Litigation

August 17, 2019

How Can Alzheimers Impact A Personal Injury Lawsuit?

rusty-car-1207835-1024x680 Witnesses can be critical to winning a personal injury lawsuit after an auto accident. Without an impartial third party to attest to what happened, the case can devolve into he said/she said situation. Even worse, when one party is mentally unable to recall the events of the incident, the outcome becomes even more uncertain. Some may be tempted to think their case becomes a slam dunk after that. With one party not even sure of the facts, the other side has to prevail, right?

Plaintiff Lauren Condon (“Condon”) claimed she was rear-ended by Defendant Carol Logan (“Logan”) on the Pontchartrain Expressway in New Orleans on March 25, 2011. Logan denied fault, but Condon claimed a traffic ticket issued to Defendant for following too closely proves Logan was at fault. Condon filed a lawsuit against Logan and her insurer. After several unsuccessful attempts to depose Logan, Logan’s lawyer eventually divulged that Logan has been diagnosed with Alzheimer’s disease and would not be able to testify, either in deposition or in court. Condon then moved for partial summary judgment on the issue of liability. Summary judgment is a procedure where the court makes a ruling without a full trial, based on the information provided in the pleadings and the discovery process. If there is no “genuine issue of material fact,” then the court makes a ruling as a matter of law. La. C.C.P. art. 966. In the case of partial summary judgment, the court rules on one facet of the case, rather than the entire claim.

Logan’s defense team tried to combat the summary judgment motion with affidavits from Logan’s husband and a statement from Logan in the police report. Condon argued these are not admissible and moved to strike the documents. Logan’s attorneys argued that, since Logan has been stricken by mental impairment since the accident, her statement to the police should be admitted under La. C.E. art. 804.

August 16, 2019

What Happens To A Lawyer When They Violate Court Orders in Louisiana?

by Berniard Law Firm

gavel-1238036-1-1024x685 Listening is the most important skill for an attorney. This is of paramount importance when following court orders. A lawyer must be careful in how his actions appear and the actions he takes when attempting to enter in a case, but what happens when a lawyer violates court orders?

John Courtney Wilson (“Wilson”) attempted to enroll as co-counsel for a sexual harassment lawsuit involving Kendrica Sandifer and the Orleans Parish Sheriff’s office. After two attempts to enroll on Kendrica’s behalf, and two court orders barring Wilson from participating in the lawsuit, the district court sanctioned Wilson for his continued violation of court orders and violating his duty of candor to the court.

On September 16, 2012, Ms. Sandifer moved to enroll Wilson as attorney of record before Judge Barbier. This motion was denied since Wilson had a conflict with the scheduled court date for the lawsuit. On October 12, 2012, Ms. Sandifer filed a second motion to enroll Wilson. This motion to enroll was denied due to lack of experience on the part of Wilson. On December 17, 2012, Wilson and attorney of record, Jerry Settle, attempted to file a complaint before a second district court judge, a Judge Lemelle. The court asked Wilson to show cause as to why they shouldn’t be sanctioned for violating the first court order against his participation in the lawsuit. The court did not issue sanctions but struck Wilson from the record of the case. On February 11, 2013, Wilson filed a third complaint before the district court, again before Judge Lemelle. Before filing the lawsuit, Wilson filed a motion to enroll before a magistrate judge who granted Wilson’s motion. This was his third violation of a court order not to participate in the case, and Wilson failed to inform the magistrate judge of these prior court orders.

August 14, 2019

What Do You Do When You Have Been Blindsided By Summary Judgement?

by Berniard Law Firm

StockSnap_D6BZSQ2NM2-1024x683 Walmart is buzzing with pedestrian traffic on a daily basis. Where crowds of people are gathered, accidents are sure to follow. Sometimes Walmart’s products are knocked off of shelves, children spill juice in the aisles, and liquid products can slip from a person’s grasp and splatter across the floor leaving a hazardous environment for anyone to slip and fall. Despite Walmart’s best efforts to keep the stores clean, accidents still happen. As a result, legal services may be needed. If that is the case, information about the parties involved is exchanged between the opposing counsels for a period of time known as discovery. Information may be gathered through depositions or a series of questions under sworn testimony out of court. Once sufficient time has been provided for discovery, a party may determine that there is no factual basis for the case to move forward. Because of this lack of material fact, the party may then make a motion for summary judgment. This motion, if granted, can result in a dismissal of the entire lawsuit. Our justice system, however, provides an appeal process for situations where these judgments were granted in error! So, what do you do when you have been blindsided by summary judgement?

