Business Dispute

August 8, 2013

Casino Accident Lawsuit Carried On By Surviving Family Members

The essential elements necessary to form a binding contract are usually described as: (1) an offer, (2) an acceptance, (3) a legal purpose or objective, (4) a “meeting of the minds,” (5) consideration, and (6) competent parties. Ambiguities typically arise with offers and acceptances that often lead to litigation. An offer is generally defined as the manifestation of the willingness to enter into a deal so as to justify to another party the offeror’s assent to the deal. Although an acceptance of an offer can occur in several ways, it is most typically described as the assent to the terms made by the offeror. In a recent case in Lake Charles, Louisiana, a finding made by a trial court that an offer and acceptance were ambiguous is under appeal.

On December 13, 2006, a woman robbed Jalil Abushanab as he was about to enter the Isle of Capri Casino in Lake Charles. While attempting to chase the woman, Mr. Abushanab was struck by an SUV and suffered bruises, abrasions, and a broken hip. After Mr. Abushanab’s death in early 2008, his surviving spouse and ten children were substituted as party plaintiffs and asserted claims against the Isle of Capri Casino for wrongful death and survivor damages. In May of 2011, the Isle of Capri Casino filed a motion for summary judgment seeking to dismiss the plaintiff’s claims for lack of liability. But on August 6, 2011, before the hearing, the casino made a written offer to the plaintiffs seeking to settlement the matter for $250,000.00. Prior to the hearing, the plaintiffs accepted the casino’s offer with a signed acceptance letter.

On October 6, 2011, a trial court ruled in the plaintiffs favor and agreed with their motion that the offer made by the casino was exclusive of medical and statutory liens and court costs. At that time, Mr. Abushanab’s family was awarded a lump sum payment of $250,000.00, plus any Medicare/Medicaid liens, a lien on behalf of a drug company, and court costs. Accordingly, Isle of Capri Casino appealed, contending that the trial court was legally incorrect in its finding and that based on the law and on the totality of the circumstances, the offer and acceptance were ambiguous. The casino contends that not only did the trial court err in refusing to consider the casino’s intent when it made the offer, but that the court erred in concluding that there was a “meeting of the minds” and that the parties had reached a compromise agreement.

August 7, 2013

The Role of the Appellate Court and Specific Case Facts in Awarding General Damages

by Berniard Law Firm

General damages are defined as those that involve mental or physical pain, inconvenience, loss of intellectual gratification or physical enjoyment, or other losses that can not be measured in monetary terms. In determining an award of general damages, the Louisiana Supreme Court advocates deference to the lower court, and intervention by an appellate court only in the case of clear abuse of discretion. In a recent case, a plaintiff filed a personal injury claim when she was struck in her car by another driver (the issue of sole liability was not appealed by that driver or her insurance company).

The trial court awarded $25,000 in general damages for injuries sustained by the plaintiff to her knees as a result of the accident. Although she also suffered a back and shoulder injury, she only sought damages for her knee injury, and the court considered evidence accordingly. The plaintiff argued the court erred in awarding too small a sum for general damages for her knee injuries, and for not awarding general damages for her back injury. The trial court’s decision was subsequently affirmed.

The primary medical information in this case was found in the testimony of the plaintiff’s long-time physician. He noted that although she was referred to therapy and diagnosed with a back sprain, she had other problems that did not relate to the accident. She was discharged from therapy because she did not attend sessions with any regularity, and had inconsistently reported that her knee pain was “bearable.” He further testified that the accident had aggravated arthritis in her knee and back, but that this was a pre-existing condition. Additionally, she had been on prescription medication for back pain long before the accident, had filed for Social Security Disability 13 years prior, and had even been involved in other automobile accidents both before and after the accident in question.

July 29, 2013

Injury at Sea and Signed Release Key Components of Lawsuit

by Berniard Law Firm

The appellate court differed with the trial court on the validity of a compromise when Louisiana company D.R.D. Towing was sued by a crew member on D.R.D.’s ship.

Mr. Randy Rudolph was a crew member of the M/V RUBY E, which was struck by another ship while he was on board. The collision threw him from his bunk, causing injuries to his back. Additionally, Mr. Rudolph lost his personal computer, cell phone, car keys and other items when the ship sank. He filed suit against D.R.D. Towing, the operator of the M/V RUBY E.

The issue for the court was whether Mr. Rudolph’s signing a release settling all claims for $3,000 a few days after the incident precluded him from collecting further money for his injuries. He argued that he understood the $3,000 was offered to compensate him for what he lost on the boat, but not to cover his future claims, including medical expenses and loss of earning potential associated with his injuries.

