Articles Posted in Miscellaneous

owens_drug_company-1024x857The legal system is complicated, with many “dos-and don’ts.” Whether or not you can have your case heard in court first requires following the rules guiding the sufficiency of your claim. If your complaint fails to show that you have a right to bring the case against your defendant, your case might be dismissed. But how strictly interpreted is this rule? What does it look like when a cause of action is sufficient to be heard or ripe for dismissal?

The State of Louisiana brought a lawsuit against various pharmaceutical companies participating in manufacturing and selling Actos. The State alleged that the pharmaceutical companies misrepresented Actos’s efficacy and side effects. The State also claimed that research showed that Actos greatly increases the chance of bladder cancer. The State alleged the pharmaceutical companies failed to disclose this information. 

In its case against the pharmaceutical companies, the State alleged that it would not have bought and distributed Actos if its risks had been clarified. Because of the drug companies’ alleged misrepresentation, Louisiana sought to recoup damages due to fraud, redhibition, unjust enrichment, and infringement of the Louisiana Unfair Trade Practices Act (LUTPA), La. R.S. 51:1405, and violations of the Louisiana Medical Assistance Programs Integrity Law (MAPIL), La. R.S. 46:437.1. In response, the drug companies brought various objections—peremptory exceptions including no cause of action, res judicata, no right of action, and dilatory exceptions including vagueness or ambiguity of the State’s petition, and the petition’s not following state law requirements. La. C.C.P. art. 891.

bellingham_police-1024x683Claims involving both state and federal law can be extremely complicated; however, what happens when there are questions surrounding the state law itself? In this situation, the district court may actually abstain from exercising its jurisdiction until the state law concerns have been resolved—the following case involving law enforcement officers in New Orleans discusses these issues.

Fred Thompson was working for the Housing Authority of New Orleans (HANO) as a law enforcement officer when he went to assist another officer, Edgar Baron, after hearing that Baron had stopped a pedestrian. Once arriving at Baron’s location, Thompson recognized the handcuffed male in the back of Baron’s squad car as the same person he had seen a short time earlier. Two days later, Sergeant Harry Stanley approached Thompson and informed them that he was required to patrol with Baron. However, Thompson stated he did not want to ride with Baron, as he believed Baron had a history of violating the civil rights of HANO residents. 

Thompson was ordered to HANO’s main office and asked to provide a statement regarding his interaction with Stanley, which Thompson complied with. He received a reprimand and notice of Termination stating Thompson was on administrative leave and could be terminated at any time. A week later, Thompson attended a grievance hearing claiming he was refused whistleblower status. Thompson was fired a few days later. 

workers compensation lawyer louisianaThere are many ways that someone can be denied workers’ compensation benefits. Sometimes it is determined that the accident giving rise to the injury never occurred, other times the claim is filed too late, and in other cases the capacity in which the worker was hired determines eligibility for benefits. The last scenario is illustrated in a case brought to the New Orleans Office of Workers’ Compensation (“OWC”) in 2016.

Federico Martinez was among several workers hired by Jarislov Rames to lower a washer/dryer unit from Rames’ second floor apartment to street level. During the operation, one of the cords used to lower the unit broke loose and lacerated Martinez’s hand.

After the job was finished, Rames drove Martinez to the emergency room and paid the up-front $500 fee for Martinez to receive stitches. When Martinez demanded payment for the washer/dryer job, Rames withheld the $500 from Martinez’s pay and told Martinez that the rest of the emergency room fee would be deducted from future payments.

man-fixing-vehicle-engine-2244746-1024x683Workers in the State of Louisiana are protected by laws that prohibit employment-based discrimination. But often, the litigation process is complicated; employees who believe they are victims of discrimination and harassment face a challenging burden of proof in order to recover from their employer.  

Mr. Hui Chen worked as an equipment mechanic for Ochsner Clinic in New Orleans. Chen routinely exceeded expectations during his annual performance reviews, but his employer suggested that he develop his technical skills, communication ability, and confidence in order to better resolve certain recurring issues on his own and with a team. Chen declined his employer’s recommendations for training and eventually refused to sign his performance evaluations.

When Chen injured his ankle at work, he took three months off for recovery. During Chen’s leave, a back-up mechanic assumed his responsibilities and discovered numerous quality control issues that Chen should have repaired as part of his routine work. When Chen returned from leave, he disputed the needed repairs; nevertheless, he received a corrective action and was ultimately placed on probation for failing to properly assess and diagnose the issues. Because Chen claimed his ankle pain interfered with his duties to perform daily inspections, he performed only six out of 25 scheduled inspections and was ultimately terminated for insubordination. 

