Articles Posted in Litigation

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On July 24th in Lincoln Parish, two trucks collided on I-20 leaving one dead and several injured. While traveling east on I-20, a Chevy Suburban attempted to pass a GMC truck hauling a livestock trailer. The Chevy Suburban swerved right hitting the GMC truck and both vehicles ran off the road. The vehicles struck the tree line, the Chevy Suburban striking several trees before stopping. The front-seat passenger of the Chevy Suburban was pronounced dead at the scene. Two backseat passengers suffered minor injuries, and the 16-year-old driver of the Chevy Suburban was in critical condition. The driver and passenger of the GMC truck sustained moderate injuries. Three cows in the livestock trailer died in the crash.

It is unclear whether the accident was due to a mechanical defect, driver error, or another cause. Louisiana State Police say that impaired driving is not a likely cause of the accident, but they are awaiting routine toxicology tests to make the final determination. All passengers were wearing seatbelts, and so far no citations have been issued.

The determination of whether the accident is due to a mechanical defect or driver error is critical to determine the claims to file and the parties to bring a lawsuit against. An attorney hired by an injured party may investigate whether the owner of the vehicle negligently maintained the vehicle. To establish negligence, the attorney 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. Investigation of negligently maintaining the vehicle requires that the cars are examined and that the evidence is preserved.

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Asbestos was once used to make many common products including insulation, roofing materials, automobile brake pads, and other household and commercial goods. In the 1960s asbestos was used in the petroleum industry, where the  the high heat-resistance of asbestos made it a useful additive to drilling mud. Drilling mud is used while drilling oil and gas wells to help clear debris out of the well and to help cool the drill bit. Various substances are often added to the drilling mud to adjust its thickness and fire retardant properties. Many of these, including lead, arsenic, and chromium, are toxic. Asbestos provided superior fire resistance and helped to improve the mud’s consistency. Unfortunately, we now know that asbestos is linked to several types of cancer and other health problems.

The use of asbestos in drilling mud has been eliminated today; however, when it was first prohibited by the U.S. government, some petroleum companies apparently took the position that the federal ban did not apply to their offshore oil rigs or inland drilling barges. Thus, asbestos products could have been used in these environments even as late as the mid-1980s. Many drilling workers can recall working with a white, flaky additive that was in 50-pound packages and added to the drilling mud in the mud shack. No proper breathing protection was provided to the workers who handled the mud additives, so many of these workers routinely inhaled pure asbestos fibers while mixing in the additives. Other oilfield workers such as roughnecks, mud engineers, and shaker hands also were likely exposed to asbestos on a regular basis during this timeframe. Even spouses and children of drilling workers were at risk of exposure if the workers came home with asbestos fibers clinging to their clothing.

Asbestos fibers are known to cause or increase the risk of many forms of cancer. The danger is highest among smokers, who face a substantially increased incidence of lung cancer. Studies have also shown a connection between asbestos exposure and gastrointestinal cancer, colorectal cancer, and a heightened risk for cancers of the throat, kidneys, esophagus, and other organs. Exposure is also linked to inflammation of the lungs, known as asbestosis, as well as pleural disease, which is inflammation of the tissue layers that line the lungs.

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A July CNN report has brought to light a lawsuit filed against Louisiana school officials for repeatedly handcuffing and shackling a 6 year old. The lawsuit has been filed by rights advocates and the child’s parents on behalf of children in the Louisiana Recovery School District, a statewide entity managed by the Louisiana Department of Education. The superintendent of the district, and school officials and security officers at the school, Sarah T. Reed Elementary, were named in the lawsuit as well.

According to the suit, the 6 year old boy was handcuffed and shackled for “minor offenses,” involving a shoving match with another student. The School District stands behind the behavior of their employees and has indicated that the incident was an isolated one. They did not arrest the student or terminate the employee involved. The school principal, Daphyne Burnette also defended the school’s action, going so far as to state that it is school policy to handcuff “out of control” students, and that if children fail to follow rules in the future, they will be handcuffed. The plaintiffs in the lawsuit disagree with this policy and have argued that the punishment methods crossed the line and that the conduct was “unreasonable and excessively intrusive.”

The child’s father, Sebastian Weston, claims that his son’s life has been forever changed because of the incident.

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Car accidents oftentimes are not simple, clear-cut events that lend a clear idea of who was right and who was wrong. Instead, many times it is left to a court to decide what the circumstances were that led to the collision and the amount of responsibility each party had for it occurring. As a result, because no court is perfect, individuals who have been harmed due to another party’s acts are left out in the cold because they could not prove their case. However, each year new technology comes out that provides a better opportunity for plaintiffs, and their attorneys, to prove their case and receive the compensation they deserve.

