Civil Matter

February 11, 2023

Fifth Circuit Court in Louisiana Affirms Dismissal of Asbestos Lawsuit Because Of Prior Settlement Agreement

firefighters_equipment_portrait_756828-1024x819 The difficulty of losing a loved one is compounded when death results from a faulty product. Further anguish occurs when a lawsuit against the defective product manufacturer is dismissed, barring recovery. It is essential to be aware that there are many deadlines and requirements to comply with to avoid the dismissal of a lawsuit. This is the situation in which the Lemieux family found themselves following their loved one’s death.

Raymond J. Lemieux Sr. (“Raymond Sr.”) worked in Marrero, Louisiana, from 1956 to 1970. During this time, he was exposed to asbestos and wore a respirator designed by American Optical. Because of this exposure, he developed asbestos-related lung cancer, culminating in his death in 2015.

Before he died, Raymond Sr. sued American Optical based on his use of their respirator. Raymond Sr. entered into a settlement agreement dated February 10, 2011, with American Optical. As part of the settlement, Raymond Sr.’s wife and children had to sign a release of any potential future claims they might have had against American Optical. They individually initialed each page of the settlement agreement and a notarized statement. The agreement stated that the parties had executed it of their own free will after discussing the terms with an attorney.

February 10, 2023

Fifth Circuit Court Finds Succession Administrator Can Bring Civil Rights Action

by Berniard Law Firm

maracaibo_venezuela_building_old-1024x788 What would you do if you were heir to property and found out the City had issued a demolition order for that property? A recent case decided in New Orleans discusses that question. The City of New Orleans, Louisiana, brought administrative proceedings against property owners whose property was allegedly blighted. However, the situation became more complicated because the property owners were deceased.

Before the City of New Orleans (“the City”) held the hearing, it sent the property owners notice by certified mail. The notice stated that if the property owners did not appear for the hearing, their absence would be considered an admission of liability. Even though the U.S. Postal Service returned the notice as “Not Deliverable” and “Unable to Forward,” the City still proceeded with the hearing.

At the hearing, the City assessed significant fines for code violations and issued a demolition order for the property. After the hearing, the City sent the property owners a notice via certified mail stating the property owners had 30 days to correct the code violations or else the City would demolish the property. The U.S. Postal Service again returned the notice as “Not Deliverable.”

February 7, 2023

Insurance Company Gets Off the Hook In Auto Accident Case Because Driver Never Actually Insured

by Berniard Law Firm

crash_test_collision_60-1024x645 One of the first things that occur after a car accident is the parties exchange insurance information. But, unfortunately, just because someone has an insurance card doesn’t always mean they are covered for the wreck they caused. A driver in Metairie learned that lesson the hard way, as shown by the case below.

In 2012 in the Parish of Jefferson, Miriam Blandino was driving her partner’s car with their children inside when she was rear-ended at a stop sign. She and her partner subsequently sued the driver (from now on “Ms. Doe”) and the driver’s insurance (from now on “USAgencies”) for damages. However, USAgencies was let out of the lawsuit because Ms. Doe never actually obtained insurance through them.

Earlier that year, in February, Ms. Doe had signed up for an automobile insurance plan covering her from February through August, but her initial payment was declined. USAgencies notified her of this failure to pay and allowed her to reinstate her policy: she would need to provide the proper amount and a fifteen-dollar fee within ten days of the notice. Unfortunately, USAgencies never received payment from Ms. Doe, and thus her policy never became effective, so she was never covered.

February 5, 2023

Only Four Out of Five Expert Witness Fees Awarded to Prevailing Plaintiff

by Berniard Law Firm

litigation expert fees louisiana Litigation can be lengthy and costly, especially when expert witnesses get involved. The good news is that a prevailing party can be awarded many of these costs at the trial court’s discretion. The bad news? Not every fee may be granted, as Carlo Conforto learned in a case he brought to the Twenty-Fourth Judicial District Court in Jefferson Parish.

On March 18, 2011, appellant Conforto was injured in a car accident. After that, he filed for damages against appellees Dylan Toscano, United Services Automobile Association and Allstate Insurance Company. The District Court held in favor of Conforto with a judgment of $145,708.36.

