Class Action

February 18, 2013

Workers’ Compensation is One of the Only Remedies for Injured Employees

In Louisiana, an employee can only be compensated for a work related injury through workers’ compensation. This means that if an employee is negligently harmed during the course of work, the only remedy available is what is provided through the workers’ compensation act. This is true unless the injury was as a result of intentional conduct. In the business world, many general contractors contract out work to subcontractors. Legally the issue in such a case becomes how to define who the employee is employed by in case of an injury. In Louisiana, there is a doctrine called the two contract theory. The basic outline of this theory is that in a situation where there are three parties in a contract which includes a general contractor, subcontractor, and subcontractor’s employee, the subcontractor’s employee is considered an employee of the general contractor. This mean that if the subcontractor’s employee is injured while performing work for the general contractor, the employee will only be able to receive workers’ compensation, not any damages based on negligence or any other branch of tort law. This may, at first glance, seem like a harsh result. However, in the modern business world, there are so many employment contractual relationships that liability must be limited to what is reasonable under the circumstances. The two contract theory should not be viewed as a way to protect business, but rather as a means for the judicial system to not be able to overreach.

In a recent case, Mason v. Waste Management Inc. Et Al., the law concerning employee rights is discussed in such a circumstance. Lamare Kindle and Wallace Bradley, were employed by Waste Management Inc. Mr. Bradley was employed directly by Waste Management. Mr. Kindle was employed by CPST Inc. CPST was a subcontractor which had contractually agreed to supply Waste Management with employees in an effort to help Waste Management collect trash it was required to contractually pick up. Waste Management had agreed to pick up trash in a contract with the Morehouse Parish Police Jury. So the contractual relationships are broken down as follows: Morehouse Parish Police Jury needed a company to come pick up trash in its area. Waste Management agreed to pick up the trash and signed a contract with Morehouse Parish to do so. Mr. Bradley was employed by Waste Management. In an effort to fulfill its obligation to Morehouse Parish, Waste Management needed to hire temp workers. CPST contractually agreed to supply Waste Management with employees. Mr. Kindle was employed by CPST.

Mr. Bradley was driving a truck registered to Waste Management. Mr. Kindle was a passenger in the truck driven by Mr. Bradley. Upon coming to a train track Mr. Bradley made the tragic mistake of crossing over the tracks as a train passed the intersection. Both Mr. Bradley and Mr. Kindle was sadly killed as a result of the collision with the train. Mr. Kindle’s parents sued Waste Management alleging that it was liable for any negligence that was attributed to Mr. Bradley while he was driving the garbage truck. The police report stated that the accident was likely the result of Mr. Bradley’s inattentivness. Waste Management argued that under the two contract theory, Mr. Kindle was its employee and because there was negligence and not intentional conduct, the only remedy available was workers’ compensation. Because Waste Management held a position as a general contractor in relation to Morehouse Parish, and CPST held a relationship with Waste Management as a subcontractor, the circumstance of the contractual relationships fell under the definition of the two contract theory. Therefore, Mr. Kindle was considered an employee of Waste Management and the only remedy available was workers’ compensation.

February 12, 2013

Laissez les Bon Temps Rouler!

by Berniard Law Firm

The Berniard Law Firm is proud to be a New Orleans-based organization and nothing says NOLA better than Mardi Gras!

We wish all of our readers a happy, and safe, Mardi Gras holiday!

February 4, 2013

Kentucky Supreme Court Case Shows Need for Excellent Representation

by Berniard Law Firm

A recent case within the Kentucky Court of Appeals demonstrates very extremely the need for quality counsel in all court proceedings. Regardless the subject or reasons you may find yourself in court, it is important that the lawyer you hire is not only able to represent you well in the courtroom and past it. While you would like to think the courts have the rule of law well established in the minds of their judges, a qualified attorney will also review the matters at hand to make sure all ‘facts’ are correct in the proceedings.

