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old-book-1423004-1024x768Many people think that if they make a will, the administration of their property after death will go smoothly, with no questions asked. This is not always the case. A Louisiana case out of Jefferson Parish dealt with one of these precarious situations.

After her husband, Anthony’s sudden death in 2005, Sharon Sylvester, found herself in a legal battle with Anthony’s first wife, Joyce Sylvester. Anthony’s will, which had been drafted four years before he married Sharon, stated, “Upon my death, after all just debts are paid, I leave and bequeath all things I may die possessed of to my four children, namely….”, and subsequently named the children of Anthony and Joyce. The will was never amended before Anthony passed away. Three weeks after Anthony’s death, Sharon filed a petition, containing a descriptive list of the assets of the estate and a copy of Anthony’s will, in Jefferson Parish.

Louisiana is a community property state. This means that property acquired during a valid marriage by either spouse or by both of them, is presumed to be community property that belongs to the “marital economic community.” On the death of one spouse, the surviving spouse gets half of the community property and the estate gets half. Property acquired before the marriage belongs to the spouse who acquired it.

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men-shaking-hands-1024x683A contract creates a level of trust between two businesses or individuals, but what happens when one individual fails to uphold their end of the bargain? Or worse yet, what happens when an individual purposefully misrepresents their ability to uphold their end of the bargain? These are issues the Louisiana Third Circuit Court of Appeal recently addressed in a lawsuit between Meyer & Associates, Inc. (“Meyer & Associates”) and the Coushatta Tribe of Louisiana.

The Coushatta Tribe of Louisiana is a federally recognized Indian tribe composed of an elected four-member Tribal Council and a separately elected Tribal Council spokesperson. The Tribe conducts all of its governmental and business matters from the offices in Allen Parish, Louisiana. In July 2001, the Tribe decided to enter into an agreement in order to better manage the Tribe’s casino facility in Kinder, Louisiana. The Coushatta Tribe agreed to enter into a consulting services contract with Meyer & Associates, a Louisiana corporation that provides professional engineering services to its clients.

In early 2002, the members of the Tribal Council and the vice president of Meyer & Associates, Richard Meyer, began discussions concerning the possibility to design and construct a facility for the casino’s general electricity, the individuals of the Coushatta Tribe, and potentially outside customers. Because Meyer’s & Associates did not have specific experience in this area, Mr. Meyer began assembling a team of experts to assist him. For the next several months, the project team began exploring the possibilities of developing the electric program. During the Tribal Council meeting on December 17, 2002, Mr. Meyer presented the most up-to-date study on the feasibility of the electrical project – this presentation gave the Tribal Council enough confidence to accept the project on the January 14, 2003 meeting. With this acceptance, a second agreement was written. This second agreement gave the Chairman of the Tribal Council the ability to negotiate and execute any new agreements with Meyer & Associates, and also stated that that the Tribe’s financial obligation to the project was $10,000,000 in addition to the $3,375,000 that was necessary for all the preliminary work.

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school-bus-2-1518496-651x1024Losing a child is always an extremely difficult experience for a parent to go through, and it is even more difficult when the death is a result of negligence. Normally when negligence occurs, the parents bring forth a wrongful death lawsuit against the negligent party.

On March 14, 2011, six-year-old La’Derion Miller tragically passed away following a school bus accident when La’Derion attempted to board the school bus and the bus door closed on his arm. Unfortunately, La’Derion could not free himself and he tripped and fell on the road, where he was run over by the bus. As a result of the accident, La’Derion’s parents, Marcus Miller, and Heather Jagnauex, filed separate wrongful death lawsuits naming Harold Thibeaux (the bus driver), Lafayette Parish School Board, and American Alternative Insurance Corporation as defendants. Ms. Jagnaeux and Mr. Miller claimed their son died as a result of the defendants’ negligence.

Mr. Miller’s and Ms. Jagnauex’s separate lawsuits were consolidated for trial. Ms. Jagneaux ended up settling outside of court for $275,000 and subsequently dropped from the case. At trial, the trial court ruled in favor of Mr. Miller awarding him $50,000 in damages for his survival action, $250,000 in damages for his wrongful death claim, and court costs. The defendants disagreed with the trial court’s decision and appealed the decision to the Louisiana Supreme Court.

