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chinese-text-1-1314353-1024x768Res Judicata, also known as claim preclusion, is a Latin term that literally means “for a matter judged.” In the legal system, res judicata is a doctrine that prohibits a second lawsuit from being filed for a matter that has already been judged or decided on the merits. Once parties to a lawsuit have had the opportunity to be heard by the court and the court rules on the claims asserted in the lawsuit, those parties are generally not ever again allowed to bring a lawsuit against the same parties for the same claims that arose from the same transaction or occurrence.

Res judicata prohibited a Mandeville, Louisiana man, George Cepriano, Jr., from being allowed to file a lawsuit against Lowe’s Home Center (Lowe’s).  But, Mr. Cepriano, never personally filed the first lawsuit against Lowe’s. Mr. Cepriano’s lawsuit against Lowe’s was not barred solely due to res judicata, but due to an already adjudged class action lawsuit of which Mr. Cepriano was a class member.  A class action lawsuit permits one or more people to bring a lawsuit on behalf of all class members. A class action ruling results in a res judicata blanket application for all members of the class.

Mr. Cepriano’s journey to the Louisiana First Circuit Court of Appeal began after he bought a newly built home in Mandeville, Louisiana. About two years later, while trying to sell the home to a potential buyer, Mr. Cepriano learned the home was manufactured with defective Chinese-made drywall.  Mr. Cepriano filed a lawsuit against Diamond Investments of Louisiana, L.L.C., the property seller, and B Square Builders, L.L.C., the contractor/builder, and Lowe’s.

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money-1239608-1024x768Most of us probably owe money to someone.  Whether it be for our home, a vehicle, a credit card or even just to a friend.  A common legal tool called a garnishment is one way of using the civil court system to help recover money owed to you when someone is not paying their debts. Garnishment is explained in a recent case out of East Baton Rouge Parish, Louisiana.  

In this case, the original lawsuit was between Foundation Materials, Inc. (“FMI”) and Harmon Construction, L.L.C. (“Harmon”).  FMI obtained a money judgment against Harmon in the amount of $102,475.42.  At the time of this case, Harmon was working on an unrelated project with D.F. Chase, Inc. (“Chase”) as a subcontractor.  Chase allegedly owed $98.510.00 to Harmon for its work.  In order to collect upon the judgment against Harmon, FMI filed a garnishment naming Chase as garnishee and issued interrogatories, sets of questions, to Chase to determine the amount of money that Chase owed to Harmon.  Chase contended it only arguably owed $98,510.00 to Harmon and refused to turn over the money to FMI.

A garnishment is a legal process for obtaining property of a judgment debtor in the hands of a third party. Covington Pontiac-Buick-GMC Trucks, Inc. v. AAA Sewer & Water Fabrication & Serv., LLC, 873 So.2d 56 (La. Ct. App. 2004).  The test of a garnishee’s liability to the judgment creditor is whether the garnishee has in his hands the debtor’s property, funds, or credits for the recovery of which the debtor has a present subsisting cause of action. Houma Mortg. & Loan, Inc. v. Marshall, 664 So.2d 1199 (La. Ct. App. 1995). A garnishment judgment is entered and the garnishee required to pay the creditor if the garnishee admits to having property belonging to the debtor pursuant to La. C.C.P. art. 2415.

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nice-bike-1547666-1024x768The majority of cases, civil and criminal alike, never make it to trial. The parties may settle the case out of court or the claims may simply be dropped by the plaintiff. A third reason why a case may not make it to the jury is if a judge grants a party’s motion for summary judgment; a fate that almost befell Orleans Parish citizen John Ludlow’s negligence claim in September 2015.

In September 2014, John Ludlow, Jr. was a bicyclist waiting for the ferry at the Canal Street Ferry Terminal. As he waited for the ferry, he sat on a concrete barrier and fell backward, hitting the rocks below the platform. Mr. Ludlow sustained extensive injuries because of his fall and in turn, filed a lawsuit against the State of Louisiana, Department of Transportation and Development, Crescent City Connection Division (hereinafter “the State”) in Orleans Parish District Court.

The State filed a few motions for summary judgment.  Summary judgment is when one party moves for the court to automatically rule in the moving party’s favor before a jury or judge has rendered a verdict.  A judge can grant a motion for summary judgment when the judge finds that there is “no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law” pursuant to La. C.C.P. art. 966(B).

