Civil Matter

March 12, 2017

Louisiana Court of Appeal Discusses Theories of Liability in Products-Related Injury Case

dumbbell-1306867-1024x683 When a products-related injury occurs, multiple parties may be at fault. In litigating personal injury claims, among the most important legal questions, are whom may the plaintiff recover from, if anyone, and under what theory of liability. The following case provides a good discussion of some typical theories of liability involved in products-related injury cases.

In 2013, Russell Maricle was involved in a serious car accident that resulted in him needing to use a wheelchair. Mr. Maricle’s bad fortune continued after the accident one day as he rolled up a wheelchair ramp. The fabric on the back of his wheelchair ripped causing Mr. Maricle to fall out of his chair and re-injure his neck. Mr. Maricle rented his wheelchair from Axis Medical and Fitness Equipment, L.L.C. (Axis) in Alexandria, Louisiana. The wheelchair was manufactured by Dalton Medical Corporation and Dalton Instrument Corporation (Dalton).

Mr. Maricle filed a lawsuit against Dalton and Axis, alleging that the wheelchair produced by Dalton was defective and that Axis was negligent in failing to inspect it before renting it to him. These are two separate legal theories. Mr. Maricle’s claim against Dalton is a products liability claim. The Louisiana Products Liability Act (LPLA) sets out the exclusive products liability theories against manufacturers caused by their products. La. R.S. 9:2800.52. Under the LPLA, a manufacturer of a product is liable for damages foreseeably caused by a defect in the product which renders it unreasonably dangerous. The damage suffered by the claimant must arise from “reasonably anticipated use” of the product by the claimant or someone else. A product can be considered unreasonably dangerous for purposes of liability in four ways: (1) construction or composition; (2) design; (3) inadequate warning; or (4) nonconformity to an express warrantee.

March 11, 2017

Filing Deadline Makes All The Difference in Court of Appeal Legal Malpractice Claim

by Berniard Law Firm

bell-county-texas-courthouse-1549054-1024x768 Court litigation involves the filing of multiple court submissions, and of course, deadlines. Procedural rules dictate deadlines for when certain motions need to be brought. Effective attorneys stay informed of these deadlines. Untimely filings generally result in a denial of legal relief by a court. Courts must be able to timely dispose of disputes in order to prevent a backlog of cases clogging up the court system. The following decision of the Louisiana Third Circuit Court of Appeal demonstrates the importance of deadlines in litigating claims.

In 2012, William Lewis, representing himself and his company, Biosonix, LLC (Plaintiffs), filed a legal malpractice complaint against his attorney. Mr. Lewis alleged that the attorney was negligent in drafting security agreements on behalf of Sports Design & Development, Inc. (SDD) and that his representation of SDD created a conflict of interest. Plaintiffs further alleged that the attorney violated the Louisiana Rules of Professional conduct by representing SDD in litigation that involved issues substantially related to those involved in his prior representation of Mr. Lewis and Biosonix.

Ethical rules prohibit attorneys from representing a particular client when a conflict of interest arises. Rule 1.9 of the Louisiana Rules of Professional Conduct prohibits attorneys from representing a client in a “same or substantially related matter” in which the client’s interests are materially adverse to the interests of a former client. Attorneys can be subject to both lawsuits and professional sanctions for violating the Louisiana Rules of Professional Conduct. However, at issue in this particular decision was not the merits of Plaintiffs’ complaint. The issue was with deadlines.

March 9, 2017

Court Rules in Favor of Plaintiff in Case Involving Defamation, Extortion, and Intentional Infliction of Emotional Distress

by Berniard Law Firm

puerto-vallarta-mexico-1520777-1024x768 When an individual employs tactics to instill humiliation, fear, and emotional distress in another person, they should be held accountable for the damages they cause. Fortunately, Louisiana legislators agree and have provided for exactly that under its civil code. See La. C.C. art. 2315. As an initial matter, these bad acts must be “intentional,” i.e., the actor must consciously desire the physical result of the act or know that the result is substantially likely to follow from his conduct. Let us now take a look at a case that turns on the issue of intent to gain a better understanding.

This case involves an ongoing property dispute between the Plaintiff, Mr. DZ, and the Defendants, Mr. DZ’s ex-wife, AZ, and her brother, RM. The legal causes of action springing from the facts of the case include defamation, extortion, and intentional infliction of emotional distress.

The initial conflict began when Mr. DZ and his then-wife AZ purchased property in downtown San Miguel, Mexico. The couple placed ownership of the property in their children but reserved the right to enjoy the use of the property for themselves. One month after purchasing the property the couple obtained a divorce issued by a Mexican court. Following the divorce, a custody battle ensued that crossed country borders for several years.

