Litigation

July 25, 2016

Louisiana First Circuit Court of Appeal Tackles Questions of Amended Pleadings and Federal Jurisdiction

house-fire-3-1519596-1024x771 In bringing or defending against a lawsuit, an important question is which court should hear the merits of the dispute, a state court or a federal court. Any court hearing the lawsuit must have “jurisdiction”; the power to hear a particular dispute. Under 28 U.S.C. § 1332, titled “diversity jurisdiction”, federal courts have original jurisdiction over all civil actions between citizens of different states and the amount in controversy (damages sought) exceed $75,000, exclusive of interest and costs. 28 U.S.C. § 1441 allows the defendants to remove civil actions from state courts to federal courts when a case becomes “removable,” i.e. when federal courts would have proper jurisdiction over the case. Skilled lawyers know that jurisdictional issues can have significant effect on the outcome of the case and understand the nuances of procedural posturing. A 2015 case from the Louisiana First Circuit Court of Appeal discusses how amendments or supplements to pleadings such as a Petition can raise important jurisdictional questions.

On April 3, 2011, Jerry and Elnora Harris’s home in Springfield, Louisiana burned to ashes. A year later, the Harrises filed a lawsuit against Union National Fire Insurance Company for the payment of their policy limits, penalties, and attorney fees. In their petition against Union National, the Harrises asserted that the total amount of damages did not exceed $75,000.00 including attorney fees, penalties, and interest. On April 9, 2012, the Harrises amended their petition, adding as defendants Bank of New York Melon, successor-in-interest to J.P. Morgan Chase Bank. The Harrises’ Amended Petition alleged that the Defendants engaged in predatory lending and fraudulent practices and sought additional damages for mental anguish, damage to their credit, and attorney fees. The Amended Petition stated that the total amount of damages sought by the plaintiffs against all named defendants would not exceed $75,000.00 including attorney fees, penalties, and interest.

On November 15, 2013, after the Defendants filed exceptions and answered the Petition and Amended Petition, the Harrises filed a Second Amended Petition, asserting that the total amount of damages against all defendants would exceed $75,000.00. The Defendants countered by filing a motion to strike the Second Amended Petition from the record, or alternatively, set for a hearing. The Trial Court granted the Defendants’ motion and ordered that the Second Amended Petition be struck from the record. The Harrises then filed a motion to vacate that order and requested that the Trail Court reinstate their Second Amended petition. After a hearing, the Trial Court vacated the order dismissing the Harrises’ Second Amended Petition and imposed sanctions of the Defendants for filing a frivolous motion to strike.

July 24, 2016

Louisiana Fourth Circuit Denies an Exception of Prescription Based on Procedural Nuances.

by Berniard Law Firm

hour-glass-1307106-1-1024x768 In legal matters, there is generally always a time frame in which certain actions must be taken. Failing to bring an action in the allotted time may bar a person from filing a lawsuit. Once the specified time period has passed, the plaintiff is no longer able to file a lawsuit or claim. In other states this time limitation is called the statute of limitations; however, in Louisiana, it is called Prescription. Usually, the prescriptive period for filing a lawsuit is one year. La. C.C. art. 3492. Additionally, if a lawsuit is filed but is not filed according to certain procedural guidelines, the plaintiff may also be barred from going forward with their lawsuit, irrespective of whether it was filed within the one year prescriptive period. In either instance, opposing council may file an Exception of Prescription.

An Exception of Prescription is a motion which asks the court to dismiss the lawsuit due to not bringing the lawsuit timely or failing to abide by procedural rules. The failure to follow procedural guidelines, became the center of the controversy in the Fourth Circuit case of Richard Lewis v. Robert Constigan Flowers and Nationwide Mutual Insurance Company. Lewis v. Costigan, et al. 2015.

In this Orleans Parish case, the initial controversy arose from a vehicle collision between Robert Lewis and Robert Costigan Flowers. Mr. Lewis filed a Petition for Damages on April 21, 2014 via facsimile. According to Mr. Lewis’ counsel, the documents were sent to the Clerk of Court on April 25, 2014. However, on May 1, 2014, ten days after the facsimile transmission, the Clerk of Court stamped the original documents when they processed the filing fees.