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forest-2-1550924-1-1024x768Imagine you owned acres of lush and valuable trees. Then imagine that one day, you discover your land to be completely barren, the valuable trees almost completely removed.  Even worse, you have no real, viable recourse against the thieves who cut down and hauled off the trees because of a very strict, literal, narrow interpretation of the terms of a statute.  Instead, you are left with stripped land and a possibly uncollectable judgment.  

This is what happened to the Lowman Family in DeSoto Parish.  The Lowmans, in this case, are comprised of a sibling group who owned about twenty acres of land once populated by timber bearing trees.  Upon discovering the trees missing, the Lowmans filed a lawsuit against six defendants composed of two groups: three individuals and three companies.  The individuals, Ricky Whitaker (“Ricky”), Michael Whitaker(“Michael”) and Jerry Whitaker (“Jerry”), are siblings.  The companies, Jerry Whitaker Timber Contractors, L.L.C. (“JWTC”), Evergreen Timber

Corporation (“Evergreen”) and Brady Timber Corporation (“Brady”), were allegedly directing the actions of the Whitaker siblings in an employer type manner which, if true, would render the company defendants vicariously liable for the Whitakers’ actions.  

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barge-1544176-661x1024Sometimes we are asked to do a task at work that we do not feel qualified to perform. We think things like, “Hey, that wasn’t in my job description.” Well, that’s essentially what happened to Mark Barto but, unfortunately, attempting to perform his assigned task resulted in a back injury that led Mr. Barto to file a lawsuit.

Mr. Barto worked for Shore Construction, LLC (“Shore”) and was assigned by his company to perform the duties of a rigger on a derrick barge operated by McDermott, Inc. (“McDermott”). Unfortunately, Mr. Barto was met with the rare task of inspecting and providing maintenance on a cable crane. In fact, this type of job is done approximately once every two years. Mr. Barto had no experience providing this kind of maintenance and yet his superiors requested that he assist and then re-spool the cable. Mr. Barto was given no guidance on how to do the task and, according to the affidavits of a crewmember, he was “one of the lowest ranking riggers on the barge.”

To allow himself to effectively complete the task, Mr. Barto set up a makeshift scaffold within the spooling frame, as he seen someone else performing the task do. In this case, he laid a fir board across the frame to stand on in order to reach the cables.

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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.

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doctor-1415837-683x1024In a medical malpractice case, often lawyers for either or both sides will hire what is called an expert witness.  These cases are complex and frequently require such experts to explain to the judge and jury the medical procedure at issue and what went wrong.  These necessary experts, however, are not inexpensive and the winning party in a lawsuit can often come out ahead but at a serious financial setback.  This is what happened in a recent case out of Ouachita.  And due to a lack of evidence on record in support of expert witness fees, the winning party had no chance of recovering these costs.     

Doctors from St. Francis North Hospital, defended allegations of medical malpractice from plaintiffs William McDougald, Joey McDonald, and Tracy McDonald. The hospital was successful in their defense of the case, however the cost of hiring expert witness Dr. David Elizardi was calculated by the hospital at $34,064.41. After the jurors in the Ouachita, Louisiana Trial Court rejected all claims of medical practice, the prevailing defendants filed a motion to tax the defense’s costs against the unsuccessful plaintiffs for the $34,064.41 fee for Dr. Elizardi, plus other fees from defending the lawsuit. Dr. Elizardi had a letter that detailed all of the elements of the $34,064.41 fee, however, the letter was not placed into the record as evidence. The Trial Court assigned some of the costs and fees to the plaintiffs but excluded the $34,064.41 fee for Dr. Elizardi.

In Louisiana, the trial court has the power to set and assign costs and expert witness fees, as the trial court deems equitable and fair. La. C.C.P. art. 2088(A)(10). The party seeking to have their costs paid, as the Hospital and Insurer were seeking here, has the burden of proving the reasonable value of the expert’s out-of-court work. If the parties do not stipulate to the specifics and costs of the out-of-court work, then the expert must testify at the hearing determining costs. See Dakmak v. Baton Rouge City Police Dept., 153 So. 3d 511 (La Ct. App. 2014).  An expert witness is entitled to reasonable compensation for trial testimony and preparation for trial.  The trial court has great discretion in awarding and setting costs and expert witness fees and is not required to set the amount charged by the expert as the amount of the expert witness fee.  Only on a showing of an abuse of the trial court’s discretion can an appellate court reverse the charges and fees taxed as costs by the trial court.  However, the appellate court cannot review anything from the trial court that is not in the record nor can it receive any new evidence.   

