Litigation

September 1, 2019

Is a Sheriff Liable for a Prisoner Injured During a Work Release?

70-picture-1024x683 When someone is injured on the job, sorting out liability can be complex. It can be doubly so when a prisoner is temporarily released so he or she can work and is subsequently injured on a job that was approved by the prison system and the sheriff managing that prison, but completely run by a private party. In such a situation, it will take an excellent lawyer to sort out the liability issues and advise whether a lawsuit is worth bringing. So, who is liable for injuries on a work release program?

Sheriff Mike Tubbs found himself named in a lawsuit by an inmate who was injured in just such a situation. Ronnie Thomas was a prisoner in a jail in Morehouse Parish, Louisiana when he was approved for work release. His work release was assigned to the waste management department, where he worked as a “hopper” on the back of a garbage truck. He would jump off the back at each stop and grab the trash and throw it into the truck. During one of his jumps he fell and was injured. He sued several defendants, including Sheriff Tubbs, for their failure to provide a safe work environment. The trial court dismissed the case after the Sheriff filed a motion for summary judgment, arguing that he owed Mr. Thomas no duty to provide a safe work environment. The trial court held that Mr. Thomas was an employee of the waste management company and thus his only remedy was workers’ compensation. Mr. Thomas appealed, but the Louisiana Second Circuit Court of Appeal affirmed the dismissal.

The work release program that is run by the Morehouse Parish jail requires that the prisoner fill out an application for a job that seems suitable. In this case, Mr. Thomas applied for a job with the Morehouse Parish Police Jury, who reviewed his application and determined that he could work for the waste management company, Morehouse Parish Solid Waste, which is a third-party company. He was then assigned duty as a “hopper” by the company. He was injured in the course of his employment. According to the Court of Appeal, an employee’s exclusive remedy when injured in the course of his employment is workers’ compensation. However, Mr. Thomas argued that his situation was unique because he was a prisoner and out only due to the work release program. In his view, the sheriff was also responsible because he had assigned him to work, arranged what hours he would work, and was the one who negotiated how much he would be paid. He also pointed out that he received his payment through the inmate banking system. Thus, he argued that this level of participation by the sheriff also bound the sheriff with a duty of care to provide a safe work environment. The trial court and the Court of Appeal did not agree. They pointed to substantial case precedent for the settled principle in Louisiana that when a prisoner is released through a work release program they are an employee of the private company that provides employment, and that private employer enjoys immunity provided by the workers’ compensation program. The factual situation, wherein the prisoner applies for a job and is solely supervised by the employer during the release period, also backed up this finding,

August 27, 2019

What Happens When DNA Exonerates You From a Crime?

by Berniard Law Firm

45-Photo-4_2_19 This case drives home the important reality that sometimes the justice system punishes innocent people, but also shows that in the end true justice can prevail.

Plaintiff-Appellee Darrin Hill was accused of being a rapist and kidnapper, but turned out to be a victim of the criminal justice system rather than a criminal needing justice, as DNA exonerated him nearly 20 years later. So, what can happen next after DNA exonerates you from a crime?

In the 1990s, a couple (names redacted for privacy) was assaulted. The boyfriend was forced off at gunpoint and the girlfriend brutally raped. With little evidence at the time, the police relied solely on an unknown notebook left in her car that included the name “Darrin Hill” and an address. While the address itself was unoccupied, police now know that the adjoining apartment was being rented out by the sister of who is now known to be the real rapist. The Detective had canvas the area around the apartment which included a car that matched the getaway car from the day of the crime, but did nothing with this information.

August 26, 2019

Can You Claim Medical Malpractice if the Hospital Doesn’t Clean Tools?

by Berniard Law Firm

40-Email-4_2_19-photo-1024x576 When you are injured or ill and need treatment, you turn to a hospital and put your trust in the doctors and healthcare providers at that hospital. Normally, healthcare providers are diligent and provide top-notch care, however, occasionally a hospital fails to live up to the trust given to them by the patient. When this occurs, the Louisiana Medical Malpractice Act (“MMA”) protects the patient. Nonetheless, there are cases in which it is disputed whether or not the incident falls under the MMA – for example is the failure to clean surgical instruments an incident of malpractice? The Supreme Court of Louisiana recently decided such a case from the Parish of East Baton Rouge and upheld that the MMA is a wide umbrella that covers various types of claims.

On April 14, 2014, Richard Dupuy went to the Spine Hospital of Louisiana for a spine surgery. Following the operation, Dupuy developed a post-operative infection called osteomyelitis caused by mycobacterium fortuitum. Dupuy and his wife allege that he received this infection because the hospital failed to sterilize or clean surgical instruments properly and thoroughly. As a result, Dupuy and his wife sued the hospital for Richard Dupuy’s medical expenses, pain and suffering, mental anguish, loss of earnings capacity, disability, and loss of enjoyment of life. They also sued the hospital seeking damages for Mrs. Dupuy for she maintains a loss of society, support, and companionship.

