Class Action

December 29, 2012

Appeals Court Determines Judgment Due to Conflict of Fact

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.”

October 25, 2012

Toxic Spill Creates Range of Plaintiffs, No Clear Limit on Class

by Berniard Law Firm

A Louisiana Court of Appeals remanded a class action case back to the trial court for further determination on the size of a class of plaintiffs affected by a Livingston Parish hazardous waste dump. The case, while unfortunate in subject matter, is an excellent overview of the appeals process.

In this case, the trial court had decided to certify a class of all people living within 2.5 miles of a dump site of Combustion, Inc., that had released toxic chemicals into the air and water. Initially, over 14 lawsuits had been filed by 1200 people, but the trial judge had consolidated the cases to a single class action case. The defendants in the case appealed the trial judge’s decision on two grounds: first, that a class action lawsuit was not the appropriate means of deciding the matter because separate lawsuits would be better; and second, that the judge incorrectly set the eligible class of plaintiffs at all those people living within 2.5 miles of the site.

The Court of Appeals sided with the plaintiffs on the first issue. The Court noted that, under Louisiana civil procedure, a case is appropriately decided by class action if the plaintiffs are numerous enough, the named plaintiffs will adequately represent all plaintiffs in the class, and if there is a common character between the claims of all plaintiffs. The Court reasoned that, there being over 1200 plaintiffs in the initial class, there were clearly enough plaintiffs for the trial court to decide that a class action was fair. Also, the Court reasoned that the plaintiffs would likely all have similar damage from the toxic chemicals—namely, bodily injury and property damage—that would make the named plaintiffs adequate representatives of everyone in the class. Finally, the Court reasoned that the legal issues encountered by the plaintiffs were similar enough that there was a common character between them. For these reasons, the Court held that class action was appropriate to resolve the issues in the case.

October 19, 2012

Following the Rules to the Letter: The Need for Careful Lawyer Behavior

by Berniard Law Firm

In order to sue, there are certain rules and procedures you must follow. There are not only federal rules; there are also state rules and local rules. All of these rules should be combined in order to correctly deal with the court system. In many cases, if you do not comply with these extensive rules, then the court will not hear your case. Obviously, these rules are important, but can be very time consuming to follow.

A recent case provides us with an excellent example of following the rules to the letter. In this case, an individual was killed on Highway 90 near Iberia Parish. His accident occurred on a temporary road near a construction zone; he was the only person involved in the accident. As a result, his mother sued for wrongful death. She listed Toyota Motor North American, Inc., Toyota Motor Engineering & Manufacturing North America, Inc., Toyota Motor Sales U.S.A., Inc., and the Department of Transportation and Development.

One of the many procedures that must be followed is the service of process. Service of process involves giving the other party a letter or some kind of notification that they are being sued. Its purpose is obviously to inform the other party that they are being sued, but also let them know that they will need to respond and possibly go to court to defend the suit.

October 17, 2012

Importance is What, Not Who, in School Mineral Lease Case

by Berniard Law Firm

Recently, the Vermillion Parish School Board sued various oil, gas, and mineral companies based on mineral leases that were established over a period of nearly 70 years. The companies included Union Oil Company of California, The Pure Oil Corporation, and ConocoPhillips Company. After the school’s argument was rejected at the lower level in separate lawsuits, the school filed to appeal the trial court’s decision. The State of Louisiana Court of Appeal for the Third Circuit reversed the lower court’s findings and its justification for doing so is quite interesting. That court addressed the mineral leases generally, the use of Section 16 lands, and the school’s role in the use of Section 16 lands.

This case involved several unique concepts under the law. First, the dispute centered around mineral leases, which are an curious concept themselves. Basically, mineral leases allow another person or company the ability to mine or take the minerals that are on or underneath a portion of land. In order to take those minerals, the person or company has to pay for their use as if they are renting the entire property. The land above ground might also be used for another purpose that is completely unrelated to mining of minerals, oil, or gas underneath the surface. In addition to a specified rent, many times the person or company who owns the land may also require that they receive a portion of the profits that the land produces. This profit portion is commonly referred to as royalties. These royalties are the topic of discussion in the Vermillion Parish School Board case.

