Articles Posted in Wrongful Death

swat-1-1314751-1024x768Cases with multiple defendants and multiple claims are typically complex and slow to resolve.  Not all claims apply to all defendants, not all defenses apply to all claims or parties, etc.  Furthermore, some defendants possess certain immunities which may allow for the dismissal of certain claims against that defendant before the remaining claims are even addressed. What happens if one claim is dismissed, the plaintiff wants to appeal that dismissal, yet the entire matter is still pending? This is the subject of a recent wrongful death case out of Metairie, Louisiana.  

Maria Ibanez Sarasino, was shot and killed by a convicted felon, Miguel Rojas, while he was out on parole. Mr. Rojas was convicted of attempted second-degree murder, and his brother arranged for him to stay with Mrs. Sarasino and her husband. During the months after Mr. Rojas’ release, conflicts between him and Mrs. Sarasino’s family arose, resulting in Rojas punching Mrs. Sarasino’s daughter, Maria, in the face and giving her a black eye. Mr. Rojos’ brother Alphonso, reported to the Kenner Police Department that Mr. Rojas had stolen a handgun from his apartment.  Alphonso and Maria lodged a complaint with the Jefferson Parish Sheriff’s Office about Mr. Rojas’ threats against the Sarasino family. Maria claimed that Mr. Rojas stole her husband’s gun and was threatening to shoot her and her family. The investigating officer was unable to locate Mr. Rojas so he relayed the details of the investigation to the First District and took no further action.  Approximately two weeks later, Mr. Rojas’ parole officer was notified by the sheriff’s office of the complaints regarding Mr. Rojas, and attempted to locate Mr. Rojas with no luck.  A week following, the Kenner Police Department issued a warrant for Mr. Rojas for theft of a firearm. Four days after the warrant was issued, Mr. Rojas went to the Sarasino residence and shot and killed Mrs. Sarasino.

The surviving family members filed a wrongful death suit against the State of Louisiana, through the Department of Corrections, the Sheriff of Jefferson Parish, the Parish of Jefferson, the Chief of the Kenner Police Department, and the City of Kenner.  Against the Sheriff of Jefferson Parish, Newell Normand, the Sarasino family specifically claimed Sheriff Normand breached his duty to expeditiously execute the warrant on Mr. Rojas.  They further alleged that Sheriff Normand failed to protect the public from a known danger by failing to timely arrest Mr. Rojas and by failing to properly protect the victim. Sheriff Normand filed a motion for summary judgment arguing that the Plaintiffs could not prove that he was negligent for failing to adequately protect Mrs. Sarasino, and that he was entitled to summary judgment on this issue because he was immune from liability pursuant to the discretionary immunity rule. The Judicial District Court for the Parish of Jefferson granted the motion for summary judgment on the claim for failing to protect Mrs. Sarasino reasoning that Sheriff Normand and the Jefferson Parish Sheriff’s Department were shielded by immunity. The Plaintiffs appealed to the Louisiana Fifth Circuit Court of Appeal.  

hard-hat-area-1455626-1-1024x732Getting seriously injured on the job is always a terrible experience, but what if it is unclear for purposes of a lawsuit who you even work for? You know that someone owes you compensation for your injuries, but in this recent case out of Natchitoches Parish that “someone” may not be where your employment application was filed.  

International Paper Company (“IPCO”) hired Turner Industries Group, LLC (“Turner”) to perform maintenance work on IPCO’s recovery boiler.  Garred Whotte, an employee of Turner, was sent to IPCO to construct scaffolding necessary to the maintenance work. While on the job, his feet started burning, resulting in chemical burns to his feet and ankles. Mr. Whotte brought a personal injury lawsuit against IPCO. IPCO filed a successful motion for summary judgment arguing that it was immune from a personal injury lawsuit under the Louisiana Workers’ Compensation Act (“Act”) which limits recovery to the provisions of the Act. The Tenth Judicial District Court for the Parish of Natchitoches specifically found that Mr. Whotte was a “statutory employee” of IPCO at the time of the injury limiting Mr. Whotte to workers’ compensation benefits. Mr. Whotte appealed to the Louisiana Third Circuit Court of Appeal.

