the parents upon the child's death, if and only if the child was born alive. Under Louisiana law, a stillborn fetus cannot transfer any rights because it has acquired none. Rights are only acquired in a live birth.

Although Long was unable to recover for her survival action under Louisiana law because she delivered a stillborn child, it is important to pursue all possible options. Long may still have had a valid claim for negligence or wrongful death against her nurse or doctor.

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Posted In: Civil Matter , Litigation , Medical Malpractice , Wrongful Death

May 27, 2010

Two Interstate Accidents Cause Fatalities in St. John Baptist, Tangipahoa Parishes

Two tragic interstate car accidents during the weekend of April 9 through the 11th took three lives along Interstates 10 and 55 in two Louisiana Parishes. An Illinois man passed away on Interstate 10 in St. John Baptist Parish after his SUV was struck by a speeding car on Friday, April 9, according to authorities.

The accident happened around 10 p.m. when Aeham Hama, 22, of Gretna, LA, was driving his Crown Victoria over the speed limit. The collision came as a result of Hama switching into the eastbound left lane behind a Ford Explorer driven by Joel Redenius, 39, of Rockford, Ill., according to a Louisiana State Police news release.

Hama rear-ended Redenius, and Redenius' vehicle rolled several times before falling off the elevated highway into a wooded area. Redenius was pronounced dead at the scene. Hama was taken to Ochsner Hospital in Kenner, LA with moderate injuries. State police believe speed was a factor in the crash and expect to bring charges against Hama. As of April 10, toxicology reports were pending.

Additionally, a motorcycle accident on Saturday, April 10, around 9 p.m. on Interstate 55 in Tangipahoa Parish took the lives of two Tennessee residents.

David Chapman, 47, of Ashland City, Tenn. was driving his motorcycle southbound on Interstate 55. A pickup truck driven by Andres Landor, 39, of Carencro, LA, and a car driven by Steven Smith, 25, of Walker, LA, were traveling behind the motorcycle, according to a Louisiana State Police spokesperson. For an unknown reason, Chapman lost control of the motorcycle and it fell on its right side. Both Chapman and his passenger, Cindy Conatser, 39, of Goodlettsville, Tenn., were thrown from the bike and came to rest on the center line of the southbound lanes. Both were hit by the two following vehicles and were pronounced dead at the scene by the Tangipahoa Parish Coroner's Office.

Chapman and Conaster were both wearing helmets, and as of April 11, 2010, toxicology reports were pending. Smith and Landor were not injured in the accident and both were wearing their seatbelts. Both submitted to breath alcohol tests which registered at .000g%.

If you have been injured or have lost a loved one in a tragic interstate car accident, it is absolutely vital that you have an attorney who fully understands the layers of potential issues and claims that could pertain to your case. Negligence, for example, can be a dominant issue when determining accountability in an accident. If a driver was not exercising the proper care or safety while driving, this can lead to them being found culpable for the incident. Additionally, if the police have assessed blame through a ticket or arrest, this may be introduced as a very potent example when making a claim against the driver's insurance company. Roadway flaws, such as sharp curves or glare from elements along the side can lead to governmental bodies being found culpable in incidences where there was constructive notice.

These are but a few examples of how the victim of a car accident can pursue financial compensation for the damage(s) they have incurred.

Continue reading "Two Interstate Accidents Cause Fatalities in St. John Baptist, Tangipahoa Parishes " »

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Posted In: Car Accident , Civil Matter , Litigation , Motorcycle Injury , Wrongful Death

May 21, 2010

Pedestrian Killing near Highway Shows Need for Increased Awareness about Pedestrian-Automobile Safety Laws

The roadways are a dangerous place for any individual, regardless if they are driving or merely a pedestrian. Because of environmental dangers as well as a wide variety of mechanical and human errors that can occur as cars drive across this country, it is important to understand the complexities of the law. Accidents involving pedestrians and cars happen all too often and the law does not entirely back the pedestrian in all incidences.