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time-s-slipping-away-2-1419474-683x1024When an employee is injured on the job, workers’ compensation is often a faster and more efficient method to seek damages than other judicial remedies. Once a judgment is entered, it is important for the injured party to promptly collect damages because this judgment could prescribe, or no longer be enforceable.

Deborah Beebe was injured while working at Paul Eikert’s store in 2002. Two years later on November 16, 2004, a Worker’s Compensation Judge (“WCJ”) awarded Ms. Beebe damages of $7,666.25 in medical bills, $6,000 in penalties an attorney fees, and any future medical bills relating to the accident, all of which Mr. Eikert had to pay. Ms. Beebe waited until 2014 to seek payment from Mr. Eikert for these damages, of which Mr. Eikert was unaware. He filed to nullify the WCJ’s judgment on August 20, 2014, due to lack of notice. On September 4, Ms. Beebe filed an exception to his petition, one month later Mr. Eikert filed an opposition to her exception, Ms. Beebe then filed another exception, and on December 17, 2014, Mr. Eikert filed a motion arguing that the 2004 judgment had prescribed because ten years had passed.

Ms. Beebe filed a petition to revive her Worker’s Compensation judgment on January 7, 2015. In the alternative, she argued that her judgment was not a money judgment and thus needed no revival. The pertinent rule here is La. C.C. art. 3501 which states that “a money judgment rendered by a trial court of this state is prescribed by the lapse of ten years from its signing . . . .” La. C.C. art. 3501. Accordingly, Ms. Beebe argued that the judgment was not a money judgment (and thus the statute did not apply), while Mr. Eikert argued that it was a money judgment and thus had prescribed.

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writing-1238365-1024x768Plaintiffs cannot litigate multiple lawsuits brought over the same cause of action. For example, if a company wrongfully terminates someone’s employment, the employee can traditionally bring only one lawsuit addressing this issue and not a second or third after a court decides the first. This barring is called res judicata. Former Southern University System President Dr. Ralph Slaughter’s lawsuit against the Board of Supervisors of Southern University A&M in Baton Rouge, Louisiana, was dismissed because of this bar.

Dr. Slaughter and the Board settled a case in 2007 where Dr. Slaughter was fired after bringing workplace sexual harassment claims in federal court. Dr. Slaughter then dropped these claims because the Board signed him to a two-year employment contract running from July 1, 2007, to June 30, 2009. The Board reserved the right to terminate his employment on or before April 1, 2009, and on March 27, 2009, The Board exercised this right, voting not to extend Dr. Slaughter’s employment past the contract’s expiration.

Dr. Slaughter brought his first lawsuit addressing this termination on April 2, 2009, in a Baton Rouge District Court. He claimed that his employment termination was void because the Board did not adhere to Open Meetings Law. The Board filed to dismiss for no cause of action, and Dr. Slaughter himself also filed a motion to dismiss, which the trial court granted with prejudice on May 26, 2009.

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american-flag-1629938-1024x522The Berniard Law Firm and Martzell, Bickford and Centola Law Firm have made strides in a multidistrict litigation lawsuit against 3M Company concerning the 3M dual-ended Combat Arms™ earplugs supplied to the United States military personnel from 2003-2015. After a whistleblower lawsuit alleging a defect in the earplugs, 3M agreed to pay over 9 million dollars to end litigation surrounding the case. However, 3M did not admit to any defect in the product. Considering the vastness of this case spanning to courts in Indiana, Georgia, Tennessee, Florida, and Louisiana and many others, the case has been centralized to be litigated in the United States District Court of Florida Pensacola Division as of April 9, 2019.

The Berniard Law Firm and the Martzell, Bickford and Centola Law Firm are already involved in the multidistrict litigation process representing hundreds of veterans and their interests, and the firms expect to file hundreds of these lawsuits in the coming months. Moreover, Jeffery P. Berniard is seeking a leadership position in this multidistrict litigation case and will be appointed as a member of a committee to work on behalf of all of the Plaintiffs who file cases into the consolidated litigation. The leadership position would entail being part of a team that is responsible for coordinating discovery and other pre-trial work in this MDL. As of April 19, 2019, the Court began the process of appointing the plaintiff leadership structure. Considering Mr. Berniard’s participation in past mass litigation cases and the high volume of clients signed onto this case it is expected that Berniard Law Firm and Martzell, Bickford and Centola Law Firm will be active in this litigation.