In this case, a school owned lands that they had leased to various oil, gas, and mineral companies. The school was situated on Section 16 land. This concept is also unique and deserves some historical explanation. The State of Louisiana Court of Appeals for the Third Circuit provides some background on the status of this land. It explains that in 1806, the United States government set aside some land for the use of public education. Therefore, when Louisiana joined the Union in 1812, the land that was set aside was passed to the State to establish public education. These lands are separate from other public lands because they are completely under the control of the state school authorities; therefore, they are held in trust for the benefit of Louisiana school children. The court further explains that although the school authorities control the use of the land, the land is actually owned by the State of Louisiana.

October 15, 2012

The Law of Injunctions in Louisiana

by Berniard Law Firm

Anyone with experience in the court system knows that seeing a lawsuit through to completion takes time. While the wheels of justice may turn slowly, the plaintiff in certain cases may require urgent action to put a stop to the defendant’s behavior that gave rise to the litigation in the first place. In those situations, a plaintiff can turn to the courts for help in the form of a petition for an injunction.

Under Louisiana law, an “injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result” The Louisiana Supreme Court has explained that “injunctive relief” is designed “to prevent the occurrence of future acts that may result in irreparable injury, loss or damage to the applicant.” The issuance of a permanent injunction requires the court to assess the merits of the request, which may itself require time; the court can issue a preliminary injunction–which only requires a prima facie (on its face) showing that the plaintiff is entitled to relief–to maintain the status quo while the permanent injunction is pending. Key to the success of a plaintiff’s petition is that the court’s compulsion or prohibition of some conduct is required to stave off harm. An injunction cannot be issued for monetary damages. In addition, there is an exception to the requirement that the plaintiff show irreparable harm. The courts disregard this element when the conduct at issue “constitutes a direct violation of a prohibitory law or a constitutional right.” In other words, if the defendant’s conduct is illegal, harm is implied.

The Court of Appeal for the Third Circuit provided a useful analysis of the requirements for an injunction in the recent case of Desselle v. Acadian Ambulance Service, Inc.. The trial court granted of a preliminary injunction against Acadian to prevent it from collecting any amount in excess of the reimbursement rate it had negotiated with Keisha Desselle’s health insurance provider. Desselle disputed that any amount was due to Acadian, and was in litigation with her health insurance company over the matter. The court reversed the issuance of the injunction, stating that the case “[ran] afoul of [Louisiana law] insofar as [Desselle] did not demonstrate that “irreparable injury, loss, or damage may otherwise result” to her. First, Desselle has “already been subjected to the complained-of billing procedure.” Further, “any alleged injury, loss, or damage is monetary is nature. It is unclear how the anticipated injury, loss, or damage is irreparable insofar as “Desselle’s] suit is one for monetary damages.”

October 13, 2012

Jones Act and Seaworthiness Claims Heard by Court of Appeals

by Berniard Law Firm

Being located on the coast, many southern Louisiana residents work aboard vessels in the Gulf of Mexico. While these jobs may pay well, they can also be extremely dangerous. Fortunately, maritime laws seek to protect ocean and river-going workers from conditions that pose health and safety risks. A recent case out of the Court of Appeals for the Fifth Circuit highlights some of these protective laws. In that case, an engineer aboard a diving vessel brought suit against his employer for numerous violations he claimed caused new and exacerbated already existing health conditions. The engineer first made three claims under the Jones Act.

The Jones Act essentially allows a maritime employee to sue his employer for personal injuries that result from negligence. The first claim the engineer made under this Act was that his employer failed to give him adequate rest periods. According to the Jones Act, every individual in charge of an engineer watch is to receive a 10 hour rest period in a 24-hour period. This regulation seeks to ensure that employees are properly rested and therefore attentive in their duties. In this case, though the engineer testified he worked 16 to 18-hour days, he failed to provide any objective evidence supporting his claim.

The second claim made under the Jones Act was that the engineer’s employer failed to provide qualified personnel to relieve the engineer from duty. When a qualified individual is available to cover another employee, fully rested and attentive employees remain on post. This ensures that conditions onboard the vessel remain safe. Here, however, the engineer testified that the other personnel aboard the vessel were qualified, capable and competent. In addition, the court held this section of the Jones Act to apply only when the work being performed is specialized. If the work being conducted is routine and simple the qualifications of the relieving person are inconsequential.