Criminal Matter

January 17, 2012

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

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 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.

December 21, 2011

Lake Charles Casino Resort Security Guards Found Not To Have Used Excessive Force

by Berniard Law Firm

It is not uncommon in casinos for patrons to become intoxicated to the point that they are unsuitable for public. For this reason, casinos implement security procedures to deal with intoxicated patrons. Most of these procedures involve cutting the patron off from alcohol and, in some cases, even removing the patron from the premises. Sometimes, however, intoxicated patrons who are confronted by casino security become unruly. In these situations, when patrons are forcibly removed from the establishment, the amount of force that can be justified in the removal becomes an issue.

In Miller v. L’Auberge Du Lac Casino, two intoxicated patrons were cut off from alcohol by casino security.Since the patrons were not allowed to gamble if they were unable to drink, the two patrons were asked to leave. When one of the patrons tried to take a picture with her cell phone in a photography prohibited area, a security guard took the phone away, resulting in a scuffle. Both patrons shouted profanities at the security guards and one patron grabbed a security guard by the neck, resulting in cuts and scrapes. In response, the security guard took the patron to the ground and handcuffed him.

The plaintiffs, the two patrons, took the confrontation to court, claiming that the security guards had used excessive force in the removal. The patron who was taken down claimed to have been punched in the face and that one of the security guards jumped up and down on his legs. Video shown at trial, however, showed no evidence of such conduct. Based on this video and expert testimony, the jury found for the defendants.

December 13, 2011

New Orleans Shooting Leads to Wrongful Death Action

by Berniard Law Firm

Under Louisiana law, a defendant has no specific duty to protect a person against the harmful acts of a third party unless the defendant has a “special relationship” with the victim or some independent accountability for the third party. The concept of respondeat superior refers to the legal construct that an employer is responsible for the actions of its employee, so long as the actions occur in the course and scope of employment. This legal principle can be extremely valuable to plaintiffs who are unable to recover much if anything from an individual employee who commits harm; the vicarious liability of the employer can allow a plaintiff to recover from a presumably deeper-pocketed employer, as well.

Establishing vicarious liability can prove tricky, however: liability does not attach when the “employees” is an independent contractor. Under Louisiana law, “determining whether [an employer-employee] relationship exists, the major consideration is the control or right of control which one party exercises over the other.” See Savoie v. Fireman Fund Ins. Co. Thus, the court “may examine the economic relationship of the parties and the right of one party to control the time and physical activities of the other.”

Blanchard v. Ogima. In the recent case of Irving v. Rubens, for example, the plaintiffs attempted to establish an employer-employee relationship to reach an additional defendant. In 2008, Ray Manning engaged Richard Rubens to repair flood damage to his house on Prieur Street in New Orleans. Rubens was working on several other houses in the area at the time, and so he hired Robert Irwin as a foreman to oversee his several construction crews. Over the weekend of June 28, an altercation between Rubens and Irwin occurred at Manning’s residence. Ultimately, Rubens shot and killed Irwin.

November 21, 2011

Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits

by Berniard Law Firm

As part of our Constitutional right to due process, an individual is allowed to bring grievances before a court. However, certain judicial policies may be enacted to deny plaintiffs from bringing suits that have already been litigated, are being brought with the intent to harass, or are frivolous. The purpose behind such policies is to make courts as efficient as possible by deterring such actions. A recent case out of the Louisiana Fourth Circuit Court of Appeal shines a light on several of these deterrents.

In Mendonca v. Tidewater, Inc., the plaintiff sought to nullify several final judgments made by the district court. Mendonca’s list of suits stretched over four years, with multiple appeals and pleas for annulment. However, none of Mendonca’s nullity claims or his appeals were successful. In his final appeal for anulment, the Fourth Circuit Court of Appeals handed down three restrictions that laid Mendonca’s long line of cases to rest.

