Articles Posted in Litigation

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When Kimberly Carter, a Little Rock, AR, resident, was visiting family in Louisiana in November of 2001, a misstep in a hole in the ground led to a legal battle that would not be resolved until 2010. After suffering an injury from the hole, Carter was transported to Women’s and Children’s Hospital in Lake Charles. Dr. Clark Gunderson, an orthopedic surgeon, viewed Carter’s x-rays and determined she suffered a spiral fracture in her right tibia that would require surgery. Carter chose to stay in Louisiana to have Dr. Gunderson perform the surgery.

After the surgery and some time had passed, Carter would later sue Dr. Gunderson for medical malpractice when a mal-rotation in excess of fifteen degrees was discovered by Dr. Johannes Michael Gruenwald, a board-certified orthopaedic traumatologist at the University of Arkansas Medical Center. Dr. Gruenwald was providing Carter’s post-operative care. In August of 2007, Carter filed a suit alleging malpractice by Dr. Gunderson. A three-day trial resulted in a jury verdict finding that Dr. Gunderson had not deviated from applicable standards. This judgment was affirmed on appeal.

According to the Supreme Court case Martin v. East Jefferson General Hospital

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Imagine the following scenario: you are involved in a fender-bender in the parking lot of the grocery store. Your car is taken to the body shop for repairs. Since you need transportation to get to work and other places in the mean time, you rent a car from the local agency. When picking up the car, you’ll no doubt be offered liability insurance through the agency–at an additional cost, of course. There may also be coverage available through the credit card you use to pay for the rental. And then there is the policy you maintain on your regular car. Does it extend coverage to the rental?

Louisiana law recognizes a “temporary substitute vehicle,” which is commonly defined by insurance companies as a short-term substitute for a car that is out of service due to breakdown, repair, servicing, theft, or destruction. State statute requires automobile insurance companies to “extend to temporary substitute motor vehicles … any and all such insurance coverage in effect in the original policy.” La. R.S. 22:681. In other words, the auto insurer must provide the same coverage to the rental car as was already in place on the regular vehicle.

The recent case of Smith v. Louisiana Farm Bureau Casualty Insurance Company, No. 45,013, Ct. of App. of La., 2d Cir. (2010), explored the definition of “temporary substitute vehicle” in detail. On the morning of May 28, 2005, Brian Smith was driving a 2003 Nissan Altima on U.S. Highway 425 in Morehouse Parish. At the same time, Joshua Pruett was driving a 1998 Dodge Ram pickup truck on the highway in the opposite direction. Pruett’s truck was pulling a utility trailer containing crawfish and ice that had been loaded in Crowley. The ball on the truck’s trailer hitch was too small for the trailer and Pruett did not use any safety chains to ensure that the trailer remained attached to the truck. The trailer eventually disconnected from the truck, at which point it crossed the highway’s center line and collided with Smith’s Altima. Smith died at the scene from the severe trauma he sustained in the accident.

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In litigation, the term venue means “the location where an action or proceeding may properly be brought and tried under the rules regulating the subject.” In other words, for each suit, there is a particular court where the plaintiff should file based on the situation’s unique facts. The Louisiana Code of Civil Procedure’s general rule of venue states that a defendant must be sued in the parish where he is domiciled (where he lives). LSA-C.C.P. Art. 42.

However, the Code also provides the following exception:

“An action for the recovery of damages for an offense … may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.” LSA-C.C.P. Art. 74.

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When you file a claim alleging asbestos exposure, what do you need to prove? This is an important question that, if not satisfied, may be the end of your lawsuit. Simply being exposed to any asbestos is not sufficient to maintain a claim. You, as the plaintiff, have the burden of showing that you were exposed to the defendants asbestos-containing product, and that particular exposure was a substantial factor in causing the damage. Simply showing that exposure to asbestos occurred will not be sufficient.

A 2008 Jefferson Parish case, Thibodeaux v. Asbestos Corp. Ltd., illustrates the importance of producing adequate evidence to support your asbestos claim. Here, the Thibodeaux’s filed suit against Eagle Asbestos and its insurer, OneBeacon, alleging personal injuries as a result of their exposure to asbestos, namely mesothelioma. Mrs. Thibodeaux died from mesothelioma that her family claimed was the result of her exposure to Eagle’s asbestos at Charity Hospital, where she worked. The Thibodeauxs would eventually lose this case because the court found that the evidence they provided was insufficient to support the claims they alleged. They did not prove that Mrs. Thibodeaux was exposed to Eagle asbestos. Without that, their argument was simply speculation.

So what do you need to prove exposure to a particular defendants asbestos?

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As the last couple posts have described, some aspects of asbestos cases do not fit within the traditional mold of other personal injury cases. Because these cases continue to be treated as personal injury matters, some of the rules must be relaxed or modified. The Louisiana Supreme Court dealt with some of these modifications in the case of Cole v. Celotex, 599 So.2d 1058 (1992). We look now to explore what the Court had to say about prescription rules that place time limits on a plaintiff’s right to file suit for an injury.

