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46-1024x685In the workplace, providing a safe environment through training, communication, and safety standards can help create an injury-free workplace. Yet, despite every precaution, accidents can still happen and then the situation becomes one of determining whose negligence caused the injury. This issue was explored in a maritime action filed on May 9, 2012 in the Twenty-Ninth Judicial District Court for the Parish of St. Charles. 

On November 11, 2011, Jeffrey L. Soudelier, Jr. was aboard the towboat M/V Steven M. Bryan as its captain. The towboat was one of many vessels owned by the defendants: PBC Management, Inc., Florida Marine Transporters, Inc. and Florida Marine, LLC. On this day, Soudelier was instructed to move a big, steel-reinforced, cross-over hose from a barge to the towboat. The hose was heavier than it should have been due to material inside it that was supposed to be removed. Soudelier and four others were in the process of moving the hose when a painful pop in his hip forced him to stop. Soudelier tried to wait and see if the pain would go away but it did not and though he finished moving the hose, he was injured. 

Soudelier filed a lawsuit against the defendants, seeking recovery and claiming unseaworthiness in accordance with the general maritime law, as well as a claim for maintenance and cure. He claimed that his injury required surgeries and caused permanent and disabling problems, and that the required heavy physical work caused even more trauma. Soudelier stated that the defendants’ boat was unseaworthy and defendants were negligent because they did not offer alternative ways to move the hose and failed to train workers about this safety issue. 

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50-Email-1024x683Sometimes 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.

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9-819x1024In the typical employee-employer relationship there is a certain aspect of trust. For the employer, they must trust that the employee is doing their job properly, and the employee must trust the employer will ensure a safe environment to perform their job. This case deals with a situation involving the trust of a safe workplace, and answers the question if an injury can be considered “on the job” if symptoms do not materialize for days following the accident.

On April 8, 2013, Deborah Gaines was going through her typical work routine for Home Care and was tending to a client. While tending to the client, Ms. Gaines was bitten on her right leg by the client’s dog. As a result of the bite, Ms. Gaines immediately felt an injury in her right leg, and a few days later she began to feel pain in her back. The day after the incident, Ms. Gaines filed a report with her employer, Home Care, to receive indemnity benefits and medical expenses from the accident. Home Care then responded to Ms. Gaines saying she did not sustain an “accident” according to the Louisiana Workers’ Compensation Act.

In response, Ms. Gaines filed a suit against her employer in March 2015, and the trial court decided that Ms. Gaines had suffered a work-related injury and awarded her disability benefits, past medical expenses, and reasonable future medical expenses related to her injury. Home Care appealed this decision, arguing that Ms. Gaines’ back pain was not a work-related injury and that Ms. Gaines did not suffer from a temporary total disability.

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43-Email-1024x647When one is injured due to the negligence of another, it is reasonable to expect an award of damages. However, the plaintiff must first prove all the elements of negligence. Not only must a plaintiff prove the defendant had a duty of care which the defendant violated, but the plaintiff must also offer evidence that shows the defendant’s conduct was the factual and legal cause of the plaintiff’s injuries. For many cases, the causal connections can be difficult to prove and requires expert testimony. For these reasons, a good lawyer is essential for the successful outcome of a negligence suit.

Lloyd Richard was injured in Louisiana during an arrest for criminal charges when the police cruiser he was in backed into a ditch. Richard filed a lawsuit to seek recovery for his injuries. Richard testified that he was thrown forward into the bars of the vehicle, injuring his back and neck. Richard claims he told each officer he came in contact with that he was in need of medical attention. However, the officers that conducted Richards arrest testified otherwise.

The arresting officer testified that while he did back into a ditch there was no “forward and backward” or violent motions. He testified that he was driving “very slow” as he backed up from the street and entered the ditch. Furthermore, he contradicted Richard’s testimony claiming Richard did not communicate he had sustained neck and back injuries. Though Richard had a scratch underneath his eye, he offered conflicting testimony as to how he received the scratch.

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44-Email-1024x723If injured at work, many people will turn to a lawyer to learn about the legal options and damages available to them. Yet, a good lawyer can do more than just obtain damages, such as negotiate with the employer to facilitate accommodations needed in order to return to work. 

Louisiana school teacher Dena Wempren was injured when a student pulled a chair out from under her, causing her to fall in a seated position. Ms. Wempren filed a “Disputed Claim for Compensation” which she later amended after being instructed by the School Board to return to work even though her pain management doctor had instructed otherwise. When a court-appointed doctor examined her, she was told she could return to work but only in a modified capacity. The School Board responded to the doctor’s findings by demanding she return to work, and Ms. Wempren was forced to comply or else lose some of her worker’s compensation. After returning to work, Ms. Wempren filed a third amended complaint when she felt her job demanded more than she was capable of given her injured condition.

