Articles Posted in Litigation

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The Berniard Law Firm is look to tackle a negligent refinery by representing a Chalmette resident assaulted by chemicals released from a St. Bernard Parish oil refinery. While taking a walk through her neighborhood on the morning of September 6, 2009, the woman observed white dust covering homes and vehicles. She experienced exposure symptoms including difficulty breathing, coughing, sore throat, headache, and burning sensations in her nose and eyes. As the symptoms persisted, she went to a hospital the following day. The white powder comprised a spent catalyst including components of kaolin and titanium dioxide which are eye, skin and lung irritants. Portions of Chalmette, Arabi, and New Orleans’ Lower Ninth Ward were blanketed with the fine white powder.

In addition to releasing a ton of spent catalyst, the refinery released two thousand pounds of sulfur dioxide, one thousand pounds of nitrogen oxide, and an unspecified amount of hydrogen sulfide. Not only was the refinery negligent in releasing the toxic chemicals but also for failing to notify area residents of the accident in a timely manner so that they could take precautionary measures. Moreover, children and pets are more susceptible to exposure symptoms due to their smaller size while residents with certain pre-existing medical conditions would also suffer greater harm than a healthy adult. For example, children have a greater lung surface area to body weight ratio along with other parameters that differ from adults leading to greater susceptibility to chemical inhalation effects at lower concentrations. Likewise, pre-existing medical conditions including chronic pulmonary disease and asthma increase susceptibility to exposure symptoms at lower concentrations.

Specifically, sulfur dioxide may induce acute exposure symptoms comprising irritation in the upper respiratory tract, nosebleeds and rhinorrhea (runny nose), coughing and choking, expectoration (coughing up phlegm), dysphagia (difficulty swallowing), and oropharyngeal erythema (redness). Although predominately affecting the upper respiratory tract via inhalation, sulfur dioxide also acts as an intense eye and skin irritant by combining with water producing sulfuric acid and sulfurous acid. Dermal exposure symptoms range from irritation to urticarea (itchiness) and burns. Given this high solubility, sulfur dioxide is also rapidly distributed throughout the body producing metabolic acidosis possibly inducing vomiting, diarrhea, abdominal pain, fever, headache, vertigo (dizziness), and agitation. Decontamination should include removal of contaminated clothing and rinsing of the skin and eyes. Reproductive and teratogenic effects (malformation of embryo, fetus) of exposure are unknown, which has raised concerns among women at varying stages of pregnancy at the time this accident occurred.

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On Saturday, July 24, 2010, tragedy struck in East Feliciana Parish as a 9-year-old girl died in a car accident. Reports state that the young girl, Tobiya Kato, was killed when the car driven by her mother, Jamet Kato, veered off the road and flipped before coming to a rest on its roof in a wooded area. This tragic event serves as a reminder of the importance of all passengers wearing seatbelts, especially young children seated in the back of a vehicle.

According to reports, the young girl, whom was seated in the back seat, was thrown from the vehicle during the accident due to not wearing her seatbelt. Police noted that in addition to the 9-year old girl, three other children, ages 6, 5, and 2, were also in the back of the vehicle, not wearing seatbelts, when the accident occurred. However, Jamet Kato, along with a 12-year-old sitting in the front seat, were both wearing their seatbelts at the time and only suffered minor to moderate injuries in the crash.

The sheer number of deaths that could be prevented by properly buckling up in a vehicle are staggering. According to NHTSA’s study, in 2008 there were 25,351 accidents involving the death of passengers in the United States. Of those, 12,865, or 50.7%, passengers were not utilizing safety restraint devices, such as a seat belt or car seat for younger children. The statistics for Louisiana residents are similarly shocking. Of the 669 passenger deaths in 2008, 59.2%, or roughly 400 passengers, died in accidents in which they were not buckled.