According to the St. Mary and Franklin Banner-Tribune, a pedestrian was struck and killed by an automobile on Saturday April 10th while walking along the U.S. 90 Service Road in western St. Mary Parish. The pedestrian was Danny Gautreaux, 52, of Patterson. Mr. Gautreaux was walking eastward on the westbound lanes of the U.S. 90 at Penn Road around 9 p.m. when he was struck by a 68 year-old woman driving a 2001 Ford Taurus. Louisiana State Police spokesperson Stephen Hammons took the occasion to remind pedestrians that Louisiana state law demands that they walk on sidewalks where sidewalks are provided. When there is no sidewalk, pedestrians are expected to walk on the shoulder of the road against the flow of traffic. Gautreaux was walking in the traffic lane when he was struck. He was pronounced dead at the scene by the St. Mary Parish Coroner. A press release reveals that Gautreaux was believed to be walking from his vehicle which had run out of gas near the site of the crash.

Pedestrians should note that they do not always have the right of way. Under Louisiana law (R.S. 32:211) pedestrians have the right of way in crosswalks whether traffic-control signals are in operation or in place or not. Vehicles are expected to slow down or stop to yield to a pedestrian within a crosswalk but the law also provides that it is unlawful for pedestrians to "walk along and upon an adjacent roadway" where sidewalks are available (R.S.32:215). Where there are no sidewalks, pedestrians walking along a highway are expected to walk only on the left side of the roadway or its shoulder facing approaching traffic. Even if a vehicle happens to break down or run out of gas, pedestrians should not engage in soliciting rides or help by standing in the roadway. (See R.S. 32:216).

Automoble drivers are also responsible for exercising proper due care when coming in contact with pedestrians. Under R.S. 32:213, drivers should give warning by sounding the horn whenever necessary to alert a pedestrian and drivers should exercise extra precaution if a child or an obviously confused person is observed on the roadway.

The expectations of drivers are elevated in the event the pedestrian is in any way handicapped. Blind pedestrians, in particular, are a special exception to the standard right of way rules. If a driver encounters a visually impaired pedestrian using a white cane or a guide dog, the blind person has the right of way at all times (R.S. 32:217). Blind pedestrians might be startled by horns or shouts so these are not proper ways to alert the blind person. When driving electric or hybrid vehicles, extra caution should be exercised when encountering a blind pedestrian because the near silence of these automobiles may prevent the blind person from realizing that the vehicle is present.

Whether walking along the road or driving your car while coming up on a pedestrian, it is important to understand the legal responsibilities that all of us face while on the road. Not merely relevant to any possible litigation, properly signaling and careful conduct can prevent a life-changing event from taking place that no one would ever want to be involved in. If you or someone you know has been involved in an accident involving a car striking a pedestrian, it is important to get legal counsel immediately because of the wide variety of implications and problems that can develop on either side of the matter.

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Posted In: Car Accident , Civil Matter , Litigation , Motorcycle Injury , Pain and Suffering Claims , Wrongful Death

April 22, 2010

Gulf Coast Oil Rig Explosion: What Could Have Caused The Explosion?

Following the explosion on the oil rig Deepwater Horizon 50 miles southeast of Louisiana’s coast Tuesday night, officials, crewmembers, and their families most likely have had serious questions about what could have ignited such an intense fire. At this point the cause is unknown and formal investigation will not be underway until rescue and firefighting efforts are completed.

The Times-Picayune reports:

The Coast Guard's Command Center in New Orleans received a report Tuesday about 10 p.m. that the rig was on fire and the crew was evacuating.

Luckily crewmembers perform safety exercises on a regular basis and are familiar with evacuation procedures. There were also several offshore supply boats in the area that provided assistance.

Just prior to the fire, the crew was cementing a production casing atop an 18,000 foot deep well. The plan was for the well to be abandoned and later tied into production facilities. This was done according to plan with appropriate testing completed and most likely was not to blame.

