Business Dispute

October 1, 2012

Maritime Injury Leads to Lawsuit Against Employers Leads to Jurisdiction Issue

An employee working on the deck of a marine vessel suffered injuries to his back and hips after a crane moving equipment from the dock swung a cargo basket at him and pinned him to the ship. The employee sued the company operating the crane as well as his own employer who operated the ship he was loading.

The plaintiff-employee, Hamm, and the defendant-companies, Island Operating Company (IOC) and Rodan, disagree about what jurisdiction controls this case. The plaintiff argues that his claims fall under admiralty jurisdiction and as such elected to undertake a non-jury trial as allowed under Rule 9(h) of the Federal Rules of Civil Procedure. But the defendant companies desire a jury trial and believe that the case falls under the Outer Continental Shelf lands Act (OCSLA).

What law is applicable in this case—admiralty or OCSLA—is determinative in this case due to the different statute of limitations. If the case falls under federal maritime law then the employee has three years to file his claim, but if the case falls under OCSLA then the case will fall under the law of the adjacent state (in this case, Louisiana) and the employee had to file his claim within a year. If OCSLA is found to be the applicable law then the employee’s claim will not be valid since he filed suit fifteen months after the accident. If federal maritime law applies, then not only will Hamm be entitled to the non-jury trial he wants, but Rodan and IOC will not be able to throw the case out.

September 25, 2012

Taser Death Explored in St. Martin Parish Case

by Berniard Law Firm

In our prior post, we began our review of a wrongful death action that followed the tasering of Othello Pierre by two St. Martin Parish Sheriff’s deputies after he caused a disturbance at a Fourth of July party and attempted to flee the scene. We now examine the approach taken by the U.S. Court of Appeals for the Fifth Circuit in analyzing whether the deputies’ use of the taser amounted to unconstitutionally excessive force.

According to the court, an excessive force claim under the Fourth Amendment “must demonstrate (1) injury, (2) which resulted directly and only from a clearly excessive force, and (3) the excessiveness of which was clearly unreasonable.” In order for the Plaintiff to be successful in this wrongful death action, it is essential that all of these three requirements articulated by the court are met. If even one of the prongs to an excessive force claim are not met, then the Plaintiff will ultimately fail in his action.

In the case of Mr. Pierre, the court concluded that the Plaintiff’s claim “fail[ed] on the second prong” because they offered no evidence to show that Pierre’s injuries–and, by extension, his death–were the direct result of the tasing. Thus, in the court’s view, Pierre’s death did not result directly from the tasing; therefore, he did not meet all the explicit requirements for an excessive force claim. By not meeting the second requirement, the question of whether the tasering was reasonable in the first place was effectively moot.

September 23, 2012

St. Martin Parish Police Tasing Leads to Wrongful Death Suit

by Berniard Law Firm

On July 4, 2008, Othello Pierre attended a party at his uncle’s house in St. Martin Parish. Pierre’s uncle called 911 when Pierre got into a violent argument with a cousin. Two deputies with the St. Martin Parish Sheriff’s Department responded. A third deputy and distant relative of Pierre was also at the party; she informed the two deputies who responded to the 911 call that she suspected there may be warrant out for Pierre’s arrest. The deputies ran Pierre’s name and confirmed that he had an outstanding felony arrest warrant for burglary. When one of the deputies attempted to place Pierre under arrest, he broke away and fled the scene. The two responding deputies pursued Pierre on foot and soon found him hiding behind an old camper shell. Though ordered not to move, Pierre again attempted to run away, at which point one of the deputies fired his taser. The taser barbs hit Pierre in the arm and the head, shocking him with a single five-second cycle. An ambulance took Pierre to the Lafayette General Medical Center where he died approximately three hours later. The autopsy revealed that Pierre’s death was the result of “multidrug intoxication” from substances such as methamphetamine, THC, cocaine, alcohol, caffeine, and nicotine.

Narra Batiste and other members of Pierre’s family filed a civil action against the St. Martin Parish Sheriff and the deputies for the wrongful death of Pierre, alleging, among other things, that the deputies’ use of the taser was an unconstitutional use of deadly or excessive force. The district court heard motions for summary judgment on several issues, including the deputies’ motion to dismiss the claim of excessive force. The court denied the deputies’ motion, and appeal was taken in the U.S. Court of Appeals for the Fifth Circuit.

