Pain And Suffering Claims

March 30, 2023

When Is A Louisiana Jury Verdict Considered Excessive?

money_finance_house_mortgage-1024x678 What happens if you win a lawsuit but the other side moves to reduce the amount of money you were awarded? This is the situation Marcus Berry found himself in after he was awarded over a million dollars in damages due to injuries he suffered in a car accident.

Following a car accident, Berry sued the driver of the car that hit him, Leon Berry, and his insurer, Auto-Owners Insurance Company. The other driver admitted liability but contested the nature and extent of the damage Berry suffered.

At trial, the jury agreed Berry was injured as a result of the accident. They awarded him a total of $1.29 million in damages. This consisted of $900,000 for pain and suffering and loss of enjoyment of life previously, presently, and in the future, as well as $390,000 for medical expenses. Following this award, the defendants moved for a new trial or remittitur (a procedure where the court can reduce an excessive verdict), arguing that the jury had awarded excessive damages.

March 29, 2023

Liability in Boating Accidents with Steering System Failure

by Berniard Law Firm

boat_rowing_boat_blue-1024x746 Hydraulic steering is part of modern-day recreational vessels. When a boat’s hydraulic steering fails, what party bears liability? The owner, driver, or manufacturer? In the following case, the Louisiana 3rd Circuit Court of Appeal was asked to determine liability and proper damages when a boat’s hydraulic steering system failed.

On May 7, 2005, a boat owned by Glen Vamvoras and operated by his son Daniel Vamvoras was traveling in Lake Charles when its steering failed. As a result, the boat spun wildly, throwing its passenger overboard. The passenger, Derek Hebert, was then struck by the boat’s propeller and tragically died.

The Louisiana Department of Wildlife & Fisheries (“Wildlife & Fisheries”) investigated the accident. It determined that the pre-owned boat purchased by defendant Glen Vamvoras lost its steering due to a hydraulic fluid leak on the boat’s steering system’s hydraulic lines at the hose/nut of the coupling assembly. Teleflex was the manufacturer and supplier of the boat’s hydraulic steering system, but the original Teleflex hoses of this vessel had been replaced by persons unknown with a non-Teleflex hydraulic hose.

March 28, 2023

Injured While Receiving a Massage and a Court’s Discretion to Award Damages

by Berniard Law Firm

massage_relaxation_massage_389727-1024x685 Spas, health clubs, and wellness retreats are a few places that prioritize the self-care of their patrons, offering relaxing services like manicures, mud baths, and massages. These places also owe a legal duty to their patrons by using reasonable care to avoid causing any injuries. After a massage went wrong at Massage Envy (ME), a jury for the Fifteenth Judicial District Court for Parish of Lafayette (“District Court”) awarded the plaintiff, Julie Roy (“Roy”), $65,000.00 for her future medical expenses. Dissatisfied with this outcome, Roy appealed to the Third Circuit Court of Appeal for the State of Louisiana (“Circuit Court”), claiming that the jury failed to award her sufficient damages to cover her future medical expenses, especially in the light of her physician’s testimony.

Roy’s injuries at Massage Envy resulted from falling off a massage table. Originally, Roy had scheduled a 90-minute massage, but she asked the massage therapist to stop after about 45 minutes, half of her scheduled time. The massage therapist, who was over six feet tall, had raised the massage table to reach Roy better during the massage. However, before Roy got off the table, the massage therapist left the room without lowering the table back to its standard height. Therefore, when Roy attempted to get off the table, she lost her balance and fell, injuring her knee, shoulder, back, and neck. Before leaving Massage Envy, Roy reported her injury to the management there.

A year later, Roy sued ME for her fall injuries. A jury returned a verdict, finding equal, 50/50, fault of both Roy and ME and awarding $65,000 to Roy for her future medical expenses along with damages for her past medical experiences and general damages. Yet, Roy appealed this decision to the Circuit Court, arguing that the jury’s award of $65,000 for her future medical expenses was an abuse of discretion because it ignored the testimony of her physician.

March 27, 2023

Terrebonne Auto Mechanic Injured Twice on the Job, Hospital that provided Medical Services Barred from Full Recovery

by Berniard Law Firm

tire_repairer_tire_mounting-1024x681 Injuring yourself while on the job is not fun for anyone, especially when your accident further exacerbates a previous workplace injury. What happens if you then try to seek retroactive benefits from your previous injury? You may run into an issue of prescription (otherwise known as the statute of limitations). A 2016 case from Terrebonne Parish explores how prescription can play out in a compound workplace injury.