At trial, the court looked at whether Ms. Wempren was able to work and if the School modified her work position enough to accommodate her injuries. The trial court sided with Ms. Wempren finding the job description Ms. Wempren was working under did not relay the physicality that would be required on the job, after she presented medical evidence which indicated she should not have returned to work without treatment. The School Board appealed the decision.

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image-for-post-70-from-email-5-14-19-1024x679The Louisiana Supreme Court has recognized that awarding damages for medical expenses without awarding pain and suffering damages, though seemingly inconsistent, is not invalid on its face. See Wainwright v. Fontenot, 774 So.2d 70 (La. 2000). Appellate courts afford juries great deference and disturb verdicts only when they are clearly and objectively unsupported by the evidence in the trial record. One such example of this can be seen in an auto accident case involving a “serial plaintiff.”

Joseph Wiltz was rear-ended in stop-and-go traffic by Maya Welch. Wiltz filed a petition in state court against Welch and her insurance company, State Farm, claiming he was injured in the accident. He sought damages for past and future medical expenses, lost wages, loss of enjoyment of life, and pain and suffering. The trial moved to the U.S. District Court for the Middle District of Louisiana by the defendants and the case proceeded to trial.

The defendants admitted Welch’s fault in the accident, leaving the main issue whether Welch’s negligence was the cause of Wiltz’s injuries. Discovery revealed that Wiltz was a “serial plaintiff” with pre-existing injuries that he failed to disclose to the doctors that treated him following the collision. Between 1991 and 2011, Wiltz had four different accidents and incidents that resulted in injuries to his neck, back, and shoulders. Furthermore, Wiltz told doctors that he’d never experienced back or neck pain previously and answered discovery in a similarly untruthful and incomplete manner. Even with the information concerning the pre-existing injuries, the jury still returned a verdict in favor of Wiltz; however, the jury awarded him compensation for past medical expenses only. Wiltz filed a motion for a new trial or an amendment to the judgment, contending the verdict amounted to an abuse of discretion by the jury. The district court denied the motion because Wiltz failed to prove he endured any compensable pain and suffering.

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image-for-post-69-from-email-5-14-19-1024x384Offshore drilling platforms enable petroleum companies to access oil deposits beneath the ocean floor. Although these platforms are anchored to the sea floor, they are technically movable and can be relocated. Whether a platform is considered “immovable property” under Louisiana law became a central issue in a case involving an injured worker because different prescription periods apply to personal injury claims depending on the nature of the property at which the injury occurred.

 In 2002, McDermott, Inc. designed and delivered the Front Runner Spar, an offshore facility used for removing and processing petroleum from the seabed of the Gulf of Mexico, to Murphy Exploration & Production Company. Murphy affixed the platform to the sea floor at the edge of the continental shelf offshore from Louisiana. James Hefren was hired by Murphy as the lead operator. In June, 2011, Hefren was injured when he was struck in the face by the flange of a valve. He filed a lawsuit suit against Murphy for negligence under the Jones Act, as well as specifically alleging that McDermott failed to properly design and construct the facility. The U.S. District Court for the Western District of Louisiana entered summary judgment for Murphy, dismissing Hefren’s tort claims as barred by the exclusive remedy provision of the Longshore & Harbor Workers’ Compensation Act.

McDermott filed a motion for summary judgment arguing that Hefren’s claims were barred by Louisiana’s rule that actions arising out of deficiencies in construction or design must be brought within five years after the date the property was accepted by the owner. See La. R.S. 9:2772. Holding that the Front Runner Spar was an “immovable object” under Louisiana law, and considering that nine years had passed between Murphy’s acceptance of the facility and the date Hefren’s lawsuit was filed, the district court dismissed the claim against McDermott.

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image-for-post-68-from-email-5-14-19-1024x683What happens when a person is injured due to a company’s negligence and the company is based outside of the United States? The plaintiff generally must file a lawsuit in federal court, but there are certain jurisdictional requirements that have to be met. A plaintiff’s ability to file a lawsuit against an international company in a U.S. district court depends on how much “contact” the company has with the United States.