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desertic-road-1446241-1024x768Employees can pit employers against each other just like children do with parents. If permission is limited by one person the employee/child will simply repeat their request to the other party.  What an employee is permitted to do can be ambiguous.  In a recent automobile accident case out of Shreveport however, the Louisiana Second Circuit Court of Appeal affirmed that employer “permission” in Louisiana provides a wide berth to an employee and can result in unexpected liability.  

A former employee of Water Works Irrigation Inc. (“Water Works”), Lovell Ellis, used his assigned company truck to pick up his girlfriend, Raquel Coleman, outside of his normal service area.  While the two were in the truck, Mr. Ellis ran off the road, wrecking the truck and injuring Ms. Coleman. Ms. Coleman claimed that Mr. Ellis was texting while driving and ran off the road. In his deposition, Mr. Ellis denied being on his phone but explained his swerving to avoid a log caused the accident. Later Mr. Ellis pled guilty to Driving While Intoxicated (“DWI”) but claimed that he drank only one beer.

As a result of the accident, Ms. Coleman sustained fractured vertebrae as well as other injuries. In January of 2012, Ms. Coleman filed a personal injury lawsuit against Mr. Ellis, Water Works, and Water Works’ Insurance company, United Fire Insurance (“United Fire”), seeking damages. After the dismissal of Water Works, the trial proceeded against Mr. Ellis and United Fire. The District Court found Ellis 100% at fault and United Fire liable for coverage.  The District Court awarded damages of $47,449.67 to be paid by either or both defendants.

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boat-1392202-1024x683On the sea, a life jacket can save your life. In the courtroom, the life jacket that can save your case is provable and relevant facts. Seaman, Frank Glaze, recently found this to be true when a Louisiana Court dismissed his Jones Act personal injury case due to a lack of evidence.

Mr. Glaze was injured while he performed maintenance on the M/V SNIPE as relief captain for Higman Barge Lines.  Mr. Glaze contended that he suffered “numbness in his hands” as he worked with the needle gun. He also claimed elbow, knee, and lower back pain occurred soon after he completed his work.  Because of these injuries, Mr. Glaze sued his employer seeking relief under the Jones Act.

First, under “The Jones Act” Mr. Glaze claimed his injuries were the result of nonperformance of a “job safety analysis” and no policy regarding the length of time for a seaman to utilize a needle gun nor methods for proper use. Next, he claimed the M/V SNIPE was an “unseaworthy vessel” because of “unsafe methods of work.” Mr. Glaze further argued that the work technique was unsafe because: (1) the “job safety analysis” was not completed; (2) there were no “housekeeping” procedures in place; and (3) he was only allotted a small window of time to “chip and grind the rub rail.”

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ear-defenders-1415305-1024x679What are your legal options when you experience job-related hearing loss? Are you limited to benefits under workers’ compensation laws or can you file a lawsuit for possibly a considerable monetary amount?  That was the essential question put forth to the Supreme Court of Louisiana in a recent case out of West Monroe.

Six current and former employees of Graphic Packaging International, Inc.’s (“GPI”) West Monroe facility filed various lawsuits against GPI.  In their lawsuits, the employees claimed that GPI failed to provide its employees with a safe workplace, resulting in the employees allegedly losing their hearing. The employees alleged that over their years of employment, their constant exposure to “hazardous levels of industrial noise” ultimately caused irreparable damage. GPI argued that any hearing loss that may have occurred would fall within the purview of Louisiana’s Workers’ Compensation Act (“LWCA”) which would preclude the lawsuit per La. R.S. 23:1031.1.   

The District Court found for the employees and awarded damages. The Louisiana Second Circuit Court of Appeal, however, reversed the District Court finding the hearing loss to be an “occupational disease” under the LWCA.  The question before the Louisiana Supreme Court was whether this was a workplace incident, which would result in workers’ compensation benefits under the LWCA, or whether it was a tort action that could potentially result in uncapped damages if liability is found.

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