July 28, 2013

Jury Errors Inspected by Lafayette Judge in Negligence Suit

by Berniard Law Firm

Two clocks fell from a wall display in the Lafayette Hobby Lobby and struck a customer in the head. Jo Anna Savant brought a negligence suit seeking compensation for her accident-related damages. The case went to trial and the jury found for the plaintiff. The trial judge, finding errors in the jury’s verdict, set it aside, and issued a judgment even more favorable to the plaintiff.

The case went up on appeal.

The Louisiana Third Circuit Court of Appeal addressed four legal issues in this case: the trial court (1) setting aside of the judgment; (2) not charging the jury to determine Ms. Savant’s fault in the accident; (3) approving the award to plaintiff for the cost of her second cervical fusion surgery; and (4) awarding the loss of consortium to plaintiff’s children.

July 27, 2013

5th Circuit Court of Appeals Rules in Favor of Drug Manufacturers in Suit for Damages

by Berniard Law Firm

In 2011, a Louisiana woman appealed a decision issued by the state’s highest court in a case she filed after suffered damages from the drug metoclopramine. Julie Demahy filed a lawsuit in 2008, alleging that she had suffered damages from the generic version of metoclopramide, which she took between 2002 and 2007. The state court had dismissed Ms. Demahy’s claims against Actavis, the manufacturer of the generic version of the drug, and against prescription drug makers Wyeth, Inc. and Schwarz Pharma, Inc. Schwarz had acquired the name-brand rights to the drug in 2001.

As of 1985, the FDA required that generic manufacturers of the drug metoclopramide include a warning with the medication about the risk of tardive dyskinesia, an often irreversible neurological disorder. In 2004, Schwarz voluntarily requested a change to the name-brand label, adding a warning that the drug should not be used for more than 12 weeks. It was not until 2009 that the FDA issued a black-box warning that informed consumers about the risk of tardive dyskinesia and that warned customers that the drug should not be used for longer than 12 weeks except in rare cases.

Under federal law, generic drug labels are required to be the same as name-brand labels. This means that state law cannot require generic manufacturers to include more information than that which would be available on the name-brand product of a prescription drug, as this would be contrary to the federal law. On these grounds, the state court had found that Actavis was not responsible under a failure-to-warn claim brought by Ms. Demahy. On appeal, Ms. Demahy claims that the state court’s mandate to change the district court ruling in favor of the defendant was improperly interpreted as calling for the dismissal of all claims against Actavis; Ms. Demahy argued that Actavis could still be found liable outside of the failure-to-warn claim.

July 26, 2013

Plaintiff Fails on Appeal in Restaurant Fall Personal Injury Suit

by Berniard Law Firm

Plaintiff Judith Henry seeks to recover damages resulting from an accidental fall in the defendants’ restaurant in Houma, Louisiana, on March 13, 2008. The accident occurred when Ms. Henry placed her order and got her soft drink at the counter and began to walk back across the carpeted floor to the table. At that time, she was using a cane and one of her friends was walking ahead of her carrying her soft drink. According to Ms. Henry’s deposition, she was stepping with her right foot when her toe got caught in the carpet. Her foot went backwards and she fell, landing on the foot and breaking her right ankle. Although the carpet was not frayed or worn, she stated it was uneven because it had little squares that formed its weave.

On February 17, 2009, Mr. and Mrs. Henry filed suit for the damages they had incurred as a result of her fall naming NOHSC and its insurer Colony as defendants. On April 1, NOHSC and Colony filed a motion for summary judgment supported by excerpts from Ms. Henry’s deposition, an affidavit from Paul McGoey, NsOHSC managing partner, and an affidavit from Donald Maginnis, a registered architect. Included in this evidence were attachments consisting of photographs of the restaurant interior, a hand-drawn diagram of the restaurant interior and excerpts from the 2006 Life Safety Code Handbook.

After hearing arguments and considering the evidence presented by the parties, the court ruled in favor of the defendants, granting the motion for summary judgment and dismissing the Henrys claims with prejudice The judgment was signed on June 30, 2010. The Henrys then appealed this judgment.

July 23, 2013

Workplace Injury Leads to Review of Statute Interpretation

by Berniard Law Firm

The district court dismissed the claims of Entergy, an electrical utility company, for indemnity from contractors involved with repairs to a building to which the utility company provided electrical service on the ground that the Louisiana Overhead

Power Line Safety Act (“OPLSA”) does not allow indemnification remedy. On appeal, having decided favorably for the plaintiff in the legal issue of whether OPLSA might require indemnity, the appellate court vacated the district court’s grant of summary judgment in favor of the contractors.

