Criminal Matter

August 26, 2011

Time is of the Essence When Understanding Prescription and Timing of a Case

When making a legal claim against a person or entity, time is of the essence. Prescription bars certain legal actions after a specified time period. If the specified time period has lapsed, the action is thereafter prohibited. The Fifth Circuit recently explored the issue of prescription, demonstrating how prescription operates to effectively bar actions if they are not timely brought.

The facts of the case are disturbing; the plaintiffs alleged that they were sexually abused by a Roman Catholic priest who was ordained by the Catholic Church. The complaint alleges very serious accusations of abuse. However, abuse turned out not to be the dispositive issue, rather, prescription was the focal point for the Fifth Circuit. Specifically, the Fifth Circuit had to determine whether the suit, based on molestation allegations that occurred over twenty-five years ago, was timely under Louisiana law. It was uncontested that the plaintiff’s claims had indeed expired and that they were as a result, barred, unless prescription was tolled under the Louisiana law doctrine of “contra non valentem.” This is an exception that was judicially created to statutory prescription, it applies only in exceptional circumstances. In particular, the Louisiana Supreme Court in Eastin v. Entergy Corp., held that the “prescriptive period commences on the date the injured party discovers or should have discovered the facts upon which his cause of action is based” if contra non valentem applies. The plaintiffs alleged that exceptional circumstances were present, as a result of their memories of the abuse they suffered being repressed, preventing them from knowing about their cause of action. However, depositions that the plaintiff gave showed otherwise. Rather, the plaintiffs unequivocally stated that they actively remembered the abuse after it occurred. Thus, their memories were not repressed and the concept of contra non valentem would not apply. Prescription would instead, govern the issue.

The plaintiffs thereafter contended that they should have the opportunity to obtain additional evidence on the subject of their repressed memories and would obtain an affidavit from a professor of psychology that would support their contentions. This affidavit would be used to rebut the defendant’s Rule 56 summary judgment motion, such motions are generally favored and should be liberally granted, but the plaintiffs must demonstrate two things. First, they must demonstrate why they need additional discovery and second, how the additonal discovery will likely create a genuine issue of material fact. Thus, even if the plaintiffs were granted additional time to obtain the affidavit in their support, it would not suffice to defeat a summary judgment motion. The plaintiffs already admitted in their depositions that they could remember the abuse right after each encounter, thus, the affidavit would not help defeat summary judgment since they already have demonstrated a lack of exceptional circumstances to qualify for prescriptive tolling.

August 20, 2011

American Bar Association Calling for Nominations of Top 100 Lawyer Blogs

by Berniard Law Firm

The ABA (American Bar Association) has called upon lawyers and non-lawyers alike to submit blogs from across the internet as exceptional examples of legal advice and content. With content about the law ranging widely across the internet, the ABA recognizes the value of those blogs that wish to educate the public about a wide range of issues as examples of how attorneys can help bring an understanding of public policy to the masses.

Through a form, located here, ABA members and/or the public can nominate the efforts of attorneys whose work helps explain the complexities that the law has to offer. While the competition prevents bloggers from nominating themselves, the ABA has requested that the work of their peers be showcased. Due by September 9th, blog suggestions can cover any topic of the law, whether maritime, personal injury, civil or criminal in nature. This possibility of diversity makes the Top 100 list all the more interesting because of the wide variety of content the selected are sure to cover.

If you know of a blog that wishes to discuss legal issues of interest to lawyers (and perhaps those outside of the field), click here to fill out the ABA’s form. Limited to 500 words, nominations should explain why the blog, obviously, deserves to be included in the list as well as its value as a whole. Nominated sites should avoid the regurgitation of content from other sites (copy and pasted quotes of news items, etc.), showing that the main focus of the content is original discussion of those issues of law that affect professionals as well as the public.

August 2, 2011

Fifth Circuit Finds Rifle Manufacturer “Not Liable” for Injuries Sustained After Rifle Firing Resulted in Uncontained Explosion

by Berniard Law Firm

If a company manufactures a defective product, and an individual is injured by that product, the manufacturer may be liable for the damages suffered by the product-user. The product, be it a cleaning supply or an automobile part, or any number of different items found in everyday life, bears an element of responsibility of reliability and worthiness when it is delivered by a manufacturer. When that responsibility is breeched, legal remedy is available.

