Criminal Matter

September 25, 2012

Taser Death Explored in St. Martin Parish Case

In our prior post, we began our review of a wrongful death action that followed the tasering of Othello Pierre by two St. Martin Parish Sheriff’s deputies after he caused a disturbance at a Fourth of July party and attempted to flee the scene. We now examine the approach taken by the U.S. Court of Appeals for the Fifth Circuit in analyzing whether the deputies’ use of the taser amounted to unconstitutionally excessive force.

According to the court, an excessive force claim under the Fourth Amendment “must demonstrate (1) injury, (2) which resulted directly and only from a clearly excessive force, and (3) the excessiveness of which was clearly unreasonable.” In order for the Plaintiff to be successful in this wrongful death action, it is essential that all of these three requirements articulated by the court are met. If even one of the prongs to an excessive force claim are not met, then the Plaintiff will ultimately fail in his action.

In the case of Mr. Pierre, the court concluded that the Plaintiff’s claim “fail[ed] on the second prong” because they offered no evidence to show that Pierre’s injuries–and, by extension, his death–were the direct result of the tasing. Thus, in the court’s view, Pierre’s death did not result directly from the tasing; therefore, he did not meet all the explicit requirements for an excessive force claim. By not meeting the second requirement, the question of whether the tasering was reasonable in the first place was effectively moot.

September 23, 2012

St. Martin Parish Police Tasing Leads to Wrongful Death Suit

by Berniard Law Firm

On July 4, 2008, Othello Pierre attended a party at his uncle’s house in St. Martin Parish. Pierre’s uncle called 911 when Pierre got into a violent argument with a cousin. Two deputies with the St. Martin Parish Sheriff’s Department responded. A third deputy and distant relative of Pierre was also at the party; she informed the two deputies who responded to the 911 call that she suspected there may be warrant out for Pierre’s arrest. The deputies ran Pierre’s name and confirmed that he had an outstanding felony arrest warrant for burglary. When one of the deputies attempted to place Pierre under arrest, he broke away and fled the scene. The two responding deputies pursued Pierre on foot and soon found him hiding behind an old camper shell. Though ordered not to move, Pierre again attempted to run away, at which point one of the deputies fired his taser. The taser barbs hit Pierre in the arm and the head, shocking him with a single five-second cycle. An ambulance took Pierre to the Lafayette General Medical Center where he died approximately three hours later. The autopsy revealed that Pierre’s death was the result of “multidrug intoxication” from substances such as methamphetamine, THC, cocaine, alcohol, caffeine, and nicotine.

Narra Batiste and other members of Pierre’s family filed a civil action against the St. Martin Parish Sheriff and the deputies for the wrongful death of Pierre, alleging, among other things, that the deputies’ use of the taser was an unconstitutional use of deadly or excessive force. The district court heard motions for summary judgment on several issues, including the deputies’ motion to dismiss the claim of excessive force. The court denied the deputies’ motion, and appeal was taken in the U.S. Court of Appeals for the Fifth Circuit.

The Plaintiffs relied on two paths to argue that Pierre’s tasering amounted to an unconstitutional use of deadly force. First, the Plaintiffs cited a Supreme Court case that held it was unlawful to use deadly force against a fleeing felon who does not pose a sufficient threat of harm to a police officer. Because that case concerned the use of a gun and not a taser, however, the court rejected its applicability. The court noted that no Fifth Circuit cases equated the use of a taser to the discharging of a firearm, and it declined to be the first. Second, the Plaintiffs argued that the deputy’s use of the taser while running violated the Sheriff Department’s policy and was contrary to the taser manufacturer’s guidelines for safe use. Yet, in the court’s view, the Plaintiffs failed to demonstrate that the use of the taser in the manner they described created an unreasonable risk of death. The court pointed to a dispute over whether Pierre was actually running when the taser was deployed, and concluded that “Plaintiffs’ assertions that the use of a taser on a fleeing suspect amounted to deadly force [were] unfounded.”

September 19, 2012

How Louisiana Determines Damages for Personal Injury

by Berniard Law Firm

When a court award damages, the judges commonly look to whether or not that pain and suffering can be attributed to the defending party, the amount of time a victim suffered, and how much pain and suffering occurred. The cause is perhaps the most important aspect of whether or not a party will be awarded damages. It makes little sense for a defendant to have to pay for pain and suffering to the plaintiff if the defendant’s actions did not cause that pain and suffering. Then, the length and intensity of the suffering will help determine how much money will be awarded.

