Semi Truck Accident

April 16, 2012

Crowley Auto Accident Gives Rise to Causation Examination in Louisiana Auto Case

When an auto accident results in an injury and is taken to court, one of the most important issues a judge must decide is causation. If a plaintiff can show that an injury was directly caused by the accident, then the judge will determine the amount of damages to be awarded. However, the determination of causation can be difficult. This is especially true when figuring out whom exactly caused the accident. For example, if a car on the interstate swerves into a lane and slams into another vehicle it may appear that the driver of that car directly caused the accident. If this were true, then the driver would be liable for any injury damages. Yet, there are several factors that must be considered. Consider, was any part of the car defective? Was there a problem with the road that caused the car to swerve? The various answers to these questions can change what actually caused the accident and the injury, thereby shifting liability to differing parties.

When making a personal injury claim, the burden of proof is on the plaintiff to prove both that the defendant caused the accident and that the injuries resulted from that accident. The plaintiff need only prove these elements by a preponderance of the evidence, meaning that it is more likely than not that the defendant caused the accident and that the injuries resulted from that accident. If causation is proved, then the judge will determine the damages that are to be awarded.

Damages awards may be found in several different areas. The most obvious is damages via costs accrued through medical treatment. Costs for medical transportation, doctor visits, prescriptions, and other hospital services are likely to be awarded as damages once causation has been proven. In addition to medical costs, a plaintiff may make claims for pain and suffering. These awards are highly discretionary, and are dependant upon the plaintiff’s ability to show that he has suffered disfigurement, impairment of ability to work, anxiety attributable to the injury, and mental distress. Pain and suffering damages cover a broad area, but to succeed on such claims it is imperative that the pain and suffering is proximately related to the accident and/or injury. A plaintiff may claim other damages such as loss of wages, loss of enjoyment of life, and loss of consortium. However, all must be a result of the accident and injury that serves as the claim’s foundation.

April 8, 2012

Happy Holidays to all of our Friends

by Berniard Law Firm

Happy Holidays from the Berniard Law Firm! We will resume blog posting on Tuesday.

March 26, 2012

Lawsuit Over Jackson Parish Car Wreck Dismissed Due to Late Filing

by Berniard Law Firm

Under Louisiana law, the plaintiff in a personal injury lawsuit may file his complaint with the court by fax. However, the plaintiff must, within five days of transmitting the fax, forward to the clerk of court the original, signed complaint and any fees that are due. If the plaintiff fails to forward the original document, the faxed copy will “have no force or effect.” La. R.S. 13:580. The fax option can potentially help preserve an action that is facing the expiration of its prescriptive period. However, as we will see with the recent case of Taylor v. Broomfield, the courts do not take lightly the requirement that the original complaint must be submitted to the clerk within the time frame outlined in the statute.

On September 17, 2009, Jarred Taylor was involved in a serious car accident in Jackson Parish. The other party to the collision was Brandon Goss who was driving a Mack truck owned by Broomfield, Inc. Taylor suffered various injuries including two broken ribs, multiple contusions, and lacerations to his face. Taylor’s lawyer initiated a lawsuit against Broomfield and its insurer on September 17, 2010 (exactly one year after the accident and the last day of the prescriptive period) by transmitting a faxed complaint to the Jackson Parish Court. The faxed complaint was not notarized. Although Taylor’s counsel had, according to Louisiana statute, until September 24, 2010 to send the original complaint to the court’s clerk, the original document was not filed until October 5, 2010. The original complaint filed with the clerk on October 5 included a verification notarized by one Donna Kay Tucker on September 20, 2010.

On November 12, 2010, Broomfield filed an exception of prescription requesting that Taylor’s suit be dismissed because it was filed after the one-year prescriptive period had elapsed. A hearing was held on January 13, 2011. In opposition to Broomfield’s exception, Taylor’s attorney argued that when his office faxed the complaint on September 17, 2010, his staff immediately mailed the original complaint, along with the filing fees, to the clerk of court. Several staff members from the law firm testified to this effect, but none of them could explain who the notary, Donna Kay Tucker, was or why the complaint’s verification reflected a date after the day the firm put the document in the mail. Ultimately, the trial judge denied the exception of prescription and held that the notary date was “merely harmless error” and that the complaint had been timely forwarded by Taylor’s counsel per state law. Broomfield appealed.