A recent Order by the Court task with dealing with the Pretrial concerns of these consolidated cases allows for “Direct Filing” into the MDL. Usually, the procedural rules of Federal Court do not allow Plaintiffs to file lawsuits in Districts where they have no jurisdiction or venue. However, in order to promote efficiency the transferee district, Judge M. Casey Rodgers, is allowing Plaintiffs to direct file their 3M Tinnitus and hearing loss lawsuits into her district. This was a great decision by the Court and The Berniard Law Firm and the Martzell, Bickford and Centola Law Firm will file hundreds of lawsuits on behalf of their clients into this district in the coming months. The “Direct Filing” Order does point out that filing into the transferee district has no effect on the Defendant’s ability to allege a statute of limitations defense. This means that if your case is filed late you could lose all rights that you have to go after 3M or any party who could be held responsible for your hearing loss or tinnitus. You should act immediately in order to ensure you protect your rights.

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emergency-hospital-sign-1024x683Deadlines matter. They matter in all areas of life, but in the legal world, missing a deadline can determine whether legal action will move forward or not. With every cause of action, there are time frames for filing claims and appeals and oftentimes—even in situations where recovery seems necessary or deserved—courts will dismiss cases filed outside these time frames. In a lawsuit against Rapides Regional Medical Center (Rapides Regional), Mrs. Susanna Duckering learned this lesson the hard way.

After being treated at Rapides Regional in August of 2011, Mrs. Duckering filed a complaint for medical malpractice. In response, Rapides Regional filed a Motion for Summary Judgment, a motion for judgment as a matter of law rather than on the merits. The basis for this motion was that Mrs. Duckering did not have any evidence that Rapides Regional diverted from the standard of care or caused her injury. The medical review panel for Rapides Regional supported this by stating there was no evidence of a breach to the applicable standard of care. Mrs. Duckering did not oppose this motion, did not provide evidence that opposed the motion, and did not come to the hearing. After the hearing, Ninth Judicial District Court for the Parish of Rapides granted the Motion for Summary Judgement and on February 9, 2015, Mrs. Duckering’s lawsuit was dismissed.

In response, Mrs. Duckering filed a Motion for a New Trial, believing a new trial was necessary since the Motion for Summary Judgement was granted by default all because her counsel did not have the hearing scheduled on his calendar, and missed the hearing due to this mistake. After a hearing on March 23, 2015, the Trial Court denied the Motion for a New Trial and Mrs. Duckering appealed this to the Court of Appeal for the Third Circuit.

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marcelo-leal-664865-unsplash-1024x683Every medical professional has a standard of care he or she must adhere to. No one wants to deal with the failure to meet this standard of care, but oftentimes, life puts us in unfortunate situations. When we suffer injuries—or worse—at the hands of those who are supposed to treat, heal, or diagnose us, medical malpractice can help provide compensation. In a recent case appealed to the Court of Appeal for the Third Circuit of Louisiana, a medical malpractice claim was made against the Louisiana State University Health Systems Moss Regional Medical Center (“Moss Regional”).

On July 13, 2009, Geranda Matthews went to Moss Regional where she underwent tests that revealed a mass in the right upper lobe of her right lung. Physicians Dr. Arnold Kent Seale and Dr. Ping Kok Lie ordered a biopsy to see if the mass was cancerous. The biopsy was performed on July 15, 2009, but there insufficient tissue for a diagnosis, so a second biopsy was performed that October. Like the first biopsy, it did not have enough tissue for the pathologist and so Mrs. Matthews was not diagnosed or treated for cancer at Moss Regional. Unfortunately, in April of 2009, Mrs. Matthews was admitted to Our Lady of Lourdes Hospital as the mass in her lung was cancerous, had spread, and was causing pain and paraplegia. Though she was treated for cancer, Mrs. Matthews passed away.

Her husband, William Matthews, filed a medical malpractice claim against Rapides Regional, claiming that the doctors failed to diagnose her cancer, therefore decreasing her chance of receiving successful treatment. Mr. Matthews filed a motion for summary judgement—a motion for judgment as a matter of law rather than on the facts—claiming it was appropriate because the damages Mrs. Matthews suffered were greater than the $500,000.00 cap for medical malpractice. La. C.C.P. art. 966(B)(2).