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In Pearl River on July 9, an 18-wheel truck blew out a tire and crossed over into oncoming traffic killing four people. The accident at the Louisiana/Mississippi state line occurred when the driver of the semi was driving northbound on I-59 and lost control of the vehicle after the tire blew out. The semi crossed the center median, and in what state police describe as an almost head on collision, the semi collided into a Dodge Ram pickup and led to both vehicles sliding off the road. While all four individuals in the truck were killed, the driver of the semi suffered minor to moderate injuries. The driver of the semi was from Montgomery, Texas and the four passengers in the Dodge Ram pickup were from Carriere, Mississippi. For his part in the accident, the driver of the semi was charged with careless operation and four counts of negligent homicide.

It is important to know that while negligent homicide is a criminal charge, suit may also be filed under a wrongful death cause of action for the four victims that were killed in the accident. Historically under common law, wrongful death was not available and only criminal law was an option. Under statutory law however, a person can be held responsible in civil court in addition to criminal court for wrongful death. Wrongful death statutes provide a legal remedy for wrongfully causing the death of another human being. The applicable Louisiana Civil Code wrongful death statute is under Book 3, Title 5, Chapter 3, Article 2315.2 and states, “If a person dies due to the fault of another, suit may be brought […] to recover damages which they sustained as a result of the death.”

In civil court, the basis for wrongful death is negligence. In a case of negligence, the plaintiff must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the actual and proximate cause of the injury, and damages. If a claim is brought in negligence, the driver is held to a “reasonable person” standard of care. The question to ask is, “Would a reasonable person behave this way under the same or similar circumstances?”

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Under Louisiana law, a motion for summary judgment is a procedural device that allows a court to resolve a case without a full trial when there is no “genuine issue of material fact” to be decided. See Duncan v. USAA Insurance Co., 950 So.2d 544 (La. 2006). A “genuine issue of material fact” is a matter about which reasonable people could disagree. This kind of decision is left to the jury to decide (or, in the case of a bench trial, the trial judge). If, based on the evidence, reasonable people could reach only one conclusion about an issue, there is no need for a jury to resolve it. A fact is “material” when it relates to an essential element of a plaintiff’s theory of recovery. A motion for summary judgment can be filed by either the plaintiff or defendant (the “movant”). The initial burden of proof rests with the mover to show that based on the pleadings, depositions, interrogatories, and affidavits, no genuine issue of material fact exists in the case. If the movant makes this initial showing, the burden then shifts to the other party to present evidence that shows that a material fact issue actually does exist; in the absence of this evidence, the court can grant the motion. See Hutchinson v. Knights of Columbus, 866 So.2d 228 (La. 2004).

Typically, the questions of a defendant’s negligence or a plaintiff’s contributory negligence are issues of fact and are therefore not appropriate for summary judgment. Freeman v. Teague, 862 So.2d 371 (La. App. 2d Cir. 2003). However, in the event that reasonable minds cannot differ, these matters can be resolved by summary judgment. For instance, in the case of Pruitt v. Nale, No. 45,483-CA (La. App. 2d Cir. 2010), the plaintiff employed a motion for summary judgment both to recover damages from the defendant and to dispute the defendant’s allegation of contributory negligence.

On March 9, 2007, Tiffany Pruitt, then 19, was driving her father’s pickup truck eastbound on East Jefferson Avenue in Bastrop, Louisiana. Glenn Nale was also driving in the same direction of travel on Jefferson Avenue. He was behind the wheel of a log-hauling tractor-trailer. At the intersection with South Franklin Street, both Pruitt and Nale stopped at the red light, with Pruitt in the center lane of travel and Nale in the designated left-turn lane. When Nale began making a left turn onto South Franklin Street, the logs protruding from the rear of his trailer swung into the center lane and slammed into Pruitt’s truck. At least one of the logs shattered the driver’s side window and entered the cab of the truck, severely injuring Pruitt.

