Articles Posted in Wrongful Death

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.

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.

IMG_0723Imagine your child passed away in the most horrific way. You seek remedies in the court system, but the court does not recognize your right of recovery as a parent. What a nightmare. In Louisiana, a putative (unestablished) father must timely file an action for avowal (a father’s action to establish paternity) in order to maintain a wrongful death or survivor action for the death of a child born out-of-wedlock. Failure to do so may forfeit your legal rights. A recent case from the Louisiana Supreme Court discusses the pleading requirements regarding paternity in filing wrongful death and survivor actions.

In March of 2011, six-year-old La’Derion Miller was killed shortly after being involved in a gruesome accident with a school bus. While La’Derion was attempting to board the school bus his was caught in the door. Harold Thibeaux, the bus driver, was unaware of La’Derion’s predicament and La’Darion was dragged for approximately eighty feet. When La’Derion’s arm was dislodged, he fell beneath the wheels of the bus and was critically injured.  La’Derion died less than an hour later. His six years of life were cut short. Tragically, La’Derion’s mother, Heather Jagneaux, watched the entire incident from her front yard, but was unable to reach him in time.

La’Derion’s father, Marcus Miller, filed a lawsuit individually and on behalf of the estate of his deceased son. Mr. Miller sought damages for La’Darion’s pain and suffering inflicted by the bus driver’s negligence, as well as damages arising out of the wrongful death of his son. Mr. Miller’s lawyers named as defendants the bus driver, his insurance insurer, his employer, and his employer’s insurer.

A few months after being in a car wreck, the unthinkable happens, and as a result of the accident, your loved one passes away. As you are mourning the loss, you also have to start thinking about your legal options that stem from the crash and the possible avenues you have as a “survivor” of your loved one in order to receive some damages from the liable person. While this seems somewhat callous to talk about, especially in light of the pain you are already in from losing someone close to you, it is necessary to begin thinking about this somewhat quickly if you are going to actually be able to bring a survival action.

First, though, what exactly is a survival action? In simple terms, a survival action is an action for damages (an award of money) for injuries incurred by the deceased right before dying. You can think of a survival action as a lawsuit for injuries incurred that the actual deceased would have been able to bring had he or she not passed away. Since the decedent is not able to bring the suit himself or herself, the decedent’s estate has to bring the suit. This is typically a child or other close relative. (States will specify exactly which family members are allowed to bring a survival action in that state.)

Along with deeming who can bring a survival action, states also specify during what timeframe individuals are allowed to bring such a lawsuit. This is not because the state or the courts do not want individuals to be able to recover, but rather because a timeframe has to be set so that the liable individual does not have an indefinite period of time during which to worry about the possibility of a lawsuit.

Imagine taking your mother to the emergency room for abdominal pain and vomiting. A CT scan and x-ray do not reveal any serious medical issues, and blood work merely shows that her potassium level is low. But within a few hours, she is dead. Now imagine witnessing her death – seeing her break out in convulsions, foam at the mouth, gasp for breath, and lose consciousness.

Such was the experience of one of Virginia Martin’s thirteen adult children. Ms. Martin’s daughter, Betty Farmer, brought her to the emergency room after Ms. Martin complained of abdominal pain, vomiting, and diarrhea. Ms. Martin was 69 years old, and she was otherwise in very good health at the time of her hospital visit. She did not have any heart problems or other serious health-related issues.

The ER physician determined that she suffered from simple gastroenteritis. A chest x-ray came back normal. Ms. Martin began to receive pain medication via an IV, and her blood work revealed that her potassium was low. A CT was performed and showed that there were no abdominal abnormalities that could have caused her gastric distress. Ms. Martin returned from the CT scan to the ER at 9:35 p.m. By 9:44, Ms. Martin started convulsing, her face turned red, she began to foam at the mouth, and her eyes rolled into the back of her head. She lost consciousness, and efforts to resuscitate her failed. Her cause of death was listed as acute cardiac arrhythmia and arteriosclerotic heart disease.

It is vital to know proper court procedures at the outset of litigation or else an otherwise valid claim might be thrown out of court without ever being heard. One prime example is the need to send initial court documents to a defendant within a set deadline (sending such documents, such as a citation or summons, is known as service of process). Case in point, the Lafayette Parish Court of Appeal, in Boka v. Oller, recently upheld the dismissal of a claim without even considering the merits because service of process was delivered too late. Therefore, it is important to know the rules before bringing a lawsuit or a good claim might be lost due to a mere technicality, such as delivering papers too late. For a non-lawyer, an attorney can be instrumental in making sure proper procedures are followed so that the party has a chance to present their case in court.

In Lafayette Parish, Louisiana Code of Civil Procedure Article 1201 requires that service of the citation must be requested within a deadline of ninety days from commencement of the action. Article 1201 also notes that service of process on defendants is “essential” and “without them all proceedings are absolutely null.” The deadline for service is to ensure that defendants are aware of an action and have enough to prepare. Therefore, as a delay in service is deemed unfair to the defendant, a court may dismiss a claim if service of process is sent too late.

There are some limited exceptions to the rule, but, due to the risks involved in these exceptions, generally a party should attempt to serve process on time. For example, one exception permits late service if there is good cause for the delay. However, as the court is unlikely to accept run-of-the-mill excuses for delays, proving a good cause for failure to serve process on time can be difficult. As noted below, the court in Lafayette Parish found that there was no good cause for late service as the plaintiff knew the defendant’s address.