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memorial-day-1446659-1024x683A report from the U.S. Department of Veterans Affairs (VA) medical centers shows that Tinnitus and hearing loss are the number one and two health conditions among military veterans. In 2017, almost two million Veterans were receiving disability compensation for tinnitus and over a million were receiving compensation for hearing loss. Recently a whistleblower lawsuit was settled that could shed some light on why so many of our Veterans are having hearing related issues even though they were supplied earplugs. While 3M did not admit any guilt in settling the lawsuit, many new lawsuits are being filed on behalf of the individual Veterans who have hearing loss or Tinnitus in order to seek compensation for 3M allegedly knowingly supplying faulty earplugs to the United States Government for use by members of the Armed Services.

The Berniard Law Firm and Martzell, Bickford and Centola Law Firm have already taken steps to protect veterans that are suffering from hearing loss and/or tinnitus at the hands of the 3M Company. As a whistleblower lawsuit alleges in 2016, 3M dual-ended Combat Arms™ earplugs supplied to soldiers from 2003-2015 contained a dangerous design defect. The lawsuit alleges that when the earplug was used as it was intended to be used, the plug can become loose in the ear — thus leading to a failure in providing vital hearing protection. Moreover, this lawsuit alleges that 3M employees were aware of these dangerous defects as early as 2000, three years before 3M became the sole provider of earplugs to the United States military.

The lawsuits that have been filed by numerous law firms alleging that 3M knowingly sold faulty earplugs to the U.S. Department of Defense have all been consolidated in one centralized court by the Judicial Panel on Multidistrict Litigation. The Northern District of Florida has been selected as the transferee district, with Judge M. Casey Rodgers presiding over the centralized cases. This means that any case filed by an individual that alleges 3M caused them harm due to use of the dual-ended Combat Arms™ earplugs will be transferred to Judge Rodgers court where she will rule on issues related to the cases.  The Judicial Panel on Multidistrict Litigation decided to consolidate all of the cases in Judge Rodger’s Court in order to eliminate duplicate discovery, to eliminate inconsistent pretrial rulings as well as to generally conserve the resources of all the parties involved include the judiciary. The Berniard Law Firm and Martzell, Bickford and Centola Law Firm are actively participating in these coordinated proceedings in Judge Rodger’s court and will continue to work on behalf of all the Plaintiffs with cases filed into the transferee district.

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alvaro-serrano-133360-unsplash-1024x683What happens when you file a lawsuit and then fail to file any pleadings beyond the initial Petition for Damages? Is the case eligible for a new trial? Or is simply determined abandoned? Typically, when you wait too long to respond after a lawsuit has been filed, the case will be considered abandoned, and it will be dismissed. There are two types of case dismissals: (1) dismissal with prejudice, and (2) dismissal without prejudice. Generally, when a case is dismissed with prejudice, you cannot get a new trial even if the statute of limitations has not run out, and there is no right to appeal. See La. C.C.P. art. 2162.

In August 2005, Tyrone Johnson filed a tort claim against his employer, Pacarini, and his co-employee, Mr. Gay, alleging that he was injured at work when a t-bar weighing 4000 pounds rolled onto his right leg and ankle. In November 2008, a subpoena duces tecum was issued to Pacarini, meaning Mr. Johnson subpoenaed Pacarini to either have an agent appear in court or provide relevant documents to Mr. Johnson. Subsequently, Mr. Johnson failed to file another pleading until September 2014, when he filed an amended petition adding another defendant.

On January 30, 2015, Mr. Gay and Pacarini filed an ex parte motion to dismiss the case on the grounds that Mr. Johnson abandoned the case by failing to file any pleadings between 2009 and 2013. The motion to dismiss was granted with prejudice, which, as discussed above, means Mr. Johnson is not entitled to a new trial, although he did file a motion for a new trial which was subsequently denied. As a result, Mr. Johnson appealed, alleging that he intended to appeal the merits of the final judgment of the motion to dismiss. He alleged that the motion to dismiss should have been denied because he sent a letter to defense counsel regarding setting the case for trial.

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