As the Fifth Circuit described in the seminal case of Matthews v. Remington Arms Co., in order for an injured party to win an action against a product manufacturer, that party must prove: (1) that the party, or another “person or entity” was using the product in a manner reasonably anticipated by the manufacturer; (2) that an aspect of the product directly caused the damage(s) claimed; “(3) the product was ‘unreasonably dangerous’ either in construction, design, or warning; and (4) the characteristic rendering the product unreasonably dangerous either ‘exist[ed] at the time the product left the control of its manufacturer or result[ed] from a reasonably anticipated alteration or modification of the product.’”

If a party can show that a product, used in a way reasonably anticipated, could harm a product-user, the manufacturer may have a legal duty to design its product in a manner which would avoid such harm. As explained by the Fifth Circuit, a reasonably anticipated use is a “use or handling of a product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.” If it can be shown that a product was misused and that misuse resulted in the damages claimed by the product-user, then that user cannot collect against the manufacturer for his or her damages.

July 7, 2011

Fourth of July Offers Reminder of Danger of Negligence and Need for Common Sense, Attention to Safety

by Berniard Law Firm

July 4th, though best known as an occasion for grilling out, visiting the beach or lake, and watching the fireworks, is unfortunately also notorious for its high incidence of accidents and injuries. Many incidents, especially vehicle and boat accidents, are related to alcohol use. The Louisiana Highway Safety Commission recently announced that more than 87 state and local law enforcement agencies work overtime throughout the holiday weekend. Many of the agencies will be participating in the state’s “Over the Limit, Under Arrest” campaign that aims to keep impaired drivers off the road. The Commission reports that the number of highway deaths has dropped significantly over the past few years: 16 people were killed on Louisiana highways over the Fourth of July holiday in 2007, and only two fatalities occurred last year.

Despite this positive trend and the stepped-up efforts by law enforcement, patriotic celebrants throughout Louisiana may still find themselves in dangerous situations over these holiday weekends. When calamity should strike, the parties involved may turn to the courts to resolve their dispute; the resolution will likely involve the court’s application of negligence. The theory contains four basic elements that a plaintiff must show in order to recover from a defendant. First, a plaintiff must establish that the defendant owed him or her a duty. This is generally a straightforward matter, as all members of society have a responsibility to exercise reasonable care toward others; this duty takes such common sense forms as requiring users of fireworks to point bottle rockets away from bystanders or drivers to operate their vehicles in a safe manner. Driving a car or piloting a boat or jet ski while under the influence of alcohol or drugs is a clear violation of this duty. A person who fails to observe the obligation of safety and engages in conduct that poses an unreasonable risk of harm to others is said to breach this duty. This second element of negligence must be tied to the plaintiff’s injury by way of the third element, causation. That is, the defendant’s breach of duty must have resulted in the plaintiff’s injury. A defendant is responsible only for the consequences that are directly linked to his or her misconduct.

The final element, harm, requires the plaintiff to prove that he or she suffered a loss. The court can award two kinds of damages to compensate the plaintiff for his losses: special and general. Special damages are those which are easily quantifiable, such as medical expenses, lost wages, or property repair costs. General damages cover intangible losses, such as pain and suffering. Trial courts are afforded great latitude in assessing general damage awards, which can potentially expose defendants to staggering liability.

May 28, 2011

Disabled Man’s Death Demonstrates Slipper Slope of Malpractice Claims

by Berniard Law Firm

Gleason v. Louisiana Dept. of Health and Hospitals is a Medical Malpractice case arising out of the unfortunate death of a 47-year-old severely mentally challenged man, Donnie Gleason. Donnie had been a resident of Northwest since December of 1974 and was nonverbal and incapable of self-medicating, arranging or monitoring his own medical assistance. On December 23, 2002, after two earlier unsuccessful attempts, Donnie was transported to Willis Knighton Medical Center (“Willis Knighton”) in Bossier City, to undergo a routine CT scan and EEG after he suffered a seizure. When Donnie returned, he was lethargic and placed in the infirmary.

