Civil Matter

January 21, 2012

The Plaintiff’s Burden in Proving Special Damages

Under Louisiana jurisprudence, special damages are the category of damages that can be “established to a reasonable mathematical certainty.” Myers v. Broussard. Special damages include awards for past and future lost earnings, since a plaintiff’s forgone income can be numerically calculated by the court. Given the relatively high level of precision, “when a trier of fact assesses special damages, the discretion is more limited or narrower than the discretion to assess general damages,” Eddy v. Litton, though the standard of review is still abuse of discretion. The plaintiff carries the burden to prove that he has suffered a loss of income to induce the court to award damages for lost wages in an amount that equals what the plaintiff would have likely earned if he had not been injured by the defendant and been able to work. In cases where there is “no basis for a precise mathematical calculation of the amount of lost earnings,” the trial court may award a “reasonable” amount of damages. However, “to allow a plaintiff to recover damages for lost wages in the absence of independent support is highly speculative.” Turner v. Cleveland Trust Co.

The Third Circuit recently considered an automobile collision case in which the plaintiff was awarded damages for lost wages by the trial court. Lori Johnson claimed that, due to the injuries she sustained when her car was struck from behind by David St. Romaine on Highway 1 in Marksville, she was unable to perform her part-time weekend work as a farrier (horse-shoer). The trial court awarded Johnson $7,200 for loss of income, which St. Romaine appealed. The Third Circuit reviewed the trial record containing Johnson’s testimony that she was unable support a horse’s weight on her injured shoulder and therefore could not install the shoes. She estimated that she typically earned between $400 and $750 per month, but was unsure of the exact amount because it was a cash business and she did not keep records. Johnson also admitted that she did not report her income from the farrier business to the IRS. The court concluded that, “[a]lthough the uncorroborated testimony of the plaintiff can support a lost wage award, based on the facts of this case, we find that Johnson’s testimony regarding the lost wage claim is insufficient.” In the court’s view, Johnson’s wage calculation was a mere “guesstimate” that could not support an award for foregone income. Thus, the court concluded that it was error for the trial court to award damages for lost wages based on only this speculative information, and reversed that part of the judgment.

This case reminds litigants that claims for special damages must be corroborated by some minimum amount proof. Although the court allows that a plaintiff’s testimony alone can in some cases support a special damages award, the facts of each situation will weigh heavily on the court’s decision process. Clearly, here, the Third Circuit did not approve of the trial court’s treatment of Johnson’s claim for wages, perhaps particularly because Johnson did not report her income as taxable.

January 19, 2012

Third Circuit Rejects Trial Court’s Apportionment of Fault in Lafayette Auto Accident

by Berniard Law Firm

It is well settled in Louisiana jurisprudence that an appellate court’s review of a trial court’s apportionment of fault in a negligence action is subject to the manifest error standard. In other words, in order for an appellate court to overturn a trial court’s assessment of fault, it must conclude that no reasonable factual basis exists to support the trial court’s finding and that it is clearly wrong. The Third Circuit reached this conclusion in Thibodeaux v. Trahan, a recent case that was marked by witness testimony that was “externally conflicting and often internally inconsistent.”

On the afternoon of October 18, 2006, Melinda Trahan was driving a school bus owned by the Lafayette Parish School Board on Richfield Road in Duson. Harold Thibodeaux, driving an RV, pulled out from a side road in front of Trahan’s bus and made a quick left turn into the parking lot of Thib’s Corner, a grocery store. Trahan, who approached Thibodeaux’s RV from the rear, also turned her bus into Thib’s Corner, at which point the two vehicles collided. Thibodeaux suffered a knee injury in the collision and sued Trahan and the school board for damages. The trial court heard testimony from the parties as well as several witnesses and ultimately found both Trahan and Thibodeaux at fault for the accident. It awarded Thibodeaux damages for pain and suffering and medical expenses, but reduced the amount by 40 percent, the amount of his fault. Thibodeaux appealed, arguing that the trial court erred in finding him partially at fault for the accident. On appeal, the Third Circuit noted that “the trial court was left with numerous conflicting versions of how the accident occurred.” It did, however, make specific findings of fact. Specifically, the trial court found Thibodeaux at fault “for having pulled out in front of Ms. Trahan while driving an RV in the rain while she was driving a school bus.” It concluded Trahan was at fault because she should have maintained better control of her bus when she saw Thibodeaux’s RV pull out into her path. The Third Circuit reviewed the testimony from the record and arrived at a different explanation of how the collision occurred: it concluded that Thibodeaux did nothing wrong when he pulled onto Richfield Road from the side street, but that he “failed to ascertain that the left turn could be made with reasonable safety” and therefore breached his statutory duty to execute the turn properly. Still, the court concluded that “the majority of the fault in this instance should be allocated to Ms. Trahan,” as she “was in a better position, as the following vehicle, to prevent the accident from happening.” The court concluded that the accident would have been avoided if Trahan had stopped her bus “within the adequate stopping distance existing between her and the RV,” rather than being forced to take an evasive turn into the Thib’s Corner parking lot. Accordingly, the court reversed the trial court’s apportionment and assessed 80 percent of the fault to Trahan and 20 percent to Thibodeaux.

