Articles Posted in Business Dispute

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Two former employees of a large loan business located in Bossier Parish, Louisiana, succeeded in their malicious prosecution against their former employer. Deborah LeBlanc and Teri Shirey left the Cash Back Loans company where they both had held management positions. After their employment terminated, Linda Mills, another employee began reorganizing the accounts of the store which had been in disarray for years. On her inspection she found nineteen loans in sixteen names that she suspected were fraudulent. She brought her suspicion to Ray Pynes, Sr., the owner of the company, and told him she thought it was likely that the Shirey and LeBlanc had stolen the money. Based on Mills’ statement and documentation, the two women were arrested for felony theft. The case was dropped nine months later.

A successful claim for malicious prosecution has several legal elements, all of them inherently important and core to successful litigation. In short, the terms require the case must have been terminated in favor of the present plaintiff, the plaintiff must show the absence of probable cause for arrest and that the defendant acted with malice in bringing the case forward anyway.

The court found that Mills’ investigation into the suspicious loans was lackluster. There was evidence that she had fabricated documents and her testimony varied significantly through the trial process. Mills told the police that employees were not allowed to take loans from the company like LeBlanc and Shirey did when this was patently false and many employees had loans with the company. She told the police that the required documentation for loans was never submitted for Shirey’s loan when the company had drivers’ licenses and several other documents to validate the loan. She also presented inconsistent testimony as to whether or not she actually tried to contact the bogus loan customers. She claimed at one point that she called each one but admitted later that she did not bother to contact any of the sixteen loan customers to try to verify their legitimacy. Three of the “bogus” loan customers came forward claiming they had legitimate loans with the company. One had made payments on the loan after Shirey and LeBlanc left the company. Several of the loans were approved after the two women had left the company. The arrests of Shirey and LeBlanc were made exclusively on Mills’ inaccurate statements. The company had no accounting discrepancies that they could find to support their theft claims. They didn’t even admit bank account records into evidence.

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This case is a welcome reminder of how an attorney’s advice may sometimes lead to more harm than good. Brown brought suit against his former employer, Skagit, under Title VII claiming racial harassment and constructive discharge. In a deposition, Brown testified that his sole reason for quitting his job at Skagit was due to racial harassment. However, in a deposition four months earlier in an unrelated personal injury case, Brown testified that he left Skagit solely because of debilitating back pain suffered during a car accident. Skagit sought dismissal of Brown’s claims based on his conflicting testimony, which the district court allowed and dismissed with prejudice. The court also went one step further finding Brown committed perjury. Brown’s appeal is based on a matter of fairness, arguing that a less severe sanction is in order and that he was entitled to explain the discrepancy between the testimonies.

To emphasize the facts, in the first case, based on racial harassment and constructive discharge under Title VII, 42 U.S.C. sec. 2000e, Brown testified as to how he felt endangered by his co-workers’ threatening behavior, which involved dropping heavy plates and pipes near him. He was also distraught by his co-workers flinging derogatory remarks at him on a daily basis. He felt compelled to quit his job, as his supervisors purportedly ignored this behavior. When asked why he quit his job, he testified that the only reason he quit was because of the racial harassment. He reiterated that there were no other reasons for his quitting.

In a completely unrelated deposition for a personal injury claim, Brown testified that the exclusive reason he left Skagit was due to his debilitating back pain, which prevented him from performing his job as a welder. He again emphasized and confirmed that this was his only reason for leaving his job.

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The idea of timeliness is a common contract clause that requires that one of the parties perform a mandatory act within a certain amount of time. There is often a specific amount of time attached, but sometimes the clause can simply state that an action be carried out “within a timely manner” or similar wording. Usually if a party does not follow a timeliness requirement, the other party can dissolve the contract. However, if there are extenuating circumstances that create a situation in which the timeliness requirement could not have been satisfied, then courts may take that into consideration and allow the contract to continue.