July 20, 2016

Defendant in Superdome Personal Injury Case Not Let Off the Hook So Easily

by Berniard Law Firm

IMG_1314-1024x768 When a Louisiana resident is injured, she should consider filing a lawsuit against the person, group, or organization whose negligent or intentional acts were a proximate cause of the injury. However many potential plaintiffs do not realize that there may be several other persons and entities, not readily perceptible to the layman, who could be added as defendants and help ensure the plaintiff’s just compensation. Additional defendants can be extremely helpful when a plaintiff is going after substantial compensation because there will be more individuals to help pay out the sum should one or more parties be unable to pay a judgment due to bankruptcy or some other issue. Accordingly when Kenneth Truxillo was injured while attending pre-game festivities at Champions Square, the outdoor entertainment area bordering the Mercedes Benz Superdome, he did not just seek compensation from the owners of the Superdome but added several other defendants that he believed shared responsibility for his injuries.

According to Mr. Truxillo, while he was attending pre-game festivities at Champions Square before a home football game he was struck in the head by a large stucco column that had fallen over. He sustained several injuries and sought damages from several defendants, claiming that the stucco column that struck him created an unreasonably dangerous condition. The defendants included: The Louisiana Stadium and Exposition District, owners of the Superdome; SMG, the company that operates the Superdome and the property on which it is located; Mardi Gras Productions, the company that owned the stucco column that allegedly fell onto Mr. Truxillo; and Centerplate, a food and beverage service provider with whom Mardi Gras Productions contracted and provided the stucco column on the day of the alleged event.

In trial court, Mardi Gras Productions filed a motion for summary judgment, arguing that it was not liable for Mr. Truxillo’s injuries because it neither had custody, control, or garde over the area in which the stucco column struck Mr. Truxillo, nor over the column itself. Summary judgment is a ruling made by a judge in a court of law, and is granted only if the pleadings, depositions, answers to interrogatories, and admissions together with affidavits, if any, admitted for the purposes of the motion for summary judgment show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law.

July 18, 2016

Local Man’s Lawsuit Against Hammond Police Alleging Beating Is Dismissed After Two Day Trial

by Berniard Law Firm

ready-to-roll-1315121-1024x768 When a person files a lawsuit, they generally have the right to be heard on their complaint. However, depending on when the lawsuit is brought, the action may be barred due to the lapse of time between the events leading to the lawsuit and the date the lawsuit is filed. This rule is known as prescription and the problems that can arise for plaintiffs from this rule can be seen in a lawsuit arising out of of Hammond, Louisiana.

The plaintiff, Robert DeVance, brought a lawsuit in April of 2007 alleging that he was falsely arrested and beaten while handcuffed by two Hammond police officers. Later, on March 5, 2009, Mr. DeVance filed an amended complaint naming three new Hammond police officers as defendants. In his amended complaint, Mr. DeVance alleged that he was “hogtied” by the three new defendants while being held at the local jail. This treatment, claims Mr. DeVance, caused him to receive severe injuries due to tightly placed handcuffs on his wrists.

The new defendants filed an exception of prescription, which may release a defendant from responsibility by a lapse of time between the action and the time a lawsuit may legally be brought. These periods are usually laid out in the text of the laws themselves. The rule of prescription has its origins in public policy. This policy is not to deny relief for those who have been harmed, but to provide the liable individual with some assurance that if a lawsuit is not filed against them in a timely manner they do not have to remain constantly worried that they will be sued at anytime in the future.

July 15, 2016

One Car Accident, Two Different Stories of How it Occurred, What Does a Court Do?

by Berniard Law Firm

new-orleans-canal-st-1230688-1024x768 There are two sides to every story — and to every lawsuit. In many lawsuits, each side’s story is plausible, and the trial court’s decision ultimately comes down to which story was more plausible. A recent car accident case in New Orleans illustrates this concept and highlights the need for effective lawyering on behalf of a client.

Brown v. Travelers Insurance Company, et al. arose from a car accident between vehicles driven by plaintiff, Aisha Brown, and defendant, Kevin Fogg, at the intersection of Elysian Fields Avenue and Gentilly Boulevard in New Orleans. Brown, individually on behalf of her minor children, and Nachelle Williams, on behalf of her minor child, filed a lawsuit (the minor children were passengers in Brown’s car). The trial court ruled in favor of the plaintiffs and awarded damages to each of them. Fogg appealed this judgment. The only issue on appeal is that of Fogg’s liability: Did the trial court properly rule in favor of the plaintiff?

At trial, the defendant testified that he was traveling on the right lane of Elysian Fields Avenue and intended to proceed straight on the same road through its intersection with Gentilly Boulevard. As the defendant approached the Gentilly Boulevard intersection, he testified, the plaintiff driver attempted to turn right in front of him from the center lane of travel, causing a collision between the two vehicles. In contrast, the plaintiff testified as follows: plaintiff was traveling on Elysian Fields Avenue, and then she turned right onto Gentilly Boulevard. After merging into the left lane of travel, the defendant’s vehicle struck the plaintiff’s rear passenger door.