March 6, 2017

42 U.S.C. § 1983 Civil Rights Lawsuit Dismissed in Louisiana

by Berniard Law Firm

prison-1311786-1024x672 Lawsuits can be quite complicated, even for seasoned attorneys. However, when one is representing himself, the complications can be even more complex. Especially, when the law does not support your claim. The following case demonstrates the need for an experienced attorney when it comes to constitutional rights violation allegations and litigation.

In 2013, the Louisiana state court convicted Harold Joe Black for the distribution of cocaine. Mr. Black was taken into custody. While in custody, Mr. Black appealed his conviction, but it was affirmed. In addition, Mr. Black made numerous unsuccessful applications for state post-conviction relief and federal habeas corpus relief.After Mr. Black was released from custody, he filed a 42 U.S.C. § 1983 complaint, pro se. Pro se, means that Mr. Black represented himself and did not have assistance from an attorney. A 42 U.S.C. § 1983 complaint is a type of lawsuit that allows an individual to seek a remedy against state actors who violated his or her constitutional rights.

Mr. Black’s complaint alleged that various state and federal officials, and Mr. Black’s appointed counsel, violated his constitutional rights in connection with his arrest, trial, and efforts to obtain appellate and post-conviction relief. Mr. Black’s case was referred to a magistrate judge pursuant to federal law. The magistrate recommended that the case be dismissed with prejudice. The magistrate concluded that Mr. Black’s 42 U.S.C. § 1983 claim was barred by the favorable-termination rule set forth in Heck v. Humphrey. The district court agreed with the magistrate’s recommendation, and accordingly dismissed Mr. Black’s lawsuit.

March 5, 2017

Stanford Ponzi Scheme Collapse Case Discusses Arbitration and FINRA

by Berniard Law Firm

house-of-cards-2-1524017-822x1024 Ponzi schemes ultimately come to an end and unfortunately cause a lot of pain, suffering, and litigation. The Stanford Ponzi scheme is no exception. As demonstrated in the following case, the complex nature of such schemes demonstrates the need for excellent legal representation if you are the victim of an unscrupulous Ponzi schemer.

In this case, Pershing, L.L.C. (“Pershing”) sued to enjoin the (“Bevis Investors”), a group of investors who allegedly sustained losses as a result of the Stanford Ponzi scheme, from arbitrating their claims against Pershing before the Financial Industry Regulatory Authority (“FINRA”). The Stanford Ponzi scheme brought down many businesses who did not know the depths of Stanford’s dealings.

Pershing is an FINRA-regulated clearing broker that provides clearing and administrative services to financial institutions. Because of Pershing’s FINRA membership, its customers have the right to compel Pershing to arbitrate their disputes under FINRA Rule 12200. The Stanford Ponzi scheme was created by Stanford and associates where they would sell a certificate of deposits (“CDs”) that promised a fixed rate, and instead of purchasing lucrative assets, Stanford used the money to pay old investors. Stanford went on to use the money to finance a lavish lifestyle and real estate ventures. Bevis Investors allege that they purchased CDs issued by Stanford International Bank (“SIB”). Pershing executed a Clearing Agreement to provide clearing services to the Stanford Group Company (“SGC”) between 2005 and 2009. Pershing had no relationship with any other Stanford entity. Because of the Stanford Ponzi scheme, investors came to Pershing and initiated arbitration.

March 4, 2017

Can a Pro Se litigant Proceed In Forma Pauperis?

by Berniard Law Firm

courtroom-2-1236719-685x1024 The commencement of pro se litigation, meaning without attorney representation, is no easy task. A common aspect of pro se litigation involves a request to proceed in forma pauperis (IFP). A granted IFP request allows a pro se litigant to have the prepayment of fees or costs waived. See 28 U.S.C. § 1915 A court retains the power to dismiss an IFP request if the court finds that the plaintiff has not established himself as a pauper, or if the plaintiff’s claim is frivolous. 28 U.S.C. § 1915(e)(2)

Generally, pro se litigants are able to establish their status as a pauper but the issue of frivolous claims tends to be a more difficult hurdle. This was exactly the case for Ms. Arterburn who filed a pro se legal malpractice suit against her attorney in the United States District Court for the Western District of Louisiana. After motion hearings in the District Court caused her lawsuit to be dismissed Ms. Arterburn appealed to the United States Court of the Appeals for the Fifth Circuit.

