Articles Posted in Litigation

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In 2009, the Louisiana Legislature enacted a statute establishing a medical treatment schedule for workers’ compensation claims. This statute took into account the combined concerns of the labor force, insurance companies, and medical providers to establish harmonized guidelines for the treatment of injured employees. The need for this statute stemmed from the formerly burdensome and expensive process of obtaining medical treatment. Since the statute’s enactment, questions have arisen as to whether the medical treatment guidelines should apply retroactively to claims arising before the enactment of the statute and entry into force of the guidelines. The Louisiana Fourth Circuit Court of Appeal resolves these questions in a case arising out of a shooting at Whole Foods.

In 2001, Malord Gales was shot while on the job at Whole Foods Company, Inc. Since the shooting, Mr. Gales has been in a permanent vegetative state. Mr. Gales’ mother has since taking care of him and acting as his representative or “curatrix.” Because of his paralyzed state, Mr. Gales was required to be bowel fed with Isosource 1.5 calorie food which contains the appropriate amount of biofiber for normal bowel function. For many years, Whole Foods paid for this special food. Eventually, it refused to pay. Claiming that the food was too expensive, Whole Foods approved a different food which caused Mr. Gales significant bowel problems.

Finding his symptoms intolerable, Mr. Gales filed a disputed compensation form with the Office of Workers’ Compensation. Mr. Gales sought an order requiring Whole Foods to pay for the formerly authorized Isosource food, and to pay attorney fees for arbitrarily stopping his prescribed food. Whole Foods countered with the dilatory exception of prematurity. In its exception, Whole Foods argued that Mr. Gales claim was premature because he failed to comply with the administrative procedures for filing a claim for medical treatment. The Workers’ Compensation Judge (“WCJ”) granted Whole Foods’ exception and dismissed Mr. Gales’ claim. Mr. Gales’ appealed.

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police-5-1572837-1024x768It’s common sense that self defense class instructors should teach the students how to defend themselves and not inflict pain or broken bones while instructing. However some instructors can go overboard while trying to “teach” these skills. The following case out of Lafourche Parish highlights what can go wrong when simulations in a self defense course get a bit too real for one participant causing her a broken arm and other damages.

In 2010, plaintiff participated in a 3-day Rape Aggression Defense (RAD) self-defense course being taught by the Lafourche Parish Sheriff’s Office. During the course, plaintiff and other participants received instructions for two days and on the third day, participants engaged in a series of exercises simulating attacks upon them by “aggressors”, at this time they were instructed to deploy the defensive techniques they had learned. During one of these simulated attacks, in which a Lafourche Parish Sheriff’s Deputy played an “assailant”, plaintiff’s arm was broken. Plaintiff had to undergo surgery to repair the comminuted fracture, requiring two plates and 21 screws to be inserted into plaintiff’s arm.

At the initial bench trial, the recorded RAD simulations were played on video, showing the RAD instructor was close to plaintiff during the exercise and was constantly giving instructions to the plaintiff on how to properly perform defensive techniques. In the video, the Sheriff Deputy playing the “aggressor” pushes and hugs the plaintiff while the instructor tells the plaintiff how to defend herself. The trial court concluded after watching the video, it did not find the Sheriff’s Office or the Sheriff’s Deputy negligent, as the only way they could have prevented the plaintiff’s injury would have been to not engage physically with the participants, which would have defeated the purpose of the exercising teaching them to defend themselves against aggressive criminals. The trial court subsequently dismissed the defendants with prejudice, and plaintiff appealed.

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hospital-s-corridor-1631146-1-1024x765Class action lawsuit certification is one of the most complex areas of the law to explain. The question of whether a lawsuit would be best as a class action or as individual lawsuits often comes down to a determination of what is the best method for fair and efficient adjudication for both the plaintiffs and the defendant.

Across the state of Louisiana, people are filing lawsuits against health care providers under the Health Care Consumer Billing and Disclosure Protection Act, hereafter referred to as the Balance Billing Act.  See La. Rev. Stat. § 22:1871 et seq. As a result of these lawsuits,  the Louisiana Second Circuit had denied class certification for a group of plaintiffs while the Louisiana Third Circuit had approved a class certification in their jurisdiction. Thus a split of the circuits existed and therefore it was time for the Louisiana Supreme Court to weigh in.

Certain Plaintiffs filed a class action lawsuit in 2011 claiming the Defendant, Minden Medical Center, “engaged in unlawful billing practices by billing them in an amount in excess of the agreed upon rate negotiated between the hospital and plaintiffs’ respective insurers.”  As a result of that lawsuit a question was presented for review to the Supreme Court of the State of Louisiana whether these types of lawsuits (balance bill violations) would be better handled as class action or on an individual basis.