Typically, the rules of prescription give an injured party one year from the date they are injured to file a lawsuit seeking damages against the person(s) responsible for the injury. As we have already noted, the time when an asbestos-related injury actually “occurs” is difficult to determine. Thus, the Court in the Cole case ruled that, for legal purposes, the repeated exposure to hazardous substances give rise to a claim. That is true even if the asbestos-caused disease does not manifest itself until later.

Because the time of the injurious event is difficult to pinpoint, the prescription rules are also hard to apply. Indeed, the Court recognized that a brief one year prescriptive period is incompatible with long latency diseases. An injured party may not even realize that he has suffered any harm for years. Thus, Lousiana courts can apply the “discovery” rule to asbestos cases. Under the discovery rule, the prescriptive period does not begin until “the plaintiff knows or through the exercise of due diligence should have known of the injury.” Cole, 599 So.2d at 1084. Even then, the prescriptive period only runs on injuries the plainiff knows about or should know about. In other words, a plaintiff will not miss his chance to seek damages for disease he does not know about:

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As research has revealed more about the dangers of asbestos and the mechanics of how it causes certain types of lung disease and cancer, medical and social opinion of asbestos has changed. Likewise, the law of asbestos-related injuries has changed in the last half century. For example, one of our blog posts recently discussed how workplace asbestos cases are now typically addressed through workers compensation proceedings rather than traditional personal injury tort law. A decision issued by the Louisiana Supreme Court in 1992 illustrates another change in the law related to asbestos injuries.

Background

The background and procedural history of Cole v. Celotex Corp, 599 So.2d 1058 (1992), is complicated. However, knowing the case is important when trying to understand the significance of asbestos litigation. The plaintiffs in the case suffered asbestos exposure in the course of their work duties and filed suit against twenty individual defendants. The defendants included manufacturers of the asbestos materials the plaintiffs encountered on the job as well as officers of their former employers. Additionally, the plaintiffs added as a defendant Insurance Company of North America (“INA”), the primary liability insurance provider for the officers.

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Because of the nature of asbestos related diseases and the way victims contract them, injury cases involving asbestos can be complicated. Lengthy exposure to asbestos in

Louisiana and the long latency, or development, of asbestos caused diseases takes these cases outside the realm of typical personal injury cases. While this framework is not perfect, it still provides asbestos victims an avenue to seek compensation for their injuries.

In the case of Cole v. Celotex, 599 So.2d 1058 (1992), the Louisiana Supreme Court recognized the difficulty of applying pure tort or personal injury principles to asbestos cases and handed down several important rules for asbestos injury cases coming after it. By reviewing the Court’s analysis of when, legally speaking, an asbestos injury actually occurs, it is our hope that you can better understand the issues involved and how you might be able to receive compensation for any damages you face because of exposure. Whats more, determining the legal timeframe is critical, as timing can affect both a plaintiffs right to file suit as well as the law that applies to the case.

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Accidents happen and when they do people wonder just how much can be considered when calculating damages. Many wonder “what happens when someone who is already injured is in an accident?” What’s more, if someone already had a bad knee, for example, can the defendant be held responsible for further damage to that knee. The Eggshell Plaintiff Rule helps explain the aggravation of existing injuries.

In a 2000 case, the Louisiana Supreme Court set out the Eggshell Plaintiff Rule but still reversed the Court of Appeal’ finding of damages because the trial court’s decision of no aggravation of injuries did not meet the high manifest error standard.

In April 1996 Mary Touchard drove a friend to Carnecro to pay her electric bill. While leaving the parking lot of the power company, Touchard’s car was hit from behind by a pickup truck driven by Ted Breaux. Ms. Touchard did not have the ambulance called and complained of a headache at the scene while Breaux claimed he was not entirely at fault for the accident and that vehicular impact was minimal. Ms. Touchard sued Breaux and his insurance company, however, claiming she suffered mental and physical injuries in the accident.

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Samuel Silverman Jr. was injured while working for BJ Services Company, a contractor for Bass Enterprises Production Company, hired to provide services on an oil well in Cado Parish. The injury was to Silverman’s knee and occurred because a hoist operator employed by another contractor at the site, Mike Rogers’ Drilling Company, dropped a cement head and pinned his knee against a derrick.

Silverman sued Rogers’ Drilling, alleging that the negligence of their employee (the hoist operator), caused the accident. Rogers’ Drilling tried to get around liability by filing a third-party demand against Bass under a provision in the contract between Rogers’ and Bass wherein Bass, as operator, agreed to indemnify Rogers, as contractor.

According to the provision, indemnification included a release of any liability and agreement to protect, defend, and indemnify against all claims, demands, and causes of any kind without regard to negligence of any party. Can such a strong indemnity clause be upheld under Louisiana law and the Louisiana Oilfield Anti-indemnity Act (LOAIA)? The trial court found the provision to be against the LOAIA and thus null and void, and in a decision this summer, the Louisiana Court of Appeals agreed.

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