Articles Posted in Civil Matter

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Discovery is a phase of the litigation process that occurs once a complaint has been filed and answered but before the trial occurs. The purpose of discovery is for the litigants in civil matters to exchange information that is pertinent to the case. Each party can request that the other turn over documents, answer interrogatories (written questions), agree to admissions about facts not in dispute, or submit to a deposition. The parties are required to respond to these requests within a certain period of time. There are some importantexceptions to the materials that must be exchanged through discovery (for instance, privileged information is not subject to disclosure), but the intent is to level the playing field so that the parties can adequately prepare for trial.

The failure to respond to discovery requests in a timely manner can have very negative consequences for a litigant. When a party who has been served with a proper discovery request fails to respond, the serving party can ask the court to impose penalties. These include “dismissing the action or proceeding or any part thereof, or rendering a judgment of default against the disobedient party, or [entering] an order assessing costs and attorney fees … against the disobedient party and his attorney or both.” La. C.C.P. Arts. 1471, 1473. The dismissal of a case is “a drastic penalty and should be reserved for extreme circumstances,” but the party seeking to avoid sanctions or dismissal for failure to comply with a discovery order is required to show “that the failure was due to inability and not to willfulness, bad faith, or any fault.” Halley v. Guerriero, 577 So.2d 781 (La. App. 2d Cir. 1991).

The case of Jones v. LSU/E.A. Conway Medical Center (No. 45-410, La. App. 2d Cir. 2010) is illustrative. Rodney Jones was an inmate at the Dixon Correctional Center (“DCC”) in Jackson, Louisiana. On March 25, 2006, Jones allegedly injured his elbow and was admitted to the LSU/E.A. Conway Medical Center (the “Center”) for treatment. The attending orthopedist did not find anything wrong with Jones’s elbow and refused to perform arthroscopic surgery or request an MRI. In December of 2008, Jones filed a medical malpractice lawsuit against the Center which alleged that the Center’s staff deliberately failed to provide him with the medical care he needed for his elbow. Jones did not hire an attorney and represented himself in the matter.

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Under Louisiana law, a motion for summary judgment is a procedural device that allows a court to resolve a case without a full trial when there is no “genuine issue of material fact” to be decided. See Duncan v. USAA Insurance Co., 950 So.2d 544 (La. 2006). A “genuine issue of material fact” is a matter about which reasonable people could disagree. This kind of decision is left to the jury to decide (or, in the case of a bench trial, the trial judge). If, based on the evidence, reasonable people could reach only one conclusion about an issue, there is no need for a jury to resolve it. A fact is “material” when it relates to an essential element of a plaintiff’s theory of recovery. A motion for summary judgment can be filed by either the plaintiff or defendant (the “movant”). The initial burden of proof rests with the mover to show that based on the pleadings, depositions, interrogatories, and affidavits, no genuine issue of material fact exists in the case. If the movant makes this initial showing, the burden then shifts to the other party to present evidence that shows that a material fact issue actually does exist; in the absence of this evidence, the court can grant the motion. See Hutchinson v. Knights of Columbus, 866 So.2d 228 (La. 2004).

Typically, the questions of a defendant’s negligence or a plaintiff’s contributory negligence are issues of fact and are therefore not appropriate for summary judgment. Freeman v. Teague, 862 So.2d 371 (La. App. 2d Cir. 2003). However, in the event that reasonable minds cannot differ, these matters can be resolved by summary judgment. For instance, in the case of Pruitt v. Nale, No. 45,483-CA (La. App. 2d Cir. 2010), the plaintiff employed a motion for summary judgment both to recover damages from the defendant and to dispute the defendant’s allegation of contributory negligence.

On March 9, 2007, Tiffany Pruitt, then 19, was driving her father’s pickup truck eastbound on East Jefferson Avenue in Bastrop, Louisiana. Glenn Nale was also driving in the same direction of travel on Jefferson Avenue. He was behind the wheel of a log-hauling tractor-trailer. At the intersection with South Franklin Street, both Pruitt and Nale stopped at the red light, with Pruitt in the center lane of travel and Nale in the designated left-turn lane. When Nale began making a left turn onto South Franklin Street, the logs protruding from the rear of his trailer swung into the center lane and slammed into Pruitt’s truck. At least one of the logs shattered the driver’s side window and entered the cab of the truck, severely injuring Pruitt.

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A very recent Louisiana Court of Appeals decision arises from a lawsuit filed by Lloyd and Dotris Bordelon to recover damages stemming from a pedestrian-vehicle accident that followed a vehicle-vehicle collision.