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law-education-series-3-1467430-1024x769In litigation, “discovery” is the legal procedure by which parties obtain evidence from other parties or non-parties. Examples of common discovery tools include depositions (a witness’s out-of-court testimony) or requests to produce documents or other things. In Louisiana, attorneys must sign discovery requests, responses, and objections to discovery requests. This certifies that the request, response, or objection is consistent with the rules of discovery and is warranted by existing law or a good faith argument for extension, modification, or reversal of existing law. ( See La. C.C.P. art. 1420.) It also certifies that the request, response, or objection is reasonable and not issued for an improper purpose such as to harass a party or to cause increases in litigation expenses. If a court determines that an attorney’s certification violates the rules of discovery, it will impose sanctions upon the attorney who made the certification and/or the represented party. A 2015 case from the Louisiana Fifth Circuit Court of Appeal discusses discovery sanctions, holding that non-parties to lawsuits cannot bring actions for sanctions against a party or attorney for violating discovery rules.

In 2011, Deadre Thiel and Germaine Dyer were involved in a motor vehicle accident and sought treatment from Dr. David Wyatt. Dr. Wyatt’s practice is conducted through a medical entity, Orthopedic Care Center of Louisiana (“OCCL”).  OCCL was not a party to the initial lawsuit brought by Mr. Theil and Dyre against State Farm, David Podewell and Banu Gibson. After conducting initial discovery, State Farm became aware of evidence suggesting that Dr. Wyatt may have been improperly influenced by bias and financial motive in treating Mr. Thiel and Mr. Dyer.  It then deposed Dr. Wyatt and determined that OCCL – a non-party to the lawsuit – was the only source of discovery concerning OCCL’s billing processes and any contingency fee relationship with the Womac Law Firm.

State Farm then issued a notice of deposition to OCCL and a subpoena duces tecum (a court order requiring the recipient to appear before court and produce documents or other evidence). In response, OCCL filed a motion to quash (void) the subpoena duces tecum. It also sought to have to have the Trial Court issue a protective order and award sanctions. The Trial Court granted OCCL’s motion to quash and awarded sanctions in favor of OCCL and against State Farm. State Farm then filed an application for a supervisory writ, seeking to have to the Court of Appeal reverse the Trial Court’s ruling.

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the-bank-1469518-682x1024Countless lawsuits are decided under the legal standard of summary judgment. Summary judgment occurs when lawyers request a court to decide  whether there are enough facts in dispute to even proceed with a lawsuit. The party requesting summary judgment must show that there is simply no dispute of any material fact and that the person requesting summary judgment is entitled to judgment as a matter of law. In answering this question, judges determine whether there is enough evidence in a case that a jury would be able to side with the person not requesting summary judgment.  As a tactical matter, good lawyers often request summary judgment to dispense with certain claims early on in a lawsuit thus saving their clients time and money.

A recent decision by the United States Court of the Appeals for the Fifth Circuit, demonstrates the principles of summary judgment within the context of an employment discrimination lawsuit. See Fed. R. Civ. P. 56(a). The Western District of Louisiana (the lower court) determined that summary judgment was appropriate for all causes of action and thus dismissed the entire case. The Court of Appeals however only agreed with the lower court on certain claims thus providing guidance on surviving summary judgment in age discrimination, retaliation, disability,  and defamation claims.

The case involves a lawsuit between Lloyd Flanner and his former employer JP Morgan Securities, L.L.C (JP Morgan). Mr. Flanner worked at JP Morgan at their branches in Monroe Louisiana from August 2003 to August 2010. In April 2010, Mr. Flanner underwent surgery and was granted medical leave under the  Family Medical Leave Act (FMLA). Shortly after returning to work, Mr. Flanner was involved in an incident wherein he withdrew $25 from his personal  bank account, purchased a money order, and gave it to his attorney’s assistant. Learning about the incident, JP Morgan investigated and subsequently  fired Mr. Flanner. Mr. Flanner was replaced by two employees, aged 53 and 32. Mr. Flanner was 59 at the time of his termination.