February 17, 2012

Second Part in Understanding the Anatomy of a Class Action Certification

by Berniard Law Firm

In our previous post, we began a discussion of the Union Carbide/Dow Chemical Taft plant chemical leak litigation filed by the Berniard Law Firm. This post continues with a review of the court’s analysis of numerosity in certifying a class. Under this requirement, the class must be so large that joinder of all members is impracticable. La. Code Civ. P. Art. 591(A)(1). Generally, a class action is favored when there are so many plaintiffs that individual suits would unduly burden the court, and so the class action would be more judicially expedient than other available procedures. See Cotton v. Gaylord Container. There is no distinct number of plaintiffs needed to fulfill the numerosity requirement. In this case, the proposed class included all the residents of St. Charles Parish as well as certain residents of Jefferson and Orleans Parishes–clearly a large number. The court found persuasive the fact that “the size of the individual claims of class members is small enough that individual lawsuits are impracticable,” but that that “separate suits would unduly burden the courts.” In the court’s view, a class action would “be more useful and judicially expedient.” Thus, the court concluded that “numerosity exists,” but that “the class is not too numerous to manage effectively.”

The court next examined the issue of commonality, or whether there were questions of law or fact common to the class. To satisfy the commonality requirement, there must exist “as to the totality of the issues a common nucleus of operative facts.” McCastle v. Rollins Environmental Services. of La., Inc. A common question is one that, when resolved for one class member, is resolved for all members. This issue is closely related to the predominance requirement, where the common questions predominate over any individual issues not shared among the class members. The Louisiana Supreme Court has indicated that predominance “entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class.” The goal is to “prevent[] the class from degenerating into a series of individual trials. Brooks v. Union Pacific R. Co. The same court has also held that a mass tort can only be brought as class action if it arose from one single cause or disaster; however, this requirement does not mean that the amount or extent of damages must be identical for all class members. “[V]arying degrees of damages … does not preclude class certification.” In order to meet the common cause requirement, each member of the class must be able to show individual causation based on the same set of facts and law that any other class member would use. See Bartlett v. Browning-Ferris Indus. Chem. Services, Inc.

With these considerations in mind, the court analyzed the common threads identified by the Plaintiffs as to their claims. First, all class members were physically located in the identified parishes on the date and time of the chemical release. They all suffered various (but similar) physical injuries and financial losses as a result of the release. Also, common questions of law and fact surrounded the Defendants’ negligence in failing to maintain its plant and prevent the chemical release. The court concluded that it was “satisfied … from the evidence presented that common factual issues predominate with regard to whether Defendants took reasonable steps to prevent the release of [ethyl acrylate] that occurred on July 7, 2009 and whether or not the release could cause the harm as alleged by the Plaintiffs to the members of the class.” The court’s reasoning was based in part on the testimony offered at the hearing by Dr. Patricia Williams, a toxicology expert. Dr. Williams concluded that the symptoms described by the class were consistent with the type of exposure to ethyl acrylate that resulted from the release at the Taft plant. Although the Defendants offered its own expert witness to rebut Dr. Williams’s testimony, the court nevertheless found that “a method of assessing general causation for the whole of the class exist[ed].” This permitted the court to reach the conclusion that common factual issues were present. The court thus identified a “common nucleus of operative facts” that permitted a finding that “uniform allegations of complaints of harm amongst the large number of class members that stem from one central release event” involved common legal issues among all members that superseded any individual concerns.