In a recent case, the plaintiff appealed from the Parish of Lafayette to the State of Louisiana Court of Appeal for the Third Circuit based on the issue of damages. In this case, the plaintiff was in a car accident where she suffered significant damage to her back. As a result of this injury, she spent approximately twenty-eight months with the chiropractor attempting to correct the damage sustained to her lower back.

Although the victim visited the chiropractor before the accident occurred, the doctor recorded the services rendered before and after the accident. The doctor stated that the victim’s injuries worsened and the accident definitely caused the worsened condition. The lower court awarded general damages and medical fees, but it only ordered enough general damages that would cover seven months after the accident. It explained that the victim was already seeing the chiropractor; therefore, the services she received after the accident were only relating to a condition that was already present before the accident.

September 17, 2012

Wife’s Interests Not Represented by Attorney in Pre-Divorce Collusion

by Berniard Law Firm

Officers of the Court are expected to follow a specific level of professionalism and truthfulness that trumps any personal feelings they have on a case. One unfortunate case highlighted today involves the dissolution of a 22-year marriage and the unfortunate deceitful behavior of the husband and his attorney. Unbeknownst to the wife, the husband filed a petition for divorce on August 9, 2006. On that same day, the husband convinced his wife to meet at his attorney’s office to discuss a settlement of the community property. The wife was under the impression that the attorney was a neutral party, helping the couple come to a fair division of their property. However, things were not as they appeared.

The husband and wife signed an agreement partitioning their community property at the meeting along with a quitclaim deed for their real estate. A few days later, the couple returned to the attorney’s office and re-executed the documents in the presence of two witnesses for formality purposes.

When the wife became aware of the scheming on the part of her husband and the attorney, she immediately filed a suit in the trial court to rescind the agreement based on error, fraud, duress and lesion. The trial court rendered a judgment in favor of the husband and the wife appealed, bringing us to the case-at-hand.

September 14, 2012

Wrongful Prosecution Case Highlights Appeals Process

by Berniard Law Firm

In 2005, a New Orleans detective investigated a case regarding a robbery and shooting at a local meat market. An armed assailant was seen fleeing the scene of an attempted murder. After investigation and contact with the Federal Bureau of Investigation, a man was arrested who was known simply as “Mohammad.” This man was held for two years before the charges against him were dropped. As soon as he was released, the man filed charges against the detective and the City of New Orleans for violation to the right to due process and malicious prosecution for the attempted first degree murder that had taken place in 2005.

Mohammad alleged that his due process rights were not being respected because he believed that the detective used false evidence to hold him for trial. The right to due process comes from the Fifth and Fourteenth Amendments to the United States Constitution. Due process involves the rights to a fair and speedy trial as well as the right to be notified of the charges against you and the right to be heard in a court of law.1 Presumably Mohammad’s claims were based on the assumption that if the detective was attempting to convict him on false witness testimonies then the trial could not be fair by definition.

The United States District Court for the Eastern District of Louisiana heard the case and many witnesses were presented on either side. Witnesses who saw the attempted murder that day described someone who fit Mohammad’s description and one witness even identified him directly. Evidence was also submitted regarding the detective’s investigation of the case, including the fact that he interviewed a number of witnesses and worked with the FBI in this case. Mohammad presented a single witness who described a man who did not fit Mohammad’s description and another individual who stated that Mohammad was with him the entire day. Mohammad claimed that the statements and witnesses presented by defendants were created by the detective in order to get a conviction for this case. Nonetheless, the jury at the District Court level found for the City of New Orleans and the detective.

August 20, 2012

Medical Malpractice Claim Arises from Failure to Follow DNR

by Berniard Law Firm

A do-not-resuscitate order (“DNR”) is a formalized direction to medical personnel that they are forbidden from performing life-saving efforts on an individual who is in need of care. In Jones v. Ruston Louisiana Hospital Company, the decedent filed a DNR, which was kept on record, with the Northern Louisiana Medical Center (“NLMC”) in Ruston, Louisiana. In July of 2009, the decedent was admitted to the NLMC for medical treatment; and six days later, despite the very clear instructions of the DNR, NLMC employees resuscitated him when he went into cardiac arrest. Thereafter, the decedent suffered unnecessary and extensive physical disabilities, requiring rehabilitative treatment for two months until his death.