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plataforma-1339356Being an employee aboard a ship in the Gulf of Mexico can be hard work, and it can also be dangerous work.  For Mark Baldwin, who worked as a sandblaster and painter for Cleanblast, LLC, danger presented itself when he was assigned to the vessel Brody Paul and serviced oil platforms located in the Gulf of Mexico.  Baldwin allegedly suffered severe injuries to his back and neck when he fell while working on a Tennessee Oil and Gas Company platform.  In a personal injury lawsuit, Baldwin claimed that Cleanblast failed to provide the proper equipment to complete the task.  However, the trial court dismissed the case, granting Cleanblast’s motion for summary judgment because it found that there was no genuine issue of material fact as to whether Baldwin, the plaintiff, was a seaman for Jones Act purposes.  Baldwin appealed and the Third Circuit reversed, finding that a jury should decide whether the plaintiff’s work duties qualified him for seaman status under the Jones Act.  See  46 U.S.C. § 688.

The most important aspect of this case is the Third Circuit’s interpretation of the Supreme Court’s ruling in Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172 (1995), which discussed the requirements for seaman status under the Jones Act.  In Mark Baldwin’s case in Louisiana, he alleged that he suffered injury because Cleanblast failed to provide the proper equipment to blast the risers on the rig they were instructed to service.  The plaintiff argued that as an employee covered by the Jones Act, Cleanblast “violated its non-delegable duty to provide him with a safe work environment.”  In order to be covered by the Jones Act, an employee must qualify as a “seaman.”  Cleanblast argued that the plaintiff was not a seaman and presented testimony by the plaintiff in a deposition wherein he admitted that he spent less than 30% of his time at work in service of the vessel to which he was assigned.  In fact, Cleanblast calculated that he spent “at most 28.65 percent” of his time at work in service of a vessel and posited that he spent most of his time working on oil platforms.  This percentage is important because in Chandris the Supreme Court held that there are two requirements for seaman status under the Jones Act.  First, the employee must “contribute to the function of the vessel or to the accomplishment of its missions.”  Second, the employee must have a link to a vessel or vessels in navigable waters that is “substantial in terms of both duration and nature.”

Cleanblast focused its motion for summary judgment on the durational requirement and pointed to the Supreme Court’s statement in Chandris that it is a “rule of thumb” that “a worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.”  Based on Baldwin’s admission to spending less than 30 percent of his time in service of the vessel, Cleanblast argued that it was entitled to summary judgment and the trial court agreed, essentially holding that the 30 percent figure mentioned by the Supreme Court was a dispositive rule.

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Even a minor car accident can result in injuries causing pain and disability. Some injuries are more difficult to prove than others. When a personal injury lawsuit resulting from a car accident goes to trial, a jury often makes determinations as to the extent of the injuries and the credibility of witnesses. If the court does not believe the credibility of your witnesses sometimes that can lead to your case being dismissed. Such determinations were made by a jury in a personal injury lawsuit brought by Andre Stevenson against Sandra Serth and her insurer, Travelers Casualty Insurance Company of America.

In November 2011, Andre Stevenson was stopped at a gas station waiting to pull out onto Veterans Memorial Boulevard. From the eastbound direction, Sandra Serth, in her PT Cruiser, ran a red light and struck another driver in a Nissan Maxima. This collision produced a domino effect sending the Maxima into Mr. Stevenson’s stopped vehicle. Mr. Stevenson claimed that he suffered neck and back injuries as a result of the collision. At trial, he testified as to the resulting injuries. He asserted that he did not have any pain before the accident, but started having neck and back pain after the accident occurred. In addition, he testified that he began treating the pain with an orthopedist and was given epidural steroid injections twice in his back and once in his neck. After Mr. Stevenson completed his testimony, his attorneys did not call any further witnesses. His medical records and the orthopedist’s two depositions were admitted into evidence. However, the orthopedist’s depositions were not read to the jury and pursuant to La. C.C.P. art. 1794(B), the depositions were not allowed into the jury room. Thus, it is unclear what effect, if any, the orthopedist’s depositions had on the jury.

On the other side, the defense produced as one of their witnesses an expert in neurosurgery. The expert reviewed Mr. Stevenson’s cervical and lumbar MRIs in addition to the reports of the radiologists who previously reviewed those same MRIs. The defense’s expert noted that there were some abnormalities in Mr. Stevenson’s neck, but made no statements or indications as to the significance of those abnormalities.

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abandon house
In litigating or defending against claims, timing and rule compliance matters. A failure to timely bring a claim can forfeit your right of recovery. A failure to comply with the time limits and requirements of discovery rules can have a similar effect. When parties fail to take steps to prosecute or defend a claim in trial court in three years, the claim is considered abandoned. A recent case from the Louisiana Supreme Court discusses the “abandonment rule” and what sort of steps are required to avoid dismissal of a case.