The Fifth Circuit first established that Ms. Arterburn showed she was a pauper, and then examined her legal malpractice claim. Specifically, Ms. Arterburn argued that her due process right to a fair hearing was denied in the course of her legal malpractice action. Her issue with the previous decision by the Western District of Louisiana was that the court did not review a transcript from a 2011 hearing that her attorney did not attend and that further that he did not appeal in time an issue concerning fault in her marriage break up. Further, Ms. Arterburn insisted that the district court excessively questioned her about inaccessible previous testimony and that she was not allowed to rebut evidence. Lastly, Ms. Arterburn argued that during the hearing she was not accommodated for her disability and could not think clearly.

March 3, 2017

Inadequate Remedies Under Foreign Law Do Not Make Arbitral Awards Unenforceable on Public Policy Grounds (Part II)

by Berniard Law Firm

This post continues our discussion on the United States Fifth Circuit Court of Appeal’s analysis of the public policy exception in Article V(2)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”). As discussed in the previous post, Article V(2)(b) of the New York Convention permits a signatory country to refuse the recognition or enforcement of a foreign arbitral award if “recognition or enforcement of the award would be contrary to the public policy of that country.”

To reset the stage, a brief review of the facts is warranted. Lito Martinez Asignacion, a Filipino sailor was injured aboard a German vessel docked in the Port of New Orleans. He sued in Louisiana court, but the court ruled that the dispute should proceed to arbitration in the Philippines. A Philippine arbitration panel applied the Philippine law and awarded Asignacion the lowest grade of compensable disability under the Standard Terms in his contract. Asignacion sought to have the Philippine arbitral award set aside in the United States under the public policy exception in Article V(2)(b) of the New York Convention.

Asignacion’s public policy argument rested on the adequacy of remedies available under Philippine law. Asignacion pointed out that United States public policy provides “special solitude to seamen” and requires that foreign arbitral panels give seamen an adequate choice-of-law determination. He argued that the Philippine arbitral panel erred by relying exclusively on the choice-of-law provisions in his contract, which dictated that Philippine law apply.

March 2, 2017

Inadequate Remedies Under Foreign Law Do Not Make Arbitral Awards Unenforceable on Public Policy Grounds (Part I)

by Berniard Law Firm

new-york-city-xmas-2007-15-1213202-768x1024 The world we live in today is more interconnected than ever before. International commerce has led to rapid economic development in the United States and abroad. As more and more firms participate in international commerce, complex legal disputes arise. International disputes involve a multitude actors of different nationalities, implicating various national and international legal frameworks. In the mid-20th century, the United States and countries around the world sought to harmonize international commerce by codifying rules governing the resolution of international disputes. As a global commercial hub, United States courts have been pivotal in interpreting these international rules and more generally, contributing to the development of private international law. In 2015, the United States Fifth Circuit Court of Appeal interpreted the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York convention”), adding clarity as to when a court may refuse to recognize foreign arbitral awards on public policy grounds.

In this case, Lito Martinez Asignacion, a citizen of the Philippines was hired by Rickmers, a German corporation to work aboard its vessel, which sailed under the flag of the Martial Islands. While docked in the Port of New Orleans, Asignacion suffered injuries in an accident aboard the ship. After receiving medical treatment in Baton Rouge and the Philippines, Asignacion sued Rickmers in Louisiana state court. However, the Louisiana court ruled that the dispute should proceed to arbitration in the Philippines. The Philippine arbitration panel refused to apply the law of the Marshall Islands, the law of the flag state (a potential legal error), applied the Philippine law and awarded Asignacion the lowest grade of compensable disability under the Standard Terms in his contract, a lump sum of $1,870.

Asignacion returned to Louisiana state court seeking to have the Philippine arbitral award set aside for violating United States public policy. Rickmers removed the case to the United States District Court for the Eastern District of Louisiana. The District Court held that the Philippine arbitral award violated United States public policy because it effectively denied Asignacion the opportunity to pursue damages he would be entitled to as a seaman. The Fifth Circuit reversed and remanded the case to the District Court to enforce the award. It held that even with regard to seamen – who are normally accorded special remedies under United States law – the provision of lesser remedies under the foreign law does not violate United States public policy.