4k-wallpaper-4x4-auto-automobile-1149058-1024x683There are multiple federal laws that affect the employer-employee relationship. Two such laws are the Americans with Disabilities Act (“ADA”) as well as the Family Medical Leave Act (“FMLA”). Lawsuits involving the laws often involve employees suffering from difficult circumstances. Such circumstances can become even more difficult if an employer does not comply with their duties under these laws. By ensuring compliance with these and other employment laws, employers can not only help their employees through difficult circumstances, but also avoid liability themselves. 

Liza C. Ariza (“Ariza”) began working as a guard and drove a protected truck for Loomis in February 2008. Ariza claims that at the time that she interviewed for the job, she informed the branch manager that she had seizures. However, the branch manager denied that Ariza had ever told her that she had seizures or another disability. Ariza did not mark that she had seizures or another disability on Loomi’s employment forms. She also did ask for any ADA accommodation in the relevant portion of the form. 

In September 2008, Ariza claimed that she underwent a fainting spell or seizure while she was driving a protected truck. Her coworker, who was driving in the truck with Ariza when the alleged incident occurred, testified that he did not see anything indicating a seizure. The records from the emergency room stated that Ariza had suffered a fainting spell. Following this incident, Ariza kept driving the protected truck and did not ask for any accommodations. In 2011, Ariza was promoted to a supervisor position. Ariza claimed that she was moved to this position to accommodate her disability, but Loomis countered that she had requested the new position because of demands from her schoolwork. In June 2012, Ariza allegedly had another seizure at work. At Loomis’s request, Ariza took FMLA leave. 

the-path-among-the-trees-6037-683x1024Trees can add aesthetic value to your property and provide benefits such as shade in the summer heat and place for birds to nest. However, under certain circumstances, property owners can be held liable for injuries resulting from a fallen tree limb. This is exactly the situation homeowners and the Town of Delhi, Louisiana found themselves in after a tree limb fell on a car, causing severe injuries to a passenger. 

In May 2012, Cheryl Wells was riding in the front seat of a vehicle that Natasha Hamilton  was driving. There were also three other passengers in the car. A thunderstorm unexpectedly developed, causing a tree to fall across the road they were driving on. As a result, Hamilton had to take a different route using Charter Street. While driving along Charter Street, a large tree limb broke off and fell onto the vehicle. The tree limb crushed the vehicle’s roof and struck Wells on her head, rendering her a quadriplegic. Fortunately, no one else in the car suffered serious harm.

The tree whose limb fell onto the vehicle was located on the property line between Kristi and Chad Morgan’s home and the right of way owned by the Town of Delhi. After the accident, Wells filed a lawsuit against the Morgans and Delhi under La. C.C. arts. 2315 and 2317.1, claiming that her injuries resulted from the defective and dying tree on the Defendants’ property. 

grey-steel-grill-1687067-819x1024In a civil case, you do not have the classic “speedy trial” right. Instead, courts will seek expediency by granting summary judgments when appropriate. The purpose of summary judgment is to avoid frivolous and unnecessary trials, or at a minimum, to simply reduce trial time by dispensing of some claims. A motion for summary judgment may be granted upon a finding that there is “no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3).

In this case, Danny Givens (“Mr. Givens”) was released from prison and subsequently sued James LeBlanc, Secretary of the Louisiana Department of Public Safety and Corrections (collectively, “DPSC”) for false imprisonment. Mr. Givens alleged that DPSC improperly calculated his release date from prison and that he should have been released earlier; thus, he was falsely imprisoned by DPSC.

DPSC proceeded to file a motion for summary judgment, and as a result, DPSC became the “mover” under La. C.C.P. art. 966(A)(3). When filing for summary judgment, the mover has the burden to show there is no genuine issue of material fact. However, the adverse party in this case, Mr. Givens, has the burden to produce factual support to establish the existence of a genuine issue of material fact. La. C.C.P. art. 966(A)(3).

man-wearing-black-officer-uniform-1464230-1024x683It’s almost impossible to watch a movie or TV show about the police or crime without hearing the phrase “Miranda Rights.” Even if most viewers don’t know the U.S. Supreme Court case Miranda v. Arizona, which outlined those rights, viewers are aware that upon arrest, a person has multiple rights which they are entitled to have read to them. This same concept is present in Louisiana law as well. If an arrestee isn’t read his rights in full, the arrest could be invalid. 