In January 2014, Mrs. Mirian Rivas took an ordinary trip to a Walmart in Harvey, Louisiana. While there, she unexpectedly slipped and fell, resulting in injuries. Mrs. Rivas filed for damages in September of 2014 and served Walmart with discovery requests. The following December, those discovery requests were answered and properly mailed by Walmart. Mrs. Rivas and her co-plaintiff, Mr. Cardona, were then deposed by Walmart on April 15, 2015.

Exactly one month later, Walmart filed a motion for summary judgment asserting that Mrs. Rivas lacked sufficient legal elements in her claim against Walmart for her injuries under La. R.S. 9:2800.6. Mrs. Rivas asserted that Walmart’s discovery answers were not completed and that she needed further opportunity to depose the Walmart employees named in Walmart’s answer. The Trial Court granted Walmart’s motion for summary judgment against Mrs. Rivas stating that the discovery time was sufficient. An appeal was instantly filed with the Louisiana Fifth Circuit Court of Appeal alleging the Trial Court erred in granting Walmart’s motion because Mrs. Rivas lacked sufficient time for the discovery process.

August 12, 2019

How Can An Employer Make Sure They Are Only Covering Their Employees Negligence?

by Berniard Law Firm

elevator-symbol-1444871-691x1024 When one is injured by an employee’s negligence, it is reasonable to expect an award of damages from the employer. When an injured party files a lawsuit, however, the plaintiff must prove that the one who caused his injuries was indeed an employee of the business. For most cases, this is very easy to prove. When there is a question of identity, though, the evidence available can make or break the lawsuit.

When Mr. Juan Alvarez was injured in an elevator at Touro Infirmary in the Orleans Parish of Louisiana, he filed a lawsuit against Touro Infirmary (“Touro”) alleging that two employees of Touro dropped a large piece of wood on him. Mr. Alvarez was visiting a doctor at Touro in Louisiana when the incident occurred. Under the legal theory of respondeat superior, Mr. Alvarez claims Touro is liable for the damage caused by their employees. Under respondeat superior, one can sue an employer for injuries caused by the negligence of their employees. Importantly, a plaintiff must establish that the one who caused the injury was an employee of the defendant.

Mr. Alvarez added JCT Construction (“JCT”) to the lawsuit based on his belief that JCT was supervising a construction project at Touro during the incident. JCT filed a motion for summary judgment to dismiss the complaint on the grounds that Mr. Alvarez failed to establish a connection between JCT and the individuals who allegedly injured in him in the elevator. The District Court granted the motion, and while the plaintiff appealed, the Louisiana Court of Appeal for the Fourth Circuit affirmed the decision.

August 9, 2019

Can You Lose Your Medical Malpractice Case If You Don’t Have Enough Evidence?

by Berniard Law Firm

need-a-pill-1057199-1024x768 Medical malpractice lawsuits are filed for a wide range of injuries and even death. When a patient finds himself in a scenario where he believes a medical professional could have done more to prevent his injuries or cure his condition, he may decide to go through with a lawsuit. Medical malpractice lawsuits often require expert witnesses to succeed and proving damages in these cases where the patient enters a medical facility sick or injured can be a tough case to win. So, can you lose your medical malpractice case if you do not have enough evidence?

In July 2011, Nickol Bell (“Bell”) went to Baton Rouge General Medical Center’s (“Hospital”) emergency room because of nausea, vomiting, diarrhea, loss of consciousness, dizziness, and maroon-colored stools. Bell was discharged from the hospital and later suffered gastrointestinal bleeding and hemorrhaging. Just a few hours after he was released, Bell was put into intensive care, where he received a blood transfusion and other medical treatments.

Bell and his wife brought a lawsuit for damages, alleging medical malpractice by the hospital and the physician who treated him, Dr. JL. The Medical Review Panel (“MRP”) concluded that the standard of care as to Dr. JL had not been breached, because based on the information Dr. JL had at the time, the doctor had provided adequate medical care. The nursing staff failed to inform Dr. JL of the maroon-colored stool. Although the hospital failed to meet its standard of care, MRP concluded that the hospital’s conduct was not compensable.

August 8, 2019

What Do You Do When Someone Takes Your Dog From You?

by Berniard Law Firm

dog-1401768-1024x768 Imagine coming home one day to discover your beloved pet is missing. Typically in this scenario, we would expect the judicial system to act in our favor if we know who the culprit is. This can be difficult across state lines, and even when the court is on your side, collecting on the ruling may not be so easy. It’s even more difficult if the court fails in legally required procedures of the case. In this case we are left with the question: what do you do when someone refuses to return your dog to you?