In 2008, Bryon Guillory and Margo Guillory brought a lawsuit against Pelican Real Estate, Inc. and St. Paul Fire and Marine Insurance Company. In their, the Guillorys claimed that he purchased a home with a redhibitory defect (a defect so substantial that his home was virtually unusable) voiding or nullifying the sale. The issue in the case was not the underlying merits of Mr. Guillory’s claim, but a rule of discovery. Discovery is the process of obtaining evidence for use at trial.

On December 17, 2012 the Guillorys served written discovery on Pelican, but failed to serve it on the St. Paul. The Guillorys then scheduled a discovery conference and sent the notice of the conference to Pelican only. Counsel for the Guillorys and Pelican participated in the discovery conference on January 28, 2013. Perhaps feeling a bit left out, St. Paul filed an ex parte motion to dismiss the Guillorys’ lawsuit. St. Paul argued that under La. C.C.P. art. 561, the lawsuit was abandoned because no steps were taken in prosecution or defense of the matter in more than three years since the taking of depositions on March 4, 2010. The Trial Court granted St. Paul’s motion and signed an ex parte judgment of dismissal.

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In Louisiana, you cannot “disinherit” your children. What does this mean exactly? It means that upon death, Louisiana law will allow a decedent’s children to share in his or her estate, even if the decedent left those children out as beneficiaries. The left-out children are called “forced heirs,” and will take a portion of the decedent’s estate (called the “legitime” or “forced portion”) unless the decedent has a just cause for leaving them out. La. C.C. art. 1494. A recent case of the Louisiana First Circuit Court of Appeal describes the rights of forced heirs to take in a decedent’s estate.

This case arose out of the death of Geronimo Ji Jaga, and the division of his annuity account at Western National Insurance Company. Mr. Ji Jaga had five children from various marriages: Shona Pratt, Hiroji Pratt, Nikki Michaux, Kayode Ji Jaga, and Tkumsah Geronimo Jaga. He named his eldest two children, Shona and Hiroji (“the Pratts”), as the beneficiaries to the annuity. After Mr. Ji Jaga’s death, one of his surviving spouses – Jojuyounghi Cleaver – filed a lawsuit in the Parish of St. Mary against Wester National alleging that her son, Kayode, should be considered a forced heir and entitled to share in the annuity.

In response, Western National filed asserted that the Pratts, the named beneficiaries of the annuity, should be joined in the lawsuit. After Mrs. Cleaver amended her petition adding the Pratts as defendants, the Pratts filed, among other exceptions, a peremptory exception of no cause of action. Tkumsah’s mother, Laila Minja, later filed a petition to intervene. She claimed that Tkumsuh was also a forced heir. The Pratts filed the same exceptions against Mrs. Minja as they did against Mrs. Cleaver. The Trial Court sustained the Pratt’s exception of no cause of action and dismissed Mrs. Cleavers’ and Mrs. Minja’s claims. The Trial Court considered the Pratt’s other exceptions as moot. Mrs. Cleaver and Mrs. Minja appealed the Trial Court’s judgment.

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hospital-s-corridor-1631146-1024x765If your unlucky enough to slip and fall at a business the first person you would think about suing is the business itself. However, businesses today contract out many aspects of cleaning and other maintenance and in doing so also alleviate their responsibility for negligence on their property.  The following case out of St. Tammany Parish discusses the concept of who might be at fault for a slip and fall when the cleaning of floors is contracted out to another party.

In 2005, Joy Smith was visiting a friend who was a patient at Northshore Regional Medical Center (Hospital) in Sidell, Louisiana. As Ms. Smith was walking down the hall, she slipped and fell in some water near where the floors had just been buffed. Ms. Smith filed a lawsuit against the Hospital alleging they were negligent in failing to properly warn her of the hazard that caused her fall. The Hospital answered the lawsuit and filed a third party demand, adding as third party defendants Hospital Housekeeping Systems (HHS), and the employee of HHS who had just buffed the floor. The Hospital had a contractual relationship with HHS to provide the Hospital with housekeeping services for the hospital.

The Hospital filed a motion for summary judgment in the lower court seeking to have Ms. Smith’s claim against the hospital dismissed. The Hospital alleged that it was merely the property owner, and it should not be held liable for conditions created by HHS as they contracted with them to clean the floors.  See LSA-C.C.P. art. 969. Within the contractual obligations of the Hospital and HHS, HHS was responsible for maintaining the area where Ms. Smith had fell. The lower court agreed, and granted the summary judgment.

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