February 15, 2012

Anatomy of a Class Action Certification

by Berniard Law Firm

Early in the morning of July 7, 2009, a 640,000 gallon chemical storage tank at Union Carbide/Dow Chemical’s Taft plant began to rupture. The tank contained ethyl acrylate, a foul-smelling chemical used in making various products including industrial flavorings, fabric finishes, pigments and dyes, floor polishes, adhesives, and caulk. The substance is listed as a possible carcinogen by the National Institute of Occupational Safety and Health, and is known to cause a number of significant heath issues such as burning of the mucous membranes and eyes as well as respiratory irritation and nausea upon contact through the air. Westerly winds gusting as high as 20 miles per hour carried the chemical vapor into the neighboring communities. St. Charles Parish sheriff’s deputies began evacuating residents while officals from the Louisiana Department of Environmental Quality were summoned to perform air testing. Numerous residents in St. Charles Parish and surrounding parishes experienced extremely unpleasant physical symptoms as they came into contact with the chemical vapor.

The Berniard Law Firm filed a lawsuit on July 29, 2009 on behalf of those who suffered effects from the Taft plant chemical leak. On December 15, 2011, Judge Herbert Cade of the Civil District Court of the Parish of Orleans granted the Plaintiffs’ Motion for Class Certification. The class is defined as persons living or located in St. Charles Parish and certain areas of Orleans and Jefferson Parishes on July 7-8, 2009 who experienced “eyes, nose, or throat irritation, coughing, choking or gagging, or nausea, or headaches, dizziness, trouble breathing or other respiratory issues” as a result of their exposure to the ethyl acrylate that escaped the Taft facility. The court’s order contains an illustrative description of the process by which it analyzed the Plaintiffs’ argument for class certification, and an exploration of that analysis will serve as the basis for this and a series of subsequent blog posts.

Previously on this blog, we have examined the requirements for class certification in a federal case according to Rule 23 of the Federal Rules of Civil Procedure. Louisiana’s Code of Civil Procedure, in Article 591, sets forth a similar set of standards for certification. Specifically, a plaintiff who seeks to represent a class must show:

January 19, 2012

Third Circuit Rejects Trial Court’s Apportionment of Fault in Lafayette Auto Accident

by Berniard Law Firm

It is well settled in Louisiana jurisprudence that an appellate court’s review of a trial court’s apportionment of fault in a negligence action is subject to the manifest error standard. In other words, in order for an appellate court to overturn a trial court’s assessment of fault, it must conclude that no reasonable factual basis exists to support the trial court’s finding and that it is clearly wrong. The Third Circuit reached this conclusion in Thibodeaux v. Trahan, a recent case that was marked by witness testimony that was “externally conflicting and often internally inconsistent.”

On the afternoon of October 18, 2006, Melinda Trahan was driving a school bus owned by the Lafayette Parish School Board on Richfield Road in Duson. Harold Thibodeaux, driving an RV, pulled out from a side road in front of Trahan’s bus and made a quick left turn into the parking lot of Thib’s Corner, a grocery store. Trahan, who approached Thibodeaux’s RV from the rear, also turned her bus into Thib’s Corner, at which point the two vehicles collided. Thibodeaux suffered a knee injury in the collision and sued Trahan and the school board for damages. The trial court heard testimony from the parties as well as several witnesses and ultimately found both Trahan and Thibodeaux at fault for the accident. It awarded Thibodeaux damages for pain and suffering and medical expenses, but reduced the amount by 40 percent, the amount of his fault. Thibodeaux appealed, arguing that the trial court erred in finding him partially at fault for the accident. On appeal, the Third Circuit noted that “the trial court was left with numerous conflicting versions of how the accident occurred.” It did, however, make specific findings of fact. Specifically, the trial court found Thibodeaux at fault “for having pulled out in front of Ms. Trahan while driving an RV in the rain while she was driving a school bus.” It concluded Trahan was at fault because she should have maintained better control of her bus when she saw Thibodeaux’s RV pull out into her path. The Third Circuit reviewed the testimony from the record and arrived at a different explanation of how the collision occurred: it concluded that Thibodeaux did nothing wrong when he pulled onto Richfield Road from the side street, but that he “failed to ascertain that the left turn could be made with reasonable safety” and therefore breached his statutory duty to execute the turn properly. Still, the court concluded that “the majority of the fault in this instance should be allocated to Ms. Trahan,” as she “was in a better position, as the following vehicle, to prevent the accident from happening.” The court concluded that the accident would have been avoided if Trahan had stopped her bus “within the adequate stopping distance existing between her and the RV,” rather than being forced to take an evasive turn into the Thib’s Corner parking lot. Accordingly, the court reversed the trial court’s apportionment and assessed 80 percent of the fault to Trahan and 20 percent to Thibodeaux.