The Plaintiffs relied on two paths to argue that Pierre’s tasering amounted to an unconstitutional use of deadly force. First, the Plaintiffs cited a Supreme Court case that held it was unlawful to use deadly force against a fleeing felon who does not pose a sufficient threat of harm to a police officer. Because that case concerned the use of a gun and not a taser, however, the court rejected its applicability. The court noted that no Fifth Circuit cases equated the use of a taser to the discharging of a firearm, and it declined to be the first. Second, the Plaintiffs argued that the deputy’s use of the taser while running violated the Sheriff Department’s policy and was contrary to the taser manufacturer’s guidelines for safe use. Yet, in the court’s view, the Plaintiffs failed to demonstrate that the use of the taser in the manner they described created an unreasonable risk of death. The court pointed to a dispute over whether Pierre was actually running when the taser was deployed, and concluded that “Plaintiffs’ assertions that the use of a taser on a fleeing suspect amounted to deadly force [were] unfounded.”

September 19, 2012

How Louisiana Determines Damages for Personal Injury

by Berniard Law Firm

When a court award damages, the judges commonly look to whether or not that pain and suffering can be attributed to the defending party, the amount of time a victim suffered, and how much pain and suffering occurred. The cause is perhaps the most important aspect of whether or not a party will be awarded damages. It makes little sense for a defendant to have to pay for pain and suffering to the plaintiff if the defendant’s actions did not cause that pain and suffering. Then, the length and intensity of the suffering will help determine how much money will be awarded.

In a recent case, the plaintiff appealed from the Parish of Lafayette to the State of Louisiana Court of Appeal for the Third Circuit based on the issue of damages. In this case, the plaintiff was in a car accident where she suffered significant damage to her back. As a result of this injury, she spent approximately twenty-eight months with the chiropractor attempting to correct the damage sustained to her lower back.

Although the victim visited the chiropractor before the accident occurred, the doctor recorded the services rendered before and after the accident. The doctor stated that the victim’s injuries worsened and the accident definitely caused the worsened condition. The lower court awarded general damages and medical fees, but it only ordered enough general damages that would cover seven months after the accident. It explained that the victim was already seeing the chiropractor; therefore, the services she received after the accident were only relating to a condition that was already present before the accident.

September 17, 2012

Wife’s Interests Not Represented by Attorney in Pre-Divorce Collusion

by Berniard Law Firm

Officers of the Court are expected to follow a specific level of professionalism and truthfulness that trumps any personal feelings they have on a case. One unfortunate case highlighted today involves the dissolution of a 22-year marriage and the unfortunate deceitful behavior of the husband and his attorney. Unbeknownst to the wife, the husband filed a petition for divorce on August 9, 2006. On that same day, the husband convinced his wife to meet at his attorney’s office to discuss a settlement of the community property. The wife was under the impression that the attorney was a neutral party, helping the couple come to a fair division of their property. However, things were not as they appeared.

The husband and wife signed an agreement partitioning their community property at the meeting along with a quitclaim deed for their real estate. A few days later, the couple returned to the attorney’s office and re-executed the documents in the presence of two witnesses for formality purposes.

When the wife became aware of the scheming on the part of her husband and the attorney, she immediately filed a suit in the trial court to rescind the agreement based on error, fraud, duress and lesion. The trial court rendered a judgment in favor of the husband and the wife appealed, bringing us to the case-at-hand.

September 10, 2012

Maritime Injury: The Jones Act and How it Applies to Recovering Damages

by Berniard Law Firm

The Court of Appeals for the Fifth Circuit addressed an injury case that involved a crane mechanic who was injured on an offshore drilling rig. The man was injured when he fell through an uncovered ladder hole on the top portion of the crane cab which was about fourteen feet above the deck of the rig. As a result of his injuries, he is now unable to work as a crane mechanic, but he has returned to work in a clerical capacity for the company in which he was working for previously. The two parties in this case are the employee and the owner of the rig on which he was injured; however, this case is complicated because the employer is also involved in the worker’s compensation claims.

This case involved a cross appeal where both parties appealed some part of the lower court’s decision. There were a few issues that arose in this case that that Court of Appeals addressed. This case touches on the Jones Act and considers the concept of contributory negligence. This case is also based on the Longshore and Harbor Worker’s Compensation Act so it affects the employer and their insurance company as well. This post will present the basic facts of this case and discuss the Jones Act. A follow up post will address the worker’s compensation aspects of the court’s decision.1

The employee appealed based on the claim that that he did not contribute to his own injury by being careless. This concept is generally known as contributory negligence. He also argued that even if he was partially responsible, the Jones Act protected him from being punished for his contribution to the injury. The owner of the rig appealed based on the claim that they were also not partially negligent. The Fifth Circuit Court of Appeals considered all of these issues in turn and affirmed the lower court’s judgment. The court states that both parties were partially negligent in this case; the owner of the rig left open the cover through which the employee fell and the employee was not watching where he was going, thus contributing to his injury.

September 3, 2012

Malicious Prosecution Another Form of Injury Suffered by Public

by Berniard Law Firm

A sheriff candidate for Concordia Parish, James Whittington, sued his opponent, Sheriff Randy Maxwell, for malicious prosecution and violating both his Fourth Amendment and First Amendment rights.