The first accident occurred in September 2003, when John Vercher and his wife were going north on Highway One in Avoyelles Parish to Mr. Bordelon’s house. Mr. Desselle was also going north on the highway and was attempting to pass the Verchers, unaware that Mr. Vercher was going to turn left into Mr. Bordelon’s driveway.The vehicles collided. Mr. Bordelon came out of his house to see what happened. After determining no one was hurt, Mr. Bordelon walked out to the highway to direct traffic. Mr. Bordelon reported that he heard someone asking him to move the vehicles, at which point he turned around and said they should not be moved. When Mr. Bordelon approached Mr. Vercher’s car, it lurched forward and hit Mr. Bordelon, throwing him into the post of his carport and an aluminum building. Mr Bordelon sustained injuries to his brain, face, and stomach. The Bordelons filed suit against both Mr. Vercher and his insurer and Mr. Desselle and his insurer for injuries he sustained as a result of the initial crash and resulting collison. The lawsuit against Mr. Vercher was dismissed prior to trial. After trial the court found that Mr. Desselle was one hundred percent at fault for the collision between him and Mr. Vercher and that both Mr. Desselle and Mr. Vercher were fifty percent at fault for Mr. Bordelon’s injuries, ordering Mr. Desselle and his insurer to pay the entire $50,000 with no reference to the assignment of fault. On the first appeal, the trial court executed a judgment allocating fault and damages equally between Mr. Desselle and Mr. Vercher. Mr. Desselle argued in this appeal that the trial court should not have found Mr. Desselle even fifty percent at fault for Mr. Bordelon’s injuries.

The defendants reasoning for reversing the judgments include the separate nature of the two accidents, the time and distance between them, and the fact that Mr. Desselle owed no duty to Mr. Bordelon.

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When filing a complaint, the attorney needs to make sure that they are bringing in the correct parties and including the right claims with their legal action. Mistakes can result in losing the entire case before it even begins thus focusing on even the smallest details can save a complaint from utter failure.

As careful as one may try to be in forming a complaint, mistakes do happen. This aspect was explored in Glasgow v. Par Minerals Corporation, where an oilfield explosion and subsequent fire at a wellsite near Kinder, Louisiana, significantly injured a direct employee of Therral Story Well Service (TSWS). Par Minerals had contracted with several companies to drill the well for oil and gas, one of the companies being TSWS. The employee who was injured initially filed a tort suit against Par Minerals alone, including Avery Graves as the on-site supervisor for Par. The latter part of the petition was wrong as Avery Graves was the president and sole-shareholder of Pipe Services.

This mistake resulted in two supplemental and amended petitions, leaving Par as the sole defendant. Over one year later, a third supplemental and amended petition added to Par, Pipe Services and its insurer, Colony Insurance Company. Thus, the final petition had three defendants, one named within one year of the accident, and two named over one year after the accident. The timing of the amendments and petitions are extremely important, because had the latter of the two defendants been named within one year of the accident, the entire result of the case may have come out differently. Again, focusing even on the smallest details can help save a case from failure.

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While many people receive much of their legal understanding from popular tv shows and movies, the fact remains that very real legal concepts are often explored. Regardless of your television preferences, the terms remain the same in real life litigation that often involves great tragedy and turmoil for all parties involved. Medical malpractice. Negligence. These two legal terms have unique meanings and can determine many aspects of a case.

Medical malpractice concerns professional negligence committed by a health-care provider such as a hospital, dentist, doctor or similar professional. A medical malpractice action centers around the behavior of the professional and his use of medical practices that depart from the normal care or skill that other similar professionals with similar experience utilize, that ultimately results in harm to the patient. General negligence, on the other hand, concerns conduct of a person that fails to meet the standard of care a reasonable person in their position would have exhibited in whatever the situation may be. Clearly, general negligence is a broader cause of action than medical malpractice.

This comparison recently became crucial in a wrongful death lawsuit against Pendleton Methodist Memorial Hospital. The facts concern Ms. Althea LaCoste, who passed away after Hurricane Katrina knocked out Pendleton’s power supply. The Times-Picayune reported that although the hospital was prepared with emergency generators to fight through the storm, the generators lacked the improvements necessary to withstand the storm’s raging water levels. Consequently, Ms. LaCoste’s life support machine failed.