The documentation of his treatment there showed that Donnie had ingested a foreign object which caused a bowel impaction that precipitated Donnie’s fecal vomiting. Presumably due to his condition, Donnie was unable to expel the vomit and breathed some of the gastric content into his respiratory tract. At Willis Knighton, Donnie was placed on a ventilator in the intensive care unit and diagnosed with bowel obstruction, respiratory failure and aspiration pneumonia relating to the vomit aspiration. After a brief recovery, Donnie once again went into respiratory distressed, was placed on a ventilator, and passed. The staff were unable to revive him.

In Louisiana, medical malpractice complaints must first be filed with the Louisiana Patient’s Compensation Fund before a lawsuit may be commenced. That organization’s medical review panel ruled for the defendants in this action – Northwest (intermediate care facility) and Willis Knighton (hospital) and their doctors and physician’s assistants individually. The panel concluded that the evidence did not support the conclusion that Northwest failed to comply with the appropriate standard of care because they found no evidence that Donnie ingested a foreign object while there. After the panel ruling, Donnie’s family filed suit against Northwest and Willis Knighton. They alleged, among other things, that Northwest’s failure to properly supervise Donnie and his treatment and its failure to recognize the seriousness of his condition and the inadequacy of the monitoring of Donnie’s respiratory status.

May 14, 2011

Court of Appeals Rejects Insurance Company’s Defense of Nonpermissive Use in Recent Case

by Berniard Law Firm

Louisiana law requires all motor vehicle liability insurance policies to extend coverage not only to the insured, but also to any other person with express or implied permission to drive the motor vehicle. Once the insured gives permission, coverage will be denied only if the driver deviates from the permissive use. Consequently, at issue in most lawsuits of this kind is whether the damages caused by the driver are covered by the policy.

A recent case involved Ellen Van, who was driving her car on McReight Street in the city of Bastrop on the same day that minor April Canada was driving a truck owned by the defendant, Steven Ferrell, her live-in boyfriend. April allegedly failed to stop at an intersection and collided with the Van’s vehicle. Ellen and her husband, claiming that the collision caused injuries to her back and body, filed suit against Steven Ferrel and his insurer, Safeway Insurance Company of Louisiana. In Ellen T. Van and Ralph E. Van v. Steven Ferrell and Safeway Ins. Co., the lower court granted Safeway’s motion for summary judgment on the basis of the affirmative defense of nonpermissive use. Safeway contended that April did not have permission to use the truck on the day in question, and, therefore, the damages caused by the accident were not covered by the policy.

On appeal, the plaintiffs challenged the lower court’s determination that there was no genuine issue of material fact in the case. Specifically, the plaintiffs contested that April’s implied permission from Ferrell to drive the truck on the day of the accident was an unresolved, material issue in the case. The Louisiana Second Circuit Court of Appeals, agreeing with the plaintiffs, reversed and remanded the lower court’s judgment because the deposition testimony established that an issue remained in the case as to whether April had implied permission to drive Ferrell’s truck.

April 10, 2011

Prescription Drug Overdose Leads Court to Review Pharmacist’s Standard of Care

by Berniard Law Firm

On March 13, 2008, Sarah Hollier visited Dr. Gregory Green for treatment of bronchitis. Dr. Green wrote Hollier a prescription, which she took to the Super One Pharmacy in Monroe to have filled. The pharmacist on duty, Katy Buntyn, was not familiar with the particular form of the drug that Dr. Green prescribed because it had been discontinued some four years prior. Buntyn directed her pharmacy technician to phone Dr. Green’s office for clarification on how to fill the order. Ultimately, after further confusion over the form of the drug and the dose, Buntyn mistakenly filled the prescription at a dosage which was at more than 2.5 times the “top end” dose indicated on the drug’s literature and eight times the dose intended by Dr. Green. When Hollier began taking the medication, she experienced high energy levels, sleeplessness, increased heart rate, and nausea.

Hollier’s husband, himself a pharmacist, recognized her symptoms and discovered the erroneous dose after inspecting the prescription bottle. The Holliers reported the problem to the pharmacy and, later, filed suit against the pharmacy and Buntyn. In Louisiana, pharmacists are not subject to the state’s Medical Malpractice Act, so the matter was heard in Monroe City Court on September 21, 2009. The trial court entered a judgment for Hollier and awarded her $7,500 in general damages and $827.08 for medical expenses. The defendants appealed, refuting liability.