One firm, Advanced Research and Technology (ART) Corporation, works with the very technology required to prove cases. Utilizing Finite Element Analysis (FEA), commonly referred to as computer simulations, the company provides compelling engineering evidence to explain the cause of a crash-related case. FEA’s due this by calculating the kinematics of the investigated accident (speeds, relative motion, different parts of accident) and structural analysis (where the cars collided and relevant stresses, strains, failures, energy displacements, etc.). By analyzing this information, FEA can help plaintiffs win cases related to auto and motorcycle crashes, airbag and seatbelt related problems, structural analysis relating to accidents or blasts, slip and fall cases, fuel tank and pipeline pressure analysis and a variety of others.

FEA simulations are widely recognized by the engineering community as a reliable and advanced tool for solving structural dynamics, crash, blast and impact-related matters. Automotive companies often use FEA for car testing in the same way that highway safety systems are designed using the technology. The reliability of FEA comes down to the simulator being able to develop accurate formulations or equations to explain how the millions of small elements involved in a collision react when variables are at a certain set. Because of its ability to determine how a car will behave in a collision and the effects of a collision, technology experts are able to move backwards and determine what variables were in place to lead to the results suffered.

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Louisiana courts, like those in most other states, enforce a prohibition in jury trials known as the “golden rule.” During a closing argument, the plaintiff’s attorney may not ask the members of the jury to imagine themselves in the place of the plaintiff when deciding how much to award the plaintiff in damages. The rationale for prohibiting such a request is that the jury’s sympathy may be unfairly invoked, resulting in an inappropriately large award of damages. So, while the jury should not be asked to imagine themselves going through the same experience that the plaintiff endured, the plaintiff’s attorney may simply direct the jury to consider the pain and suffering the plaintiff has been through.

An alleged violation of the golden rule was one basis of the appeal in Tingle v. American Home Insurance Co., No. 10-71 (La.App. 3d Cir. June 11, 2010). On March 5, 2006, Brian Montgomery was driving his tractor-trailer while intoxicated in Lake Charles. He ran a red light and slammed into the car of Levi and Tasha Tingle. The Tingles’ two-year-old daughter, Madison, who was also in the car, was killed; her parents suffered severe injuries. The Tingles settled with Montgomery’s employer, Boots Smith, for the limits of his primary liability insurance policy. The Tingles then filed suit against Smith’s excess insurance carrier, American Home Insurance Co. At the trial, the jury awarded the Tingles over $10 million in damages, of which approximately half were punitive damages.

On appeal, American argued that the trial court erred in permitting the Tingles’ attorney to “implore the jury to put themselves in the [Tingles’] shoes.” (The court did not include in its opinion exactly what the Tingles’ attorney said in his closing argument.) But the court declared that it “prefer[s] to allow the trial court latitude to conduct a trial,” citing a line of Louisiana cases espousing the view that

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A power failure at Chalmette Refining LLC has led to a thin layer of white powder descending upon Southeast Louisiana, raising concerns about the toxicity and potential harm that could emerge from exposure. Citing a power failure for the reason that up to one ton of catalyst were released into the air and falling down atop cars, homes, businesses and other property, the company has attempted to assure the public that safety is not a concern. However, the care that the refinery recommends during clean-up tells a much different story.

Spreading across the communities of Arabi and New Orleans’ lower ninth ward, the powder used for refinery processes resembled simple dust or powdered sugar and alarmed many during a time in which little to no information can cause significant panic. Taking place on September 6th, many in these communities are left wondering just why chemical releases keep happening and what is being done to prevent them from happening.

Louisiana’s Department of Environmental Quality (DEQ), already investigating the unapproved release of catalyst, has notified the public that, after photographic any and all damage the powder has caused to their property, they can move forward with clean-up. Yet, in their required notice to the DEQ, the Chalmette refinery warned that gloves and safety glasses should be used when cleaning up the material. St. Bernard Parish Fire Chief Thomas Stone warned that the powder could be an irritant to individuals with respiratory problems and that the powder should be cleaned in order to prevent extended exposure.

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In November of 2005, Shane Kerry checked into the ER at West Calcasieu Cameron Hospital in Sulphur, Louisiana after fracturing the heel bone in his right foot. Kerry was examined by Dr. Charles Pearson, who discharged him later in the day with instructions to report for a follow-up at the LSU Medical Center in Shreveport the following week. As he was being transported back to his home, Kerry detoured to another ER, this time at the Christus St. Frances Cabrini Hospital in Alexandria. There, Kerry underwent surgery on his heel by a podiatric specialist. In September of 2008 Kerry filed a suit against Dr. Pearson, alleging that as a result of “delay, negligence, and deviations from the standard of care” on Dr. Pearson’s part, he suffered “extreme disability, loss of sensation, and tissue necrosis with loss of muscle, tendon, skin, and subcutaneous tissue” around his heel. Kerry argued in his complaint that Dr. Pearson was negligent in failing to immediately decompress his foot, perform surgery, call in an orthopaedic surgeon, or arrange for his immediate transport to a hospital willing to properly treat him.