The Deepwater Horizon is owned by Transocean, Ltd., the world’s largest offshore drilling contractor. Transocean is a Swiss Company with offices in Houston. The rig has has been leased to BP Exploration Production Inc. who pay about $500,000 a day to use the huge 400 by 250 foot rig (roughly the size of two football fields). Last summer the Deepwater Horizon drilled the world’s deepest oil well, nearly six miles into the Gulf of Mexico, and enabled BP to find the Tiber Prospect, one of the largest petroleum discoveries in the US. While BP picks drilling locations for the Deep Horizon and designs the well, Transocean devises the drilling plan and operates the rig. The rig is only used for drilling and does not actually produce any oil.

The Associated Press reports:

Adrian Rose, vice president of Transocean, said the explosion appeared to be a blowout, in which natural gas or oil forces its way up a well pipe and smashes the equipment. But precisely what went wrong was under investigation.

Because Tuesdays explosion occurred in international waters, the U.S. Occupational Safety and Health Administration (OSHA) will not be able to investigate. However, according to OSHA, Transocean has no safety violations for the past five years. BP on the other hand has two open and 27 closed cases. BP also operates the site of a 2005 refinery explosion in Texas City, Texas that killed 15 people and injured 170. That accident was investigated by the U.S. Chemical Safety and Hazard Investigation Board. According to Bloomberg News, the Board is considering investigating this rig incident as well.

After missing crewmembers are found and safely evacuated, the cause for the accident can be investigated thoroughly and the damage to the rig (whether it can be saved) properly assessed. The Deepwater Horizon was built in 2001 in South Korea. It cost about $350 million to build and has a replacement value between $500 and $600 million.

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Posted In: Breaking News , Offshore Accidents , Oil Rig Explosion/Leak , Wrongful Death

April 14, 2010

At Least Four Dead in Fiery Grosse Tete Crash: Unique Legal Issues Emerge in 18-wheeler Accident

According to reports from the Associated Press and Louisiana’s WWLTV, at least four people were killed in a tragic accident near Grosse Tete last Friday (April 9, 2010). The accident was so bad that a portion of 1-10 westbound was closed and traffic was diverted at the La. Highway 415 to U.S. Highway 190.

As reported by state troopers, an eastbound 18-wheeler sideswiped another 18-wheeler stopped on the shoulder. The first truck lost control, crossed the median, and collided head on with yet a third 18-wheeler. The second collision caused a fire. After the fire was put out, a car was found in the wreckage. The crash is still under investigation and no names of those involved have been released. However, a 15 year old girl reportedly survived without serious injuries.

After a tragedy like this one, family members of those killed will surely be asking themselves who was to blame for the accident and who will be responsible for damages. Survivors can sue whomever is at fault in a wrongful death lawsuit and may be able to collect a variety of damages, including medical and funeral expenses or compensation for pain and suffering. However, with an accident involving an 18-wheeler or other large commercial truck (or many, as in this case), the legal issues are a bit unique. The differences mainly stem from the fact that in a traditional vehicle accident where another driver was at fault, he and his insurance company will typically be held fully responsible for damages if the driver is proven to have acted negligently.

When an accident is caused by a truck driver, the driver and his employer or supervisor/s may be held responsible for negligence in driving or in the hiring and training of drivers. Each entity may have separate insurance that can also be held responsible. In addition, there is an increased chance that faulty parts may be to blame with such a large dangerous vehicle, and thus the manufacturer may be responsible as well. Even if faulty parts aren’t to blame, insufficient maintenance of the vehicle may be. To say the least, this makes claims involving 18-wheelers much more complex because the sheer number of factors that may be taken into account in litigation.