The decedent’s family members (the “Plaintiffs”) posthumously brought suit against NLMC for the following four claims: (1) reimbursement for medical expenses in connection with his rehabilitation care; (2) physical and mental pain and suffering; (3) loss of enjoyment of life and cognitive decline; and (4) bystander recovery. However, the NLMC fired back with a procedural defect argument that the Plaintiffs skipped a crucial step in bringing the lawsuit. An “exception of prematurity” was filed based on the Louisiana Medical Malpractice Act (“LMMA”), which requires that a case be brought before a medical review panel prior to claims being filed in court when the defendant is a qualified healthcare provider. This exception applies when the underlying alleged conduct of the defendant exists under the LMMA umbrella. Specifically, and most importantly in this case, the claim must be for medical malpractice claim and not general tort liability.

The issue at hand was whether the Plaintiffs’ claims were based on medical malpractice or general tort law. In order to resolve this issue, the court relied on Coleman v. Deno (2002), which established the following six factors: (1) whether the wrong is “treatment related” or caused by failure to exercise professional judgement; (2) whether the wrong requires expert medical evidence to determine whether a standard of care was breached; (3) whether the patient’s condition was assessed; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities that a hospital is licensed to perform; (5) whether the treatment caused the injury or would have happened without medical care; and (6) whether it was an intentional tort.

August 13, 2012

Wrongful Death Claim Based on Fatal Crane Accident Dismissed

by Berniard Law Firm

Death on the job is a sad reality that all too many Louisiana families face. When a loved one dies on the job, the victim’s family is not only left with an emotional hole, but a financial gap as well. Children, siblings and spouses who may have relied on the deceased’s income can face economic hardship. Fortunately, a wrongful death lawsuit can help ease this financial burden.

A wrongful death lawsuit seeks to recover damages a surviving family member or estate has suffered by the negligent death of a family member at the hands of another. Since these suits are brought on behalf of surviving family members, compensation cannot be recovered for injuries that are personal to the deceased. This means that pain and suffering and mental distress damages cannot be recovered through a wrongful death lawsuit. However, lost wages and other financial losses faced by the surviving family can be recovered.

A wrongful death is a death that is caused by the negligent act or omission of another. In certain circumstances, if the death is proven to be caused intentionally, a jury may be more likely to award a larger recovery. However, proving an intentional act can be difficult. This was illustrated recently in a case where a man was fatally wounded aboard a ship when he was struck by a crane load.

August 10, 2012

Jurisdiction for Appeals Important in Louisiana Litigation

by Berniard Law Firm

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.

July 27, 2012

Train Accident Tests Requirements of Accident Liability

by Berniard Law Firm

Doyle, a resident of Eunice, Louisiana, lost his appeal of the summary judgment verdict denying him damages resulting from injuries he received in an automobile-train accident. On March 5, 2009, Doyle finished up an evening of cards with friends and a half pint of whiskey before getting in his car to drive home. While he was crossing the train tracks, a train owned by Union Pacific Railroad Co. collided with his car. When Doyle’s blood alcohol level (BAC) was tested at the hospital, it measured .108% – the legal limit in Louisiana is .08%. A toxicologist testifying for the defense argues that his BAC at the time of the accident would have been well above a level associated with mental and physical impairment. This impairment significantly increased his risk of ending up in a car accident.

As a result of this intoxication, unfortunately Louisiana Statute § 9:2798.4 bars Doyle’s claim. The statute does not permit recovery to a driver if the driver was (a) legally intoxicated, (b) more than twenty-fiver percent negligent, and (c) his or her negligence was a contributing factor in the accident. Many states have similar laws on their books due to the public policy concerns of allowing an intoxicated person to recover for injuries that resulted from his own voluntary intoxication. If someone chose to drive while intoxicated, why should the other party have to pay for the drunk driver’s negligent behavior? However, in order to prevent injustice, most of these laws have a requirement that the intoxicated person’s actions be somewhat negligent and that that negligence be a relevant factor of the accident.

Doyle admitted that he hadn’t looked for the train when he crossed. The crossing was marked with lights and there is evidence that the lights were flashing and the train honked its horn to warn of its approach, despite Doyle’s argument to the contrary. The first responder to the scene, a police officer, testified that the lights were working when he arrived and the event recorder on the train showed the engineer began blowing the horn 25 seconds before the collision. These two signals would have alerted a reasonable person to the train’s proximity. The trial court concluded and the appellate court affirmed that no reasonable juror could come to the conclusion that Doyle was less than 25% negligent in the cause of his own accident due to his intoxicated state and his failure to look properly for an incoming train while crossing the tracks. While the train company could be considered at fault in this case, Doyle was also at fault for driving while impaired under alcohol. Since no reasonable juror could find in Doyle’s favor in this case, summary judgment was appropriate.

July 20, 2012

Malicious Prosecution Case Lends Elements of Successful Gain

by Berniard Law Firm

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.