Articles Posted in Class Action

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In October of 2009 a man was injured on a tugboat near Amelia, Louisiana, while attempting to do his duty as a deckhand. Two major issues came up in this case when it went to the Court of Appeals for the Fifth Circuit. First, the deckhand had to prove that he did not cause or partially cause his own injury. Second, he also had to demonstrate that the damages he was awarded at the District Court level were not excessive. Both of these factors were proven and the injured man was awarded approximately $1.3 million in damages.

The deckhand in this case was on a small tugboat and attempted to transfer a big barge that they were hauling to another larger tugboat. The small tugboat crew made the transfer in the very early morning hours and while the sea was quite rough. The deckhand was injured when his tugboat dipped in a wave; a wire came untied, and struck him. He was thrown against a wall, which knocked him unconscious. As a result, he had fractures in two of his vertebrae and wore a back brace for a month before a serious surgery that fused his vertebrae together. He also has serious pain issues that will have to be controlled with a pain pump, which gives pain medication directly to the spinal cord, or the continued use of oral pain medication. His pain issues will likely continue for the rest of his life.

In order to collect damages, the deckhand needed to prove that his injury was not also partially his own fault because he was being careless. In legal terms, this is known as contributory negligence. This was a major issue because at the time that the deckhand was injured, he was in what was called a “pressure zone.” The pressure zone basically assumes that the portion of the deck in which he was standing was more dangerous at the time of the transfer than the other portions of the deck. This is because a wire that the boats used to transfer was tight at that portion of the deck, so if it came loose then the deckhands would lose control of it. The court determined that he did not contribute to his injury in this case because he was following the orders of his captain when he was injured. Previous case law has stated that individuals following orders cannot have contributory negligence because their superiors put them in that situation.

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Jurisdiction and appeals are both complicated subjects that law students spend an entire year studying in law school. The intricacies of jurisdiction and the appeals process are also learned from years of practice in the legal field. One victim discovered this notion out the hard way when he brought suit after a medical incident in Alexandria, Louisiana. Some general background information is helpful before the case is discussed.

In order for a court to hear a case, that court must have jurisdiction over it. Jurisdiction is defined as the authority to hear a case and it is granted by the United State Constitution or by statute. Jurisdiction needs to be determined at each level as it goes through the either the federal or state court system.

The District Court hears most federal claims first because it is usually considered the lowest federal court. After a case goes through the lower court then the defendant typically has the right to appeal if the judgment that was rendered at the District Court was not favorable to his case. The Court of Appeals then needs to determine whether it has jurisdiction over that particular appeal.

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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.

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The first element of an independent action in equity that allows an individual to bypass res judicata analyzes whether the judge’s determination in the original case was truly fair and made in good conscience. When a judge shows bias, as in the boat swell case, the judge’s decision is likely swayed and not independent. This is unfair to the losing party and therefore helps a claim bypass res judicata.

The second element requires that the original case claim have merit. If the claim is frivolous, then there is no reason for the court to negate res judicata and grant a new trial. This again protects judicial efficiency and duplicitous suits. When determining the merit of the underlying suit, a judge will simply read the complaint to see if it makes an actual claim that, if true, would lead to recovery. In the boat swell case, the personal injury claim did have merit and thus satisfied this prong.

The third element requires courts to determine whether fraud was a reason that the losing party did not prevail in the underlying case. Similar to the first element, fraud is likely to sway a judge’s decision to the detriment of the losing party. This is what happened in the boat swell case as the judge’s decision was basically bought with lavish hunting trips.

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Though courts are busy and judges have overflowing dockets, our justice system requires courts to find time to hear cases worthy of adjudicating. This means that judges must be as efficient as possible. One way of doing this is to require claimants to converge all of their complaints into a single lawsuit. Failure to do this will bar a claimant from bringing a second lawsuit against the same party. This legal theory based in civil procedure is known as res judicata. It seeks to maintain judicial efficiency and protect litigants from facing duplicitous lawsuit from the same claimant. This important principle is important to understand for anyone going forward in a lawsuit because it could prevent a claimant from asserting any material claims against a wrong-doer that were not asserted in the first legal action.

Though courts are assumed to be honest, deceit and bias can seep into the legal fabric. When this occurs, the justice system must reanalyze the applicability of res judicata. One illustrative example of an instance like this took place recently in the United States District Court for the Eastern District of Louisiana. The issue was complicated and was later resolved by the United States Court of Appeals for the Fifth Circuit.

The case in question involved a personal injury lawsuit where a yacht’s boat swells threw another boat into the air and injured a woman in that boat. That injured woman filed suit against the yacht owners and their insurance company. At trial, the judge found for the defendants, essentially stating that the defendant’s expert witness was more reliable than the plaintiff’s expert.

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Two former employees of a large loan business located in Bossier Parish, Louisiana, succeeded in their malicious prosecution against their former employer. Deborah LeBlanc and Teri Shirey left the Cash Back Loans company where they both had held management positions. After their employment terminated, Linda Mills, another employee began reorganizing the accounts of the store which had been in disarray for years. On her inspection she found nineteen loans in sixteen names that she suspected were fraudulent. She brought her suspicion to Ray Pynes, Sr., the owner of the company, and told him she thought it was likely that the Shirey and LeBlanc had stolen the money. Based on Mills’ statement and documentation, the two women were arrested for felony theft. The case was dropped nine months later.