January 17, 2012

Third Circuit Reverses Trial Court in Rare Finding of Abuse of Discretion in Med Mal Action

by Berniard Law Firm

In a medical malpractice lawsuit, the plaintiff faces a three-part evidentiary burden. First, she must present evidence to establish the applicable standard of care. Next, she must show that a breach of that standard of care occurred. Finally, she must demonstrate a link between that breach and the injury that resulted. In nearly all cases, the opinion of a medical expert is an essential element of the required evidence. Without a qualified medical expert’s opinion, the plaintiff risks losing at summary judgment due to a lack of material issues of fact to be determined at trial. The availability of an expert’s opinion was at the center of the recent case in the Third Circuit, Dupree v. Louisiana Medical Mutual Insurance Co.

Katie Dupree became a patient of Dr. Jose Dorta, an OB/GYN specialist, in 2008 when she was pregnant. On January 9, 2009, Dupree went to the ER at Opelousas General Hospital with facial swelling, vomiting, and a severe headache. She was told to stop working and rest at home due to elevated blood pressure. Two weeks later, Dupree again went to the ER with elevated blood pressure and other symptoms that suggested pregnancy complications. Dr. Dorta did nothing to treat these issues and did not suggest an early delivery of Dupree’s baby. In fact, Dr. Dorta merely sent Dupree home with the suggestion of bed rest. Two days later, Dupree was found face down and unconscious. Tragically, her baby was stillborn the following day, at which point Dupree was then taken off life support and died. Dupree’s parents requested review by a Medical Review Panel in June 25, 2009. The panel rendered its finding of no malpractice on Dr. Dorta’s part on May 12, 2010. Sixteen days later, Dupree’s parents filed suit against Dr. Dorta and his medical malpractice insurance carrier, Louisiana Medical Mutual Insurance Co. After overcoming a series of exceptions filed by the defendants, the plaintiffs requested a status conference to schedule a trial date. Immediately thereafter, the defendants filed a motion for summary judgment. The trial judge granted the defendants’ motion based on the plaintiffs’ “failure to submit an affidavit from an expert showing a genuine issue of material fact sufficient to defeat summary judgment.” At the hearing, plaintiffs’ counsel argued that he had obtained an expert but did not submit an affidavit because the trial scheduling order called for expert reports to be exchanged several months later. The trial court disregarded this argument. It then denied the plaintiffs’ request for a new trial after they produced an affidavit from Dr. James Tappan, a board certified physician specializing in obstetrics and gynecology.

The Third Circuit Court of Appeal, mindful that a “trial court is imbued with great discretion in both pre-trial and post-trial matters,” ultimately concluded the this denial of a new trial was an abuse of that discretion. “[T]he Louisiana Code of Civil Procedure provides that a ‘new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law,’” the court reasoned, and “after reviewing the record before us, we find good and valid reasons for a new trial.” Namely, Dr. Tappan’s affidavit included “three specific acts of medical negligence … : failure to diagnose, failure to warn, and failure to timely deliver the baby.” The court noted that Dr. Tappan reported that “Dr. Dorta failed to warn Ms. Dupree and/or her family of her condition and what to look for with respect to further symptoms,” which was at odds with the Medical Review Panel’s finding that “we are sure a lengthy discussion ensued” when Dupree sought treatment. These conflicting views presented a genuine issue of material fact. Yet, the trial court “ruled on the motion for new trial without reference to the affidavit, choosing to rely instead on the fact that plaintiffs failed to take advantage of their one opportunity to present evidence.” Being careful not to “condone or legitimize the actions of plaintiffs’ counsel in failing to timely file an expert affidavit,” the court concluded that “the facts, the law, and plaintiffs’ prudence and initiative in prosecuting this case compel a finding of an abuse of discretion by the trial court,” and reversed the denial of a new trial.