July 12, 2016

First Circuit Affirms Dismissal of Lawsuit Seeking Injunction Against CVS Pharmacies From Selling Expired OTC Medication

by Berniard Law Firm

pills-tablets-2-1524560-850x1024 When a person is harmed or comes across what that person sees as an injustice, that person may feel that the only way out is through the courts. However, someone seeking help in the courts must be sure that the problem is one that a court can help. An injunction is a method by which someone can ask a court to order a person or company to either do something or stop doing something. Usually it is required in Louisiana that the party requesting an injunction be at risk of irreparable harm or harm that cannot be undone by the payment of money. This does not apply, though, if the action to be stopped is illegal to begin with.

The First Circuit Court of Appeals recently reaffirmed the requirements for obtaining strong means of relief such as injunctions or class actions. Ms. Jean Cooper purchased some over-the-counter allergy medicine at a CVS pharmacy in Washington Parish, Louisiana. Upon discovering that the medication she purchased had already expired, she sued CVS as a company on the basis that the court should prevent the stores from selling expired medication because it could cause health risks. She asked the court for an injunction on behalf of herself, and a class action injunction on behalf of others that may have purchased the expired medications. CVS argued in return that she had not actually been harmed by the expired product and that she was not in risk at harm because she had not used the medication and later declared she would no longer purchase medications in CVS stores.

From these facts, CVS argued that there was no irreparable injury. In response, Ms. Cooper claimed that she did not need to prove injury since federal law prohibited the selling of expired drugs. She pointed to 21 U.S.C.A 331, the provision of the Food, Drug, and Cosmetic Act that makes it illegal to sell “adulterated” medications. An adulterated medication is one which has been produced in such a way that it might be harmful. See 21 U.S.C.A. Section 35l(a)(2)(B). She claimed that although this law concerned the manufacturing process, a memo that had been written by the FDA in 1995 extended this definition to stores that sell expired medications. She also presented evidence that another person had found expired medications and baby formula for sale at 63 different CVS locations. This was meant to prove irreparable injury under the idea that all of the CVS stores were selling expired medications.

July 11, 2016

Louisiana Lawsuit Illustrates the Importance of Timing for Medical Malpractice Claims

by Berniard Law Firm

hourglass-1543596-1024x768 In initiating a lawsuit, timing is critical. In Louisiana, the doctrine of prescription bars a claimant’s legal right of recovery when he or she fails to exercise it within a given period of time. This doctrine functions somewhat similarly to what is known as the “statutes of limitations” in other U.S. states. However, certain statutory provisions “stop-the-clock” so to speak, and suspend the time within which a lawsuit must be brought. This entails precise timing calculations for determining prescriptive period or “deadline” for bringing a claim. Failure to comply with these deadlines means no recovery, as demonstrated by a recent opinion of Louisiana Fifth Circuit Court of Appeal in a lawsuit asserting medical malpractice claims.

On August 3, 2012, Mrs. ABC was admitted to a hospital in New Orleans (“Hospital”). Upon admission, Nurse Practitioner CP took ABCs’ intake history and performed a physical under the guidance of Dr. PP. Upon initial inspection ABC had no signs of bed sores when she entered the Hospital. However, she quickly developed bedsores during her stay at the hospital. Her skin condition gradually deteriorated, leading to her to expire on October 24, 2012.

On October 16, 2013, ABCs’ children – the plaintiff/appellants – Kathy Maestri and Kurt C. Burgenthal filed a claim with the fund in Louisiana that is set up to initially review medical malpractice cases (“LPCF”) claiming that ABCs’ bed sores and demise were caused by the by both the Hosptial, Dr. PP, and Nurse CP. On October 30, 2013 the LPCF notified Ms. Maestri and Mr. Burgenthal by letter that Nurse CP did not fit the definitions of a healthcare provider under the Louisiana Laws that govern medical malpractice claims (“LAMMA”). (See Louisiana Medical Malpractice Act Definitions)

July 7, 2016

What Are the Requirements to Prove an Insurance Policy was Cancelled in Louisiana?

by Berniard Law Firm

Mail insurance policy cancelled
If you are injured in a car wreck you typically look to the person who caused the accident and their insurance company to cover your damages. But what happens if the reckless driver’s insurance company claims they cancelled the insurance policy before the accident occurred? How can you determine whether or not that insurance company followed the proper procedures under Louisiana to cancel coverage? The best car wreck attorneys know the law and whether or not the insurance company followed it. The following case out of New Orleans Louisiana demonstrates the steps an insurance company must follow when they cancel coverage and how they can evade liability by proper notification.