This case started when Kiley Wolfe’s mother, Janet Leland, deliberately took Wolfe’s dog, Daisy Mae, from Wolfe’s home in Baton Rouge, Louisiana. Leland took Daisy Mae back to her home in Florida. Despite Wolfe’s cordial requests, Leland refused to return Daisy Mae to Wolfe. Wolfe sued Leland seeking the return of Daisy Mae and damages, and the suit was personally served to Leland through a private process server.

About a month later, Leland filed a motion requesting an additional forty-five days to seek legal counsel. The district court granted Leland an additional fifteen days to file a responsive pleading, but Leland failed to file an answer to Wolfe’s petition. The Louisiana District Court granted a preliminary default against Leland but did not notify her of the preliminary default. Subsequently, the preliminary default judgment was confirmed, and the default judgment was rendered. The default judgment ordered Leland to return Daisy Mae to Wolfe and awarded her damages. Leland appealed this stating the default judgment was invalid because statutory procedures were not followed. Even though Leland made an appearance on record when she filed for a motion to extend, she was not given any notice of the default judgment.

August 7, 2019

What Happens When You Wait to File an Employee Discrimination Lawsuit in Louisiana?

by Berniard Law Firm

Summary judgment is a legal procedure courts may use to dispose of a case when there are not enough facts in dispute to proceed with a lawsuit. This is a good strategy to use when applicable because it purges certain claims that have no merit, saving time and money. The Fifth Circuit Court of Appeal demonstrated the principles of summary judgment within the context of an employment discrimination lawsuit when it comes to untimely filing.

The plaintiff in this case, DeBlanc, suffered from a condition called “chemo brain” after undergoing prior breast cancer treatments. When DeBlanc was fired, she sued her employer for failure to tell her why she was terminated. DeBlanc alleges that the St. Tammany Parish School Board violated the Americans with Disabilities Act (“ADA”) and discriminated against her when they fired her because of her medical condition. A Federal Court in Louisiana determined that summary judgment in favor of St. Tammany was appropriate because DeBlanc failed to file her discrimination claim within the required timeframe and failed to show that the time limit should be tolled. Thus, the claim was barred. DeBlanc appealed. The issue upon appeal was whether the trial court abused its discretion when refusing to apply equitable tolling to save DeBlanc’s claim. Equitable tolling is applied when the court decides there is a legal and justifiable basis to extend the time in which plaintiff can file her claim. The Fifth Circuit Court of Appeal agreed with the trial court and affirmed summary judgment in favor of St. Tammany School Board.

A former employee has three hundred days from the date of termination to file an Equal Employment Opportunity Commission (“EEOC”) complaint alleging that they were terminated based on discrimination. See 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a). Filing a timely discrimination claim with the EEOC is a requirement that is subject to waiver, estoppel, and equitable tolling. Granger v. Aaron’s, Inc., 636 F.3d 708, 711 (5th Cir. 2011). However, equitable tolling is applied sparingly, and the burden is on the plaintiff to prove its application.

August 6, 2019

Can You Claim Medical Malpractice If You Develop A New Condition After Surgery?

by Berniard Law Firm

56-1024x678 Having surgery is always a stressful situation. Nobody wants to leave the hospital only to return a short time later from complications due to the first surgery. This is unfortunately what happened to Mr. James Nelson, who sued his surgeon, Dr. F, in East Baton Rouge Parish. So, what happens when you develop a new medical condition after your surgery?

In November 2009, Dr. F performed gallbladder removal surgery on Mr. Nelson. Several hours after Nelson was discharged from the hospital, he experienced pain in his lower abdomen, stomach, and sternum. Nelson returned to the hospital, where he was informed that he was suffering from pancreatitis. Nelson was admitted for care in conjunction with the pancreatitis and was released four days later.

One year later, Nelson requested the formation of a medical review panel, claiming that Dr. F committed medical malpractice by allowing contrast dye to enter Nelson’s pancreatic duct during his gallbladder removal surgery. Nelson claims that this was the cause of his pancreatitis. Nelson also claims that he was never informed that pancreatitis is a possible outcome from the type of surgery performed.