In the aftermath of Hurricane Katrina, many companies were scrambling to rebuild their companies and manage rebuilding in hopes of returning to some form of New Orleans normalcy. Due to the myriad of weather and levee related problems, common damages included flooding within buildings, broken windows, roof damage, and a number of other damages relating to the huge amounts of wind and rain. The damage was enough to force the city of New Orleans shut down for at least thirty days after the storm. One would think that these conditions might fit with those extenuating circumstances to avoid a timeliness provision regarding how quickly to rebuild.

Conversely, the court ruled that this was not the case. Expert testimony stated that contractors were working to rebuild within two weeks after the storm. Therefore, contracts that included timeliness provisions still had full force. In one case, a lessee had a provision in their rental agreement that stated if there was significant damage the lessor could choose to either repair the property or terminate the lease within thirty days after the disaster. If the lessor chose to rebuild, then he would be required to rebuild within 120 days. In this case, the lessor chose to rebuild, was unable to fulfill the timeliness requirement. Instead, the property was returned to a “shell condition” nearly a year after Katrina hit. The “shell condition” consisted of very few substantial repairs, so that the building could not be used for its intended purpose. Instead, vital things were missing such as doors and doorframes.

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Every year thousands of medical malpractice claims are filed. Why? The answer is simple. The practice of medicine is complex, and, as advanced as our medical sciences are, mistakes are made, false diagnosis are given, and new conditions emerge. Since there are so many complexities, the fact that a patient is misdiagnosed or suffers from a condition that the doctor missed does not necessarily guarantee a successful medical malpractice claim. As illustrated by Cheramie v. Norem, in order to succeed on such a claim, a plaintiff must establish that the doctor did something or failed to do something that fell below the appropriate standard of care which resulted in harm to the patient.

In most medical malpractice cases, including Cheramie v. Norem, the most contested issue regards the standard of care. Typically, healthcare providers are held to a reasonable care standard, requiring them to use diligence and their best judgment in applying their skills. General practitioners are held to local standards which are the standards that prevail in the area they live or a similar location. Specialists, on the other hand, are held to a single national standard that applies to the entirety of that particular specialty. Regardless of which locale’s standard applies, all standards are comprised of a number of elements which the failure to comply with can give rise to a medical malpractice claim.

Cheramie v. Norem provides a glimpse into one of these standard of care elements. In this case, a doctor provided post-operative treatment to a patient after repairing a hernia. After the hernia operation, a small hole opened in the patient’s small intestine, requiring permanent sutures. As time passed, the patient’s body began rejecting the sutures and the question arose as to whether or not the doctor should operate to remove them. After years of the doctor’s recommendation that the sutures should remain, the patient was forced by his insurance company to get a second opinion. This second doctor operated to remove the sutures, resulting in a full recovery by the patient. Afterwards, the patient filed suit against the original doctor for malpractice.

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When an auto accident results in an injury and is taken to court, one of the most important issues a judge must decide is causation. If a plaintiff can show that an injury was directly caused by the accident, then the judge will determine the amount of damages to be awarded. However, the determination of causation can be difficult. This is especially true when figuring out whom exactly caused the accident. For example, if a car on the interstate swerves into a lane and slams into another vehicle it may appear that the driver of that car directly caused the accident. If this were true, then the driver would be liable for any injury damages. Yet, there are several factors that must be considered. Consider, was any part of the car defective? Was there a problem with the road that caused the car to swerve? The various answers to these questions can change what actually caused the accident and the injury, thereby shifting liability to differing parties.

When making a personal injury claim, the burden of proof is on the plaintiff to prove both that the defendant caused the accident and that the injuries resulted from that accident. The plaintiff need only prove these elements by a preponderance of the evidence, meaning that it is more likely than not that the defendant caused the accident and that the injuries resulted from that accident. If causation is proved, then the judge will determine the damages that are to be awarded.