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Discovery is a phase of the litigation process that occurs once a complaint has been filed and answered but before the trial occurs. The purpose of discovery is for the litigants in civil matters to exchange information that is pertinent to the case. Each party can request that the other turn over documents, answer interrogatories (written questions), agree to admissions about facts not in dispute, or submit to a deposition. The parties are required to respond to these requests within a certain period of time. There are some importantexceptions to the materials that must be exchanged through discovery (for instance, privileged information is not subject to disclosure), but the intent is to level the playing field so that the parties can adequately prepare for trial.

The failure to respond to discovery requests in a timely manner can have very negative consequences for a litigant. When a party who has been served with a proper discovery request fails to respond, the serving party can ask the court to impose penalties. These include “dismissing the action or proceeding or any part thereof, or rendering a judgment of default against the disobedient party, or [entering] an order assessing costs and attorney fees … against the disobedient party and his attorney or both.” La. C.C.P. Arts. 1471, 1473. The dismissal of a case is “a drastic penalty and should be reserved for extreme circumstances,” but the party seeking to avoid sanctions or dismissal for failure to comply with a discovery order is required to show “that the failure was due to inability and not to willfulness, bad faith, or any fault.” Halley v. Guerriero, 577 So.2d 781 (La. App. 2d Cir. 1991).

The case of Jones v. LSU/E.A. Conway Medical Center (No. 45-410, La. App. 2d Cir. 2010) is illustrative. Rodney Jones was an inmate at the Dixon Correctional Center (“DCC”) in Jackson, Louisiana. On March 25, 2006, Jones allegedly injured his elbow and was admitted to the LSU/E.A. Conway Medical Center (the “Center”) for treatment. The attending orthopedist did not find anything wrong with Jones’s elbow and refused to perform arthroscopic surgery or request an MRI. In December of 2008, Jones filed a medical malpractice lawsuit against the Center which alleged that the Center’s staff deliberately failed to provide him with the medical care he needed for his elbow. Jones did not hire an attorney and represented himself in the matter.

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Under Louisiana law, a motion for summary judgment is a procedural device that allows a court to resolve a case without a full trial when there is no “genuine issue of material fact” to be decided. See Duncan v. USAA Insurance Co., 950 So.2d 544 (La. 2006). A “genuine issue of material fact” is a matter about which reasonable people could disagree. This kind of decision is left to the jury to decide (or, in the case of a bench trial, the trial judge). If, based on the evidence, reasonable people could reach only one conclusion about an issue, there is no need for a jury to resolve it. A fact is “material” when it relates to an essential element of a plaintiff’s theory of recovery. A motion for summary judgment can be filed by either the plaintiff or defendant (the “movant”). The initial burden of proof rests with the mover to show that based on the pleadings, depositions, interrogatories, and affidavits, no genuine issue of material fact exists in the case. If the movant makes this initial showing, the burden then shifts to the other party to present evidence that shows that a material fact issue actually does exist; in the absence of this evidence, the court can grant the motion. See Hutchinson v. Knights of Columbus, 866 So.2d 228 (La. 2004).

Typically, the questions of a defendant’s negligence or a plaintiff’s contributory negligence are issues of fact and are therefore not appropriate for summary judgment. Freeman v. Teague, 862 So.2d 371 (La. App. 2d Cir. 2003). However, in the event that reasonable minds cannot differ, these matters can be resolved by summary judgment. For instance, in the case of Pruitt v. Nale, No. 45,483-CA (La. App. 2d Cir. 2010), the plaintiff employed a motion for summary judgment both to recover damages from the defendant and to dispute the defendant’s allegation of contributory negligence.

On March 9, 2007, Tiffany Pruitt, then 19, was driving her father’s pickup truck eastbound on East Jefferson Avenue in Bastrop, Louisiana. Glenn Nale was also driving in the same direction of travel on Jefferson Avenue. He was behind the wheel of a log-hauling tractor-trailer. At the intersection with South Franklin Street, both Pruitt and Nale stopped at the red light, with Pruitt in the center lane of travel and Nale in the designated left-turn lane. When Nale began making a left turn onto South Franklin Street, the logs protruding from the rear of his trailer swung into the center lane and slammed into Pruitt’s truck. At least one of the logs shattered the driver’s side window and entered the cab of the truck, severely injuring Pruitt.