The Second Circuit first reviewed the elements of general negligence, but then noted that a “pharmacist has a duty to fill a prescription correctly and to warn the patient or to notify the prescribing physician of an excessive dosage or of obvious inadequacies on the face of the prescription which create a substantial risk of harm to the patient.” Buntyn argued that she met this duty by calling Dr. Green’s office to inquire about the prescription. But the court disagreed that this action was sufficient to discharge her duty; instead, “the fact that the package insert lists the top end of an initial daily dosage of [the drug] at 9 mg should have aroused Ms. Buntyn’s suspicions that a 24 mg initial daily dosage was excessive.” At that point, reasoned the court, Buntyn “should have inquired further.” Thus, the court could not find that trial court committed manifest error in finding that Buntyn breached her duty to Hollier by supplying the extremely high dose of the drug, and affirmed the judgment.

March 10, 2011

Complexity of Legal Procedure Shows Why Right Attorney Must Be Picked

by Berniard Law Firm

During litigation, competent legal counsel must make efforts to concentrate on two things. First, legal counsel must make sure that all of the most recent cases, statutes, and regulations are being used for litigation. It is embarrassing for legal counsel and risky for a client to proceed before court with expired or outdated law. The impact of such a scenario could mean the prolonging of litigation and a negative overall perception towards the case from the judge. Second, competent legal counsel must pay very close attention to procedural steps needed for successful litigation. This means that all motions and requests for evidence must be made in a timely manner. The art of litigation requires a very structural approach with one step occurring before the next. If one step within the process is missed, misconstrued, or untimely, the result could spell the end of litigation and the client’s claim.

The reason for such strict adherence to procedural steps is due to an effort to expedite an already heavily time-burdened legal system. The procedural steps facilitate quick and systematic approaches to litigation. In a recent case, Percival Franklin v. Allstate Insurance Co., the plaintiff was dealt a blow by the implications of untimely filing.

The case began as many other vehicle-based legal issues do. There was an accident, which was followed by an injury to one of the passengers. The plaintiff in the case sued the driver of the other vehicle and that driver’s auto insurance. During the litigation process, the defendants filed certain exceptions with the trial court. After review, the trial court agreed to the exceptions and the trial was deemed over at that point. The exceptions were sustained on March 29, 2010. The notice of judgment was mailed on April 7, 2010. On May 24, 2010, plaintiff filed for a new trial which was denied on June 2, 2010. The notice of judgment of this decision was mailed on June 7, 2010. On August 13, 2010, plaintiff filed a motion for appeal. The trial court granted this motion on August 17, 2010. The Appellate court asked the plaintiff why it should not dismiss the appeal as being untimely. Plaintiff stated that under LA.CodeCiv.P.art 2087, the appeal was timely because it was filed within 58 days of the trial court’s denial of a new trial. Before reaching its judgment, the Appellate Court described errors in the way the plaintiff viewed the applicable dates. Plaintiff cites that the new trial was denied on June 7, 2010 and that the motion for appeal was filed on August 5. The Court stated that, based on the record, the new trial was denied on June 7 and the appeal was filed on August 13.

January 12, 2011

Teen from Cut Off Dies in Car Accident Where Driver Was Unlicensed

by Berniard Law Firm

According to Houma Today, a 17-year-old boy from Cut Off was killed on October 22nd when the car he was riding in struck a utility pole. The boy, Edward Domingue, and his 15-year-old girlfriend were going to pick up pizza and movies when she lost control of the vehicle. Questions remain regarding why the girl was driving since she did not have a driver’s license. Further, the girl’s mother and owner of the vehicle, Gillian Reynolds, adamantly stated that she would not allow her daughter to drive. While the facts are still not clear, civil liability for the accident and Domingue’s death are also still up in the air.

Louisiana Revised Statute 32:52 states that no person shall operate a vehicle or allow another person to operate a vehicle owned or controlled by him if the driver is unlicensed. However, the simple fact that doing so is a statutory violation does not necessarily imply that the owner, or the unlicensed driver, was negligent. In Enlow v. Blaney, the Louisiana Third Circuit held that even though a 14-year-old was not licensed to drive, the fact that the vehicle’s owner allowed her to drive without a license was “immaterial and irrelevant” to the issue of negligence where her “conduct in driving without a license was not a cause-in-fact of the accident.” Following its rationale in Enlow, the Third Circuit ruled that even when the owner allows an unlicensed minor to drive her vehicle, she will not be liable for a resulting accident where evidence suggests that the minor was competent to drive and the fact the driver was unlicensed is not the cause-in-fact of the accident.