Brian Litton alleged that he was not read his rights in full when he was arrested under suspicion of drunk driving on July 13, 2015, in Bossier Parish by Deputy Tim Wooten. In Louisiana, there are multiple things a police officer must do after he arrests a person under suspicion of DUI. See La. R.S. 32:661(C). After officers determine there are reasonable grounds to arrest someone for drunk driving, they can subject the arrestee to a test to determine what their blood alcohol percentage is. However, they must first read to the arrestee a form stating both the rights he has, but also that if he refuses the chemical test his driver’s license can be suspended for a year just for refusing the test. See La. R.S. 32:667. Once those rights and consequences are read to the arrestee, he must sign the form as well. Mr. Litton signed the form but refused to take the test. Although Mr. Litton signed the form, he claims he was unaware that his license would be suspended for refusing the test because the officer did not read to him that part of the form.

When this case came before the Second Circuit Court of Appeal of Louisiana, a trial court had agreed with Mr. Litton and reinstated his license. The Louisiana Department of Public Safety and Correction, Office of Motor Vehicles, appealed to the Second Circuit. The decision was a fairly black and white affair. Deputy Wooten himself testified at the initial trial that he gave Mr. Litton the form but was unsure if prior to that he had read the entirety of the form to Mr. Litton. Mr. Litton took it a step further by saying he was sure that Deputy Wooten had not read to him the portion of the form relating to the potential loss of his license. There was no paper trail or any other proof that Deputy Wooten read the form to Mr. Litton in full. Because of that, the Second Circuit affirmed the trial court’s decision that the suspension of the driver’s license was invalid since Deputy Wooten did not fully follow the legal procedure for such an arrest. 

aged-alarm-clock-antique-background-552774-1024x762When a lawsuit is filed for an injury, most people assume that the claim will be sorted out in court in a timely manner.  Sometimes, however, a case can get significantly delayed by years, even before a trial has occurred. In these instances, it is also possible that the case becomes “abandoned” if neither side takes any action towards furthering the course of the lawsuit.  For one West Feliciana woman, the defense tried to do just that and claimed case abandonment.

In September 2005, Sheryl Cummings filed a lawsuit individually and on behalf of Shedrick Cummings, alleging that Shedrick became a quadriplegic after sustaining severe injuries from a football game at West Feliciana High School Stadium.  Cummings named the West Feliciana Parish School Board (WFPSB), West Baton Rouge Parish School Board (WBRPSB), and several insurance companies, including AIG Insurance (National Union), claiming that there was insurance accident policy coverage of $1,000,000. 

The district court judge dismissed claims against several insurance companies and severed the claim from WFPSB from the claims against National Union.  In July 2009, all of Cummings’ claims against WFPSB were dismissed. In January 2016, National Union filed a motion to dismiss Cummings’ claims, alleging abandonment because of no steps taken on the case in over three years.  The trial court granted the motion and dismissed the claims. Shedrick Cummings appealed the decision to the State of Louisiana First Circuit Court of Appeal.

person-grilling-sausage-and-meat-1857732-1-1024x683The interests of justice are best served when the evidence in a lawsuit is new. This is because any potential witnesses can corroborate or deny evidence presented at trial with a fresh memory of the events or documents. Personal injury cases in Louisiana follow this principle with a one year deadline called the peremptory exception of prescription. A recent lawsuit between New Orleans family members demonstrated the value of having an excellent attorney who knows when these deadlines begin to run.

On April 20, 2014, Cynthia Dent attended an Easter party at Genevieve Willis Dent’s home in New Orleans. While walking in the backyard, Ms. Dent stepped into a hole. This hole was covered by outdoor carpet and was not visible. As a result of the accident, Cynthia Dent experienced pain and swelling in her left foot and ankle. Two days later, on April 22, 2014, Cynthia Dent went to the doctor for x-rays and eventually found out that she broke her left foot.

One year and three days after the original accident and one year and one day after her diagnosis, on April 23, 2015, Ms. Dent filed a lawsuit against Genevieve Dent and Genevieve’s home insurance company, State Farm Fire and Casualty Company. In response, Genevieve Dent and her insurance carrier filed a peremptory exception of prescription. This peremptory exception of prescription is used by defendants for a variety of reasons, which basically argues that there is no legal remedy for the plaintiff’s alleged injury because the lawsuit was brought too late. In Genevieve Dent’s case, she raised the peremptory exception of prescription because Cynthia Dent filed her lawsuit past the one year deadline. The Trial Court held a hearing on the peremptory exception of prescription and agreed with Genevieve’s argument. The lawsuit was dismissed. Cynthia Dent then appealed.

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