The remedies provided to a worker under the Act are the exclusive remedy an employee can seek against his employer or principal pursuant to La. R.S. 23:1032(A)(1)(a).  A “principal” is a person who has contracted with another to perform work as part of the business at the time of worker’s injury.  The principal, as the statutory employer, is protected from tort lawsuits and given the protections of the Act as the exclusive remedy for those injured on the job.  La. R.S. 23:1061.  In the event of a contract between the principal and employer, the contract must contain language recognizing the principal as the statutory employer.  Language to this effect creates the presumption of a statutory employer, however, this presumption can be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate their goods, products, or services.  

cat-in-jail-1369156-1024x683Navigating the criminal justice system is a scary, stressful and, often harrowing experience for anyone, but these feelings are generally exacerbated when a defendant is mentally ill. The unfortunate story of Willie Warren Harper follows as an illustration of the litigation that can arise in these situations. After being arrested for theft in 1984, Mr. Harper was admitted to Feliciana Forensic Facility (FFF), a part of Louisiana Department of Health and Hospitals (DHH). He was found not guilty by reason of insanity and, when deemed to no longer be a danger to himself or others, was to be released on the condition that the Orleans Inmate Treatment Service (OITS) would help him enter a halfway home and file for social security and welfare. However, he remained in DHH’s legal custody until 1997.

In December of 1997, his attorney filed a Writ of Habeas Corpus (a formal, legal recourse against illegal detention). After he was released, he filed a claim for illegal confinement but passed away in 2003. His two children filed a Petition for Damages against the State of Louisiana, through DHH, to continue their father’s lawsuit and remedy the wrongs perpetrated against their father.

The jury at the Trial Court found for Mr. Harper and his children and awarded them $4,050,000 collectively. DHH appealed the Trial Court’s decision claiming numerous errors.  Two of the issues on appeal concerning the monetary amount were both overturned by the Louisiana Fourth Circuit Court of Appeal and the award was reduced.

pills-on-table-1512519-1024x683In cases involving negligence on behalf of medical personnel, expert testimony is often needed to establish the standard of care that was breached by the party being sued. An expert’s testimony will be admitted based on its relevance to the facts at hand as well as the experts level of knowledge regarding the specific topic. Recently, the First Circuit Court of Appeal had to determine whether or not expert testimony was properly admitted and whether or not from that testimony alone the court could find by a preponderance of the evidence for the Plaintiff. These issues arise in the context of a lawsuit brought by Robert and Ruth McGregor individually and on behalf of the deceased Donald McGregor against Hospice Care of Louisiana in Baton Rouge for negligence in their failure to fill a partial prescription for the deceased.

The deceased Donald McGregor had terminal metastatic prostate cancer and was being treated by a doctor from 1997 till his death July 21, 2002. In April of 2002, Mr. McGregor was enrolled as a patient of Hospice of Baton Rouge (Hospice) when he was no longer able to visit his previous doctor’s office. From that point on his previous doctor relied on reports from the Hospice Nurses to make determinations regarding the prescription of pain medication to Mr. McGregor. in July of 2002, his doctor prescribed various pain medications for long and short term pain. In July of 2002, Mr. McGregor’s doctor wrote a partial fill prescription for 40 morphine suppositories 20 of which were to be filled on Friday and the other 20 to be filled the following Monday. McGregor’s doctor, however, instructed that if the pain worsened the nurses were to contact him or his partner and the on-call physician for the weekend in order to have the other 20 suppositories filled early.

On Sunday of the same weekend Robert McGregor, Mr. McGregor’s son called the on-call Hospice nurse in hysterics requesting that the remaining suppositories be delivered immediately while threatening the nurse’s life if she showed up without them. The nurse then informed Robert that in order for that to happen she would need to visit the home and assess Mr. McGregor’s condition before contacting the on-call physician about releasing the remaining suppositories to which Robert responded with more threats and a refusal of the assessment. The Nurse then informed her supervisors of the situation and they advised her to let Robert know that Mr. McGregor from then on was released from Hospice care. Robert still in hysterics then called the on call doctor directly regarding the situation of his father’s discharge from Hospice care to which the on call doctor agreed with Hospice’s decision because it would be best for Mr. McGregor to be treated directly by her in the hospital. Later that day Mr. McGregor was brought to the hospital where he passed away that evening.

chest-xray-1526779-1024x1004If you are injured at work, it is imperative that you follow the appropriate procedures under workers’ compensation law to ensure that you are fully and fairly compensated for your injuries. A failure to properly report or address your injuries can result in a lesser payment or no payment at all. It is also important to keep your place of employment apprised of your injuries and treatment, and written records of your contact, so that if it becomes necessary to bring an action against your employer you have sufficient evidence to support your position. A recent case of the Louisiana Third Circuit Court of Appeal is illustrative.