Additionally, because of all the risks involved with 18-wheelers, state and federal laws regulate their operation. In fact, an entire federal agency, the Federal Highway Administration, was formed in the early 1980’s in an effort to decrease the number of fatal truck accidents on American highways. There are specific laws that regulate the licensing of truck drivers, including the fact they must be able to meet minimum standards to be issued a Commercial Driver’s License. For particular vehicles, special endorsements are even required.

The myriad of laws governing large commercial vehicles like 18-wheelers can be relevant in an injury or wrongful death lawsuit because under a negligence per se theory if a driver has violated the law, a claimant may be able to bypass the duty and breach elements of proving a negligence claim. This means that rather than having to prove they were owed a duty by a driver, and the duty was breached, they would only need to prove that the driver caused injury and the injury resulted in damages in order to recover.

If you have been injured or lost a loved one in a tragic 18-wheeler accident it is absolutely vital that you have an attorney who fully understands the layers of potential issues and claims that could pertain to your case.

Continue reading "At Least Four Dead in Fiery Grosse Tete Crash: Unique Legal Issues Emerge in 18-wheeler Accident" »

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Posted In: Car Accident , Civil Matter , Legal Duty , Litigation , Wrongful Death

April 1, 2010

Leesville Bank not Liable for Wrongful Death: Louisiana Supreme Court Finds no Breach of Duty

Leesville Bank not Liable for Wrongful Death: Louisiana Supreme Court Finds no Breach of Duty

At 1:30 a.m. on November 13, 1992 Jesse Pinsonneault left his job as assistant manager at a pizza parlor and went to deposit the daily receipts into the night deposit box at nearby Merchants & Farmers Bank & Trust Company in Leesville. Tragically, 23 year old Jesse never completed his task and was robbed, shot, and killed by two escaped convicts. Jesse’s parents James and Debra Mae Pinsonneault brought a wrongful death suit against the bank where they alleged that the bank failed to provide adequate security for after hours patrons.

After trial, the trial court ruled that the bank did owe Jesse duty but that the duty was not breached and therefore the bank was not liable. The plaintiffs appealed and the appeals court ruled that the trial court was manifestly erroneous in determining there was no breach of duty and held that the bank was liable. Following the appeals court decision the Supreme Court of Louisiana handed down Posecaci v. Walmart Stores, Inc. where they adopted a balancing test for determining when business owners owe a duty to provide security for their patrons. In light of this decision the Supreme Court of Louisiana sent the Pinsonneault case back to the Court of Appeals where they reexamined the duty issue and reaffirmed their previous decision.

In 2002, the Supreme Court of Louisiana considered the case again and found that the Court of Appeals was not correct in reversing the trial court’s decision because they did not appropriately apply the manifest error standard.

According to the decision, Louisiana courts employ a duty-risk analysis to determine whether to impose liability under La.Civ. Code art. 2315. The analysis requires plaintiffs to prove five elements to be successful. First, the defendant had a duty to conform their conduct to a standard. Second, they did not conform their conduct. Third, the defendants failure to act appropriately was a cause in fact of the plaintiff’s injuries. Fourth, the conduct was a legal cause of the injuries. And fifth, damages resulted.

While business owners generally do not have the duty to protect others from acts of third parties they must implement reasonable measures to protect patrons from criminal acts that are foreseeable.

Foreseeability was the key factor in the Court’s decision here. There had only been two armed robberies of the bank during the daytime in the fourteen years prior to the attack, and there had never been an attack on a customer (or any attack on a night time depositor in all of Vernon Parish). Because a similar crime never occurred at the bank previously, the Court found that customers faced a low crime risk and there was not foreseeability that would require the bank to employ heightened security measures.

Additionally, while the views of both courts regarding whether the bank took adequate precautions were permissible, because the determination is a factual one, it requires a balancing of factors. The balancing of facts in a case is best accomplished at the trial court level and it is not the role of an appeals court to second guess the trial courts determination but merely to pinpoint clear error if it is present. Here the trial court appropriately took into account the lighting, fencing, shrubs, etc. and determined the security measures were adequate.

