September 3, 2024

When Does the Clock Start Ticking on a Legal Malpractice Claim in Louisiana? Understanding the Peremptive Period

pexels-sora-shimazaki-5669602-703x1024 In the realm of legal malpractice, the timing of filing a lawsuit is critical. A recent Louisiana Court of Appeal decision, Wells v. Henry T. Dart, Attorneys at Law, APC, underscored this point, highlighting the one-year peremptive period for bringing such claims in the state. Let’s dissect this case and understand the implications for those considering legal action against their attorneys.

Glenda Wells hired Henry T. Dart, Attorneys at Law, APC, to represent her in a personal injury and property contamination lawsuit against several oil companies. Over time, Ms. Wells became dissatisfied with their representation and lodged a complaint with the Louisiana Attorney Disciplinary Board in October 2013, stating she believed the firm’s actions constituted “major negligence.”

Despite this, Ms. Wells continued her relationship with the firm until they withdrew from her case in 2015. Subsequently, her case was dismissed, and she filed a legal malpractice lawsuit against the firm in March 2017. The firm argued her claim was barred by the one-year peremptive period outlined in Louisiana Revised Statutes 9:5605.

August 10, 2023

Exploring Complex Damage Awards in Workplace Injury Lawsuits

by Berniard Law Firm

refineries_haifa_israel_night-1024x682 While headlines often tout substantial monetary awards for injured workers, the intricacies of such compensation might remain shrouded in mystery. Behind every high-stakes verdict lies a meticulous process of presenting compelling evidence to substantiate the array of damages claimed. In a recent case involving workers at a Firestone Polymers plant, the multifaceted nature of damages is unveiled, shedding light on the need for robust legal representation to navigate the diverse categories of compensation.

Workers at Firestone Polymers plant near CITGO Petroleum Company’s refinery in Lake Charles, Louisiana, were exposed to higher than permitted sulphur dioxide and hydrogen sulfide levels. Eight individuals who worked at Firestone filed a lawsuit against CITGO. At trial, the court held the employees’ exposure to the higher than permitted levels of sulphur dioxide and hydrogen sulfide caused their injuries, including headaches, coughs, eye and sinus irritation, and sore throats. The trial court awarded damages based on the workers’ injuries over three years. Although CITGO agreed it was liable, it appealed the damages awarded to the injured workers.

On appeal, CITGO argued the trial court’s award of damages for fear of future injury was duplicative of the mental anguish damages. CITGO also argued there was insufficient evidence to support the fear of future injury and medical expense damages awarded to the workers.

May 21, 2023

Exposure to Radioactive Materials: Substantiating Injury Claims with Evidence and Expert Witnesses

by Berniard Law Firm

nuclear_waste_radioactive_trash-1024x529 Exposure to naturally occurring radioactive materials generally increases due to human activity. Proving harm from these activities may be difficult, however. The following Jefferson Parish case demonstrates the need for substantiating your injury claim with evidence. It further shows the weight a court may place on expert witnesses.

In this case, over 1,100 individuals, referred to as the “Dottie Adams” plaintiffs, filed a petition together stating they were either directly or indirectly harmed by exposure to radioactive material caused by Exxon Mobil Corporation, Mobil Exploration, and Producing North America, Inc. (“Exxon”), and Shell Oil Company, Shell Offshore, Inc., SWEPI LP, ConocoPhillips Company, and Alpha Technical Services, Inc. (“Shell”). The Dottie Adams plaintiffs all lived, or currently live, in Harvey or worked near the contaminated Grefer Tract, a 33-acre industrial tract in Harvey.

After years of litigation, Exxon filed motions for summary judgment alleging that several of the Dottie Adams plaintiffs could not substantiate their claim that they or their property were exposed to radioactive material above naturally occurring background levels. In their motions, Exxon included an affidavit from its expert health physicist, who stated, in part, that it was more likely than not the plaintiffs’ properties were not impacted by the naturally occurring radioactive material from the operations occurring in the Grefer Tract.

March 18, 2023

Judicial Notice of Facts, When Can and Can’t it Be Used in Louisiana Trials

by Berniard Law Firm

refinery_petroleum_oil_industry-2-1024x683 When another or a company’s actions harm a person, he is entitled to financial relief under Louisiana law. The law also requires proof of damages to prove entitlement to monetary compensation. Damages are proven by submitting facts to a trial court. Sometimes the parties agree upon the facts, and sometimes they are disputed.

Another way of providing facts to the Court is through Judicial Notice. This legal concept allows a court to take notice of facts generally known within a community or otherwise cannot be reasonably questioned. What may be known in the community can still be a disputed issue at trial. The following case, which involved the Berniard Law Firm’s clients, raised the question concerning judicial notice of facts when it can and cannot be used in Louisiana trials.

An industrial accident occurred at Chalmette Refining’s St. Bernard facility on September 6, 2012, due to an emergency shutdown. The sudden shutdown caused a release of nineteen tons of regenerated catalyst over a large portion of St. Bernard Parish and Orleans Parish homes and property.

March 11, 2023

Louisiana Court Reverses Company’s Liability to People Allegedly Exposed to Chemical Leak, Finding No Evidence of “Specific Causation”

by Berniard Law Firm

gefahrguttransport-1024x768 When a chemical leaks from a local business and spreads to a residential area, it is easy to assume that the company has exposed itself to liability for every person exposed to the leak. But what does someone have to prove to be compensated for their exposure? A case out of Avondale explores this question after twenty people were claimed to have been exposed to hydrochloric acid (HCl).