Gerald Hellmers was a mechanic for the Port of New Orleans. On August 23, 2007, Hellmers injured his lower back while changing a tire as part of his duties at work. He required hospitalization and surgery at Tulane University Hospital and Clinic (“Tulane”). Worker’s compensation benefits were paid to Hellmers by the Port. Tulane sent the Port invoices totaling $118,000.00. The Port made some payments but not the total amount owed.

Hellmers re-injured his lower back while changing a truck battery on January 13, 2009. Again, Hellmers was hospitalized at Tulane, and the Port paid worker’s compensation benefits. Tulane billed for this treatment, but once again, the Port didn’t pay the total bill.

March 26, 2023

Louisiana Court Holds Plaintiff’s Failure to Have Surgery Precludes Argument for Future Medical Expenses

by Berniard Law Firm

surgery_medicine_science_1501907-1024x683 Scheduling a post-accident surgery promptly may be essential to ensure complete physical recovery. Sometimes, the scheduling of post-accident surgery matters less. However, scheduling your surgery prudently may pay off when recovering damages in court, as one plaintiff found in a recent appeal discussed below.

In 2010, Karl Kimsey was involved in a car accident in DeRidder, Louisiana. Mr. Kimsey alleged a left knee injury and underwent an arthroscopic procedure in late 2010. Kimsey filed a lawsuit against his car insurance company. In 2013, an initial judgment awarded damages, lost wages of $300 a week limited to his period of recovery and required the scheduling of a recommended reconstructive surgery. The defendant’s insurance company would pay for the surgery, provided it happened within one year of the judgment. If the surgery did not happen within one year, any party could return to court. Both parties appealed that order, but their appeals were dismissed because the judgment was conditional and thus not final. Mr. Kimsey did not have the surgery within one year and appealed the final trial court order.

Mr. Kimsey’s main issues on appeal were that the court erred in not awarding future medical expenses, not awarding the argued lost earning capacity of Mr. Kimsey; and erred in the amount awarded of an expert fee for Mr. Kimsey’s expert. The relevant standard of review for these issues are“manifest error” or “clearly wrong”——a demanding standard to meet in Louisiana that requires the reviewing court to review the record in its entirety “to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.” Stobart v. State through Department of Transportation and Development,

March 22, 2023

A Louisiana Court Signs Two Final Judgments, What Happens?

by Berniard Law Firm

courthouse_building_clock_tower-1024x685 When a case ends at the trial court level, the judge signs a physical order document laying out the court’s decisions. This physical order document is called a final judgment; every case will only have one final judgment. Final judgments cannot be amended easily by either the trial court or the parties. The only permissible amendments are those that fix basic errors, such as spelling or arithmetic; all other modifications or changes should be brought up on appeal or in a motion for a new trial. Starnes v. Asplundh Tree Expert Co.

A final judgment is not the end of a case. Almost every case has a right to appeal. The appellant will point to the section they believe is wrong and ask the appellate court to fix the issue. So what happens when a Louisiana Court signs two final judgments? The following case out of Baton Rouge demonstrates what occurs when this happens.

A graduate student at LSU fell and injured his ankle while leaving his university apartment when leaving for a work trip. He petitioned for worker’s compensation but later decided to bring a lawsuit against LSU for his injury in the 19th Judicial District Court in the Parish of East Baton Rouge. The 19th judicial district ruled that because he was in the course of his employment, the only remedy that this graduate student could receive was worker’s compensation.

March 21, 2023

All or Nothing—Piecemeal Peremptory Exception Reversed for Louisiana’s Drug Fraud Case

by Berniard Law Firm

owens_drug_company-1024x857 The 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.

March 12, 2023

Wal-Mart Not Liable For Slip And Fall Accident in Houma, Louisiana

by Berniard Law Firm

walmart_carrefour_langelier_entrance-1-1024x723 If you slip and fall at a store, you might think the store will be liable for your injuries. However, to succeed in a slip-and-fall claim in Louisiana, there are various elements you must show before you can recover. You might not recover for your injuries if you do not provide evidence to support your claims.