Five expert witnesses were used at the trial, and Conforto wanted to know how their fees would be handled. The District Court decided expert witness fees would be determined after the trial with a rule to tax costs—a motion to determine the number of expert witness fees to be paid by the party cast in judgment. On August 9, 2016, Conforto filed a rule to tax costs, and on September 22, 2016, the motion was granted. However, only four expert witness fees were awarded, so Conforto appealed to the Fifth Circuit Court of Appeals of Louisiana.

February 4, 2023

Late Filing Bars Medical Malpractice Claim Against Tulane-Lakeside Hospital

by Berniard Law Firm

late filed medical malpractice claim louisiana Deadlines matter in all areas of life, but in the legal world, they can determine whether a lawsuit will move forward or even get started. In Louisiana, a prescriptive period is a window of time for legal action to be brought and enforced. Depending on the kind of claim, the prescriptive period may be longer or shorter than you think.

On April 29, 2011, Hector Alonso was scheduled for cataract surgery at Tulane-Lakeside Hospital. During the surgery, Alonso claimed to have awoken from anesthesia. In extreme pain, he wanted to have the surgery stopped but claimed that instead, the medical staff fought him—causing him to dislodge and swallow a tooth—held him down, put tape over his mouth, and continued to operate.

On July 14, 2016, Alonso filed a request for medical review with the Louisiana Patient’s Compensation Fund (LPCF). He named his surgeon, two nurses, the certified registered nurse anesthetist (CRNA), and University Healthcare System L.C. defendants. He alleged that they committed medical malpractice by failing to properly treat him, using improper procedures and inadequate safety measures, restricting his freedom, and committing assault and battery. He had previously filed a complaint for malpractice with LPCF in 2012 and a petition for damages in District Court but only named University Healthcare System L.C. and Dr. Ebrahim as defendants. LPCF dismissed found no breach of the standard of care in 2014, and on January 21, 2016, the District Court dismissed Alonso’s case.

January 31, 2023

Louisiana Court Finds Medical Malpractice Allegations Broad Enough to Proceed

by Berniard Law Firm

Louisiana medical malpratice Medical procedures are never an enjoyable process. However, the process becomes even more miserable when recuperation is delayed because of infections. Darrin Coulon found himself in this situation after receiving shoulder surgery in 2011 from Dr. Mark Juneau at the West Bank Surgery Center. His recovery became even more difficult as he navigated the complex procedural requirements of filing a medical malpractice claim.

After receiving shoulder surgery, an infection required Coulon to undergo numerous additional surgeries and treatments. As a result, Coulon and his wife filed a Request for Medical Review Panel, alleging medical malpractice. Specifically, Coulon alleged that (1) the Surgery Center failed to develop, maintain, and enforce appropriate policies to prevent infections and (2) the Surgery Center was liable under a theory of respondeat superior for its employees’ actions. The Medical Review Panel found no evidence that the Surgery Center or doctor failed to meet the required standard of care or did not maintain appropriate policies and procedures to prevent infections.

Coulon and his wife subsequently filed a lawsuit for damages against the Surgery Center. In addition to the claims previously raised for the Medical Review Panel, they added that the Surgery Center failed to supervise and train the nurses who treated Coulon. The Surgery Center responded by filing a partial exception of prematurity, claiming that the claims that they failed to train and supervise the nurses were premature because Coulon and his wife did not previously raise those claims in the Medical Review Panel complaint. Coulon and his wife argued that the language in the prior complaint was sufficiently broad to include the additional claims in their subsequent lawsuit for damages.

January 30, 2023

If You Give a Horse a Carrot – When are Visitors Covered by the Equine Immunity Statute?

by Berniard Law Firm

Horse bite lawsuit Feeding a horse a treat can seem all fun and games until the horse bites you. This is a lesson Danielle Larson, a visitor to Equest Farm in City Park in New Orleans, learned the hard way in 2013 when a horse bit her while she was feeding it a carrot.

Larson was from Illinois but came to New Orleans often to visit her boyfriend. She had ridden horses since childhood and had been previously shown the correct way to feed a horse. Larson had been visiting Equest Farm for a few years before the horse bit her in September 2013. Larson went to see the school horses on the day of the incident. On her way there, two riders told her to be careful because, at the school, ponies had purportedly bitten a child. While Larson was feeding a horse a carrot, the horse knocked the carrot from her hand, and then the horse bit off her thumb as she reached for the dropped carrot. As a result, Larson required extensive medical care and will likely have to use a prosthetic thumb or transfer a toe to her hand.