The first of these restrictions was the court’s upholding of the defendent’s plea of res judicata and failure to state a claim. When res judicata is enacted, the court declares one of two denials. First, that the claim has been subject to a final judgment and thus no longer qualifies for an appeal, or second, that the litigant cannot bring a claim against the same party in a second claim because all claims should have been brought against that party in the initial suit. The policy considerations supporting res judicata is to preserve court resources and protect defendants from being subject to litigation multiple times, with the possibility of having to pay damages more than once. A defendant’s plea that a plaintiff has failed to state a claim goes hand-in-hand with res judicata. If res judicata is applicable, then all duplicitous claims cancelled. In Mendonca’s case, this means that there were no new claims. Since there were no such claims, the court held that Mendonca’s nu

November 15, 2011

Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription

by Berniard Law Firm

The following case highlights the importance of waiting no time in bringing a cause of action that is available. In 2008, Debra Goulas worked as a bookkeeper for Sunbelt Air Conditioning Supply in Baton Rouge. Jessie Touchet, owner of Sunbelt, and Diane Jones, Goulas’s manager, accused her of stealing over $500 from the company during February and April that year. This serious accusation resulted in Goulas being tried for felony theft. The crime of theft is committed when one is involved in a trespassory taking and carrying away of the property of another with the intent to permanently deprive the true owner of that property. Goulas was subsequently acquitted of this particular theft.

Following the criminal trial and Goulas’s ultimate accquital, she filed a lawsuit against Touchet and Jones in July, 2010 alleging defamation. Specifically, Goulas argued that Touchet and Jones “intentionally and negligently inflicted emotional distress” upon her, and that their accusations were “founded in malice to damage her person and reputation.” The complaint sought damages for medical expenses, physical and mental pain and suffering, and loss of wages. The defendants filed an exception of prescription. The basis of the exception was that Goulas’s claims were based on the defendants’ actions that allegedly occurred during February and April of 2008. By the time Goulas filed suit in 2010, more than one year had passed, thereby prescribing the claims. In October, 2010, the trial judge granted the defendants’ exception of prescription and dismissed Goulas’s claims with prejudice.

Goulas appealed, alleging error on the trial court’s ruling that her defamation claim was prescribed. Goula’s reasoned that she could not initiate her defamation action until her criminal trial was concluded in March, 2010; accordingly, she argued that prescription did not begin to run until Frederick Jones publicly accused her of theft when testifying at her trial. The First Circuit noted that Louisiana recognizes a qualified privilege that protects parties from charges of defamation related to statements they make during a trial. “It necessarily follows that, during this time, the one-year period that applies to the filing of a defamation action is suspended.” However, the court explained, the suspension of prescription applies “only to allegedly defamatory statements made by parties to a lawsuit.” In this situation, Frederick and Jones were not parties to Goulas’s criminal prosecution, so the prescription suspension did not apply. The court concluded that “since there has been no suspension of the 2008 alleged defamatory statements,” the trial court properly granted the defendants’ exception of prescription.

November 1, 2011

Third Circuit Court Orders Prevailing Defendants in Class Action Suit to Pay Court Costs

by Berniard Law Firm

In a recently published case, a four-judge panel of the Third Circuit Court of Appeal for the State of Louisiana upheld a trial court’s determination that the defendants pay all of the court costs, even though they prevailed on the merits of the case. This kind of decision is highly unusual; typically, the losing party pays court costs, which can include, for example, filing fees, expert witness fees, and costs of depositions. They can be substantial, especially in a decade-long court case such as this one. Here, the defendants were ordered to pay court costs of $326,307.09, which they promptly appealed.

In order to appeal a judgment of costs, the costs must be substantial and a hearing on the subject must be held after the case has resolved on the merits. Here, the trial judge, Judge Hebert, did in fact hold a hearing where both sides were allowed to present briefs and arguments as so why the opposing party should be forced to bear the costs.

The judge acknowledged that the lawyers for both sides were aggressive advocates and did not fault them for that. Though Judge Hebert took one of the plaintiff’s attorneys to task for losing his temper and throwing a pencil, he also pointed out that the defendants’ attorneys engaged in behavior that was calculated to mislead the court, intimidate and harass witnesses, and impede litigation.