December 9, 2011

Plaintiff Learns Painful Lesson About Treating Injuries Without Delay

by Berniard Law Firm

Early in the morning of August 25, 2006, Angela Brignac visited a McDonald’s in Baton Rouge. While she was stopped at the drive-thru’s menu board, her car was struck from the rear by a truck operated by Brian Mumphrey. The collision occurred because Mumphrey’s foot slipped off the brake pedal when he bent down to retrieve his wallet from the truck’s floor. Brignac did not call the police, but did exchange information with Mumphrey. She then ordered breakfast and went on her way. Later that evening, after Brignac went home and discussed the accident with her boyfriend, she called the police to report the accident and went to the hospital to be examined.

Approximately a year later, Brignac filed a lawsuit against Mumphrey and Farm Bureau, his insurance carrier. Brignac’s complaint alleged injuries to her right shoulder, back, neck, head, mouth, and jaw as a result of the collision. The trial court awarded Brignac $3,587 in damages for past medical expenses she incurred treating her jaw injury. It also awarded her general damages in the amount of $6,000, but denied her claims for past and future medical expenses for her shoulder injury. Brignac appealed this judgment, arguing that the trial court erred in failing to award medical expenses related to her shoulder injury. Brignac alleged that she had consistently complained of right shoulder pain from the date of the accident. She testified at trial that she reported both shoulder and jaw pain in the emergency room on the evening of the accident, but the shoulder issue was not documented in the ER records which were completed by both the ER doctor and the triage nurse. The first documented complaint of shoulder pain did not come until six weeks after the accident when Brignac was seen by Dr. Johnston who diagnosed her with a strained rotator cuff. Johnston prescribed pain medications, physical therapy, and exercise, and also administered cortisone injections in Brignac’s shoulder. He testified at trial that while he believed Brignac’s shoulder injury was related to the car wreck, his opinion was “based on history and what she tells me solely.” Brignac did not follow Dr. Johnson’s physical therapy recommendations and was eventually discharged as a patient from the therapy center for failing to show up for appointments. The First Circuit observed that “the trial court was not convinced that Ms. Brignac proved that her shoulder injury was related to the accident.” And, after reviewing the record, the court could not say that the trial court’s factual determination on causation was “manifestly erroneous or clearly wrong.” The court held,

“Noting other possible causes for Ms. Brignac’s shoulder injury, including the repeated lifting of her child, and considering the lapse of time between the accident and Ms. Brignac first seeking treatment for the shoulder problem, the [trial] court was not convinced that Ms. Brignac proved that her shoulder injury was related to the accident. We find no manifest error in this conclusion.”

December 7, 2011

Court Explores Standard of Review in Baton Rouge Car Wreck Case

by Berniard Law Firm

On August 7, 2002, James Wilson was driving his car southbound on Essen Lane in Baton Rouge. When he attempted to make a left turn onto the on-ramp for I-10, Wilson pulled into the path of an oncoming car driven by Barbara White northbound on Essen. The crash left Wilson with serious injuries. Following the incident, Wilson filed suit against the Louisiana Department of Transportation and Development (“DOTD”). His complaint alleged that the DOTD negligently installed lane delineators on Essen Lane at the intersection with I-10; Wilson’s negligence theory was based on his assertion that the lane delineators blocked drivers’ view of oncoming traffic. Wilson asserted that the DOTD’s negligence caused his accident because he couldn’t see White’s car when he attempted to turn onto I-10. After a trial the jury returned a verdict in favor of the DOTD. It found that the DOTD was not negligent and that its installation of lane delineators did not cause the accident. Wilson filed a motion requesting a JNOV which was denied by the trial court. Wilson then appealed on the basis that the jury’s verdict was not supported by the evidence.