However, under general common law principles, if the owner knowingly allows a person who is incompetent to drive, such as by repeated instances of negligent or reckless conduct, the owner may be liable for negligence. This usually requires that the incompetent driver be “on a mission” for the owner, acting as the owner’s agent or employee, or the owner is negligent for entrusting his vehicle to the incompetent driver. In order to establish negligent entrustment, a plaintiff must show that the vehicle’s owner knew or should have known that the borrower is incompetent to drive. One case of particular interest is the 1993 case of Jones v. Western Preferred Casualty Co. In that case, the Louisiana First Circuit found that a 19-year-old vehicle owner did not negligently entrust his car to a 13-year-old where the 13-year-old had only driven a few times before, had been drinking, and the 19-year-old had never met the 13-year-old before that day.

January 2, 2011

Homer Car Wreck Case Examines Insurance Policy’s Treatment of Intentional Injury

by Berniard Law Firm

On the evening of August 2, 2005, Latiffany Dunn slowed her car as she approached the intersection of Pearl and Washington Streets in Homer, Louisiana. As she came to a stop, a vehicle driven by Latonya Harris pulled up beside Dunn’s vehicle. Shatara Harris, Latonya’s sister, was a passenger in Latonya’s vehicle. Shatara got out of the car and approached Latiffany’s vehicle. The two women argued, and Shatara took a swing at Latiffany. As Shatara walked back to Latonya’s vehicle, Latiffany drove off and then circled back. As it passed by, Latiffany’s car clipped the open passenger door of Latonya’s vehicle. Shatara, who was attempting to get into the car at the same time, was injured when the door slammed closed against her. Latiffany did not stop her car, but instead drove to the Claiborne Parish Sheriff’s Department where she filed a report about the incident. A sheriff’s deputy interviewed Latiffany, transported her to the Homer Police Station, and then arrested her on a charge of aggravated second degree battery. Latiffany later pled guilty to simple battery. Shatara filed suit against Latiffany and her auto insurance carrier, U.S. Agencies Casualty Insurance Company, Inc. for damages arising from her injuries. U.S. Agencies filed a motion for summary judgment on the grounds that Latiffany intentionally struck Latonya’s vehicle, which would have excluded coverage by the terms of the policy. The trial court granted the motion and dismissed U.S. Agencies from the suit; Shatara appealed.

Under Louisiana law, an insurer may limit the coverage it provides by the terms of its policy, but the insurer has the burden of proving that the facts and circumstances support the exclusion. Furthermore, “a summary judgment declaring a lack of coverage under an insurance policy is not appropriate unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts, under which coverage could be provided.” The policy provision that U.S. Agencies pointed to excluded coverage for bodily injury or property damage “caused by an intentional act” or “caused … while engaged in the commission of a crime.” U.S. Agencies argued that Latiffany committed a crime (as established by her guilty plea to the battery charge) and also that she intentionally struck Latonya’s vehicle to injure Shatara.

With respect to the crime exclusion, the Second Circuit noted that the policy defined “crime” as “any felony or any action to flee from, evade or avoid arrest or detection by the police or other law enforcement agency” (emphasis added). The court concluded that the crime exception was inapplicable because Latiffany’s guilty plea to simple battery–a misdemeanor offense–did not fit the policy’s definition. Furthermore, the court explained that Latiffany’s guilty plea was not determinative as to her intent to strike Shatara. While a guilty plea from a criminal matter is admissible in a civil case, it is not conclusive evidence. The court acknowledged that “summary judgment is appropriate only if there is no factual dispute as to intent,” which, after reviewing the trial record, was “not the case here.” The court reasoned, “we cannot say as a matter of fact that the record shows [Latiffany] intended to hit either Latonya’s vehicle or Shatara with her vehicle… Even though Latiffany pled guilty to simple battery, we find that the record shows that a genuine issue of material fact exists as to whether Latiffany’s actions constituted an intentional act.” Accordingly, the court reversed the trial court’s granting of summary judgment and remanded the matter for further proceedings.