Class Action

September 14, 2012

Wrongful Prosecution Case Highlights Appeals Process

In 2005, a New Orleans detective investigated a case regarding a robbery and shooting at a local meat market. An armed assailant was seen fleeing the scene of an attempted murder. After investigation and contact with the Federal Bureau of Investigation, a man was arrested who was known simply as “Mohammad.” This man was held for two years before the charges against him were dropped. As soon as he was released, the man filed charges against the detective and the City of New Orleans for violation to the right to due process and malicious prosecution for the attempted first degree murder that had taken place in 2005.

Mohammad alleged that his due process rights were not being respected because he believed that the detective used false evidence to hold him for trial. The right to due process comes from the Fifth and Fourteenth Amendments to the United States Constitution. Due process involves the rights to a fair and speedy trial as well as the right to be notified of the charges against you and the right to be heard in a court of law.1 Presumably Mohammad’s claims were based on the assumption that if the detective was attempting to convict him on false witness testimonies then the trial could not be fair by definition.

The United States District Court for the Eastern District of Louisiana heard the case and many witnesses were presented on either side. Witnesses who saw the attempted murder that day described someone who fit Mohammad’s description and one witness even identified him directly. Evidence was also submitted regarding the detective’s investigation of the case, including the fact that he interviewed a number of witnesses and worked with the FBI in this case. Mohammad presented a single witness who described a man who did not fit Mohammad’s description and another individual who stated that Mohammad was with him the entire day. Mohammad claimed that the statements and witnesses presented by defendants were created by the detective in order to get a conviction for this case. Nonetheless, the jury at the District Court level found for the City of New Orleans and the detective.

September 12, 2012

Maritime Injury: The Jones Act and How it Applies to Recovering Damages (Part 2)

by Berniard Law Firm

This post is a follow up regarding the worker’s compensation claims in a maritime case previously discussed in “Maritime Injury: The Jones Act.” The Fifth Circuit Court of Appeals also addressed the complicated worker’s compensation aspects of this case in addition to the rejection of the use of The Jones Act in the injured party’s attempt to avoid an employer’s contributory negligence claim. In order to fully understand the worker’s compensation aspects of this case, it is important to consider some additional facts of the District Court’s decision.

As a reminder, a crane mechanic employed by a third party was injured on an oil rig due to the partial negligence of himself and the owners of the rig. He fell through an uncovered ladder from the top portion of the crane cab and was seriously injured when he landed on the deck below. After his injury, the employee was no longer able to work as a crane mechanic but remained an employee for his previous company.

While the injured man was unable to work as a crane mechanic, his employer gave him a clerical position and paid him significantly more than someone in a clerical position would earn. His employer continued to pay him the wage he earned as a crane mechanic and although he only worked approximately twenty hours a week, his employer paid him for fifty-five hours per week. The lower court determined that this dramatic increase in wages for the work done could be considered an advance of worker’s compensation benefits. They based this determination on the original intention of the employer. The Court of Appeals affirmed this decision by stating that the lower court had ample evidence to make this conclusion.

September 10, 2012

Maritime Injury: The Jones Act and How it Applies to Recovering Damages

by Berniard Law Firm

The Court of Appeals for the Fifth Circuit addressed an injury case that involved a crane mechanic who was injured on an offshore drilling rig. The man was injured when he fell through an uncovered ladder hole on the top portion of the crane cab which was about fourteen feet above the deck of the rig. As a result of his injuries, he is now unable to work as a crane mechanic, but he has returned to work in a clerical capacity for the company in which he was working for previously. The two parties in this case are the employee and the owner of the rig on which he was injured; however, this case is complicated because the employer is also involved in the worker’s compensation claims.

This case involved a cross appeal where both parties appealed some part of the lower court’s decision. There were a few issues that arose in this case that that Court of Appeals addressed. This case touches on the Jones Act and considers the concept of contributory negligence. This case is also based on the Longshore and Harbor Worker’s Compensation Act so it affects the employer and their insurance company as well. This post will present the basic facts of this case and discuss the Jones Act. A follow up post will address the worker’s compensation aspects of the court’s decision.1

The employee appealed based on the claim that that he did not contribute to his own injury by being careless. This concept is generally known as contributory negligence. He also argued that even if he was partially responsible, the Jones Act protected him from being punished for his contribution to the injury. The owner of the rig appealed based on the claim that they were also not partially negligent. The Fifth Circuit Court of Appeals considered all of these issues in turn and affirmed the lower court’s judgment. The court states that both parties were partially negligent in this case; the owner of the rig left open the cover through which the employee fell and the employee was not watching where he was going, thus contributing to his injury.