This case demonstrates just how much courts tend to defer to the decisions of a trial court, particular regarding factual determinations. Trial courts have the resources to take into account the nuances of the facts of each situation. The factual findings of a trial court will be upheld even if the view of the facts taken by both courts are reasonable.

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Posted In: Civil Matter , Legal Duty , Litigation , Wrongful Death

March 30, 2010

Minden Rail Worker Dies After Job Accident

30 year old Shannon Sampson of Minden was on the job as a supervisor with GATX Rail Field when he fell into a rail car and later died from his injuries. According to Webster Parish's public information officer, Jenny Reynolds, Sampson fell after passing out due to a lack of oxygen.

As reported by the Shreveport Times on their website on March 12th:

Sampson was flown from the scene to a Shreveport hospital, where he later died. Bossier Parish Fire District No. 1 Assistant Chief Skip Pinkston told deputies the oxygen level in the rail car was 7.3 percent, 'which is about half of what we need to function,' Webster Parish Sheriff Gary Sexton said.

GATX Rail Field disassembles and refurbishes rail cars. According to another employee, workers often deal with rail cars that contain (or have held) hazardous materials. This incident is still under investigation to determine what caused Sampson’s fall.

In tragic situations like this one where someone has died in a workplace accident, their employer may be responsible for the damages. Surviving family members may pursue a wrongful death lawsuit and recover the cost of medical expenses, lost wages, or compensation for pain and suffering or loss of companionship.

Whether an employer will be held liable for a wrongful death depends on whether they acted negligently. A negligent action (or inaction) is one that falls below the appropriate standard of care for the situation. When someone works in an inherently dangerous environment the employer must take adequate precautions to ensure safety measures are in place and that employees are properly trained to deal with the dangers present. Cases often hinge on whether the given injury was forseeable. If the employer should have known that it was likely an employee could be injured or killed and did not take action to prevent the injury they will more likely be held liable.

However, what happens when an individual (or their survivors) sues the company they work for? Will the company be held liable even if the president of the company or some official company representative was not negligent? For example, what if someone is killed in a workplace accident due to the negligent actions of a co-worker? The answer to this question is most likely yes.

Under the legal doctrine of Respondeat superior, employers are responsible for the actions of their employees as long as the action in question occurred in the course of their employment. Respondeat superior is also referred to as the Master-Servant rule because it holds masters (employers) responsible for the negligent actions of their servants (employees). In order to prove the liability the employee/employer relationship must be established as well as the scope of the employment. Something occurs within the scope of one’s employment if it happens substantially within the time and geographical limits of the employment and, at least partially, was intended to further the employer’s business.

Proving Employer negligence in a wrongful death lawsuit can be a difficult task. Particularly in an inherently dangerous workplace where a judge or jury will probably believe the injured employee assumed a certain amount of risk in simply in taking their job. The attorney bringing the claim must understand all of the facts of the case to be able to pinpoint employer fault--whether in company policy, procedures, or in the actions of other employees. If someone you love was injured or killed at work it is vital that you have the best possible representation.

Continue reading "Minden Rail Worker Dies After Job Accident " »

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Posted In: Civil Matter , Legal Duty , Litigation , Wrongful Death

March 26, 2010

Family of Deceased Grambling Basketball Player Sues for Damages

As reported by the Ruston Daily Leader in January of this year, the family of Henry White has filed a lawsuit against Grambling State University, its supervisory panel, and the Louisiana Board of Trustees of State Colleges.

In August 2009, 21 year old Henry White was a criminal justice major and basketball player for GSU. He collapsed during what the school termed a "conditioning" drill that involved White and other students running without water in 100 degree heat. White was taken to the hospital after players tried to revive him by pouring water on him. No one called for assistance for 20 minutes. White died a little less than two weeks later.

According to the article, Natalie Wood, White’s mother filed the suit and alleges that

White and other players were forced by Portland [an assistant basketball coach] to run four miles for failing to timely register for school.