In the case of Bramer Crane Servs., LLC v. Structure Builders & Riggers Mach. Moving Div., LLC, a lien issue was reviewed by the superior court of the state. While the actual facts of the case are not important for this post, what is important is that the findings of the court were inherently flawed. Cited in the case was a fact that was severely outdated, as much as 20+ years and two revisions.

As the blog Zlien notes, instead of a clean finding, the court had lapsed in its research and failed to note updated law. The issue was that the ruling relied on judicial precedence rather than a review of legislation passed during this time. While one would like to consider the issue a simple lapse in judicial research, the fact remains that this unpublished decision could very easily have gone unnoticed without people stepping up.

January 28, 2013

Louisiana Liability Lawsuit Against Sand Supplier for Silicosis Dismissed

by Berniard Law Firm

In nearly all cases, sand on a beach is enjoyable and safe. Sand used for sandblasting, however, creates dust that, upon being inhaled by an unprotected worker, increases the risk of lung disease or other lung-based medical concerns. The Louisiana Court of Appeal decided in Bates v. E. D. Bullard Co., that the possibility of problems does not make the sale of a product like sand unreasonable, especially when that use is outside the normal, non-technical purpose.

Wilbert Bates worked for the SBA Shipyards during the 1980s doing tasks that included cleaning and sandblasting. Both types of duties exposed him to silica dust — pieces of sand so small that he inhaled them and they stuck in his lungs that led to silicosis. Silicosis is an industrial disease that leaves its victims short of breath due to small sand particles becoming lodged in the lungs. The presence of particles encourages the growth of fibrous tissue in the lungs, reducing lung capacity. A lifetime of work can result in wheezing and body strain in an attempt to get air.

Bates and his wife sued Specialty Sand Co. and Southern Silica of Louisiana, Inc., which provided sand to the shipyard. The Bateses claimed that the sand was unreasonably dangerous or defective because the sand companies failed to warn and instruct him and the shipyard of the potential hazards.

January 21, 2013

Identifying the Wrong Defendant in Civil Suit Can Lead to Lost Opportunity

by Berniard Law Firm

The civil justice system has a few bare minimum requirements that must be met before a party can be successful in any given litigation. In order for a party to be successful in a civil action, that party’s case must make sense to the court in terms of the party accused, injury presented, etc. Initiating action against the correct defendant seems like it would be a given, however that is not always the case. Ms. Charise Thomas was injured in a particular location, eventually suing the owner of the location, Mr. Antonio Harris, due to the incident. Ms. Thomas also sued that man’s father, Mr. Aaron Harris. Unfortunately for Ms. Thomas, she did not initiate action against the estate of one Mr. Thirkield J. Smith, the owner of the property on the date of her accident.

The trial court granted Aaron Harris a peremptory exception of prescription and Antonio Harrris a summary judgment. These two different types of relief are granted for different reasons, having similar results but different standards of review on appeal. Each requires different elements in order to be granted to the moving party. In this case, they were also both upheld by the appellate court.

An exception of prescription is granted by a trial court when a certain time period has elapsed between the incident giving rise to a particular suit and the filing of that suit. Since Ms. Thomas never ended up filing against the appropriate party, Aaron Harris’ peremptory exception of prescription was granted and upheld on appeal. The trial court’s decision is given a fairly high amount of deference on appeal and is reviewed under the manifest error standard. If the trial court is found not to have abused its discretion, its decision will not be overturned.

December 29, 2012

Appeals Court Determines Judgment Due to Conflict of Fact

by Berniard Law Firm

Juries have always been an important part of our legal system. Although many people dread jury duty, they are really performing a service when they are called. That service involves providing a judgment by a panel of your peers. We place a great deal of value in judgment rendered by your fellow community members.

Generally, juries consist of twelve people and nine of those twelve people have to agree to whatever outcome of the case is appropriate. The jury is allowed to speak with one another and look over evidence to make this determination. While the verdict may be as general as guilty or not guilty, there are also cases where the jury will be asked specific questions related to the case. As a rule, the jury is a finder of fact and their fact conclusions are treated as if they are complete fact, even if there may be some question. If the jury concludes that the grass is blue and the sky is green, then that’s how it is.