A successful claim for malicious prosecution has several legal elements, all of them inherently important and core to successful litigation. In short, the terms require the case must have been terminated in favor of the present plaintiff, the plaintiff must show the absence of probable cause for arrest and that the defendant acted with malice in bringing the case forward anyway.

The court found that Mills’ investigation into the suspicious loans was lackluster. There was evidence that she had fabricated documents and her testimony varied significantly through the trial process. Mills told the police that employees were not allowed to take loans from the company like LeBlanc and Shirey did when this was patently false and many employees had loans with the company. She told the police that the required documentation for loans was never submitted for Shirey’s loan when the company had drivers’ licenses and several other documents to validate the loan. She also presented inconsistent testimony as to whether or not she actually tried to contact the bogus loan customers. She claimed at one point that she called each one but admitted later that she did not bother to contact any of the sixteen loan customers to try to verify their legitimacy. Three of the “bogus” loan customers came forward claiming they had legitimate loans with the company. One had made payments on the loan after Shirey and LeBlanc left the company. Several of the loans were approved after the two women had left the company. The arrests of Shirey and LeBlanc were made exclusively on Mills’ inaccurate statements. The company had no accounting discrepancies that they could find to support their theft claims. They didn’t even admit bank account records into evidence.

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This case is a welcome reminder of how an attorney’s advice may sometimes lead to more harm than good. Brown brought suit against his former employer, Skagit, under Title VII claiming racial harassment and constructive discharge. In a deposition, Brown testified that his sole reason for quitting his job at Skagit was due to racial harassment. However, in a deposition four months earlier in an unrelated personal injury case, Brown testified that he left Skagit solely because of debilitating back pain suffered during a car accident. Skagit sought dismissal of Brown’s claims based on his conflicting testimony, which the district court allowed and dismissed with prejudice. The court also went one step further finding Brown committed perjury. Brown’s appeal is based on a matter of fairness, arguing that a less severe sanction is in order and that he was entitled to explain the discrepancy between the testimonies.

To emphasize the facts, in the first case, based on racial harassment and constructive discharge under Title VII, 42 U.S.C. sec. 2000e, Brown testified as to how he felt endangered by his co-workers’ threatening behavior, which involved dropping heavy plates and pipes near him. He was also distraught by his co-workers flinging derogatory remarks at him on a daily basis. He felt compelled to quit his job, as his supervisors purportedly ignored this behavior. When asked why he quit his job, he testified that the only reason he quit was because of the racial harassment. He reiterated that there were no other reasons for his quitting.

In a completely unrelated deposition for a personal injury claim, Brown testified that the exclusive reason he left Skagit was due to his debilitating back pain, which prevented him from performing his job as a welder. He again emphasized and confirmed that this was his only reason for leaving his job.

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The idea of timeliness is a common contract clause that requires that one of the parties perform a mandatory act within a certain amount of time. There is often a specific amount of time attached, but sometimes the clause can simply state that an action be carried out “within a timely manner” or similar wording. Usually if a party does not follow a timeliness requirement, the other party can dissolve the contract. However, if there are extenuating circumstances that create a situation in which the timeliness requirement could not have been satisfied, then courts may take that into consideration and allow the contract to continue.

In the aftermath of Hurricane Katrina, many companies were scrambling to rebuild their companies and manage rebuilding in hopes of returning to some form of New Orleans normalcy. Due to the myriad of weather and levee related problems, common damages included flooding within buildings, broken windows, roof damage, and a number of other damages relating to the huge amounts of wind and rain. The damage was enough to force the city of New Orleans shut down for at least thirty days after the storm. One would think that these conditions might fit with those extenuating circumstances to avoid a timeliness provision regarding how quickly to rebuild.

Conversely, the court ruled that this was not the case. Expert testimony stated that contractors were working to rebuild within two weeks after the storm. Therefore, contracts that included timeliness provisions still had full force. In one case, a lessee had a provision in their rental agreement that stated if there was significant damage the lessor could choose to either repair the property or terminate the lease within thirty days after the disaster. If the lessor chose to rebuild, then he would be required to rebuild within 120 days. In this case, the lessor chose to rebuild, was unable to fulfill the timeliness requirement. Instead, the property was returned to a “shell condition” nearly a year after Katrina hit. The “shell condition” consisted of very few substantial repairs, so that the building could not be used for its intended purpose. Instead, vital things were missing such as doors and doorframes.

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Class actions are a type of action that most people have heard of but that may not be well understood. In Klier v. Elf Atochem North America, Inc. a class action was initiated against the operator of an industrial plant in Bryan, Texas. The class was divided into three subclasses for the purposes of settlement. Members of each class were granted specific remedies for their disparate injuries.

Class actions are a useful tool when a large number of people have been harmed by a single defendant but none or few of them have suffered sufficient harm to warrant filing an independent claim. Class action proceedings have res judicata power over plaintiffs who do not opt out. That means that if a plaintiff does not opt out of a class action, the verdict or settlement that results will be binding on that person and prevent them from filing that same claim in the future. If a plaintiff feels that his or her injury warrants a separate claim, that person is free to do so only after opting out of the class action.

In order to certify a class for a class action under the Federal Rules of Civil Procedure in the first place, a court must find that the class is so numerous that joinder of all members is impracticable, that there are questions of law or fact common to the class, that the claims or defenses of the representative parties are typical of the claims and defenses of the class and that the representative parties will fairly and adequately protect the interests of the class. Each of these requirements must be met in order for an action to go forward as a class action.

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

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