The lawsuit does not specify the damage amount. However, White’s mother has been left to pay $300,000 in medical expenses alone.

If a love one has died and the death may have resulted from the negligence of another person or entity, the individual’s survivors may be entitled to collect damages in a wrongful death lawsuit like this one. The damages that can be recovered vary according to the relationship between the deceased and the survivor(s) and can include cost of medical expenses, compensation for pain and suffering, payment for lost wages or benefits the person who has died would have received.

Not just anyone may file a wrongful death claim in the state of Louisiana. Only a surviving spouse, child, parent or guardian, siblings or grandparents may sue for wrongful death. Family members beyond siblings and grandparents may not sue and do not have the right to recover. Siblings may only recover if there is no surviving spouse, child, or grandparents, and they file a suit on behalf of the estate of deceased person and recover through that estate.

The loss of a child is an especially traumatic and tragic event for a parent. Loss of consortium describes another type of claim that typically applies to spouses who have lost their spouse and allows recovery for lost companionship. Loss of consortium can also sometimes extend to parents who have lost a child or children who have lost parents. This type of claim is called a “filial consortium” claim and pays damages for the lost love, companionship, or care of the child or parent. Loss of consortium claims can be difficult to prove because they deal with emotional damages that a court may regard as speculative. In addition, filial consortium claims are not allowed in all states.

This area of the law is obviously very complex. It is absolutely necessary that anyone bringing a wrongful claim know these types of cases inside and out to ensure a maximum recovery. Part of this requires hiring a knowledgeable attorney who can handle the variety of complex legal issues that arise from such tragedies.

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Posted In: Civil Matter , Litigation , Wrongful Death

March 5, 2010

Houma Company to Pay $10 Million in Wrongful Death Lawsuit

The family of 50 year old Adrian Flores, Sr. will collect $10 million in damages according to the recent ruling of a Texas District Court. A crane operator, Flores was crushed to death while working for Gulf Marine Fabricators. Gulf Marine Fabricators is a subsidiary of Houma based Gulf Island Fabrication, a company that builds structures in the oil and gas and marine industries.

As noted in an article on Homatoday.com,

On the day he died, Flores and three other crane operators were tasked with lifting a 1,200-ton piece of offshore platform, according to court papers. As they worked, a boom on Flores’ crane loosened, throwing the load off balance and onto the cab.

During the trial, evidence was presented that six to nine cranes should have been used for the project, that the company did not devise an adequate "lift plan," and that Flores was not made aware of the potential danger. According to trial testimony, Flores had worked for at the same job site for 10 years and was considered one of the most skilled crane operators.

Flores' wife and six children will receive the money, which was slightly less than the jury award of $11.1 million, as compensation for the death and for their pain and suffering. In a wrongful death lawsuit, the survivors of someone who has died may be awarded compensation to cover the costs of medical and funeral expenses, lost wages, and for their pain and suffering. However, an employer is not always presumed liable if one of their employees becomes injured or dies while at work.

In order to be liable in a wrongful death claim, the defendant must be found to have acted negligently. This means that the defendant owed a duty to the injured party, breached that duty, and that the death forseeably resulted from the breach. In an employer/employee relationship an employer has a duty to take reasonable measures to those in his employ safe. As in this case, if an employer does not take adequate safety precautions he may be liable for the wrongful death.

If you have been injured or someone you love was killed in a workplace accident you may be entitled to collect compensation for the tragedy that has befallen you.

Continue reading "Houma Company to Pay $10 Million in Wrongful Death Lawsuit " »

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Posted In: Wrongful Death

March 5, 2010

Wal-Mart Claims They Were No Responsibility for Columbia Woman's Death

86 year old Margie Davis of Columbia was shopping in the West Monroe Wal-Mart store during Thanksgiving week when she was tragically killed. A shelf full of holiday towels fell on Ms. Davis and she died a day later from her injuries. In responding to the Davis family's lawsuit against Wal-Mart, the retail giant has indicated in court documents that they are not responsible.