During the sheriff election campaign, Whittington ran several ads in the local newspaper including several that described misconduct that had allegedly taken place in the Sheriff’s Office during Maxwell’s term. Specifically, Whittington claimed that the deputy sheriff had been arrested on charges of marijuana possession. He even published an arrest ticket for the deputy sheriff’s arrest for marijuana. These ads caused Maxwell much embarrassment over his management of the Sheriff’s Office.

Maxwell arrested Whittington on the report of his ex-girlfriend who claimed that Whittington had harassed her by making multiple phone calls to her and taking two rings off her hand, refusing to return them. The judge, Boothe, set Whittington’s bail at $175,000, a high amount considering Whittington’s prior record of a single misdemeanor. Since Whittington could not post bond, he spent fifty days in jail.

August 29, 2012

Court Examines Misunderstanding that Allowed for Unemployment Benefits

by Berniard Law Firm

Unemployment benefits are granted in Louisiana with the assumption that the employee did not perform any misconduct within the course of employment. Misconduct is defined as either an intentional offense or an accidental offense that the employee should have been able to avoid if they had paid more attention or been more careful. Misconduct could also include an intentional and substantial disregard for the interests of the employer. For example, making extremely risky investments that are very likely to loose money would be considered disregard for the interests of the employer. If any of these types of misconduct are found, then the employee is disqualified from being able to receive unemployment.

Recently, the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana gave a good example of what the court would classify as misconduct. The District Court found for the employee in this case, so the employer appealed to the Court of Appeal for the Second Circuit in Louisiana.

The employee in this case was hired to be an assistant to the bookkeeper in an oil company. Her title was “office administrator.” Among other duties, she double checked the payroll figures for the bookkeeper and provided an orientation program for new hires. She had been working for the company for seven months when she requested an unpaid vacation.

August 8, 2012

Lawsuit Over Speech Rights and City Interests Shows Need for Competent Attorney

by Berniard Law Firm

Louisiana court dockets are packed. Judges are over-worked. This means that judges have little patience for frivolous lawsuits or claims that are not clearly defined. When claims are muddled, a judge may have difficulty discerning what issues are to be analyzed. This murky analysis can lead to erroneous conclusions that can lead meritorious claims to be dismissed. One of these cases was recently under consideration in the Court of Appeals for the Fifth Circuit.

In this case, a South Padre Island restaurant owner brought suit against the city when city ordinances denied his desire to place an advertisement on a moored boat. The district and appellate courts found the claim to be ever-changing. Parties were added and removed and the claims themselves changed frequently. The lawsuit brought forth claims ranging from First, Fifth and Fourteenth Amendment violations to violations of Texas law. This muddied lawsuit caused the court confusion and led them to approach the case in a way that the plaintiff may not have intended.

The main issue in this case, according to the court, was whether or not the plaintiff had standing with regards to a First Amendment claim. In order for an individual to have Article III standing, a plaintiff must show an injury in fact that is concrete and particularized and actual or imminent; a causal connection between the injury and the conduct alleged in the complaint; and the likelihood that a favorable decision will redress the injury.

July 30, 2012

Belle Chasse Mold Case Shines Light on Expert Testimony

by Berniard Law Firm

Southern Louisiana is known for its historic buildings, easy going attitude and humid climate. Though these ingredients mix well for a great place to live or vacation, they can wreak havoc on the health and safety of residents’ homes and work places. This was the case recently in Belle Chasse. There, an individual who rented an office for her business discovered the building contained toxic mold that posed serious health risks. The problem needed immediate remediation. After being contacted, the property owners began removal of the mold. However, the mold, according to the tenant, was so exacerbated that she was forced to abandon the office. The tenant then filed suit against the landlords and their insurance company seeking compensation for business and health related damages.

The importance of this case lies in its examination of expert testimony. In this instance, the tenant sought to have her doctor testify that her chronic fatigue syndrome and other health conditions were directly related to the toxic mold in her office. The landlords claimed it would be erroneous for the court to classify the doctor as an expert and asked that the lawsuit be excused. The court agreed with the landlords and, on appeal, so did the Court of Appeal for the Fourth Circuit.

Expert testimony is governed by the Daubert rule. According to this rule, in order for expert testimony to be heard it must be deemed to be relevant and reliable. The Supreme Court in Daubert provided that relevancy and reliability are determined by a set of factors: (1) testability of the scientific theory; (2) whether the theory has been subject to peer review; (3) knowledge of the theory’s rate of error; and (4) whether the theory has gained general acceptance within the scientific community. These factors are non-exclusive, but provide a solid framework for courts when determining whether to allow an “expert’s” testimony.