January 15, 2012

Medical Malpractice Suit Dismissed in Hospital Error Involving Sponge

by Berniard Law Firm

The Louisiana Court of Appeals rejected an appeal filed by an unhappy patient regarding her medical malpractice claim against the Women and Children’s Hospital Lake Charles and her doctor. The patient, who will be referred to Jane Doe for privacy purposes, underwent a weight loss procedure known as a lap band surgery. Known in the medical industry to be a minimally invasive surgery, this procedure involves the doctor inserting an adjustable belt around the top section of the stomach to create a full feeling in the patient. Doe filed her claim in order to recover damages as a result of a sponge that had been left within her abdomen during the procedure despite the numerous counts required by the hospital’s procedure for surgery.

The district court awarded Doe $50,000 and apportioned fault equally between the Doctor and the hospital. For a variety of reasons, Doe appealed that judgment, claiming that the doctor was not at fault in her claim and asking the courts to put full responsibility upon the hospital. In personal injuries law, the judge is responsible for distributing fault between the parties involved so that each one only pays for the damages he specifically caused. To prove medical malpractice against a Louisiana physician, the plaintiff must show the doctor lacked the knowledge and skill required by physicians in his specialty or failed to use reasonable care, and that the plaintiff suffered in a way that plaintiff would not have otherwise. The hospital’s procedure requires three separate sponge counts during different periods of the surgery. Not only does the surgical technician count the sponges, but a nurse oversees each of the counts.

So who is responsible for a sponge being left in Doe’s abdomen? The appeals court agreed with the lower district court in their ruling, following previous decisions holding that leaving sponges in patients is a breach of duty by the surgeon. But when a hospital affirmatively assigns that duty to multiple staff members (none of which are the surgeon) on what do the courts rely for creating such a duty for the surgeon? During most of the entire surgery, it wasn’t even possible for the surgeon to see the sponges since his field of view is limited and magnified. Two members of the surgical staff were responsible for counting the sponges on three separate occasions. The count is recorded on the white board at the beginning of the procedure. Therefore, both staff members counting could have double-checked their numbers on the white board at the end of the surgery.

January 13, 2012

Negligence Liability in Case Against City in Louisiana Slip and Fall (Part II)

by Berniard Law Firm

As previously discussed, the Daigle v. City of Shreveport case regards an instance where a woman slips and falls on a freshly painted city sidewalk, that had no markings to indicate it was freshly painted, and she sues the city for negligence damages.

When an individual is injured as a result of an unreasonably dangerous condition existing on a landowner’s property, he can recover damages relying on La. Civ. Code Ann. art. 2315, which is the basis of general negligence liability. The owner, or person, having custody of the property has a duty to keep the property in a reasonably safe condition, and must discover any unreasonably dangerous condition on the premises, and either correct that condition, or warn potential victims of its existence. Louisiana’s duty-risk analysis is made up of five elements: 1) duty – proof that the defendant has a duty to conform his conduct to a specific standard, 2) breach – proof that the defendant’s conduct failed to conform to the appropriate standard, 3) cause-in-fact – proof that the substandard conduct was a cause-in-fact of the plaintiff’s injuries, 4) scope of liability – proof that the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries, and 5) damages – proof of actual damages.

Proof of liability on the part of a public entity, such as a city in this case, is governed by La. Civ. Code Ann. art. 2317, and provides in part that individuals are responsible, not only for the damage occasioned by their own acts, but for that which is caused by the act of persons for whom they are answerable, or of things which they have in their custody.

