Mesothelioma/Asbestos

July 30, 2012

Belle Chasse Mold Case Shines Light on Expert Testimony

Southern Louisiana is known for its historic buildings, easy going attitude and humid climate. Though these ingredients mix well for a great place to live or vacation, they can wreak havoc on the health and safety of residents’ homes and work places. This was the case recently in Belle Chasse. There, an individual who rented an office for her business discovered the building contained toxic mold that posed serious health risks. The problem needed immediate remediation. After being contacted, the property owners began removal of the mold. However, the mold, according to the tenant, was so exacerbated that she was forced to abandon the office. The tenant then filed suit against the landlords and their insurance company seeking compensation for business and health related damages.

The importance of this case lies in its examination of expert testimony. In this instance, the tenant sought to have her doctor testify that her chronic fatigue syndrome and other health conditions were directly related to the toxic mold in her office. The landlords claimed it would be erroneous for the court to classify the doctor as an expert and asked that the lawsuit be excused. The court agreed with the landlords and, on appeal, so did the Court of Appeal for the Fourth Circuit.

Expert testimony is governed by the Daubert rule. According to this rule, in order for expert testimony to be heard it must be deemed to be relevant and reliable. The Supreme Court in Daubert provided that relevancy and reliability are determined by a set of factors: (1) testability of the scientific theory; (2) whether the theory has been subject to peer review; (3) knowledge of the theory’s rate of error; and (4) whether the theory has gained general acceptance within the scientific community. These factors are non-exclusive, but provide a solid framework for courts when determining whether to allow an “expert’s” testimony.

July 16, 2012

Deposition Two-Step: Conflicting Reasons for Quitting Job Early Leads to Perjury Charge

by Berniard Law Firm

This case is a welcome reminder of how an attorney’s advice may sometimes lead to more harm than good. Brown brought suit against his former employer, Skagit, under Title VII claiming racial harassment and constructive discharge. In a deposition, Brown testified that his sole reason for quitting his job at Skagit was due to racial harassment. However, in a deposition four months earlier in an unrelated personal injury case, Brown testified that he left Skagit solely because of debilitating back pain suffered during a car accident. Skagit sought dismissal of Brown’s claims based on his conflicting testimony, which the district court allowed and dismissed with prejudice. The court also went one step further finding Brown committed perjury. Brown’s appeal is based on a matter of fairness, arguing that a less severe sanction is in order and that he was entitled to explain the discrepancy between the testimonies.

To emphasize the facts, in the first case, based on racial harassment and constructive discharge under Title VII, 42 U.S.C. sec. 2000e, Brown testified as to how he felt endangered by his co-workers’ threatening behavior, which involved dropping heavy plates and pipes near him. He was also distraught by his co-workers flinging derogatory remarks at him on a daily basis. He felt compelled to quit his job, as his supervisors purportedly ignored this behavior. When asked why he quit his job, he testified that the only reason he quit was because of the racial harassment. He reiterated that there were no other reasons for his quitting.

In a completely unrelated deposition for a personal injury claim, Brown testified that the exclusive reason he left Skagit was due to his debilitating back pain, which prevented him from performing his job as a welder. He again emphasized and confirmed that this was his only reason for leaving his job.

April 8, 2012

Happy Holidays to all of our Friends

by Berniard Law Firm

Happy Holidays from the Berniard Law Firm! We will resume blog posting on Tuesday.

November 21, 2011

Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits

by Berniard Law Firm

As part of our Constitutional right to due process, an individual is allowed to bring grievances before a court. However, certain judicial policies may be enacted to deny plaintiffs from bringing suits that have already been litigated, are being brought with the intent to harass, or are frivolous. The purpose behind such policies is to make courts as efficient as possible by deterring such actions. A recent case out of the Louisiana Fourth Circuit Court of Appeal shines a light on several of these deterrents.

In Mendonca v. Tidewater, Inc., the plaintiff sought to nullify several final judgments made by the district court. Mendonca’s list of suits stretched over four years, with multiple appeals and pleas for annulment. However, none of Mendonca’s nullity claims or his appeals were successful. In his final appeal for anulment, the Fourth Circuit Court of Appeals handed down three restrictions that laid Mendonca’s long line of cases to rest.

The first of these restrictions was the court’s upholding of the defendent’s plea of res judicata and failure to state a claim. When res judicata is enacted, the court declares one of two denials. First, that the claim has been subject to a final judgment and thus no longer qualifies for an appeal, or second, that the litigant cannot bring a claim against the same party in a second claim because all claims should have been brought against that party in the initial suit. The policy considerations supporting res judicata is to preserve court resources and protect defendants from being subject to litigation multiple times, with the possibility of having to pay damages more than once. A defendant’s plea that a plaintiff has failed to state a claim goes hand-in-hand with res judicata. If res judicata is applicable, then all duplicitous claims cancelled. In Mendonca’s case, this means that there were no new claims. Since there were no such claims, the court held that Mendonca’s nu

November 15, 2011

Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription

by Berniard Law Firm

The following case highlights the importance of waiting no time in bringing a cause of action that is available. In 2008, Debra Goulas worked as a bookkeeper for Sunbelt Air Conditioning Supply in Baton Rouge. Jessie Touchet, owner of Sunbelt, and Diane Jones, Goulas’s manager, accused her of stealing over $500 from the company during February and April that year. This serious accusation resulted in Goulas being tried for felony theft. The crime of theft is committed when one is involved in a trespassory taking and carrying away of the property of another with the intent to permanently deprive the true owner of that property. Goulas was subsequently acquitted of this particular theft.

