Pain And Suffering Claims

May 10, 2023

Tragic Loss: Lawsuit Highlights the Importance of Expert Testimony in Medical Malpractice Cases

hospital_bedside_beds_ceiling-1024x768 Having a sick child can be a nerve-racking time. Having a sick infant is even scarier as you, as a parent, feel helpless. In these times, caregivers turn to the experts in medical centers to help. But, unfortunately, a hospital can’t always help before it is too late.

In June of 2012, 13-month-old Landon Lee was transported via ambulance to Our Lady of the Lake Regional Medical Center (OLOL) due to vomiting and respiratory distress. Landon was treated in the emergency room by Dr. Boudreaux, where he was determined to have cardiac issues. He was admitted to the pediatric intensive care unit at OLOL. Later the same morning, Landon Lee was transferred via helicopter to Ochsner Medical Center in New Orleans to be placed in an Extracorporeal Membrane Oxygenation unit (ECMO). Within an hour of arriving at Ochsner, Landon died. The autopsy determined 13 month-old Landon passed from cardiomegaly or an enlarged heart.

Landon’s mother filed a lawsuit on her behalf and for her deceased son against both OLOL and Dr. Boudreaux, the pediatrician and emergency room physician who treated Landon at OLOL. Lee asserts in her claim that Boudreaux and OLOL failed to properly care for and treat her son while at OLOL. Along with the allegations in her lawsuit, Lee attached an affidavit from Dr. Meliones, a board-certified pediatric cardiologist specializing in pediatric critical care, to support Ms. Lee’s negligence claim.

May 9, 2023

Absent Vehicle, Absent Negligence: Louisiana Appellate Court Affirms Dismissal of Products Liability Lawsuit

by Berniard Law Firm

texture_airbag_car_vehicle-1024x683 Car manufacturers have a duty to provide safe vehicles for drivers and passengers. A safe car includes an airbag that can help lessen the effects of an auto accident. What happens when your airbag doesn’t expand during a wreck? Can you sue the manufacturer of that airbag? An Ascension Parish lawsuit shows why the absence of a car that has a defective airbag will cause major headaches for your product liability lawsuit.

While traveling through Ascension Parish in the summer of 2012, Joseph M. Dortch (“Dortch”) swerved off the road and into a ditch after trying to avoid another vehicle crossing over the centerline of the highway. Dortch was transported to the hospital by ambulance and sustained several injuries. His car was totaled and eventually sold by his insurance company, State Farm Mutual Automobile.

Following the accident, Dortch sued the other driver and FCA US LLC. Against FCA US LLC, Dortch claimed that the airbags in his vehicle were “unreasonably dangerous” because they failed to deploy during the accident and were, thus, the proximate and contributory cause of his injuries. FCA US LLC filed a motion for summary judgment in response to these claims, arguing three points to undermine Dortch’s allegations.

May 8, 2023

Court Finds Uninsured Motorist Coverage Waiver Valid, Denies Coverage for Injured Worker Injured

by Berniard Law Firm

padlock_grating_insurance_security-1024x768 Protection from on-the-job injury is vital to any employee, especially those doing manual labor. But when so many types and subtypes of insurance coverage are involved in a single policy, how can you know when you’re covered? And what happens when you can’t tell if specific coverage applies to you? Can you still get protection and justice?

In August 2011, plaintiff William Weems was an employee of Cane River Construction LLC (Cane River). While on the job, Weems was driving a car owned by Cane River when another vehicle struck him from behind, and he suffered severe injuries. Defendant Houston Speciality was the automobile insurer for Cane River, and following the accident, Weems and his family sought uninsured/underinsured motorist (UM) coverage from Houston Speciality for his injuries. Houston Speciality denied that its policy extended UM coverage to Cane River and instead filed a third-party complaint against its insurance agent employed by Moreman Moore.

Moreman Moore’s agent Mr. Dickerson was responsible for completing Houston Specialty’s insurance file. Mr. Dickerson is the agent with whom Cane River’s owner, Mr. Moran, secured the insurance agreement. The Louisiana Commissioner of Insurance requires insurance companies to employ UM waiver forms in their policies and allow their clients to accept or reject UM coverage. Dickerson delivered this waiver to Mr. Moran, and Mr. Moran denied UM coverage via the release. Therefore, Cane River’s insurance policy with Houston Speciality on the accident date thus did not include any UM coverage.