October 5, 2011

Iberville Parish Backhoe Accident Sheds Light on DOTD Duty of Care

by Berniard Law Firm

When an accident occurs as a result of poor road conditions the question arises whether or not those responsible for the road’s upkeep can be held liable. This was the issue at hand when Jesse Brooks was killed after the backhoe he was driving on Highway 30 in Iberville Parish hit a depression in the shoulder and rolled on top of him. The appellate court held that the Louisiana Department of Transportation and Development owed a duty of care to all motorized vehicle operators on state highways and that that duty was breached by a failure to maintain the highway in a safe operating condition. The Supreme Court of Louisiana, on the other hand, reversed the ruling and laid out an outline of when and to whom the DOTD owes a duty of care.

In deciding these types of negligence cases, the court invokes an unreasonable risk of harm criterion in an attempt to balance possible harm with social utility, including costs to the defendant of avoiding the harm. Thus, the risk of injury or death, which was high in the Brooks case, will be weighed against factors such as the legality of the vehicle being driven on the highway, the social good that was coming from the highway’s use, and the cost of highway maintenance.

Since state funding is limited, it is almost fiscally impossible to require the DOTD to maintain highways in such a state as to be safe for all vehicles, even those not designed for highway use. Thus, the court will first determine if the vehicle involved in the accident was designed for highway travel. In the Brooks case, the backhoe he was driving was not designed for the highway. This fact, along with his excessive speed for such an unbalanced vehicle, outweighed his social good, which was simply moving a backhoe from one business to another. In addition, the cost to fix such minimal highway shoulder defects would burden the DOTD in an unacceptable manner when the risk could have been minimized by Brooks himself through his speed and choice to drive an unsuitable vehicle on the highway. Essentially, the court reasoned that Brooks was taking a more unreasonable risk than the DOTD, and thus ruled the DOTD is not liable for Brooks’ death.

September 3, 2011

Ouachita Parish Medical Malpractice Case Reminds Litigants of the Importance of Meeting Litigation Deadlines

by Berniard Law Firm

Previously on this blog, we have explored a number of cases where a party has faced defeat in court because of the failure to follow a procedural rule in litigation. Louisiana’s rules of civil procedure are designed to require a timely commencement to a suit and to ensure that the suit is then adjudicated in an expedient manner. Similar rules apply to the procedure for summary judgments. Motions either for or in opposition to summary judgments may be accompanied by affidavits (in fact, in some cases, affidavits are required). An affidavit must be filed no later than eight days prior to the hearing on the motion. La. C.C.P. art. 966(B). A party’s failure to observe this time requirement will result in the court’s excluding the affidavit from consideration. As the plaintiff in Sims v. Hawkins-Sheppard learned, such a failure can result in a dismissal of the case when the affidavit is critical to opposing summary judgment.

On May 22, 2009, Rebecca Sims sued Dr. Tonya Hawkins-Sheppard alleging medical malpractice after Sims’s son was severely injured and disfigured during delivery at the Glenwood Regional Medical Center in Ouachita Parish. During the discovery phase, Hawkins-Sheppard requested the identity of any medical expert who could support Sims’s claim of malpractice. Sims responded that she had not consulted a medical expert, and Hawkins-Sheppard filed a motion for summary judgment. A hearing on the motion was set for May 4, 2010. Sims requested, and was granted, a continuance of the hearing until July 7, 2010. Sims then filed an opposition to summary judgment that included an unsigned physician’s affidavit. Sims’s lawyer stated that the unsigned affidavit would be replaced with a valid affidavit before the scheduled hearing on the motion. No such substitution was made. On the day of the hearing, Sims explained to the trial judge that she had fired her lawyer and was seeking new counsel. Sims suggested that she had been misled by her attorney. Refusing to permit further delay, the judge went ahead with the hearing and then granted Hawkins-Sheppard’s motion for summary judgment. Sims appealed. The Second Circuit found that the trial court had abused its discretion in failing to permit Sims a reasonable amount of time to find new counsel and to substitute the unsigned affidavit with a valid, signed version. Hawkins-Sheppard then appealed to the Supreme Court of Louisiana, which reached a different result. “[W]e find no abuse of the trial court’s discretion in this case,” the supreme court stated. “[Sims] failed to show ‘good cause’ under La. C.C.P. art. 966(B) why she should have been given additional time to file an opposing affidavit.” Consequently, the court concluded, there was no genuine