There was some dispute about whether there was a sign posted warning people not to feed the horses. The horse at issue overall had a good reputation but had previously bitten a child who had held the horse’s ears while riding him.

January 29, 2023

What Court has Jurisdiction over Louisiana Police Disciplinary Action Tort Claims?

by Berniard Law Firm

who has Jurisdiction over Louisiana Police Disciplinary Action Tort Claims Even if your lawsuit has good facts, to prevail, the court must have subject matter jurisdiction to hear your case. Subject matter jurisdiction is the “legal power and authority of a court” to listen to a given proceeding. See La. C.C.P. art. 2. Understanding these complex jurisdictional requirements is imperative to ensure you get your day in court.

In 2007, Plaintiffs T.H. and C.B. were terminated from the Louisiana State Troopers after an investigation suggested that they had provided a third party with confidential information violating employment policies and the law. The plaintiffs appealed this termination to the State Police Commission. The Commission overturned their terminations and instead ordered that they only be suspended.

The plaintiffs then filed a lawsuit in district court to recover damages for a litany of reasons. The Defendants subsequently filed an exception for lack of subject matter jurisdiction. They claimed that La. Const. art. X, § 50 gives the State Police Commission exclusive jurisdiction over cases where the State Police terminates employees. Therefore, the district court would lack subject matter jurisdiction over the claim.

January 26, 2023

Medical Malpractice Claim Sent Back to the Trial Court due to Doctor’s Affidavit

by Berniard Law Firm

medical malpractice louisiana vaccine Lawsuits are filed every day. However, not all of these lawsuits are worth the attention of the courts. Courts are already swamped with dozens and dozens of cases on their dockets and they cannot afford–both monetarily and temporally–to hear every case that comes to their courtrooms. As a result, courts allow parties to file a motion for summary judgment, which allows courts to drop a lawsuit if there is no issue of material fact among the parties.

Petrie and Bertha Thompson’s one-year-old daughter Jessica Thompson passed away three days after being taken to The Center for Pediatric and Adolescent Medicine, L.L.C. (The Center) in Thibodaux. Jessica was examined by The Center’s nurse practitioner Gaudin. The Thompsons accused Gaudin of providing substandard care to Jessica. More specifically, the Thompsons alleged that Gaudin administered immunizations that should not have been administered. The Thompsons argued that Jessica passed away because of these immunizations and sued Gaudin, the Center, and HP, who was Gaudin’s alleged supervisor.

A medical review panel reviewed the Thompsons’ claims against HP and The Center and found that there was no breach of the applicable standard of care and that the administered immunizations were appropriate for Jessica. After the release of the panel’s findings, Gaudin filed a motion for summary judgment. The Thompsons responded with an affidavit of Dr. Robert S. Chabon who opined that, contrary to the panel’s findings, that Gaudin’s administration of the vaccinations did indeed cause Jessica’s death. Gaudin argued that Dr. Chabon’s affidavit was untimely, not in proper form, and conclusory and thus the Trial Court should not accept the affidavit into evidence. Though the Trial Court accepted the affidavit, it found the affidavit to be insufficient to create a genuine issue of material fact and thus granted Gaudin’s motion for summary judgment.

January 25, 2023

Can Independent Contractors Performing Manual Labor Receive Workers’ Compensation Benefits in Louisiana?

by Berniard Law Firm

workers compensation lawyer louisiana There are many ways that someone can be denied workers’ compensation benefits. Sometimes it is determined that the accident giving rise to the injury never occurred, other times the claim is filed too late, and in other cases the capacity in which the worker was hired determines eligibility for benefits. The last scenario is illustrated in a case brought to the New Orleans Office of Workers’ Compensation (“OWC”) in 2016.

Federico Martinez was among several workers hired by Jarislov Rames to lower a washer/dryer unit from Rames’ second floor apartment to street level. During the operation, one of the cords used to lower the unit broke loose and lacerated Martinez’s hand.

After the job was finished, Rames drove Martinez to the emergency room and paid the up-front $500 fee for Martinez to receive stitches. When Martinez demanded payment for the washer/dryer job, Rames withheld the $500 from Martinez’s pay and told Martinez that the rest of the emergency room fee would be deducted from future payments.