However, if the jury comes up with a ridiculous verdict given the circumstances, then the judge can reverse them. If the jury says the grass is blue and the sky is green, then the judge will recognize how strange that is and override their determination. If the question is closer, however, the judge will default to whatever the jury decides.

December 19, 2012

Home Fire Worsened Due to Parish Road Crew Severing Phone, Water Lines

by Berniard Law Firm

In 2006, a mobile home caught fire in Winnfield, Louisiana. The couple that owned the home was obviously frightened and confused. However, they were especially concerned because their phone line was not working and their water had virtually no pressure. Therefore, the husband drove to a neighbor’s house to seek a phone to call the fire department and the wife stayed at home to try to control the flames. Because of the lack of water pressure, unfortunately, the flames became too much for the woman to handle. These two factors, the lack of phone and water pressure, no doubt contributed to the excessive amount of damage to their home.

Why did these disastrous conditions occur? The Winn Parish road crew accidentally cut their phone and water lines three days before the fire. They were in the process of fixing the water line and the phone company had yet to send someone out to fix the phone line when the fire occurred. The fire was caused by an unrelated incident, but the three occurrences combined proved to be disastrous for the couple.

The couple contacted their insurance company right away to help with the expenses. The insurance company provided $55,047.55 in compensation costs based on their homeowners’ insurance coverage. However, the couple also sued the Winn Parish Police Jury because they thought the damage caused by the fire would be much less had they had the use of decent water pressure and phone line to contact emergency personnel.

December 17, 2012

Class Action Involving Plant Releases Demonstrates How Certification Occurs

by Berniard Law Firm

Creating laminated veneer lumber and I-Joists, which are used in residential and commercial construction, require toxic chemicals such as formaldehyde, phenol, and methanol. The chemicals also end up in the waste products of plants that produce these goods. In the Parish of Natchitoches, hundreds of individuals discovered the damage that these chemicals could cause. These individuals stated “that sawdust from the plant fell like snowflakes upon them, their children, their homes and their cars.” The plant admitted that accidental release of admissions were fairly common, and they were all observed and recorded.

As a result of this exposure, hundreds of plaintiffs joined to form a class action lawsuit. A class action lawsuit involves numerous individuals who have suffered in a similar manner, usually resulting from the same incident or series of incidents. Class action lawsuits allow individual people to get compensation for damages where they may not have been able to if they just sued by themselves.

The damages in this case not only included the obvious mess that sawdust would create in a home, but also included an array of medical issues. Some examples include conjunctivitis, difficulty breathing, wheezing, coughing, bronchial pneumonia, and asthma. The side effects of exposure to the chemicals in the plant were relatively the same as those claimed by hundreds of nearby residents.

November 2, 2012

Overturned Alexandria Jury Award Demonstrates Power, and Limits, of Court of Appeals

by Berniard Law Firm

Our justice system puts a great deal of important decisions in the hands of juries. Criminal defendants and civil defendants often find their fates in the hands of some number, varying by jurisdiction, of people with no specific training whatsoever. Our system gives a great deal of deference to the trier of fact at the trial level. Nobody, save perhaps the actual participants in the case, is in a better position to determine exactly what happened in a given case. The jury hears all of the admissible evidence and at the end of the day they determine not only what happened in a civil trial but, once liability is conceded or established, how much the plaintiff is entitled to recover for their injuries. Once the jury renders a verdict, its findings will not be overturned absent a determination that they abused their discretion. The Louisiana Supreme Court has gone out of its way to stress just how much deference should be granted to jury verdicts on review. They noted that a jury finding regarding damages is entitled to “great deference on review” in Wainwright v. Fontenot, 774 So.2d 70, 74. The Louisiana Supreme Court further indicated that “an appellate court should rarely disturb an award on review” in Guillory v. Lee, 16 So.3d 1104.