On November 2010, Plaintiff Jason Montou was injured in Calcasieu Parish while employed with Boise, the Defendant. He immediately made a report of his injuries to his supervisor per company policy but referred originally only to a shoulder injury. He was sent home and told to follow up with a doctor if necessary. He went through with a doctor’s appointment a few days later and was treated for his shoulder. He was also referred to a separate doctor for treatment of a back injury. The medical records indicate that Plaintiff complained of arm, shoulder, and back pain as early as December of 2010 and March of 2011. Plaintiff’s doctors disagreed about when it was appropriate for him to return to work. He eventually stopped treatment with one of the doctors because his employer would not approve his MRI tests. In October of 2013, Defendant sent Plaintiff to a different doctor, who determined that Plaintiff could return to work immediately and that there was no connection between his neck and back injuries and the work accident. The company then immediately terminated Plaintiff’s benefits.

Worker’s compensation cases are unique because those with claims against their employer must file a claim with the Office of Workers’ Compensation before proceeding to court. In this case, the Office determined the Plaintiff was still injured and needed benefits. It ordered the Defendant to accept Plaintiff’s injuries as compensable, approve the MRIs requested by his doctors, and reimburse him for existing treatment. The Plaintiff proceeded to court because the Office of Workers’ Compensation chose not to award him penalties and attorney fees.

aussi-police-sign-1443987-1024x714Police officers are tasked with enforcing the law and upholding civic order, but what happens when a person feels that a police officer ignored his or her constitutional rights; will the officer be held accountable? A case arising out of Alexandria examines this question through the issue of excessive force and the qualified immunity defense involved in police officer shootings.

Darnell Willis called 911 on November 26, 2008, requesting assistance for her intoxicated boyfriend, Richard Goss. Officer Clinton Fairbanks and emergency medical technicians (EMTs), Russell Boney and Joshua Tam, responded. Upon arrival, Fairbanks spoke to Goss from the doorway and signaled the EMTs to enter. As the EMTs left to question Willis, Boney noticed Goss move from the center to the left side of his bed, so Boney returned and Fairbanks remained in the doorway. Boney could not hear or see inside, so Fairbank’s testimony is the only evidence about Goss’ behavior.

According to the testimony, Fairbanks asked Goss what the problem was and Goss answered that both he and [Fairbanks] had weapons. Goss continued to scoot towards the head of the bed and Fairbanks asked Willis whether Goss had weapons. Before Willis answered, Fairbanks, heard Goss say that he had his weapon too. Goss reached the side of the bed and moved his hand toward the bottom of the mattress. Boney heard Fairbanks yell several times at Goss to put his hands up. Fairbanks drew his weapon and told Goss to not ‘do it’, but Goss kept moving. Fairbanks then shot Goss three times, killing him.

pharmacy-1507606
A slippery floor can be a real hazard but even the slickest surface, for all its danger, doesn’t cause every problem. The Louisiana Court of Appeal for the First Circuit made that clear in a recent decision involving a CVS Pharmacy in Metairie, Louisiana.

Georgia Clesi and her husband, John Ellis, were visiting the CVS store when John slipped on an unknown liquid while he was walking to the store’s bathroom. Not long after falling at CVS John and his wife filed a lawsuit against the store seeking a reward of damages for his injuries. John sustained only minor personal injuries at the time of his slip and fall.  However, while the lawsuit was still pending he unfortunately died after succumbing to cirrhosis. Georgia, beset by the tragic loss of her husband, amended the couple’s lawsuit for damages against CVS on the theory that John’s fall triggered significant injury and illness and the store was therefore responsible for John’s wrongful death.

The case proceeded to trial wherein John’s doctor, Dr. Parnell, testified that John suffered from MRSA – a chronic bacterial infection – as the result of an earlier hip surgery. The injuries from the fall, according to Dr. Parnell, could have caused the infection to become active again. To further bolster the case John’s widow Georgia also tried to submit various articles from medical journals that she believe supported their position.  However, those medical journals were found to be inadmissible hearsay by the trial court and therefore the court would not consider the veracity of the claims contained within.  See LA Code Ev 802 .

IMG_0844-e1471794219886-768x1024When a person dies due to the fault of another, such as in a car accident, the surviving family may seek compensation for their loss by filing a wrongful death claim in civil court. A wrongful death claim is similar to a personal injury claim in which the injured person is no longer available to bring his own case to court. However, if a judge decides that no real facts or evidence support the all the claims within a wrongful death lawsuit, certain claims can be dismissed early on saving both parties and the court from incurring litigation costs for meritless claims. This is what happened to Nancy and Zachary Miller when they filed a wrongful death claim after their son was killed in a tragic accident.