As noted in an article on myarklamiss.com,

Wal-Mart attorney Michael Adams declines comment but in a response to the lawsuit he denies everything except that Davis entered the West Monroe store. One part even blames Davis saying quote'... allegations which defendants deny were proximately caused by negligence and fault of plaintiff or plaintiff’s mother, Margie Davis,' said Adams’ (Wal-Mart) plea filed in federal court.

He also blames customers for possibly causing the accidental death.

According to her family, Ms. Davis walked into Wal-mart happy and healthy. According to the coroner's office, she left the hospital the next day, having passed away from massive head and chest injuries.

While Wal-mart's liability will be decided in court, Ms. Davis' family deserves their right to pursue a legal remedy. If a loved dies and the death was the fault of another person or entity, the party responsible for the death may be liable for a variety of damages. Such damages can include medical expenses, lost wages, (necessary for example, if the deceased was the primary breadwinner for a family) and compensation for pain and suffering. Damages may even include punitive damages meant to punish the party at fault.

Wrongful death damages that are available can depend on the relationship of the survivors to the person who has died. Parents may get damages for lost companionship if a child has died, for example. Damages for a spouse may include financial contributions the deceased would have made.

Typically in a wrongful death lawsuit the plaintiff must prove that their loved one would not have died without the action or inaction (neglect) of the defendant. Here, even if Wal-mart is found not liable, another entity may be responsible for damages. If the shelf that fell on Ms. Davis was defective, the company that produced, distributed, or otherwise came into contact with the shelf may be liable. When someone has been injured or killed because of a dangerous or defective product the case becomes one of products liability.

There are typically three types of products liability cases: manufacturing defect, design defect, and failure to wan. Manufacturing defects occur during the manufacturing process and typically involve poor materials or workmanship. Design defects occur when the product design is inherently dangerous. Failure to warn problems involve products that have inherent, non-obvious dangers. Each different type of products liability requires different elements of proof.

If you suspect that you have been injured or the death of a loved one was the fault of another person-due to a defective product or otherwise, it is important that you have an attorney on your side willing to work through all of the issues and provide you with the greatest chances of success in your claim.

Continue reading "Wal-Mart Claims They Were No Responsibility for Columbia Woman's Death" »

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Posted In: Product Defect , Wrongful Death

March 2, 2010

Baton Rouge Hit and Run accident may lead to further court action

As reported by the Advocate and WBRZ News Louisiana, police now have a suspect in the hit and run that killed 20 year old Mikel Carson on January 31st. According to an arrest warrant, Christian J. Cvitanovich of Melairie is wanted for striking down Carson with his 2005 Ford Expedition. At the time, Carson was walking down 1-10 to check on a woman involved in an unrelated vehicle crash.

According to the article,

Investigators with the Police Department’s Traffic Homicide Unit were told on Feb. 4 that the Expedition had been taken to a Metairie body shop... with the assistance of the Jefferson Parish Sheriff’s Office, the vehicle was impounded that afternoon and returned to Baton Rouge for further examination.

Mr. Cvitanovich may face more than just criminal charges as a result of the incident. Mr. Carson's family may also be able to collect damages in a wrongful death lawsuit. A wrongful death claim can be brought if a victim is killed as a result of the negligence or other improper conduct of another person or entity. Although the deceased person will not be able to benefit from the claim, their survivors can receive compensation.

Generally, for a successful wrongful death claim, three elements of proof for a successful claim must be proven: 1) the victim's death was caused by the a wrongful act of the defendant, 2) there is a surviving spouse, children, or beneficiaries to collect on the claim, and 3) the victim's death resulted in monetary damages.

Continue reading "Baton Rouge Hit and Run accident may lead to further court action" »

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Posted In: Car Accident , Civil Matter , Criminal Matter , Litigation , Wrongful Death

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