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In Louisiana, actions in tort must be brought within a certain period of time after the incident occurs. This is called the “prescriptive period,” and reflects the state’s position that “a plaintiff is responsible to seek out those whom he believes may be responsible for a specific injury,” Jordan v. Employee Transfer Corporation, 509 So.2d 420, 423 (La. 1987), and to file suit within a reasonable period of time. The specific prescriptive period for a given tort is set by statute. For example, the prescriptive period for damage to immovable, or real, property is one year. LSA C.C. Art. 3493. The one-year period “commences to run from the day the owner of the [land] acquired, or should have acquired, knowledge of the damage.” LSA C.C. Art. 3493. A plaintiff’s knowledge of damage is often closely connected with the concept of “constructive notice,” which has been defined by Louisiana courts as “whatever notice is enough to excite attention and put the injured party on guard or call for inquiry.” Campo v. Correa, 828 So.2d 502, 510-511 (La. 2002).

The expiration of the prescriptive period for property damage was central to the case of Hogg v. Chevron USA, Inc., No. 2009-CC-2632 (La. 2010). The Hogg family owned property in Ruston that was located next to Burt’s Chevron Station. In 1997, it was discovered that the gas station’s underground storage tanks were leaking. The tanks were replaced, after which the Louisiana Department of Environmental Quality (LDEQ) investigated for soil and groundwater contamination. In December 2001 and April 2002, the LDEQ sent the owners of property around Burt’s Chevron, including the Hoggs, letters informing them of the environmental contamination. The first letter, dated December 20, 2001, reported that environmental contamination had been detected in the vicinity of Burt’s Chevron as a result of a leaking underground storage tank system. The letter explained that the contamination had been detected in the subsurface soil and groundwater, and appeared to be migrating in a “west-northwesterly direction,” toward an unnamed stream on the Hoggs’ property. The letter further reported that water samples collected from the stream indicated “the presence of chemicals commonly found in gasoline (i.e., benzene, toluene, ethylbenzene, xylene).” The letter specifically warned the Hoggs: “Due to the direction of groundwater flow, there is a possibility that gasoline may have migrated underground from the Burt’s Chevron site to your property or that such migration may occur in the future.” The second letter, dated April 26, 2002, contained the results of ambient air sampling which revealed the presence of petrochemicals in the area of the stream. A map enclosed with the letter showed that the tests were actually conducted on the Hoggs’ property. The LDEQ also recommended that the Hoggs “limit the time spent in the area immediately adjacent to the stream.”

The Hogg family did not file suit against E. Lee Young, the owner of Burt’s Chevron, until September 6, 2007–shortly after they were contacted by the LDEQ to request permission to enter their property to conduct clean-up. In the district court, Young filed a motion for summary judgment arguing that the one-year prescriptive period for filing the tort action had expired. Young’s theory was that the period began to run when the Hoggs received the letters from the LDEQ in 2001 and 2002, as the letters provided them with notice of the presence of gasoline on their property. The Hoggs countered that the LDEQ’s letters were subject to more than one interpretation, thereby rendering the reasonableness of the Hoggs’ lack of response a question of fact that should go to a jury. The district court denied Young’s motion, finding issues of fact about whether the LDEQ’s letters provided knowledge of damage sufficient to start the running of the prescriptive period.

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On July 24th in Lincoln Parish, two trucks collided on I-20 leaving one dead and several injured. While traveling east on I-20, a Chevy Suburban attempted to pass a GMC truck hauling a livestock trailer. The Chevy Suburban swerved right hitting the GMC truck and both vehicles ran off the road. The vehicles struck the tree line, the Chevy Suburban striking several trees before stopping. The front-seat passenger of the Chevy Suburban was pronounced dead at the scene. Two backseat passengers suffered minor injuries, and the 16-year-old driver of the Chevy Suburban was in critical condition. The driver and passenger of the GMC truck sustained moderate injuries. Three cows in the livestock trailer died in the crash.

It is unclear whether the accident was due to a mechanical defect, driver error, or another cause. Louisiana State Police say that impaired driving is not a likely cause of the accident, but they are awaiting routine toxicology tests to make the final determination. All passengers were wearing seatbelts, and so far no citations have been issued.

The determination of whether the accident is due to a mechanical defect or driver error is critical to determine the claims to file and the parties to bring a lawsuit against. An attorney hired by an injured party may investigate whether the owner of the vehicle negligently maintained the vehicle. To establish negligence, the attorney must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the actual and proximate cause of the injury, and damages. Investigation of negligently maintaining the vehicle requires that the cars are examined and that the evidence is preserved.