In July 2012, Lafource Parish bicyclist, Ethan Miller, was struck and killed by a vehicle driven by Brent Tauzin. The circumstances surrounding Ethan’s untimely death are undisputed. After spending all day drinking at Lake Verret, Brent and Monica Tauzin (his wife) returned to their home. Upon arriving at their home, Brent told his wife that he was hungry, and she agreed to get him food after she had taken a bath. However, while she was bathing, Brent grew impatient to eat fast food and took the keys to their car from the kitchen counter to go to Burger King. On the way to Burger King, Brent was involved in Ethan’s fatal accident. Brent was arrested the same night for driving while intoxicated, and subsequently pled guilty to negligent homicide.

Ethan’s parents, Nancy and Zachary Miller (the Millers), decided to pursue a claim in civil court and filed a wrongful death suit, naming several defendants: Brent and Monica Tauzin, as well as their car insurer, Allstate Insurance Company, and their home insurer, ASI Lloyds. The Millers argued that Monica had assumed responsibility of her husband by driving him home and failing to secure the car keys when they had arrived home constituted a breach of her duty to prevent her intoxicated husband from driving. In response, Monica filed a motion for summary judgment, stating that she did not breach a legal duty owed to the Millers’ son, nor did she contribute to her husband’s accident. The lower court dismissed the case against Monica, granting Monica’s motion for summary judgment, and the Millers appealed the decision.

bulldozer-1-1219006-1-1024x690In 2012, an independent contractor, Charles Kamrath, contracted with Creek Services, LLC to move one of their bulldozers. Kamrath had previously moved the same bulldozer with his trailer without any complications. On February 24th of 2012, Kamrath loaded the bulldozer to his trailer and commenced the transportation to Hammond, Louisiana. Unfortunately, the flatbed from the trailer detached and struck an oncoming car driven by Alice Lewis on Cullom Road in Springfield, Louisiana. The impact resulted in severe injuries to Lewis and she subsequently died shortly thereafter.

Lewis’ family, the plaintiffs, filed a wrongful death lawsuit in Livingston parish against not only Kamrath and Creek Services, but also their insurance companies Allstate and Houston Specialty. The defendants, Creek Services and Houston Specialty, claimed that Creek Services was not vicariously liable (which means they argued they were not responsible for the acts of Kamrath) for the wrongful death of Lewis under the doctrine of respondeat superior. In plain English, the defendants sought to release Creek Services of any liability because of a lack of an employee/employer relationship between Kamrath and Creek Services. In cases such as this one, whether a worker is labeled as an independent contractor or an employee is incredibly important. Such a determination is a question of fact, and different liabilities attach under each label. If Kamrath is an employee, then the doctrine of respondeat superior says that the employer, Creek Services, will be liable for damages, while Kamrath will be released of it. See La. Civ. Code art. 2320.  If, however, Kamrath is an independent contractor (the determination of which is made through a variety of court imposed factors listed below), Creek Service’s liability will be severed, and Kamrath will be the party solely responsible for the plaintiffís incurred damages.

An exception to the lack of liability on the part of the employer exists even if the worker is determined to be an independent contractor.  See Triplette v. Exxon Corp., 554 So.2d 1361, 1362 (La. App. 1st Cir. 1989). This exception states that the employer may be held liable if it maintains operational control over the activity in question. The most important aspect is whether the employer retained the right to exercise control over the work. Thus, actual control is not necessary. In the determination of whether an independent contractor relationship exists, courts have routinely examined the following factors: a valid contractual relationship between the parties; work is of an independent nature; the contract allows for the work to be done per the contractor’s methods without any control or direction from anyone else; an agreed upon price for the services; and the duration of the work is for a specific amount of time and not subject to termination at will by either of the parties.

drugs-ii-1505930Xarelto was produced and marketed by Bayer and Johnson & Johnson as a one-a-day prescription blood-thinner primarily for the treatment of Atrial Fibrillation. Its purpose is to prevent the occurrence of patients receiving strokes. Since Xarelto’s FDA approval in 2011, many patients have been harmed by the administration of this drug. If you or a loved one have taken Xarelto and suffered any adverse side effects, you may have a substantial claim for damages. Here are five things you need to know before moving forward:

  1. There are currently thousands of lawsuits being filed in Louisiana Federal Court that will determine whether Bayer and Johnson & Johnson acted negligently in conducting trials before releasing Xarelto to the market. There are over five thousand cases consolidated under action MDL – 2592. The deadline for filing under this action was May 20, 2016, but patients of Xarelto may still file under this bundled claim if they pay standard filing fee. Early trial cases are to begin as early as August 2016.

2. The most dangerous side effect from taking Xarelto is irregular bleeding. Other side effects include infections associated with knee or hip surgery, bleeding in the brain, swelling of the lower limbs, and difficulty breathing. If you have experienced any of these symptoms while taking Xarelto, you may be able to recover for medical costs, lost wages, pain and suffering, as well as other related claims.