According to Louisiana procedure in medical malpractice cases, Kerry’s complaint was submitted to a state medical review panel. On June 5, 2009, the panel returned a unanimous opinion that “the evidence [did] not support the conclusion that [Dr. Pearson] failed to comply with the appropriate standard of care as charged in the complaint.” Accordingly, Dr. Pearson filed a motion for summary judgment with the trial court, requesting that the suit be dismissed on the grounds that Kerry could not establish that Dr. Pearson had failed to meet the applicable standard of care in his treatment of Kerry’s foot.

In support of his motion, Dr. Pearson included the written opinion of the medical review panel, the affidavits of two doctors who sat on the review panel and who held licenses to practice emergency medicine in Louisiana, the medical records from Kerry’s visit to the ER at West Calcasieu Cameron Hospital, and the discharge summary prepared by the podiatry specialist who treated Kerry at Cabrini Hospital. In his response, Kerry offered the affidavits of his mother and brother, both of whom suggested that there were clear indications that Kerry was in dire need of surgery when he entered the West Calcasieu Cameron ER, but that Dr. Pearson refused to perform it because Kerry lacked health insurance and couldn’t afford the procedure. Kerry also attacked the accuracy medical records from his stay at that hospital, alleging that Dr. Pearson prepared them and that they did not reflect the severity of his injury. The trial court granted Dr. Pearson’s motion and dismissed Kerry’s claim because it “did not find that the submissions at th[at] point [were] adequate to establish a genuine issue of material fact as to the burden that is required under the unique specialization of medical malpractice.” Kerry appealed.

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In June 2007, Chadwick Dukes and his daughter, Skylah, were driving on La. Hwy. 983 in West Baton Rouge Parish. Their car was struck by a vehicle driven by Paul Declouette and owned by Sheryl Rogers. The following May, Dukes filed a lawsuit on behalf of Skylah seeking to recover damages for the injuries she sustained in the crash. Dukes named as defendants Declouette, and the Imperial Fire and Casualty Insurance Company, which was Declouette’s as-then unknown insurance carrier.

Shortly thereafter, Imperial Fire was identifed and admitted that it had issued an auto liability policy to Declouette that was in effect at the time of the accident. Dukes added Imperial Fire as a named defendant and then signed an agreement to release Declouette and Rogers from the suit. As a result, on November 20, 2008, the trial court entered a judgment to dismiss Dukes’s claims against Declouette. Imperial Fire immediately filed a motion for summary judgment, asserting that it could not be found liable because Dukes released its insured customer (Declouette) by agreement without a reservation of rights. Imperial Fire relied on the language of the insurance policy, which obligated the company to pay damages for any injuries for which

An insured person becomes legally responsible because of an accident arising out of the ownership, maintenance, or use of a covered vehicle.

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In the town of Duson, a mother of a child slain in a car accident is frustrated and discouraged by the legal system after years of delay in the prosecution of the responsible driver. What’s more, there now remains the possibility that charges may be lessened against the man charged in her son’s death. This situation is an extremely unfortunate one but does illustrate the differences between civil and criminal litigation, as well as the standards involved.

21-year-old Shawn Lancon was killed when the driver of the vehicle in which he was a passenger drove their vehicle into oncoming traffic while attempting to make a left turn. The driver, the man charged in Lancon’s death, was under the influence of alcohol and drugs at the time of the accident. This accident took place in 2007. Three years later, delays in going to trial are still anticipated and now the defense is trying to lessen the criminal charges from vehicular homocide to a first-offense OWI. The OWI charge comes with considerably less jail-time, leading to the anger being expressed in the community.

The reasons for all of these issues are varying. The defense is attempting to lessen the criminal charges by insisting that the blood alcohol level is not high enough for a vehicular homicide, and also that the positive drug test should be excluded because the drugs detected by the drug test does not prove that the drugs were “active” at the time of the accident. Procedural delay is slowing the calendar for trial, due to courts having to postpone cases in Lafayette, Acadia, and Vermillion parishes due to a legal dispute within the court system regarding the allotment of judges.

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John C. Elliott, 26, of Zavalla, Texas was driving a 1999 GMC pickup east on LA.8 and he lost control while passing another vehicle in a curve. He collided with several trees before the truck stopped on La. 8 facing the other direction. Elliot was injured seriously and taken to Lake Charles Memorial Hospital. There were two passengers in the car.

As reported in the Leesville Daily Leader

His two passengers,19-year-old Susie Dixon and an infant, both of Zavalla, Texas, suffered minor injuries and were transported to Byrd Regional Hospital.

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