August 5, 2019

When You Fall off a Ladder Whose Fault Is It?

by Berniard Law Firm

ladders-1173769-1024x683 When you ask a friend for a favor, whether it is for a ride to the airport or for help cleaning up a room, you never expect that you will end up facing off against each other in a lawsuit. However, when you do end up in such an unfortunate situation, it is important to have a good lawyer on hand to ensure that the dispute is resolved in the quickest manner possible. Michael P. Cox found himself in just such a situation when his friend Laina Dutton offered to help him clean out the building of his recently closed business, Xtreme Nutrition, located in Baton Rouge, Louisiana. When Mr. Cox was out of the room, Ms. Dutton decided to climb a ladder and remove a banner that was hanging on the wall. The ladder was not in a secure location and Ms. Dutton fell backward off the ladder injuring her back and side. She sued Mr. Cox, Xtreme Nutrition, and Allstate Insurance, the insurer for Mr. Cox and Xtreme Nutrition. Ms. Dutton’s lawsuit for negligence was premised on the argument that Mr. Cox owed her a duty to erect the ladder safely, monitor and assist her in the use of the ladder, and warn her of any danger in using it. She argued that the ladder had been set up in a dangerous manner because it was not placed on a flat surface, that Mr. Cox did not warn her of this issue, and that he was at fault for her fall due to his inattentiveness. Ms. Dutton suffered injuries to her arm, back, and spine. For these injuries, she sought special and general damages.

However, the lawsuit never made it to trial. The Trial Court granted summary judgment in favor of the defendants and dismissed the case with prejudice. The Trial Court dismissed the case following pre-trial discovery based on its finding that there was a lack of evidence supporting a negligence claim and that Mr. Cox did not owe a duty to Ms. Dutton. Ms. Dutton appealed, arguing that the Trial Court erred in dismissing the case, but the Louisiana First Circuit Court of Appeal affirmed the dismissal. So, why was Mr. Cox not found negligent in Ms. Dutton’s fall?

The Trial Court based its dismissal on its view that Ms. Dutton could not produce enough evidence to support the negligence claim. This was because Ms. Dutton was not an employee of Xtreme Nutrition, and Mr. Cox did not pay her to help him clear out the newly closed offices. Further, Ms. Dutton climbed up on the ladder while Mr. Cox was in another room. He had not asked her to climb the ladder and probably did not even know she had gone up. Ms. Dutton even admitted that she had used the ladder before the fall without any problems and did not think the ladder was defective in any way. Because Ms. Dutton had not been instructed by Mr. Cox to go up the ladder, and there was no evidence that he had set up the ladder in a negligent manner, the Trial Court determined that there was no evidence to support a negligence lawsuit following discovery. Thus, the Court dismissed the case before heading to trial. From this decision Ms. Dutton appealed, arguing that the Trial Court erred in two major ways. First, she argued that the only reasonable explanation for the ladder fall was that it had been improperly set up by Mr. Cox. Additionally, since Mr. Cox had set up the ladder, he owed her a duty to properly set it up and he had failed in that duty when he allowed her to climb the ladder in such an unsafe condition. Second, Ms. Dutton argued that in his deposition testimony, Mr. Cox had admitted that he set up the ladder in a dangerous manner by placing one leg on a part of an adjacent desk and the other on the ground, leading to an imbalance that caused the fall. Ms. Dutton argued that these two points were genuine issues of material fact that should preclude a summary judgment dismissal.

August 4, 2019

How To Sue Your Lawyer For Not Filing Your Claim On Time in Louisiana

by Berniard Law Firm

time-s-slipping-away-2-1419474-1-683x1024 For any legal claim, there is a set period of time for which the claim must be brought. This set period of time is known as a statute of limitations, which can vary based on the type of claim. If a claim is not filed prior to the expiration of the statute of limitations, the right to bring the claim is extinguished. Furthermore, if an attorney was retained to bring the claim and failed to do so in a timely manner, the attorney may be sued for malpractice. So, in Louisiana can you sue your lawyer for not filing your claim on time?

There are four elements of a malpractice claim, these include (1) duty to act, (2) a breach of this duty, (3) and this breach of duty caused the (4) damages. The duty element requires the claimant to show that the attorney owed an obligation to act with reasonable care. The breach element requires the claimant to show that the attorney breached his or her duty to the claimant. The causation element requires the claimant to show that the attorney’s conduct caused some harm –– in this case, financial harm –– to the claimant. The damages element requires the claimant to show that he or she suffered actual financial loss as a result of the attorney’s conduct.

In the present case, Nathan Lewis allegedly injured his back, neck, and knees while employed with Archer Daniels Midland Company (ADM) as a longshoreman. Mr. Lewis reported his injuries to his employer, ADM, who denied Lewises compensation claim but informed him that he could file a Longshore and Harbor Workers’ Compensation Act (LHWCA) claim with the United States Department of Labor. Lewis then retained the services of Timothy Young and Timothy J. Young for purposes of filing such a claim, but then terminated their services on July 2, 2012.