issue to the material fact that Sims was unable to prove that Hawkins-Sheppard breached the standard of care. A medical malpractice action is one that, on summary judgment, requires a valid affidavit containing a medical expert’s opinion on the issue of the doctor’s breach of duty. Had Sims’s motion been accompanied by a valid affidavit, she could have avoided the trial court’s grant of summary judgment. Thus, the court reversed the Court of Appeal and affirmed the trial court’s grant of summary judgment in favor of Hawkins-Sheppard.

September 1, 2011

Court Explores Scope of Employment in Baton Rouge Car Accident

by Berniard Law Firm

After working at his job as a recruiter for the U.S. Army, Sergeant Sean Fowler went out drinking with friends on the evening of February 4, 2008. He returned to the recruiting station in Covington briefly to pick up some personal belongings before heading home, as he had the following day off from work. At about 12:30 am early Mardi Gras morning, Fowler fell asleep at the wheel of his government-owned vehicle (“GOV”).

At the intersection of Harding and Howell Boulevards in Baton Rouge, he collided with a car driven by Fartima Hawkins. Fowler, who submitted to a breathalyzer test at the scene, had a blood alcohol content of 0.112%, which was over the legal limit in Louisiana of 0.08%. Hawkins, who sustained serious injuries in the crash, sued Fowler and the U.S. government in federal district court. Her complaint asserted that Fowler was acting within the course and scope of his employment at the time of the crash and, therefore, the government was liable under the doctrine of respondeat superior. The district court granted the U.S. government’s motion for summary judgment. Hawkins appealed, arguing that a genuine issue of material fact existed over whether Fowler was acting within the scope of his employment at the time of the accident.

The U.S. Court of Appeals for the Fifth Circuit conducted a de novo review of the district court’s decision. Hawkins’s case against the federal government was premised on the Federal Tort Claims Act (FTCA), which limits responsibility for injury to that which is “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Under the FTCA, the question of whether a negligent act occurred within the course and scope of a federal employee’s duty is settled according to the law of the state in which the alleged act occurred. See Garcia v. United States. Thus, the Fifth Circuit applied Louisiana jurisprudence in its analysis. Generally, an employee’s conduct is within the course and scope of his employment if it is (1) of the kind of conduct that he is employed to perform; (2)it occurs within the authorized time and space of employment; and (3) it is initiated, at least in part, by a purpose to serve the employer. See Orgeron v. McDonald. The default approach in Louisiana is the “going and coming” rule: that is, when an employee is involved in a car accident on his way to or from his place of employment, it is considered to be outside of the course and scope. An exception to the rule is when the employee uses an employer-owned vehicle in the “performance of an employment responsibility.” Factors that influence the analysis include: (1) whether the employee’s use of the vehicle benefitted the employer; (2) whether the employee was subject to the authority of the employer at the time of the accident; (3) whether the employee was authorized to use the vehicle; and (4) whether the worker was motivated to use the vehicle, at least in part, by the employer’s concerns. Brooks v. Guerrero. The court found “no evidence … that Fowler’s use of the GOV was related to any employment responsibility or was of any value to the Army.” Instead, the court found that “Fowler was going home for the Mardi Gras holiday at the time of the accident” and, accordingly, was not acting within the course and scope of his duties as an Army recruiter. Although the court recognized that Fowler’s “permission to use a GOV on the evening of the accident [was] genuinely disputed,” it held that the settlement of that issue was not essential to determining the course and scope of employment. Thus, the court concluded that “no genuine issue of material fact exists that might preclude entry of summary judgment in favor of the United States.”