The Hospital responded by filing an exception of prematurity (meaning the case had not evolved enough to need the court to step in) and asserting that the Dupuy’s have incorrectly gone about the situation. In support of this defense the hospital cites La. R.S. 40:1231.8 that states how Dupuy’s claims must first be presented to a medical review panel. Moreover, the hospital had the infectious disease specialist that treated Mr. Dupuy testify that she was unable to pinpoint specifically what caused the infection and she maintains there could have been many causes for the infection.

August 24, 2019

What happens when a Workers’ Compensation Judge orders your claim to be paid and your employer appeals?

by Berniard Law Firm

When you are injured on the job, you expect for your medical expenses to be covered through worker’s compensation. However, when your employer denies your recommended medical treatment to recover from your injury, what do you do? First, you file a disputed claim for medical treatment form (Form 1009) with the Medical Director of the Office of Workers’ Compensation Administration. If that claim is denied administratively, then you are entitled to a hearing before a Workers’ Compensation Judge (WCJ). However, sometimes the process does not go as planned. For example, in this instance a Workers Compensation Judge ordered the defendants claim be paid but the employer appealed the WCJ’s decision.

Robert Friedman was an employee of Ecolab, Inc. when he injured his back on the job in October 2007. At first, his course of treatment was mild and done by a primary care physician, then a pain specialist. However, his symptoms persisted into 2011, when he was referred to an orthopedic surgeon. That surgeon first did a lumbar interbody fusion, which is a surgical procedure where a damaged disc is removed and replaced with bone graft material. Symptoms persisted into 2013 when the orthopedic surgeon referred Friedman to a neurosurgeon, who ran additional tests. The neurosurgeon’s tests revealed loosened screws/hardware from the initial lumbar interbody fusion. Eventually, the neurosurgeon suggested a new lumbar interbody fusion that would both fix the initial procedure as well as provide additional support. EcoLab approved the portion that would fix the initial procedure but denied the portion that would provide additional support as they did not feel it was medically necessary. Friedman then filed a Form 1009 with the Office of Workers’ Compensation Administration, which was denied due to insufficient clinical information. Friedman then re-filed his Form 1009 to get a hearing before a WCJ in Ouachita Parish, who granted Friedman to get his entire prescribed procedure, as well as legal fees covered once evidence was submitted. Ecolab appealed to the Second Circuit Court of Appeal.

Workers’ Compensation Claims are determined under guidelines in Title 40 of the Louisiana Administrative Code. At issue is whether the evidence supports that extended lumbar interbody fusion is medically necessary. Workers’ Compensation is supposed to cover the costs of medical treatment that is reasonably necessary for treating medical conditions caused by a workplace injury. See La. R.S. 23:1203. Medically necessary treatment is supposed to be that which is consistent with the diagnosis and treatment of a specific condition rather than solely based upon a patient’s preference. A claimant’s appeal of the Medical Director’s decision to a WCJ is based upon clear and convincing evidence, which means evidence has to be substantially more likely to be true than not true. 40 LA ADC Pt. I, §2715 sets the criteria about what evidence is necessary. As this procedure was a follow-up to his 2011 surgery, Friedman did not need to send inasmuch documentation. For that reason, the Appeals Court determined that the Medical Director erred in their judgment and thus upheld the WCJ’s ruling in favor of Friedman, as well as awarded attorney fees.

August 20, 2019

How To Avoid Your Lawsuit Being Dismissed Because Of No Cause of Action

by Berniard Law Firm

mercantile-bank-building-dallas-1228577-771x1024 There is no shortage of frivolous lawsuits. As a result, courts have developed many different ways to nip these sorts of lawsuits in the bud. One way is by allowing defendants to file an exception of no cause action, which is essentially a request that asks the court to drop the plaintiff’s lawsuit because there is no factual support to justify the lawsuit. In the case below, the plaintiff truly believed she was wronged by her employer, but because the facts she provided in her lawsuit did not support a valid claim, her lawsuit was ultimately denied. So, how can you avoid your lawsuit being dismissed by no cause of action in Louisiana?

Gina K. Lusich worked as the branch manager at Capital One Bank in St. Bernard Parish, Louisiana. Lusich’s employment with Capital One was terminated in June 2013. She then filed a lawsuit against Capital One for wrongful termination. Lusich argued in her petition that she was terminated wrongfully because of a false accusation claiming that she instructed other employees to falsify time cards. She also claimed that her personal property was stolen by Capital One. Capital One responded by filing an exception of no cause action. The trial court granted this exception in favor of Capital One, and Lusich appealed to Louisiana’s Fourth Circuit Court of Appeal.

When an appellate court reviews an appeal of an exception of no cause of action, it must examine the sufficiency of the claims within the lawsuit. In other words, the court must seek to determine whether the law can sufficiently provide a remedy for the plaintiff. Badeaux v. Southwest Computer Bureau, Inc., 929 So.2d 1211, 1217 (La. 2006). In doing so, the court must accept the facts as stated by the plaintiff’s petition to be true, asking whether the plaintiff would be entitled to a remedy based on those facts. Jackson v. State, 785 So.2d 803 (La. 2001). However, the lawsuit should be dismissed if the plaintiff cannot show some theory under which he can prove the facts that would support his claim. Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, 753 So.2d 861 (La. Ct. App. 1999).

August 17, 2019

How Can Alzheimers Impact A Personal Injury Lawsuit?

by Berniard Law Firm

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.