May 6, 2023

Are Third-Party Contractors Caught in a Workers’ Compensation Loophole?

by Berniard Law Firm

craftsmen_building_scaffold_19584-1024x679 The evolving nature of employment now means the relationship between employer and employee can be indirect and through different contracting methods. In addition, many people employed by one company are, in fact, on the job doing work for another. A recent case in Louisiana highlights these distinctions and the risks posed to workers and their families when seeking compensation.

While working in 2013, Michael J. Louque Jr. was crushed to death by a piece of heavy machinery that rolled off the truck it was being loaded onto. Mr. Louque was employed by River Parish Maintenance (RPM) but was working at the Motiva Enterprises, LLC (“Motiva”) manufacturing complex. Upon his death, the family of Mr. Louque filed a lawsuit against Motiva and others, seeking compensation for his wrongful death.

The contract that brought Mr. Louque to the Motiva manufacturing complex was actually between RPM and Shell Oil Products US (“Shell”). This point is crucial in understanding the state of the Louque’s litigation, as Louisiana law prohibits employees from directly suing their employers in a tort claim rather than pursuing worker’s compensation benefits. See Deshotel v. Guichard Operating Company, Inc.

May 4, 2023

Can a Judge increase a Jury’s Award of Damages?

by Berniard Law Firm

paragraph_attorney_judge_process-682x1024 The jury process is considered the great equalizer when it comes to the everyday man fighting large corporations. Juries in Louisiana are made up of twelve people tasked with evaluating the evidence and legal arguments of the parties. While juries do, their best mistakes can be made and corrected by the Judge overseeing the case. So what happens if a jury leaves out critical items of a damage award? Can a Judge increase a jury’s award of damages? The following lawsuit out of Lake Charles helps answer this question.

Dwight Minton was a passenger in a car when he was hit by another vehicle. As a result, he filed a lawsuit against Christopher Gutierrez, the driver of the other vehicle, and GEICO Casualty Company, among others. In addition, Minton sought damages for the injuries sustained in the accident.

The jury returned a verdict in favor of Minton, awarding damages of fifty-eight thousand five hundred dollars. Believing this award was too low, Minton filed a motion for judgment notwithstanding the verdict (JNOV), asking the trial Judge to increase the award. The Judge granted this motion and awarded damages over five hundred thousand dollars.

May 3, 2023

Pyramids of Escape: Independent Contractors and How They are a Threat to Your Accident Compensation.

by Berniard Law Firm

roof_tile_roofs_house-1024x768 If you are injured by someone in their course of employment, you can contact their employer for your compensation. But unfortunately, employers hire independent contractors to skirt around liability when their workers mess up. Below is a cautionary tale about how cascading levels of independent contractors left an injured plaintiff with limited sources for his injuries.

Jarrett Lemmon was in an accident involving Jonathan De La Mora that resulted in damage and injury. Lemmon sued Jonathan for causing the accident. Later, Lemmon amended his suit to add Jonathan’s employer, Rosendo De La Mora, and RoofCorp USA, LLC, as responsible for the accident, claiming that Jonathan was working within the scope of his employment when he struck Lemmon. RoofCorp USA, LLC was the parent company that hired Rosendo De La Mora to install roofs as an independent contractor. Rosendo De La Mora then hired his son Jonathan to help install the roofs, separate from RoofCorp’s payroll. RoofCorp filed a motion for summary judgment at the district court level, claiming they could not be held responsible; it was granted. Unhappy with the ruling, Lemmon appealed.

The First Circuit Court of Appeals was then tasked with deciding if the trial court properly awarded RoofCorp summary judgment. To do so, the appeals court must determine if Jonathan was an employee of Roofcorp at the time of the accident, and the court must decide if Jonathan was in the scope of his employment when the accident occurred. Lemmon claims that Jonathan was an employee of RoofCorp in the court of his employment when he hit Lemmon.

May 1, 2023

Two Sides to Every Story: How Does a Louisiana Court Determine Who is Credible?

by Berniard Law Firm

cellphone_camera_phone_mobile-1024x683 Courts often hear contradicting testimony and must decide who to believe or who is more credible. For example, the following Calcasieu Parish case involves two individuals who were married at the time of the altercation but have since divorced and the importance of providing the most credible testimony.