August 31, 2012

Damages a Complicated Concern in Louisiana Asbestos Case

by Berniard Law Firm

Damages are awarded in successful civil instances in order to put the injured party back into a position that they would have been in had the events in the case unfolded as planned or if the transaction had not taken place at all. For example, in a contracts case, if one party ordered and paid for widgets, and does not receive those widgets, then he should be able to get his money back or the court could force the other party to provide the widgets as promised. Sometimes, however, the position that you were in before the deal is not easy to quantify into a dollar amount. In cases where the injury is either physical or emotional, damages are very difficult to estimate.

In cases where the injury is either physical, emotional, or both, the court uses a variety of methods to attempt to determine the appropriate amount of damages. For example, if someone has been harmed physically and needs to go to the hospital, then part of the compensation will often include money to cover the hospital bills. If an individual has been troubled emotionally and needs to see a therapist, then the bills for that service will often be considered to figure damages. In addition, the court will often look at past cases to determine what type of monetary award that juries have given to the victim under similar circumstances. If the award that the jury gives is significantly smaller or larger than past awards then the court may intervene to adjust the damages granted.

A 2011 Delaware Supreme Court case illustrates this concept very well. In this case, a son and mother were exposed to asbestos while operating a car repair business for over forty years in Louisiana. They died after contracting mesothelioma; the mother died two years prior to her son’s death. Several issues came up in this case regarding the payment of damages. The lower court declared that two businesses were partially liable for the death of these individuals. Therefore, those businesses were ordered to pay $500,000 to the four remaining family members for the loss of their mother, $0 to the son for the loss of his mother, $80,000 to the mother’s estate for pain and suffering, and $1.6 million to the son’s estate for his pain and suffering. All of these funds were given to the four remaining family members.

August 27, 2012

Court Determines Louisiana Man’s $1.3 Million Award for Injury is Not Excessive

by Berniard Law Firm

In October of 2009 a man was injured on a tugboat near Amelia, Louisiana, while attempting to do his duty as a deckhand. Two major issues came up in this case when it went to the Court of Appeals for the Fifth Circuit. First, the deckhand had to prove that he did not cause or partially cause his own injury. Second, he also had to demonstrate that the damages he was awarded at the District Court level were not excessive. Both of these factors were proven and the injured man was awarded approximately $1.3 million in damages.

The deckhand in this case was on a small tugboat and attempted to transfer a big barge that they were hauling to another larger tugboat. The small tugboat crew made the transfer in the very early morning hours and while the sea was quite rough. The deckhand was injured when his tugboat dipped in a wave; a wire came untied, and struck him. He was thrown against a wall, which knocked him unconscious. As a result, he had fractures in two of his vertebrae and wore a back brace for a month before a serious surgery that fused his vertebrae together. He also has serious pain issues that will have to be controlled with a pain pump, which gives pain medication directly to the spinal cord, or the continued use of oral pain medication. His pain issues will likely continue for the rest of his life.

In order to collect damages, the deckhand needed to prove that his injury was not also partially his own fault because he was being careless. In legal terms, this is known as contributory negligence. This was a major issue because at the time that the deckhand was injured, he was in what was called a “pressure zone.” The pressure zone basically assumes that the portion of the deck in which he was standing was more dangerous at the time of the transfer than the other portions of the deck. This is because a wire that the boats used to transfer was tight at that portion of the deck, so if it came loose then the deckhands would lose control of it. The court determined that he did not contribute to his injury in this case because he was following the orders of his captain when he was injured. Previous case law has stated that individuals following orders cannot have contributory negligence because their superiors put them in that situation.

August 10, 2012

Jurisdiction for Appeals Important in Louisiana Litigation

by Berniard Law Firm

Jurisdiction and appeals are both complicated subjects that law students spend an entire year studying in law school. The intricacies of jurisdiction and the appeals process are also learned from years of practice in the legal field. One victim discovered this notion out the hard way when he brought suit after a medical incident in Alexandria, Louisiana. Some general background information is helpful before the case is discussed.