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Asbestos was once used to make many common products including insulation, roofing materials, automobile brake pads, and other household and commercial goods. In the 1960s asbestos was used in the petroleum industry, where the  the high heat-resistance of asbestos made it a useful additive to drilling mud. Drilling mud is used while drilling oil and gas wells to help clear debris out of the well and to help cool the drill bit. Various substances are often added to the drilling mud to adjust its thickness and fire retardant properties. Many of these, including lead, arsenic, and chromium, are toxic. Asbestos provided superior fire resistance and helped to improve the mud’s consistency. Unfortunately, we now know that asbestos is linked to several types of cancer and other health problems.

The use of asbestos in drilling mud has been eliminated today; however, when it was first prohibited by the U.S. government, some petroleum companies apparently took the position that the federal ban did not apply to their offshore oil rigs or inland drilling barges. Thus, asbestos products could have been used in these environments even as late as the mid-1980s. Many drilling workers can recall working with a white, flaky additive that was in 50-pound packages and added to the drilling mud in the mud shack. No proper breathing protection was provided to the workers who handled the mud additives, so many of these workers routinely inhaled pure asbestos fibers while mixing in the additives. Other oilfield workers such as roughnecks, mud engineers, and shaker hands also were likely exposed to asbestos on a regular basis during this timeframe. Even spouses and children of drilling workers were at risk of exposure if the workers came home with asbestos fibers clinging to their clothing.

Asbestos fibers are known to cause or increase the risk of many forms of cancer. The danger is highest among smokers, who face a substantially increased incidence of lung cancer. Studies have also shown a connection between asbestos exposure and gastrointestinal cancer, colorectal cancer, and a heightened risk for cancers of the throat, kidneys, esophagus, and other organs. Exposure is also linked to inflammation of the lungs, known as asbestosis, as well as pleural disease, which is inflammation of the tissue layers that line the lungs.

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A July CNN report has brought to light a lawsuit filed against Louisiana school officials for repeatedly handcuffing and shackling a 6 year old. The lawsuit has been filed by rights advocates and the child’s parents on behalf of children in the Louisiana Recovery School District, a statewide entity managed by the Louisiana Department of Education. The superintendent of the district, and school officials and security officers at the school, Sarah T. Reed Elementary, were named in the lawsuit as well.

According to the suit, the 6 year old boy was handcuffed and shackled for “minor offenses,” involving a shoving match with another student. The School District stands behind the behavior of their employees and has indicated that the incident was an isolated one. They did not arrest the student or terminate the employee involved. The school principal, Daphyne Burnette also defended the school’s action, going so far as to state that it is school policy to handcuff “out of control” students, and that if children fail to follow rules in the future, they will be handcuffed. The plaintiffs in the lawsuit disagree with this policy and have argued that the punishment methods crossed the line and that the conduct was “unreasonable and excessively intrusive.”

The child’s father, Sebastian Weston, claims that his son’s life has been forever changed because of the incident.

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Car accidents oftentimes are not simple, clear-cut events that lend a clear idea of who was right and who was wrong. Instead, many times it is left to a court to decide what the circumstances were that led to the collision and the amount of responsibility each party had for it occurring. As a result, because no court is perfect, individuals who have been harmed due to another party’s acts are left out in the cold because they could not prove their case. However, each year new technology comes out that provides a better opportunity for plaintiffs, and their attorneys, to prove their case and receive the compensation they deserve.

One firm, Advanced Research and Technology (ART) Corporation, works with the very technology required to prove cases. Utilizing Finite Element Analysis (FEA), commonly referred to as computer simulations, the company provides compelling engineering evidence to explain the cause of a crash-related case. FEA’s due this by calculating the kinematics of the investigated accident (speeds, relative motion, different parts of accident) and structural analysis (where the cars collided and relevant stresses, strains, failures, energy displacements, etc.). By analyzing this information, FEA can help plaintiffs win cases related to auto and motorcycle crashes, airbag and seatbelt related problems, structural analysis relating to accidents or blasts, slip and fall cases, fuel tank and pipeline pressure analysis and a variety of others.

FEA simulations are widely recognized by the engineering community as a reliable and advanced tool for solving structural dynamics, crash, blast and impact-related matters. Automotive companies often use FEA for car testing in the same way that highway safety systems are designed using the technology. The reliability of FEA comes down to the simulator being able to develop accurate formulations or equations to explain how the millions of small elements involved in a collision react when variables are at a certain set. Because of its ability to determine how a car will behave in a collision and the effects of a collision, technology experts are able to move backwards and determine what variables were in place to lead to the results suffered.

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