Danny Patterson, a U.S. citizen, was working aboard the Luxembourg-flagged vessel M/V Simon Steven off the coast of Russia when he was struck by a cable and sustained injuries. He sued his employer and the several other companies involved in the project, including Aker Subsea (“Aker”) and FMC Kongsberg (“FMC”), for damages in the U.S. District Court for the Eastern District of Louisiana. Both Aker and FMC moved to dismiss the petition for lack of personal jurisdiction, and after jurisdiction discovery, the district court found that jurisdiction over the defendants did not exist and granted the motions to dismiss. Patterson then sought to have the district court’s decision certified as final so he could appeal to the U.S. Court of Appeals for the Fifth Circuit. See Fed. R. Civ. P. 54(b). Meanwhile, FMC was dismissed from the case through a separate motion which went unopposed by Patterson.

Before the Fifth Circuit, Patterson argued that Aker had sufficient contacts with the United States to establish general personal jurisdiction. See Fed. R. Civ. P. 4(k)(2). He pointed to the fact that Aker had entered into multiple secondment agreements involving a U.S. location. Secondment agreements are used when an employee is temporarily assigned to work for another organization, or a different part of the organization, by their employer. In this case, Aker’s agreements spanned a three-year period of time, concerning employees working in Houston, Texas. Patterson argued that the employees assigned in Houston for a three year period established sufficient contacts for federal jurisdiction. 

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adult-ambulance-care-263210-1024x802Often, in litigation – as in life generally – timing is everything. Courts and legislatures set certain time periods for each step in a legal proceeding to establish fairness and to impose reasonable order on the disposition of the case. Occasionally, these deadlines can be ambiguous or open to various interpretations. Louisiana’s Second Circuit Court of Appeal considered such a situation in a medical malpractice case.

In 2011, Francis Grayson was admitted as a patient at Northeast Louisiana Kidney Specialists in Monroe, Louisiana. After contracting an infection from a catheter used for his treatment, he underwent surgery that left him a quadriplegic. A medical review panel requested by Grayson found that his doctors and the medical facility adequately met the standard of care in his kidney treatments and surgery. In February 2015, Grayson initiated a lawsuit for medical malpractice against his physicians and the facility. The following month, the defendants filed a motion for summary judgment on the basis of the medical board’s decision. A hearing was set for August 17. On August 7, ten days prior to the scheduled hearing, Grayson served the defendants with a memorandum opposing summary judgment. The memorandum was accompanied by an affidavit from a medical expert who would testify on Grayson’s behalf about the medical errors that led to his initial infection. Grayson filed the motion with the court on August 10, seven days prior to the scheduled hearing. The defendants then argued that Grayson’s opposition memorandum and affidavit were invalid because they were filed with the court less than eight days before the hearing, as required by the district court rules. The trial court eventually granted the summary judgment in favor of the defendants and dismissed Grayson’s claims.

In 2015, when Grayson’s original petition was filed, Louisiana district court rules required that memoranda opposing summary judgment must be served on the opposing parties at least eight days prior to the hearing. La. Dist. Ct. R 9.9. The defendants, citing a number of cases, argued that the courts had routinely interpreted that the memoranda must also be filed with the court within that same eight-day period. However the Second Circuit noted that in each of the cases relied on by the defendants, the documents in opposition to summary judgment was either filed within an extremely short time—one even being minutes before the hearing—or had some other defect. The Second Circuit focused on the fact that Grayson had properly served the defendants with the memorandum and affidavit within the required time; that the motion was not filed with the court until some days later was not controlling. Therefore, the Court reversed the trial court’s granting of summary judgment in favor of the defendants and remanded the case for further proceedings.  

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image-for-post-50-from-email-5-22-19We often hear that insurance companies are stingy and heartless. Though some descriptions of insurance companies are exaggerated, it is nevertheless true that insurance companies are judicious in paying out claims. In some cases, an insurance company will attempt to avoid payment at almost any cost.  

Shawn Verges, a special education teacher at Fannie C. Williams Charter School in New Orleans, Louisiana, suffered injuries when she was repeatedly slapped and pushed to the floor by one of her students during class. Following the incident, Verges sent a text message to the school principal’s administrative assistant describing the attack and requesting an accident report. Verges made several more requests for an accident report, but the school never created one. Within a week, Verges began to experience back, head, and neck pain, at which point she sought compensation from her employer’s workers’ compensation insurance carrier, AmTrust North America. AmTrust denied her claim on the basis that the school did not file an accident report or report the incident to AmTrust.

Verges then filed a disputed claim form against AmTrust. The trial court determined that Verges was entitled to workers’ compensation benefits because the evidence showed that she suffered an injury while in the course and scope of her employment. AmTrust appealed, arguing that Verges fabricated the incident, pointing to the fact that that Verges returned to work after the alleged injury to bolster their argument. 

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