Joycelyn Griffin claimed that she slipped and fell at a Walmart store in Houma, Louisiana, because Wal-Mart’s employees were negligent in causing or failing to remove a foreign substance on the floor. She fell as she headed toward the register to check out. Griffin testified that around the time of the accident, she observed a store employee operating a waxing machine. Wal-Mart testified that this machine was not dispensing any type of liquid. Notably, Griffin testified that she did not recall if the floor was slippery, did not look to see if anything caused her to fall, and did not recall what caused her to fall. Under Louisiana law, in a lawsuit involving slip and fall incidents on a merchant’s premises due to a condition in or on the premises, the plaintiff (here, Griffin) is required to show that: (1) the condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable; (2) the merchant either created or had actual or constructive notice of the condition which caused the damage, before the occurrence; and (3) the merchant failed to exercise reasonable care. See La. R.S. 9:2800.6(A).

Wal-Mart moved for summary judgment. Under Rule 56(a) of the Federal Rules of Civil Procedure, a court should grant summary judgment when there is no genuine dispute of any material fact. Wal-Mart argued that Griffin had not made a positive showing of the condition’s existence before her fall. The district court granted summary judgment in Wal-Mart’s favor because Griffin failed to provide sufficient evidence to support the elements of her claim, as she could not recall what caused her to fall or provide other evidence supporting her claim. Griffin appealed.

March 11, 2023

Louisiana Court Reverses Company’s Liability to People Allegedly Exposed to Chemical Leak, Finding No Evidence of “Specific Causation”

by Berniard Law Firm

gefahrguttransport-1024x768 When a chemical leaks from a local business and spreads to a residential area, it is easy to assume that the company has exposed itself to liability for every person exposed to the leak. But what does someone have to prove to be compensated for their exposure? A case out of Avondale explores this question after twenty people were claimed to have been exposed to hydrochloric acid (HCl).

In 2001, a storage tank belonging to McGowan Working Partners, Inc., an oil and gas company, began to leak, causing a vapor solution of HCI and water to blow from the defendant’s property in Avondale to the northwest into the intersection of Jamie Blvd. and Highway 90. Before the leak, a McGowan employee replaced a clear plastic hose on the storage tank and used a nylon fitting to connect the hose to the tank’s valve. Unfortunately, the employee was unaware that HCI causes nylon to deteriorate. Several days later, 600 gallons of an HCl solution were unloaded into the storage tank, and about 470 gallons escaped onto the ground of the McGowan property. The HCI vapor began to spread off the property at 3:10 am, and the valve from the storage tank was shut off at 4:35 am. People exposed to HCI can experience eye and nose irritation which could develop into throat irritation and breathing difficulty. The HCI emissions were shown to stop affecting people at 5:30 am.

Twenty people who lived and worked in the surrounding area sued McGowan in a mass tort suit for exposure to the HCI vapor. A mass tort is when multiple people come together to file a lawsuit against a person or entity responsible for causing all their injuries. The trial court ultimately sided in favor of all twenty plaintiffs and awarded them damages ranging from $1,000 to $8,000.

March 9, 2023

Can a Contradictory Medical History Affect the Outcome of a Louisiana Motor Vehicle Accident Case?

by Berniard Law Firm

wreck_shattered_broken_accident-768x1024 Injury and negligence alone cannot support a personal injury claim. There must be causation or a link connecting a negligent act and the related injury to succeed at trial. A consistent medical history and a plaintiff’s credibility can enormously impact whether a jury decides that a negligent act caused an alleged injury. This principle was affirmed by the Calcasieu District Court when plaintiff Treima Williams was unsuccessful in her claim for damages arising from a road traffic accident. The case below shows how contradictory medical history can affect the outcome of your injury lawsuit.

A truck driven by Marvin Gainous rear-ended Williams’ vehicle. Gainous had been stopped behind Williams. However, his truck moved forward and struck her vehicle when his foot slipped off the break. Williams claimed that her head, neck, and left shoulder started hurting immediately after the incident. Following the accident, she called an ambulance, which arrived shortly afterward. Williams complained of pain in her left shoulder and back at the hospital, and she was prescribed pain medication. X-rays of her back were interpreted as normal.

Williams had prior back injuries from a motor vehicle incident in 2006, another motor vehicle injury in 2011, and an injury she sustained at work in 2011. Williams had also complained of back pain during her pregnancy in 2012. Williams received treatment for neck and back strain from 2013 to 2015. In 2016, an independent medical exam was conducted by an orthopedic surgeon who testified that while he believed Williams suffered neck and back strain based on a subjective assessment, there was no objective evidence. He deduced that the MRI could be that of a completely asymptomatic patient.