In order for a court to hear a case, that court must have jurisdiction over it. Jurisdiction is defined as the authority to hear a case and it is granted by the United State Constitution or by statute. Jurisdiction needs to be determined at each level as it goes through the either the federal or state court system.

The District Court hears most federal claims first because it is usually considered the lowest federal court. After a case goes through the lower court then the defendant typically has the right to appeal if the judgment that was rendered at the District Court was not favorable to his case. The Court of Appeals then needs to determine whether it has jurisdiction over that particular appeal.

August 8, 2012

Lawsuit Over Speech Rights and City Interests Shows Need for Competent Attorney

by Berniard Law Firm

Louisiana court dockets are packed. Judges are over-worked. This means that judges have little patience for frivolous lawsuits or claims that are not clearly defined. When claims are muddled, a judge may have difficulty discerning what issues are to be analyzed. This murky analysis can lead to erroneous conclusions that can lead meritorious claims to be dismissed. One of these cases was recently under consideration in the Court of Appeals for the Fifth Circuit.

In this case, a South Padre Island restaurant owner brought suit against the city when city ordinances denied his desire to place an advertisement on a moored boat. The district and appellate courts found the claim to be ever-changing. Parties were added and removed and the claims themselves changed frequently. The lawsuit brought forth claims ranging from First, Fifth and Fourteenth Amendment violations to violations of Texas law. This muddied lawsuit caused the court confusion and led them to approach the case in a way that the plaintiff may not have intended.

The main issue in this case, according to the court, was whether or not the plaintiff had standing with regards to a First Amendment claim. In order for an individual to have Article III standing, a plaintiff must show an injury in fact that is concrete and particularized and actual or imminent; a causal connection between the injury and the conduct alleged in the complaint; and the likelihood that a favorable decision will redress the injury.

August 6, 2012

Boat Swell Accident Provides Look Into Res Judicata

by Berniard Law Firm

The first element of an independent action in equity that allows an individual to bypass res judicata analyzes whether the judge’s determination in the original case was truly fair and made in good conscience. When a judge shows bias, as in the boat swell case, the judge’s decision is likely swayed and not independent. This is unfair to the losing party and therefore helps a claim bypass res judicata.

The second element requires that the original case claim have merit. If the claim is frivolous, then there is no reason for the court to negate res judicata and grant a new trial. This again protects judicial efficiency and duplicitous suits. When determining the merit of the underlying suit, a judge will simply read the complaint to see if it makes an actual claim that, if true, would lead to recovery. In the boat swell case, the personal injury claim did have merit and thus satisfied this prong.

The third element requires courts to determine whether fraud was a reason that the losing party did not prevail in the underlying case. Similar to the first element, fraud is likely to sway a judge’s decision to the detriment of the losing party. This is what happened in the boat swell case as the judge’s decision was basically bought with lavish hunting trips.

August 1, 2012

Houma Boat Swell Accident Victim Convinces Court of Appeals to Bypass Res Judicata

by Berniard Law Firm

Though courts are busy and judges have overflowing dockets, our justice system requires courts to find time to hear cases worthy of adjudicating. This means that judges must be as efficient as possible. One way of doing this is to require claimants to converge all of their complaints into a single lawsuit. Failure to do this will bar a claimant from bringing a second lawsuit against the same party. This legal theory based in civil procedure is known as res judicata. It seeks to maintain judicial efficiency and protect litigants from facing duplicitous lawsuit from the same claimant. This important principle is important to understand for anyone going forward in a lawsuit because it could prevent a claimant from asserting any material claims against a wrong-doer that were not asserted in the first legal action.

Though courts are assumed to be honest, deceit and bias can seep into the legal fabric. When this occurs, the justice system must reanalyze the applicability of res judicata. One illustrative example of an instance like this took place recently in the United States District Court for the Eastern District of Louisiana. The issue was complicated and was later resolved by the United States Court of Appeals for the Fifth Circuit.

The case in question involved a personal injury lawsuit where a yacht’s boat swells threw another boat into the air and injured a woman in that boat. That injured woman filed suit against the yacht owners and their insurance company. At trial, the judge found for the defendants, essentially stating that the defendant’s expert witness was more reliable than the plaintiff’s expert.

July 20, 2012

Malicious Prosecution Case Lends Elements of Successful Gain

by Berniard Law Firm

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.