January 11, 2012

Louisiana Slip and Fall (Part I) – Procedure and Attorney Sanctions

by Berniard Law Firm

The Daigle v. City of Shreveport case regards an instance where a woman slips and falls on a freshly painted city sidewalk, that had no markings to indicate it was freshly painted, and she sues the city for negligence damages. A second point of the case, and the first to be discussed, is the sanctioning of the city’s attorney for ‘wasting’ time in attempting to get an unnecessary Independent Medical Examination (IME) from a physician who was highly unattainable, and using this as an improper means to delay the proceedings. Also, the trial judge in this case was placed on the witness list, and the attempt to have the judge recuse himself was also determined to be used as an inappropriate manner for the city’s attorney to delay the proceedings.

A trial court’s judgment must be found to be clearly wrong or that there was an error in the law. Great deference if provided the trial court and the finders of fact because they are the parties, be it judge or jury, that has the greatest and most humanlike exposure to the witnesses. An appellate court, however, merely has documents pertaining to the facts and witnesses, but cannot personally observe the witness’ demeanor, truthfulness, etc. An appellate court determines if the judgment of the trier of fact was a reasonable one, not whether it was the correct one.

When asking the court for an IME, a party must show: 1) that the physical or mental condition of the party sought to be examined is in controversy, and 2) that good cause exists for requiring the party to submit to the examination. In determining if an IME is proper, a court has wide discretion and should determine whether to allow for one on a case by case basis. Courts will consider whether the physical/medical information can be attained by other means, and that a treating physician should be given greater weight than a physician who only examines a patient a couple times or even just once. Continuances for IMEs are discretionary and may be granted if there is good ground for one. La. Code Civ. Proc. Ann. art. 1601.

January 9, 2012

Real Estate Agent Not Liable for Defect in Alexandria Case

by Berniard Law Firm

Paul and Anna Moreau thought they were buying a house with a 10-year-old roof. After they moved in, they learned that the roofing tiles were so old that they were no longer made. Their claim against the real estate agent, who represented both sides in the sale, failed at the trial court. In Moreau v. McKenzie, No. CA 11-197 (La. Ct. App. 3 Cir. 10/5/11), the court of appeal agreed with the trial court’s dismissal of claims against Kelly Ducote, stating the real estate agent was not liable for failure to disclose defect in sale of house in Alexandria because the agent did not know the seller’s statement was misleading.

The Moreaus purchased the home in Alexandria, La., from Mary McKenzie and Priscilla Goudeau. Ducote was agent for both buyer and seller. The property disclosure form that the Moreaus received said that the house’s roof had leaked in the past, but it was replaced in 1998-99 with “all new decking & felt replaced with 70 yr. clay tile.” A home inspection indicated that the roof was six to ten years old. The inspector found nothing serious. The sale closed. Sales documents warned that the sale was “as is” and without warranty, and Ducote made no warranty on the house or its condition.

When the Moreaus tried to repair a few broken roof tiles, “they learned that the tiles on the roof had not been manufactured for several decades, meaning the entire roof had not been ten years old as they had previously thought.” Only the underlying deck and felt had been completely replaced. The old tiles had been reinstalled over the new deck and felt.

January 7, 2012

Dishonest Attorney Helps Illustrate Need to Hire Representation Carefully

by Berniard Law Firm

Paul Breaux, an employee injured on the job, hired an attorney to represent him in a personal injury suit against his employer, Jade Marine. Unbeknownst to Breaux, the company settled the matter out of court. A check in the amount of $60,000 was sent to the attorney, which was immediately forged and deposited into the attorney’s IOLTA account at Gulf Coast Bank. After about fourteen months, Breaux finally learns of this despicable action by the attorney and files a claim against the bank for conversion. Specifically, the action was for check conversion or conversion of a negotiable instrument.

However, Breaux hit a wall when the defendant raised the exception that the statute of limitations for such a claim under La.R.S. 10:3-420 is strictly one year. Accordingly, Breaux appealed, arguing that the defendant’s exception was ineffective based on the doctrine of contra non valentem, specifically that “a prescription does not run against one who is unable to act.” Breaux emphasized that he was not equipped to discover what his attorney did, as he was under the impression that his case was ongoing. The court was not convinced.