Following the criminal trial and Goulas’s ultimate accquital, she filed a lawsuit against Touchet and Jones in July, 2010 alleging defamation. Specifically, Goulas argued that Touchet and Jones “intentionally and negligently inflicted emotional distress” upon her, and that their accusations were “founded in malice to damage her person and reputation.” The complaint sought damages for medical expenses, physical and mental pain and suffering, and loss of wages. The defendants filed an exception of prescription. The basis of the exception was that Goulas’s claims were based on the defendants’ actions that allegedly occurred during February and April of 2008. By the time Goulas filed suit in 2010, more than one year had passed, thereby prescribing the claims. In October, 2010, the trial judge granted the defendants’ exception of prescription and dismissed Goulas’s claims with prejudice.

Goulas appealed, alleging error on the trial court’s ruling that her defamation claim was prescribed. Goula’s reasoned that she could not initiate her defamation action until her criminal trial was concluded in March, 2010; accordingly, she argued that prescription did not begin to run until Frederick Jones publicly accused her of theft when testifying at her trial. The First Circuit noted that Louisiana recognizes a qualified privilege that protects parties from charges of defamation related to statements they make during a trial. “It necessarily follows that, during this time, the one-year period that applies to the filing of a defamation action is suspended.” However, the court explained, the suspension of prescription applies “only to allegedly defamatory statements made by parties to a lawsuit.” In this situation, Frederick and Jones were not parties to Goulas’s criminal prosecution, so the prescription suspension did not apply. The court concluded that “since there has been no suspension of the 2008 alleged defamatory statements,” the trial court properly granted the defendants’ exception of prescription.

October 21, 2011

Texas Contract Law Informs Second Circuit Decision

by Berniard Law Firm

A well-written contract can not only solve most problems, it can prevent most problems from becoming problems in the first place. For a contract to have its maximum problem eliminating effect, however, all parties to the contract must agree as to what it mean. Contract law is filled with cases that could have been avoided if the entities involved had simply expressed their terms more clearly or asked the right questions before, during and after the drafting of the contract. While this ambiguity may be intentional by one side or both in the event they think a benefit can be attained, the truth is the best contract is often the one where both parties are simply looking to achieve the main goal fairly. Those instances where ambiguity dominates, however, cause problems. The case of Mendoza v. Grey Wolf Drilling Co., discussed in an earlier post, is one such case.

The Mendoza case was two-fold. It involved questions as to whether and when one company assumed liability for another company. Several contract law principles were implicated in this dispute from which this opinion resulted. Contracts get drafted under the assumption that the parties have reached an agreement. This alleged agreement is nowhere to be found when there is a dispute over the meaning of a contract. When adverse parties give contradictory interpretations of the same contract language a suit often ensues. It is because of the relative frequency of this occurrence that the courts have come up with various rules for interpreting contracts when the parties themselves cannot.

The Court of Appeal for the Second Circuit of Louisiana applied Texas contract law in this case. This was due to an agreement between the parties which was most likely part of the contract itself; there was no dispute over this portion of the contract. For guidance, Texas law contains several well-established principles for evaluating disputed contracts:

September 29, 2011

Fireman’s Survivors File in Time in Shreveport

by Berniard Law Firm

Timing is everything in civil litigation. The difference of a day or two can determine whether a suit is timely or not timely, meaning if the court will even hear the case being filed. As such, the difference between a suit that is timely and one that is not timely can make the difference between a plaintiff receiving full compensation for their claims and a plaintiff (or his or her surviving family members) receiving nothing.

Mr. Jerry Bozeman dedicated his life to protecting others from fire-related disasters. Sadly, while carrying out his duties he was exposed to asbestos due to improperly built and maintained facilities. As a result of the City of Shreveport failing to protect their employees, including Mr. Bozeman, from the hazardous material in the fire station where he spent a great deal of time, the loyal fireman suffered from asbestos,-related mesothelioma. Mr. Bozeman’s two children, Corey Bozeman and Matthew Bozeman, brought suit under theories of negligence and strict liability under a claim of wrongful death in addition to survival benefits.