Shortly after Hurricane Katrina, a general contractor, Carl E. Woodward, LLC, (“Woodward”), entered into a contract with Eagle Enterprises of Jefferson, Inc., the owner of the Walgreens Shopping Center. Woodward subcontracted with Stewart Interior Contractors, LLC (“Stewart”) to install framing and exterior wall material at the shopping center. In turn, Stewart subcontracted with Landaverde Construction, LLC (“Landaverde”) to assist with providing labor. On January 5, 2006, Landaverde laborers, including plaintiff, Daniel Moreno, arrived at the shopping center work site. As Mr. Moreno was standing near the scaffold and evaluating how to best disassemble it, another worker at the top of the scaffold moved a piece of metal that came in contact with both the overhead power line and the scaffolding frame. A resulting arc of electricity flashed from the scaffolding to Mr. Moreno’s body, inflicting serious burns.

July 18, 2013

Workers Comp Case Involves Settlement Dispute, Rights Review

by Berniard Law Firm

In a recent Louisiana workers’ compensation case, a man filed suit after deciding that the settlement agreement he signed was reached based on misrepresentations. The man was rendered quadriplegic after falling from a roof he was working on during his employment as a roofer. After his injury, he hired an attorney and attended several mediations, which resulted in the signing of a settlement agreement. However, about half a year after the settlement agreement was approved, the man filed a disputed claim for compensation, asking for the settlement to be set aside because it was based on misrepresentations.

What is interesting in this case, though, is that It was not the other party that the man believed misrepresented the facts, but rather, his own attorneys. The plaintiff claims that his own attorneys told him that he would continue receiving 24-hour nursing care and other medical services after the settlement, but this was not the case.

The plaintiff’s motion to set aside the settlement agreement was denied, and the plaintiff then brought suit against his own attorneys, claiming legal malpractice in their representation of him. After a three-day trial, the jury decide to rule in favor of the attorneys and against the injured man. Furthermore, when the plaintiff filed a motion for a new trial, the trial court also denied that request. The plaintiff appealed the case at that point.

July 16, 2013

The Standard for Reviewing Medical Evidence After Auto Accidents

by Berniard Law Firm

Medical testimony after an automobile accident is complicated enough. When two accidents close in time are involved, it can get downright confusing. All the more so when a court is trying to determine which accident is to blame for not one but several different injuries. But despite questions of accuracy and the sufficiency of evidence, the role of a court of appeals is not to second-guess or set aside the trial court’s facts – provided they are reasonably arrived at and not obviously wrong.

This principle was on display in a case out of Vermilion Parish. Wanda Turner was involved in two accidents in 2010 – one in September and one in October. After the second accident, Turner filed suit against the insurer of the vehicle from the first accident, alleging neck pain, back pain, and migraines. She attributed all of her injuries to the first accident, rather than the second one, despite the fact that the second was more serious. The trial court ruled in Turner’s favor and awarded $8,500 in general damages ($3,500 for the migraines; $3,000 for aggravating her back condition; and $2,000 for her neck pain) and $1,800 in special damages to cover her medical expenses related to the first accident.

The defendant insurance company appealed the ruling, claiming a lack of medical evidence and unsupported testimony. The appellate court even noted numerous inconsistencies in Turner’s testimony. Despite this, and citing past legal precedent, the court explained that it was obligated to give great deference to the factual findings of the trial court. Unless those findings are obviously unreasonable or rife with manifest error, the appellate court will not set them aside. This was the standard applied to Turner’s claims.

July 14, 2013

Prescription Leads to Patient Injury – What Legal Remedy Exists?

by Berniard Law Firm

Imagine that your doctor gives you a prescription drug to alleviate a persistent headache or cold, or recommends for you a new pacemaker or prosthetic joint. If your doctor’s prescription drug or medical device ends up injuring you—what do you?

The general rule is that a consumer who is injured by a prescription drug or medical device may be able to seek compensatory damages from the physician that prescribed that drug or device and from the manufacturer who manufactured that drug or device. For example, a doctor may be liable for a patient’s damages if he should not have prescribed the drug or medical device or if he failed to warn of a non-obvious risk. Likewise, the manufacturer could be liable if the product is unreasonably dangerous or if the manufacturer failed to warn of non-obvious dangers.

However, there’s an important exception regarding a drug or device manufacturer’s liability—the learned intermediary doctrine. A majority of states, including Louisiana, have adopted some form of the learned intermediary doctrine. The doctrine works as a shield to protect manufacturers from being liable for not informing the patient of the product’s risks if the manufacturer has adequately warned the patient’s physician of the risk. Essentially this means that a manufacturer has no duty to warn you- the patient; instead, the manufacturer must warn your physician of the drug or device’s dangers. The physician then becomes responsible for warning the patient of the risks. The physician is quite literally the intermediary between the patient and the manufacturer.