Damages awards may be found in several different areas. The most obvious is damages via costs accrued through medical treatment. Costs for medical transportation, doctor visits, prescriptions, and other hospital services are likely to be awarded as damages once causation has been proven. In addition to medical costs, a plaintiff may make claims for pain and suffering. These awards are highly discretionary, and are dependant upon the plaintiff’s ability to show that he has suffered disfigurement, impairment of ability to work, anxiety attributable to the injury, and mental distress. Pain and suffering damages cover a broad area, but to succeed on such claims it is imperative that the pain and suffering is proximately related to the accident and/or injury. A plaintiff may claim other damages such as loss of wages, loss of enjoyment of life, and loss of consortium. However, all must be a result of the accident and injury that serves as the claim’s foundation.

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Class actions are a type of action that most people have heard of but that may not be well understood. In Klier v. Elf Atochem North America, Inc. a class action was initiated against the operator of an industrial plant in Bryan, Texas. The class was divided into three subclasses for the purposes of settlement. Members of each class were granted specific remedies for their disparate injuries.

Class actions are a useful tool when a large number of people have been harmed by a single defendant but none or few of them have suffered sufficient harm to warrant filing an independent claim. Class action proceedings have res judicata power over plaintiffs who do not opt out. That means that if a plaintiff does not opt out of a class action, the verdict or settlement that results will be binding on that person and prevent them from filing that same claim in the future. If a plaintiff feels that his or her injury warrants a separate claim, that person is free to do so only after opting out of the class action.

In order to certify a class for a class action under the Federal Rules of Civil Procedure in the first place, a court must find that the class is so numerous that joinder of all members is impracticable, that there are questions of law or fact common to the class, that the claims or defenses of the representative parties are typical of the claims and defenses of the class and that the representative parties will fairly and adequately protect the interests of the class. Each of these requirements must be met in order for an action to go forward as a class action.

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Happy Holidays from the Berniard Law Firm! We will resume blog posting on Tuesday.

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Under Louisiana law, the plaintiff in a personal injury lawsuit may file his complaint with the court by fax. However, the plaintiff must, within five days of transmitting the fax, forward to the clerk of court the original, signed complaint and any fees that are due. If the plaintiff fails to forward the original document, the faxed copy will “have no force or effect.” La. R.S. 13:580. The fax option can potentially help preserve an action that is facing the expiration of its prescriptive period. However, as we will see with the recent case of Taylor v. Broomfield, the courts do not take lightly the requirement that the original complaint must be submitted to the clerk within the time frame outlined in the statute.

On September 17, 2009, Jarred Taylor was involved in a serious car accident in Jackson Parish. The other party to the collision was Brandon Goss who was driving a Mack truck owned by Broomfield, Inc. Taylor suffered various injuries including two broken ribs, multiple contusions, and lacerations to his face. Taylor’s lawyer initiated a lawsuit against Broomfield and its insurer on September 17, 2010 (exactly one year after the accident and the last day of the prescriptive period) by transmitting a faxed complaint to the Jackson Parish Court. The faxed complaint was not notarized. Although Taylor’s counsel had, according to Louisiana statute, until September 24, 2010 to send the original complaint to the court’s clerk, the original document was not filed until October 5, 2010. The original complaint filed with the clerk on October 5 included a verification notarized by one Donna Kay Tucker on September 20, 2010.

On November 12, 2010, Broomfield filed an exception of prescription requesting that Taylor’s suit be dismissed because it was filed after the one-year prescriptive period had elapsed. A hearing was held on January 13, 2011. In opposition to Broomfield’s exception, Taylor’s attorney argued that when his office faxed the complaint on September 17, 2010, his staff immediately mailed the original complaint, along with the filing fees, to the clerk of court. Several staff members from the law firm testified to this effect, but none of them could explain who the notary, Donna Kay Tucker, was or why the complaint’s verification reflected a date after the day the firm put the document in the mail. Ultimately, the trial judge denied the exception of prescription and held that the notary date was “merely harmless error” and that the complaint had been timely forwarded by Taylor’s counsel per state law. Broomfield appealed.

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

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

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

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

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

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

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