Articles Posted in Pain And Suffering Claims

To many who contemplate filing a lawsuit for an automobile accident, it may seem sufficient to show that the other driver was at fault – show he ran the red light, she failed to signal, and then it’s all downhill from there. But one element of all negligence cases is causation. You must prove that the injuries you have were caused by the accident itself. Normally this is pretty simple, but preexisting conditions can muddy the waters. Wayne Bouchon found out the hard way that proving causation was critical to his case. 

Wayne and his wife, Roberta, were driving down Highway 22 near Mandeville on their way to get lunch when their vehicle was struck from behind. The Bouchons told the officer who came to the scene that they were not hurt, but later that day, Wayne started experiencing lower back pain. Despite the pain, the Bouchons did not file a lawsuit until nearly twelve months after the accident. 

Of the evidence presented at trial, Wayne’s medical records showed he had been treated for a back injury a few years before after lifting a heavy box. Also, the Trial Court heard testimony that Wayne had taken a job at Office Depot a few months after the accident, which required standing for long periods and occasionally moving furniture. His doctor testified to a correlation between his Office Depot job and the worsening of his symptoms. As a result, the Trial Court found that the Bouchons had not proved the accident was the cause of Wayne’s injuries, and awarded only $5,000 in minimal pain and suffering. The Bouchons appealed. 

Sometimes, car accidents happen. Someone speeds, gets distracted, or makes a mistake that causes an accident. Crashes can be unexpected. No one gets to decide what time of day it happens, where it happens, or who gets injured. Instead, you have to take the whole situation as it is. 

Jay Schwartzberg (“Plaintiff”) was a 23-year-old law student on April 25, 2013 when the driver of an armored van failed to yield to Schwartzberg’s vehicle and caused a collision in East Baton Rouge, Louisiana. Prior to the accident, Schwartzberg suffered from a bulging of the C3-C4 and C6-C7 intervertebral discs and chronic neck pain. In the lawsuit, he argued that the collision on April 25, 2013 exacerbated these previous injuries. Schwartzberg filed against the defendants seeking damages for his neck injury due to the collision. The trial court awarded Schwartzberg $49,999.99 worth of damages, plus legal fees. 

Miller Guillory and his employer, Garda CL Southeast, Inc. (collectively “Defendants”) appealed the trial court’s award for two reasons. First, the Defendants argued that the trial court erred in finding that the collision caused an aggravation to the Plaintiff’s pre-existing neck injury. Second, the defendants argue that the trial court erred in the amount of damages awarded because the court relied on Schwartzberg’s expert witness that was contradictory to the medical records and other evidence admitted at trial. 

When writing leases, it is important to pre-determine who is at fault if an accident or injury occurs on the rented land.  Yet, this determination can become complicated when the border of the leased land comes into play. Other issues can involve the exact lease language which states whether one party is indemnified, or is free from having to pay damages. A case out of western New Orleans shows how damages and fee allocations for a horrific accident involving a loose metal gate depends on which lease governs, what clauses are met, and where fault should be allocated.

On July 1, 2010, Lisa Plaia dropped off her daughter at a daycare run by the First Baptist Church of New Orleans (“FBCNO”). As she drove away, a metal gate suddenly swung into the road, crashed through the windshield, and hit her in the face, causing permanent facial and brain damage. Ms. Plaia then sued the following three parties: Fireman’s Charitable & Benevolent Association (“FCBA”) which owned the land the gate was located on; Stewart Enterprises and its subdivision SEFH, a funeral home company which mowed the grass around the gate and leased property from FCBA; and FBCNO which subleased land from SEFH and leased land from FCBA. Each of these parties subsequently filed indemnity claims against one another in order to avoid paying Ms. Plaia for any damages related to her injury.

In the Civil District Court of Orleans Parish, the jury allocated fault between these parties as follows: 15% for SEFH and 42.5% for both FCBA and FBCNO. Due to indemnity claims, the District Court ruled that FBCNO owed indemnity (reimbursement) of defense fees to FCBA as well as reimbursement of defense fees to SEFH. FBCNO subsequently appealed to The Louisiana Fourth Circuit Court of Appeal, arguing in part that the District Court used the wrong lease and incorrectly ruled that it was required to defend FCBA.

Freak accidents can happen in the most unexpected ways. When these life-altering events occur, it often affects more than the injured person. Depending on the circumstances, family members can receive compensation for non-physical injuries, such as loss of consortium (companionship).

On July 1, 2010, Lisa Plaia dropped off her young daughter, Carolina, at a Baptist Church daycare and drove away with her other daughter, Petra, who was sitting in the backseat. As she left the facility, a hinged metal gate swung into the road, crashed through the windshield, and hit Ms. Plaia in the face. While Petra received no physical injuries, Ms. Plaia alleged that she suffered, among other injuries, partial facial paralysis, permanent facial disfigurement, traumatic brain injury, memory damage, and hearing loss. To recover for these injuries, Ms. Plaia sued three defendants potentially responsible for the loose gate.

The case required a trial by jury which the Civil District Court, Orleans Parish, scheduled for April 15, 2013, but then rescheduled for April 22th. The District Court also reserved a trial period of two weeks with the possibility of a third if necessary. Due to a lack of jurors available, the District Court rescheduled again, this time for the trial to begin August 5, 2013. Additionally, the District Court only set aside ten days for this trial, as opposed to the originally granted two to three weeks.

Sometimes it is easily apparent when one party is liable in a car accident, such as when the facts leave little room for dispute. However, it may not be as easy to determine the amount of damages the plaintiff should receive. How should pain and suffering be calculated? And how much of this pain and suffering is a result not of the accident but of natural course of aging or a preexisting condition? This issue of calculating damages was recently explored in a DeSoto Parish, Louisiana, lawsuit.

Following a three-vehicle accident, plaintiff, McLawrence Fuller, underwent a three-level lumbar fusion with instrumentation as a result of injuries and pain in his neck, lower back, and leg. However, at the time of the accident, Mr. Fuller was 70 years of age with pre-existing, asymptomatic, degenerative disc disease and congenital spinal stenosis. After treatment following the car accident, Mr. Fuller complained of pain and limitations to his mobility and ability to carry out day-to- day activities. Mr. Fuller tried to go as long as he could without having surgery, even after he had gotten a recommendation from several physicians to do so, but went through with it when he was no longer able to dress himself or participate in volunteer positions in his community.

 Mr. Fuller filed a tort action due to injuries on September 20, 2011. The defendants, D.L. Peterson Trust Company, it’s insurer National Union Fire Insurance of Pittsburgh, Adam Keys, and National Oil Well Varco all agreed to their liability. The only job for the jury as fact-finders was quantum, which is to calculate the amount of damages.