In 2001, a storage tank belonging to McGowan Working Partners, Inc., an oil and gas company, began to leak, causing a vapor solution of HCI and water to blow from the defendant’s property in Avondale to the northwest into the intersection of Jamie Blvd. and Highway 90. Before the leak, a McGowan employee replaced a clear plastic hose on the storage tank and used a nylon fitting to connect the hose to the tank’s valve. Unfortunately, the employee was unaware that HCI causes nylon to deteriorate. Several days later, 600 gallons of an HCl solution were unloaded into the storage tank, and about 470 gallons escaped onto the ground of the McGowan property. The HCI vapor began to spread off the property at 3:10 am, and the valve from the storage tank was shut off at 4:35 am. People exposed to HCI can experience eye and nose irritation which could develop into throat irritation and breathing difficulty. The HCI emissions were shown to stop affecting people at 5:30 am.

Twenty people who lived and worked in the surrounding area sued McGowan in a mass tort suit for exposure to the HCI vapor. A mass tort is when multiple people come together to file a lawsuit against a person or entity responsible for causing all their injuries. The trial court ultimately sided in favor of all twenty plaintiffs and awarded them damages ranging from $1,000 to $8,000.

March 1, 2023

Can Class Certification Occur By Use of an Excel Spreadsheet in Louisiana?

by Berniard Law Firm

court_hammer_auction_law-1-1024x768 Most consumers in the U.S. are aware of increasingly high medical costs. For most people, those high costs are not directly paid; instead, they appear on a bill along with what one’s insurance company will pay as part of an agreement with the medical provider. Many insured consumers will look for “in-plan” medical providers to ensure that most costs are covered. Those “in-plan” providers are part of a preferred provider organization (PPO), which is a subscription-based medical arrangement that allows a substantial discount on rates to be charged.

PPOs are organized by separate companies that generate revenue by charging an access fee. This type of PPO arrangement sets the backdrop for Best Comp, a recent case by the Louisiana Court of Appeals where plaintiffs sought class certification and defendants, the PPO, challenged it. The central evidence that plaintiffs presented for class certification was a data disc containing a Microsoft Excel spreadsheet showing the recommended discounts for each provider.

The plaintiffs were Opelousas-based healthcare entities representing healthcare providers who treated employees under the Louisiana Workers’ Compensation Act. The providers subscribed to PPO agreements with defendant Bestcomp, Inc., and alleged that Bestcomp discounted their billing without the notice required by statute La.R.S. 40:2203.1.

June 5, 2020

CLASS ACTION NOTICE FOR THE DOW CHEMICAL JULY 2009 ETHYL ACRYLATE LEAK CLASS ACTION

by Berniard Law Firm

SHEILA GUIDRY, ET AL., individually and on behalf of all others similarly situated VERSUS DOW CHEMICAL COMPANY, ET AL., Eastern District Court of Louisiana, CIVIL ACTION NO. 19-12233 Class Members Please Take Notice of the Following Important Announcement:

CLASS ACTION NOTICE

SHEILA GUIDRY, ET AL., individually and on behalf of all others similarly situated VERSUS DOW CHEMICAL COMPANY, ET AL., Eastern District Court of Louisiana, CIVIL ACTION NO. 19-12233, SECTION: F; JUDGE: MARTIN L.C. FELDMAN, MAG: #4, KAREN WELLS ROBY

May 18, 2020

CLASS ACTION NOTICE FOR THE DOW CHEMICAL JULY 2009 ETHYL ACRYLATE LEAK CLASS ACTION

by Berniard Law Firm

SHEILA GUIDRY, ET AL., individually and on behalf of all others similarly situated VERSUS DOW CHEMICAL COMPANY, ET AL., Eastern District Court of Louisiana, CIVIL ACTION NO. 19-12233 Class Members Please Take Notice of the Following Important Announcement:

CLASS ACTION NOTICE

SHEILA GUIDRY, ET AL., individually and on behalf of all others similarly situated VERSUS DOW CHEMICAL COMPANY, ET AL., Eastern District Court of Louisiana, CIVIL ACTION NO. 19-12233, SECTION: F; JUDGE: MARTIN L.C. FELDMAN, MAG: #4, KAREN WELLS ROBY

June 14, 2019

Class Settlement Agreements And Amendments Affect All Parties

by Berniard Law Firm

ortho-1024x683 When a healthcare provider is dealing with workers’ compensation cases, the outcome can be a bureaucratic nightmare. When insurance companies also get involved, legal disputes are bound to arise. Courts have to navigate these cases, even when they seemingly end in a mutual settlement agreement by all parties.

In this instance, a case was brought by an orthopedic surgery office (“Plaintiff”) against Bestcomp, Inc. (“Bestcomp”). The Plaintiff filed workers’ compensation medical bills and claimed that Bestcomp had improperly discounted these without providing notice. Other plaintiffs joined in on the lawsuit, and the lawsuit expanded to cover multiple defendant entities and insurance companies, as well. The Plaintiffs entered a Class Settlement Agreement and General Release with most of the defendants. The current appellees (“Appellees”) are two of those defendants, Stratacare, Inc. (“Stratacare”) and Rehab Review, Inc. (“Rehab”), and the appellants are the insurance companies connected with them (“Appellants”).

All parties agree that releasing roughly 45,000 claims in a settlement agreement was a mistake, so a motion to amend the agreement to remedy the error was filed. The Appellants, however, believe that Rehab was released in the next section of the document. They opposed the motion and filed exceptions such as res judicata (meaning an issue that has already been judged upon), lack of subject-matter jurisdiction, and no right of action. The trial court denied these exceptions and allowed the agreement to be amended. The court reasoned that the settling parties did not intend to release Rehab, and this clause was “an undisputed mistake” inconsistent with the rest of the record and thus likely a clerical error.

May 22, 2019

Berniard Law and Martzell, Bickford & Centola making progress in 3M EarPlug Hearing Loss and Tinnitus Lawsuits

by Berniard Law Firm

The 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.