In the case of Deligans v. Ace American Ins. Co., the defendant conceded the issue of liability. The trial in this case only concerned the amount of money to be awarded in damages. After the jury heard all of the evidence in that case, they awarded the plaintiff several dollar amounts for specific types of damages. The jury awarded Mrs. Deligans money for past physical pain and suffering, future physical pain and suffering, past mental pain and suffering, future mental pain and suffering, past medical expenses, future medical expenses, past loss of enjoyment of life and future loss of enjoyment of life. The jury did not award Mrs. Deligans any money in the areas of past disability or future disability. Ms. Deligans complained on appeal about the inadequacy of the award she was granted by the jury.

The appellate court found that the jury in this case had in fact abused its discretion. After explaining the deference due to such a finding at great length, the appellate court actually raised the award that the jury awarded Ms. Deligans. When an appellate court makes such a finding, it can only raise the award to the “lowest amount which is reasonably within the court’s discretion.” The appellate court looked to jury awards in similar cases when making this determination. The appellate court then awarded Ms. Deligans the lowest amount it felt was within the purview of the jury to have given without abusing its discretion. Even when the jury verdict is overturned, it is still given great deference.

October 31, 2012

Monroe Medical Malpractice Case Explores Directed Verdicts, Expert Testimony

by Berniard Law Firm

On February 24, 2003, D H visited the North Monroe Medical Center to have a benign tumor removed from her breast. The procedure was performed by Doctor A, a general surgeon, and Doctor B, a radiologist. The procedure involved inserting a metal wire, guided by x-ray, into the breast and “hooking” the tumor. Once Doctor A removed the mass of tissue, Doctor B compared pre- and post-operation images and confirmed that the tumor had been taken out. The tissue was sent for pathological analysis, which revealed that it was not the intended tumor, but rather normal breast tissue. A mammogram several months later revealed that a section of the wire hook and the tumor remained in H’s breast. Doctor A, therefore, performed another procedure in which he successfully removed the wire fragment and the tumor.

H filed a medical review panel complaint against Doctor A and the North Monroe Medical Center. The panel found in favor of the defendants, and H filed a medical malpractice suit on January 19, 2007. She amended the complaint to include Doctor B on October 30, 2008. In February, 2011, following the completion of H’s case, the defendants moved for directed verdicts, which the trial court granted. H appealed the trial court’s granting of directed verdicts in favor of Doctor A and Doctor B. Under Louisiana law, a directed verdict should be granted when, after considering all the evidence, it is clear to the court that the “facts and inferences so overwhelmingly favor a verdict for the movant, that reasonable jurors could not have arrived at a contrary conclusion.” This, naturally, in the case of a defendant’s petition for a directed verdict, requires that all of the plaintiff’s evidence be properly before the court. Expert testimony is not absolutely required in order for the plaintiff to overcome the burden to show that the defendant was negligent. In fact, on appeal to the Second Circuit Court of Appeal, H argued that expert testimony was not necessary to establish malpractice, as the actions that led to her injury were “obviously careless acts” and, as such, negligence could be inferred. The court disagreed, offering that “although the procedure itself may be considered routine, considering the procedure as a whole, specifically the judgment calls required of Drs. A & B, it is clear that this is not a scenario from which lay persons could infer negligence.”

This conclusion led to the analysis of the trial court’s refusal to certify Dr. Roderick Boyd, H’s witness during the trial, as an expert in radiology. As a result of Dr. Boyd’s being certified in general surgery only, he was unable to comment on most of Doctor B’s involvement in H’s procedure during his testimony. The court’s review of the record of Dr. Boyd’s voir dire revealed that “Dr. Boyd had performed several hundred needle localization breast biopsies. He does regularly review radiographic images as a function of his occupation as a general surgeon and in connection with biopsies such as the one performed in this case.” Therefore, the court’s “not accept[ing] Dr. Boyd as an expert in this type of procedure to include a reading of the radiographic images was clear error. The court concluded, “We cannot speculate on Dr. Boyd’s opinion or its impact on the jury’s decision. Nonetheless, … we must reverse the trial court’s grant of both defendants’ motions for directed verdict, and remand for further proceedings.”