Breaux sought the support from the case of Marin v. Exxon Mobil Corp., 09-2368, 09-2371(La. 10/19/10), 48 So.3d 234, which outlined four situations when contra non valentem (doctrine outlining prescription and when an individual knows the clock of liability begins) applies to defeat prescription. The fourth and most difficult category, known as the “discovery rule,” is where Breaux saw an opportunity. Under this exception, a plaintiff’s claim is not barred when the statute of limitations has run if the defendant has acted in fraudulent concealment.

January 5, 2012

Family Business Suit in Beauregard Parish Illustrates Dismissal Principles

by Berniard Law Firm

Alan Kite had many disagreements with his father as the two separated from their business relationship. Alan said that his father had harmed his reputation, that his father had discharged Alan to retaliate against him, and that Alan had relied on his father’s promises to his detriment. Alan had other disputes, but the 36th Judicial District Court, Beauregard Parish, saw disputed facts that required more consideration than dismissal by a motion for summary judgment. The Louisiana Court of Appeal agreed with the district court’s decision to dismiss some of Alan’s claims in Kite v. Kite Bros., No. 11-334 c/w 11-335 (La. Ct. App. 3 Cir. 10/5/11).

Alan Kite had worked in the Kite Brothers recreational vehicle dealership since the 1980s. He did well, earning more than $200,000 a year, as set by his father, Robert Kite. Alan wanted more. He agreed with his brother, Jeff, to raise their salaries, as much as triple the salary for Alan, and to take 10% of the business revenues. The chaos from Hurricane Rita hid this action temporarily, but the father learned about it a few months later in January 2006. The sons quit, or were fired, from the dealership. Alan took business papers with him. The sons sued their father and the business and set up their own competing RV dealership. The brothers fought over control of their own dealership, and Jeff reconciled with his father. Jeff dismissed his claims against his father.

Robert Kite tried to have dismissed more of the claims against the business. The trial court agreed in part. The trial court’s decision does not affect other claims that Alan still has against his father’s business. Alan claimed that his father had damaged his reputation by calling him a “thief” and a “liar.” The district court dismissed the claim. It concluded that “the fact that Alan did what any reasonable person would see was stealing would be a complete defense to the action for defamation.”

January 3, 2012

Family Feud Demonstrates Appealable Judgements in Court Case

by Berniard Law Firm

As sons of an owner of a successful recreational vehicle business, Alan and Jeff Kite worked in the family business of Kite Brothers. The relationship went sour between father and son. The children gave themselves raises and later left — taking some business records with them. But, Alan Kite’s claims, such as defamation, retaliatory discharge, and detrimental reliance, against Kite Brothers didn’t hold up at trial court or the court of appeal. In Kite v. Kite Bros., No. 11-334 c/w 11-335 (La. Ct. App. 3 Cir. 10/5/11) the court of appeal affirmed the 36th Judicial District Court, Beauregard Parish after it determined that the trial court had rendered a final judgment on those claims.

Family businesses create unique disputes of a personal nature. Robert Kite co-founded the dealership with his brother in 1961. It began as a corporation but was changed to a limited liability company in 1998. During the 1980s, Robert Kite hired his sons Alan and Jeff. Although he never signed an employment contract, Alan had broad powers in the business to write checks on the company account. The father believed that he was being generous to son Alan, who earned more than $200,000 a year. But, the father set the salaries. Hurricane Rita in September 2005 provided a diversion for the sons to decide, on their own, to raise their salaries. Alan agreed with his brother to take more than triple his previous weekly salary, which had been set at $1,500 a week. They also agreed to take a 10% cut of all revenues. They agreed that this arrangement would end when “everything settled down after the storm.”

They didn’t stop. The father noticed the increased unauthorized compensation to Jeff in January 2006. He demanded that Jeff return his salary to its authorized level. The father also revoked both sons’ authority to write checks and canceled their credit cards. Alan continued to give himself a weekly salary of $5,000 instead of $1,500. Later that month, the sons left the business. Father and sons disagree whether Alan and Jeff quit or were fired. Alan took with him, also without permission, business papers owned by the business. The father sought them back by filing a criminal complaint. Alan assured an investigating police officer that he would return the records, but he never did. Alan’s lawyer later returned some of them.