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A very recent Louisiana Court of Appeals decision arises from a lawsuit filed by Lloyd and Dotris Bordelon to recover damages stemming from a pedestrian-vehicle accident that followed a vehicle-vehicle collision.

The first accident occurred in September 2003, when John Vercher and his wife were going north on Highway One in Avoyelles Parish to Mr. Bordelon’s house. Mr. Desselle was also going north on the highway and was attempting to pass the Verchers, unaware that Mr. Vercher was going to turn left into Mr. Bordelon’s driveway.The vehicles collided. Mr. Bordelon came out of his house to see what happened. After determining no one was hurt, Mr. Bordelon walked out to the highway to direct traffic. Mr. Bordelon reported that he heard someone asking him to move the vehicles, at which point he turned around and said they should not be moved. When Mr. Bordelon approached Mr. Vercher’s car, it lurched forward and hit Mr. Bordelon, throwing him into the post of his carport and an aluminum building. Mr Bordelon sustained injuries to his brain, face, and stomach. The Bordelons filed suit against both Mr. Vercher and his insurer and Mr. Desselle and his insurer for injuries he sustained as a result of the initial crash and resulting collison. The lawsuit against Mr. Vercher was dismissed prior to trial. After trial the court found that Mr. Desselle was one hundred percent at fault for the collision between him and Mr. Vercher and that both Mr. Desselle and Mr. Vercher were fifty percent at fault for Mr. Bordelon’s injuries, ordering Mr. Desselle and his insurer to pay the entire $50,000 with no reference to the assignment of fault. On the first appeal, the trial court executed a judgment allocating fault and damages equally between Mr. Desselle and Mr. Vercher. Mr. Desselle argued in this appeal that the trial court should not have found Mr. Desselle even fifty percent at fault for Mr. Bordelon’s injuries.

The defendants reasoning for reversing the judgments include the separate nature of the two accidents, the time and distance between them, and the fact that Mr. Desselle owed no duty to Mr. Bordelon.

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When filing a complaint, the attorney needs to make sure that they are bringing in the correct parties and including the right claims with their legal action. Mistakes can result in losing the entire case before it even begins thus focusing on even the smallest details can save a complaint from utter failure.

As careful as one may try to be in forming a complaint, mistakes do happen. This aspect was explored in Glasgow v. Par Minerals Corporation, where an oilfield explosion and subsequent fire at a wellsite near Kinder, Louisiana, significantly injured a direct employee of Therral Story Well Service (TSWS). Par Minerals had contracted with several companies to drill the well for oil and gas, one of the companies being TSWS. The employee who was injured initially filed a tort suit against Par Minerals alone, including Avery Graves as the on-site supervisor for Par. The latter part of the petition was wrong as Avery Graves was the president and sole-shareholder of Pipe Services.

This mistake resulted in two supplemental and amended petitions, leaving Par as the sole defendant. Over one year later, a third supplemental and amended petition added to Par, Pipe Services and its insurer, Colony Insurance Company. Thus, the final petition had three defendants, one named within one year of the accident, and two named over one year after the accident. The timing of the amendments and petitions are extremely important, because had the latter of the two defendants been named within one year of the accident, the entire result of the case may have come out differently. Again, focusing even on the smallest details can help save a case from failure.

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While many people receive much of their legal understanding from popular tv shows and movies, the fact remains that very real legal concepts are often explored. Regardless of your television preferences, the terms remain the same in real life litigation that often involves great tragedy and turmoil for all parties involved. Medical malpractice. Negligence. These two legal terms have unique meanings and can determine many aspects of a case.

Medical malpractice concerns professional negligence committed by a health-care provider such as a hospital, dentist, doctor or similar professional. A medical malpractice action centers around the behavior of the professional and his use of medical practices that depart from the normal care or skill that other similar professionals with similar experience utilize, that ultimately results in harm to the patient. General negligence, on the other hand, concerns conduct of a person that fails to meet the standard of care a reasonable person in their position would have exhibited in whatever the situation may be. Clearly, general negligence is a broader cause of action than medical malpractice.