The First Circuit began it analysis with a recitation of the standard of review for a challenge based on the jury’s alleged manifest error. Because the determination of negligence is a factual one, an appellate court must apply a two part test to reverse the jury’s finding. Part one involves the appellate court’s deciding that a “reasonable factual basis” does not exist in the record for the jury’s finding; part two requires the appellate court to determine that the record establishes that the jury’s finding is “clearly wrong.” Additionally, when

factual findings are based upon the jury’s weighing of witness credibility, “great deference” must be given its decision. The rule of thumb is that where there are two or more permissible views of the evidence, the jury’s choice between them cannot be manifestly erroneous.

November 21, 2011

Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits

by Berniard Law Firm

As part of our Constitutional right to due process, an individual is allowed to bring grievances before a court. However, certain judicial policies may be enacted to deny plaintiffs from bringing suits that have already been litigated, are being brought with the intent to harass, or are frivolous. The purpose behind such policies is to make courts as efficient as possible by deterring such actions. A recent case out of the Louisiana Fourth Circuit Court of Appeal shines a light on several of these deterrents.

In Mendonca v. Tidewater, Inc., the plaintiff sought to nullify several final judgments made by the district court. Mendonca’s list of suits stretched over four years, with multiple appeals and pleas for annulment. However, none of Mendonca’s nullity claims or his appeals were successful. In his final appeal for anulment, the Fourth Circuit Court of Appeals handed down three restrictions that laid Mendonca’s long line of cases to rest.

The first of these restrictions was the court’s upholding of the defendent’s plea of res judicata and failure to state a claim. When res judicata is enacted, the court declares one of two denials. First, that the claim has been subject to a final judgment and thus no longer qualifies for an appeal, or second, that the litigant cannot bring a claim against the same party in a second claim because all claims should have been brought against that party in the initial suit. The policy considerations supporting res judicata is to preserve court resources and protect defendants from being subject to litigation multiple times, with the possibility of having to pay damages more than once. A defendant’s plea that a plaintiff has failed to state a claim goes hand-in-hand with res judicata. If res judicata is applicable, then all duplicitous claims cancelled. In Mendonca’s case, this means that there were no new claims. Since there were no such claims, the court held that Mendonca’s nu

November 3, 2011

Baton Rouge Pedestrian Strike Reminds Drivers of Duty to Keep a Lookout

by Berniard Law Firm

It is well settled in Louisiana law that automobile drivers are required to exercise care to avoid colliding with pedestrians. Motorists are charged with the duty to see what an “ordinarily prudent” driver should see to prevent striking pedestrians in the roadway. In fact, La. R.S. 32:214 requires drivers to

“exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway.”

A driver’s liability for injury to a pedestrian is based on ordinary negligence principles. The traditional duty/risk analysis is used to compare the driver’s behavior to “how a reasonably prudent person [would] have acted or what precautions [he would] have taken if faced with similar circumstances and conditions; the degree of care required is dependent upon the foreseeable dangers facing the driver. It can be particularly challenging for a court to conduct the duty/risk analysis when a victim dies as a result of his injuries and there are no eyewitnesses to the accident other than the defendant himself. The “trier of fact is free to believe in whole or part the testimony of any witness,” which means that the a judge or jury may disregard a defendant’s own testimony about whether he saw–or should have seen–the victim. Scoggins v. Frederick. However, under Louisiana civil procedure, “a court cannot make [such] credibility determinations in ruling on a motion for summary judgment.” This rule of procedure led to the First Circuit Court of Appeals’ reversal of the trial court in Woodward v. Hartford Insurance Co.