March 1, 2017

Louisiana Supreme Court: Defendants in Civil Cases Must Be Afforded an Opportunity to Be Heard Before Striking Deficient Answers and Entering Default Judgements (Part II)

by Berniard Law Firm

This post follows up on our discussion of the Louisiana Supreme Court’s 2015 ruling requiring that a contradictory hearing is held before striking a defendant’s deficient answer and entering a default judgment in favor of a plaintiff. In this case, the defendant (Dirt Worx of Louisiana, L.L.C.) wrote a letter to the Clerk of Court denying the allegations in plaintiff’s (Citadel Builders, L.L.C.) petition. Citadel moved to strike Dirt Worx’s letter from the record, arguing that Dirt Worx’ letter did not meet the requirements of an answer under the Louisiana Code of Civil Procedure, and even if it did, Dirt Worx’s letter was filed by a non-lawyer in violation of the Louisiana Revised Statutes.

In Louisiana, the defendant’s answer must comply with certain requirements under the Louisiana Code of Civil Procedure. Generally, the defendant’s answer must admit or deny the allegations in the plaintiff’s petition and – in “short and concise terms” – state the material facts upon which the defendant’s defenses will be based, and any affirmative defenses the defendant will attempt to prove at trial. The plaintiff will then scrutinize the defendant’s answer. If the plaintiff finds any arguable deficiencies, he or she will move to strike the defendant’s answer from the record as insufficient and move for a default judgment. Before deciding to strike the defendant’s answer the Trial Court must conduct a contradictory hearing, allow both parties to be heard. Failure to conduct a contradictory hearing on a motion to strike may constitute a legal error. However, a Court of Appeal can still confirm a Trial Court’s erroneous ruling if the error is harmless; i.e. does not affect the outcome of the case.

In this case, the Louisiana Supreme Court vacated the default judgment, finding that the Trial Court’s failure to conduct a contradictory hearing was harmful to Dirt Worx’s case. The Supreme Court found that the Court of Appeal’s ruling failed to consider that Citadel’s motion to strike was based on an allegation that Dirt Worx answer was filed by a non-lawyer, an allegation which requires proof. The Louisiana Supreme Court noted that the Trial Court granted Citadel’s motion ex parte, without hearing any evidence from the parties. Had the Trial Court conducted the hearing, Citadel would have had the opportunity to offer proof in support of its motion, and Dirt Worx would have been able to cure any deficiencies in its answer either by contesting Citadel’s evidence or by hiring a lawyer to appear on its behalf in court. As the Louisiana Supreme Court noted, neither alternative was made available to Dirt Worx. Thus, it held that the Trial Court erred in granting the Citadel’s motion to strike and entering the default judgment.

February 28, 2017

Louisiana Supreme Court: Defendants in Civil Cases Must Be Afforded an Opportunity to Be Heard Before Striking Deficient Answers and Entering Default Judgements (Part I)

by Berniard Law Firm

money-1537576-768x1024
In Louisiana, the plaintiff initiates a civil lawsuit by filing a petition with the Clerk of the Court and serving the defendant with a copy of the petition and citation. The defendant must answer the plaintiffís petition or risk a default judgment. A default judgment is a binding judgment in favor of one party based on the other party’s failure to take action in a case. If the defendant fails to properly respond to a plaintiff’s petition or appear before the court, a skilled litigation attorney will timely move for a default judgment to quickly end the case in plaintiff’s favor without going to trial. However, the defendant is not without recourse. In a 2015 case, the Louisiana Supreme Court held before striking a defendantís deficient answer from the record and entering a default judgment, a Louisiana Trial Court must give both parties an opportunity to be heard, and allow the defendant to correct any deficiencies in his or her answer.

The plaintiff, in this case, Citadel Builders, L.L.C. sued Dirt Worx of Louisiana, L.L.C. for breach of a contract to provide work for its construction project. After serving its citation and petition initiating its case, Citadel obtained a preliminary default judgment. Dirt Worx then filed a letter to the Clerk of Court denying all of Citadelís claims. The Clerk of Court filed Dirt Worx letter as an Answer to Original Petition. A few months later, Citadel sent a letter to Dirt Worx, stating that it intended to file a motion to confirm the default judgment. Citadel explained that it did not receive Dirt Worx’s letter; Dirt Worx’s letter did not meet the requirements of an answer under the Louisiana Code of Civil Procedure; and even if it did meet the requirements of an answer, Dirt Worx’s letter was filed by a non-lawyer in violation of the Louisiana Revised Statutes.

Citadel followed up on its letter by filing two pleadings with the court: a motion to strike Dirt Worx’s answer, and a motion for final default judgment. The Trial Court granted Citadel’s motion to strike Dirt Work’s answer, ordered Dirt Worx’s answer to be stricken from the record, and rendered a default judgment of $1,256,205.39 plus interest in Citadel’s favor. The Trial Court ruled on Citadel’s motion ex parte (without Dirt Worx being present or allowing it to be heard on the matter).