The primary issue before the Court of Appeal for the Second Circuit State of Louisiana on appeal was whether the case was actually able to be appealed to the First Judicial District Court for the Parish of Caddo, Louisiana. There was some contention as to whether the plaintiff could appeal the trial court’s granting of the City’s exception of no cause of action as to the plaintiffs’ wrongful death claims and non-intentional torts. The City was denied motion for summary judgment and its request for another exception to intentional tort claims and executive officer liability; the plaintiffs did not want to appeal these parts of the trial court’s judgment.

August 20, 2011

American Bar Association Calling for Nominations of Top 100 Lawyer Blogs

by Berniard Law Firm

The ABA (American Bar Association) has called upon lawyers and non-lawyers alike to submit blogs from across the internet as exceptional examples of legal advice and content. With content about the law ranging widely across the internet, the ABA recognizes the value of those blogs that wish to educate the public about a wide range of issues as examples of how attorneys can help bring an understanding of public policy to the masses.

Through a form, located here, ABA members and/or the public can nominate the efforts of attorneys whose work helps explain the complexities that the law has to offer. While the competition prevents bloggers from nominating themselves, the ABA has requested that the work of their peers be showcased. Due by September 9th, blog suggestions can cover any topic of the law, whether maritime, personal injury, civil or criminal in nature. This possibility of diversity makes the Top 100 list all the more interesting because of the wide variety of content the selected are sure to cover.

If you know of a blog that wishes to discuss legal issues of interest to lawyers (and perhaps those outside of the field), click here to fill out the ABA’s form. Limited to 500 words, nominations should explain why the blog, obviously, deserves to be included in the list as well as its value as a whole. Nominated sites should avoid the regurgitation of content from other sites (copy and pasted quotes of news items, etc.), showing that the main focus of the content is original discussion of those issues of law that affect professionals as well as the public.

August 2, 2011

Fifth Circuit Finds Rifle Manufacturer “Not Liable” for Injuries Sustained After Rifle Firing Resulted in Uncontained Explosion

by Berniard Law Firm

If a company manufactures a defective product, and an individual is injured by that product, the manufacturer may be liable for the damages suffered by the product-user. The product, be it a cleaning supply or an automobile part, or any number of different items found in everyday life, bears an element of responsibility of reliability and worthiness when it is delivered by a manufacturer. When that responsibility is breeched, legal remedy is available.

As the Fifth Circuit described in the seminal case of Matthews v. Remington Arms Co., in order for an injured party to win an action against a product manufacturer, that party must prove: (1) that the party, or another “person or entity” was using the product in a manner reasonably anticipated by the manufacturer; (2) that an aspect of the product directly caused the damage(s) claimed; “(3) the product was ‘unreasonably dangerous’ either in construction, design, or warning; and (4) the characteristic rendering the product unreasonably dangerous either ‘exist[ed] at the time the product left the control of its manufacturer or result[ed] from a reasonably anticipated alteration or modification of the product.’”

If a party can show that a product, used in a way reasonably anticipated, could harm a product-user, the manufacturer may have a legal duty to design its product in a manner which would avoid such harm. As explained by the Fifth Circuit, a reasonably anticipated use is a “use or handling of a product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.” If it can be shown that a product was misused and that misuse resulted in the damages claimed by the product-user, then that user cannot collect against the manufacturer for his or her damages.

July 15, 2011

Asbestos Cases Always Difficult, Involve Negligence and Diverse Defendant Groups

by Berniard Law Firm

The use of asbestos in products such as concrete, bricks, pipes, and other building materials has made way for a large amount of litigation on asbestos-related diseases and deaths. This litigation can help victims of the chemical and their families find some sort of meaning and relief from the toxic material. Litigation on asbestos, however, is very difficult both because the asbestos-related damages did not result from a single, identifiable act, and because it is not only the companies that produced the asbestos which are guilty- it is also those that used and marketed it.

A recent case contains both of these difficulties. Phillip Graf was exposed to asbestos for a period of 30 years while working in several jobs including metal works and drywall. Such extended exposure to such toxic material places one at risk of contracting mesothelioma, a rare form of cancer. Graf suffered from mesothelioma and later died from the disease. His family, Beatrice, Doryk, and Paulette Graf are suing in response to his death. They have named 29 defendants in the case, including Benjamin Moore & Co. and Metropolitan Life. The Graf family claims that the defendants are not only guilty of designing, manufacturing, packaging, transporting, and selling asbestos products, but also aiding and abetting the marketing of asbestos products.

In a traditional personal injury case, the damage results from a single act, but in asbestos cases such as Phillip Graf’s, the damages occurred over periods as long as 30 years or longer. What is worse, typically problems that result from asbestos exposure take years to show. Mesothelioma itself is impossible to detect early on and its symptoms are similar to other diseases, so patients are frequently misdiagnosed. All of this makes it very difficult for plaintiffs to prove that their health problems resulted from asbestos exposure and then link that asbestos exposure to the actions of the defendants. In the Graf case, the Graf family will have to show that the suffering and death Phillip Graf endured from his mesothelioma was caused by asbestos exposure, and that the named defendants caused that exposure.