Mario Diaz learned the hard way that if you are are struck by an uninsured driver, you may not be able to recover when that driver is at fault in an accident that caused your injuries. Mr. Diaz was a passenger in a car driven by Eudolio Lopez in New Orleans, Louisiana when Mr. Lopez crashed into a vehicle driven by Darrell Butler. Mr. Diaz filed a lawsuit against Mr. Lopez, Mr. Butler and his insurer, Allstate. Allstate, the insurer of Mr. Butler, responded to the lawsuit by filing a motion for summary judgment, contending that Mr. Butler was no longer covered under his Allstate policy because he had failed to keep up with his payments and had received adequate notice of the cancellation of his policy.

Allstate provided proof that the policy was canceled on February 3, 2011 after a letter was mailed to Mr. Butler on January 24, 2011 demanding he pay his premiums or lose his coverage. Allstate provided an affidavit from Ms. Collard, who controlled all of Allstate’s policy records in the state of Louisiana, stating that she had reviewed Mr. Butler’s file and confirmed that a notice was sent to Mr. Butler and that he failed to pay on time. The First City Court of New Orleans agreed and granted the motion for summary judgment. Thus, the trial court found that there was adequate proof of a cancelled policy well before the accident occurred. See Louisiana Revised Statute 22:1266.

July 4, 2016

How Do I Qualify for Seaman Status Under the Jones Act?

by Berniard Law Firm

offshore-gas-platform-1223799-683x1024 The Jones Act is a set of federal rules that protects American workers injured while working at sea. Also referred to as the Merchant Marine Act of 1920, this law allows qualifying sailors who have been involved in accidents or become sick while performing their duties to recover compensation from their employers. So does everyone that is injured or who becomes sick while working offshore automatically qualify for benefits under the Jones Act? Not always. In the following case that stems from an oil platform injury we see how the courts evaluate the seaman status (status necessary to receive benefits) under the Jones Act.

Michael Alexander was employed by Express Energy Services Operating, L.P.’s plug and abandonment department which plugs decommissioned oil wells in various locations off the coast of Louisiana. In 2011, Michael’s foot was injured while working a project on a platform. Michael and the crew were working on the platform at the time of his injury but the crane that injured him was located on a liftboat operated for the benefit of the crew. Michael filed his action under the Jones Act (46 U.S.C. § 30104) seeking maintenance and cure benefits. Express filed a motion for summary judgment contradicting Michael’s seaman status stating that Michael was a platform-based employee who failed to satisfy the test for seaman status. A motion for summary judgment is a legal filing that states the law does prevents the other party in the lawsuit from proceeding for various reasons. In this case Express filed their summary judgment motion stating that Michael was not a seaman under the provisions of the Jones Act.

For the court to have decided against summary judgment, Michael would have had to show that there was a possibility of his employment status qualifying as a seaman and falling under the Jones Act. To qualify as a seaman an employee has to prove two things laid out by the Supreme Court in the Chandris case (515 U.S. 347 (1995). The first thing to prove is that the employee’s duties contribute to the running of the ship or vessel. The second thing to prove is that the employee performs a substantial amount of his duties on board the ship or vessel. The second part of this test is the most important to the analysis of seaman cases and is in place to separate the employees who are entitled to the protection of the Jones Act from the land-based employees who are not exposed to the same risks as employees who spend a majority of their time at sea.

July 3, 2016

IVC Filter Claims: 4 Things You Need to Know

by Berniard Law Firm

Inferior vena cava (IVC) filters were designed and sold as a supposedly secure fallback to help avert pulmonary embolism for patients who for various medical reasons could not take blood thinners. Unfortunately for over the last ten years these filters have continuously been alleged to have been at fault for adverse conditions due to breaking of the filter. The best IVC filter lawyers have been pursuing these claims on behalf of their clients for several years now. While you can get a full run down of this litigation from a Louisiana IVC filter claim lawyer here, IVC Filter Claims , the following are 4 things you need to know if you believe you or a family member have been injured by an one of these products.

Removal of the device is only the first step

Most importantly, if you or a loved one has a IVC filter, you need to seek medical advice. The FDA released a bulletin in 2010 advising that IVC filters should be removed as soon as the danger of embolism has passed. Despite this removal itself can be difficult or impossible. A study conducted at the Boston Medical Centre in March 2013 found that, of the IVC filters studied, only 8.5% were successfully removed.