This comparison recently became crucial in a wrongful death lawsuit against Pendleton Methodist Memorial Hospital. The facts concern Ms. Althea LaCoste, who passed away after Hurricane Katrina knocked out Pendleton’s power supply. The Times-Picayune reported that although the hospital was prepared with emergency generators to fight through the storm, the generators lacked the improvements necessary to withstand the storm’s raging water levels. Consequently, Ms. LaCoste’s life support machine failed.

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In Louisiana, actions in tort must be brought within a certain period of time after the incident occurs. This is called the “prescriptive period,” and reflects the state’s position that “a plaintiff is responsible to seek out those whom he believes may be responsible for a specific injury,” Jordan v. Employee Transfer Corporation, 509 So.2d 420, 423 (La. 1987), and to file suit within a reasonable period of time. The specific prescriptive period for a given tort is set by statute. For example, the prescriptive period for damage to immovable, or real, property is one year. LSA C.C. Art. 3493. The one-year period “commences to run from the day the owner of the [land] acquired, or should have acquired, knowledge of the damage.” LSA C.C. Art. 3493. A plaintiff’s knowledge of damage is often closely connected with the concept of “constructive notice,” which has been defined by Louisiana courts as “whatever notice is enough to excite attention and put the injured party on guard or call for inquiry.” Campo v. Correa, 828 So.2d 502, 510-511 (La. 2002).

The expiration of the prescriptive period for property damage was central to the case of Hogg v. Chevron USA, Inc., No. 2009-CC-2632 (La. 2010). The Hogg family owned property in Ruston that was located next to Burt’s Chevron Station. In 1997, it was discovered that the gas station’s underground storage tanks were leaking. The tanks were replaced, after which the Louisiana Department of Environmental Quality (LDEQ) investigated for soil and groundwater contamination. In December 2001 and April 2002, the LDEQ sent the owners of property around Burt’s Chevron, including the Hoggs, letters informing them of the environmental contamination. The first letter, dated December 20, 2001, reported that environmental contamination had been detected in the vicinity of Burt’s Chevron as a result of a leaking underground storage tank system. The letter explained that the contamination had been detected in the subsurface soil and groundwater, and appeared to be migrating in a “west-northwesterly direction,” toward an unnamed stream on the Hoggs’ property. The letter further reported that water samples collected from the stream indicated “the presence of chemicals commonly found in gasoline (i.e., benzene, toluene, ethylbenzene, xylene).” The letter specifically warned the Hoggs: “Due to the direction of groundwater flow, there is a possibility that gasoline may have migrated underground from the Burt’s Chevron site to your property or that such migration may occur in the future.” The second letter, dated April 26, 2002, contained the results of ambient air sampling which revealed the presence of petrochemicals in the area of the stream. A map enclosed with the letter showed that the tests were actually conducted on the Hoggs’ property. The LDEQ also recommended that the Hoggs “limit the time spent in the area immediately adjacent to the stream.”

The Hogg family did not file suit against E. Lee Young, the owner of Burt’s Chevron, until September 6, 2007–shortly after they were contacted by the LDEQ to request permission to enter their property to conduct clean-up. In the district court, Young filed a motion for summary judgment arguing that the one-year prescriptive period for filing the tort action had expired. Young’s theory was that the period began to run when the Hoggs received the letters from the LDEQ in 2001 and 2002, as the letters provided them with notice of the presence of gasoline on their property. The Hoggs countered that the LDEQ’s letters were subject to more than one interpretation, thereby rendering the reasonableness of the Hoggs’ lack of response a question of fact that should go to a jury. The district court denied Young’s motion, finding issues of fact about whether the LDEQ’s letters provided knowledge of damage sufficient to start the running of the prescriptive period.

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