Although Mr. and Ms. Cooper agreed there was an altercation in their home, they disagreed with the subsequent facts of this case. Mr. Cooper alleged Ms. Cooper handed him her phone to show him a picture. He then alleged that Ms. Cooper angrily began demanding the return of her phone, and when Mr. Cooper refused, she battered his testicles. Mr. Cooper claimed he sustained permanent damage due to Ms. Cooper’s actions and subsequently filed a lawsuit seeking damages.

Ms. Cooper, on the other hand, alleged that Mr. Cooper took her phone out of her hands with substantial force. She then alleged she pleaded for the return of her phone, but Mr. Cooper refused, and he then put her phone in his pocket. Ms. Cooper claimed she attempted to remove the phone from his pocket and may have unintentionally come into contact with his testicles and penis. However, she alleged she never intentionally grabbed or battered him. At trial, Ms. Cooper moved for an involuntary dismissal of Mr. Cooper’s claim. The 14th Judicial District Court for the Parish of Calcasieu granted Ms. Cooper’s motion and dismissed Mr. Cooper’s claim. This appeal to the Louisiana Third Circuit Court of Appeal follows.

April 29, 2023

Disabled Louisiana Plaintiff Successfully Appeals to Regain Coverage for His Insurance Policy

by Berniard Law Firm

coins_currency_investment_insurance_0-1024x683 One’s life is forever altered after an incapacitating injury. While the situation comes with enough issues, problems are enhanced when medical providers merge and change the disability benefits you have relied upon for a year. Unfortunately, this is precisely what happened to Michael Swinea after Humana Inc. bought Kanawha Insurance Company.

Swinea required a total knee replacement after he was injured in March 2012. After this surgery, Swinea attempted to return to work. After working for about six months, Swinea’s physician instructed him to stop working again. Starting in April 2012, Swinea was given $2,700 per month in disability benefits through Kanawha. In November 2013, however, Humana bought Kanawha, and Swinea’s payments ceased. Humana informed Swinea that he would no longer be covered in a letter mailed to his home address.

After receiving the letter, Swinea contacted the appeals body specified in the letter. The Humana appeals body instructed Swinea to send any pertinent documents that he would like to be considered during the review. After complying, Swinea received a letter from a Humana Grievance and Appeals Specialist notifying him that his request for disability benefits was denied.

April 28, 2023

What is a “Two Contract Defense” In Louisiana Lawsuits?

by Berniard Law Firm

safety_medical_ocean_rescue-1024x683 When subcontractors get injured at work, it can be confusing to determine who is liable for damages. This case shows a company’s failed attempt at using the “two contract defense” to dismiss claims in a slip and fall case. It also helps answer the question; What is a two-contract defense in Louisiana Lawsuits?

In 2013, Quiana Lorden worked for Southern Care Hospice (“SCH”). At the time of the underlying incident, she was assisting a hospice patient living at Merryville Rehabilitation (“Merryville”), a skilled nursing facility (SNF). While helping the patient out of the shower, she noticed a large amount of water had pooled on the floor and called a housekeeper to clean it. However, the housekeeper spread the water to other areas of the floor while attempting to clean, causing Lorden to slip and injure her knee.

Lorden filed a lawsuit against Merryville, among other related parties, to recover damages. Merryville filed for summary judgment, arguing that they were exempt from tort claims because they were Lorden’s “statutory employer” under La.R.S. 23:1061. The court granted their motion and dismissed the claim. Lorden appealed, arguing that material issues of fact remained as to whether Merryville was her statutory employer.

April 26, 2023

Windstorm or Negligent Installation? A Battle of the Experts

by Berniard Law Firm

traffic_lights_green_light-1024x678 Cities need to ensure public utilities are safe and properly installed. Road fixtures, such as traffic lights and speed limit signs, are an essential part of infrastructure. When road fixtures are installed negligently, the public needs to be able to hold the liable parties accountable.

So who should be responsible if a road sign crashes into your car or a utility pole falls on you? It depends, and proving why an entity is liable requires a skilled lawyer familiar with the use of experts. In the following case, a plaintiff is seeking to hold the City of Baton Rouge responsible for damage to his car caused by a falling traffic signal. The case shows why the proper use of expert testimony is critical to ensuring both sides get their day in court.

Randolph Barnett was driving in East Baton Rouge Parish when a school zone sign hanging overhead suddenly fell and crashed onto his windshield. Barnett sued the City of Baton Rouge and the Parish of East Baton Rouge via the Department of Public Works. The trial court granted summary judgment for the City, thereby dismissing the case. Barnett appealed this decision for review by the appellate court.