Litigation

March 16, 2023

Louisiana Federal District Court Abstains From Exercising Jurisdiction in Whistleblower Case

bellingham_police-1024x683 Claims involving both state and federal law can be extremely complicated; however, what happens when there are questions surrounding the state law itself? In this situation, the district court may actually abstain from exercising its jurisdiction until the state law concerns have been resolved—the following case involving law enforcement officers in New Orleans discusses these issues.

Fred Thompson was working for the Housing Authority of New Orleans (HANO) as a law enforcement officer when he went to assist another officer, Edgar Baron, after hearing that Baron had stopped a pedestrian. Once arriving at Baron’s location, Thompson recognized the handcuffed male in the back of Baron’s squad car as the same person he had seen a short time earlier. Two days later, Sergeant Harry Stanley approached Thompson and informed them that he was required to patrol with Baron. However, Thompson stated he did not want to ride with Baron, as he believed Baron had a history of violating the civil rights of HANO residents.

Thompson was ordered to HANO’s main office and asked to provide a statement regarding his interaction with Stanley, which Thompson complied with. He received a reprimand and notice of Termination stating Thompson was on administrative leave and could be terminated at any time. A week later, Thompson attended a grievance hearing claiming he was refused whistleblower status. Thompson was fired a few days later.

March 15, 2023

What is a “dilatory exception of prematurity,” and how does it change the course of a case or controversy?

by Berniard Law Firm

toronto_skyline_early_morning-1024x577 A dilatory exception for prematurity is defined in the Louisiana Code of Civil Procedure Article 926(A). There are many reasons why a lawsuit may be premature, or in other words, ripe for a dilatory exception of prematurity. A case may be premature when it is too early in a dispute for the court to have the authority to rule on it. A lawsuit may be premature if there is another administrative body that the case should go to beforehand. The legal issues of prematurity and dilatory exceptions are shown below in a lawsuit from St. Tammany parish.

A Nestle Holdings employee was injured during his employment, and Nestle received a large bill from Lakeview Regional Medical Center (LRMC) for surgery on the employee. Nestle responded by sending back about 10% of the original price, expecting LRMC to initiate an administrative action, which would give Nestle a chance to argue for a lesser price. However, when LRMC did nothing to protest the partial payment, Nestle filed a complaint with the Office of Worker’s Compensation (OWC), a judicial body. OWC rejected the complaint and granted LRMC’s claim of a dilatory exception of prematurity; Nestle appealed the OWC decision to the First Circuit Court of Appeals.

The First Circuit Court of Appeals upheld the OWC decision to dismiss the complaint due to prematurity. The court first examined Louisiana Code of Civil Procedure Article 926(A)(1), reasoning that it allows for a dilatory exception objection of prematurity to be brought before the litigation commences. The court held that this objection may be used in lawsuits where the law or contract allows for a procedure for the party to seek out administrative relief before resorting to filing a lawsuit. If this exception is raised, the person who raises it bears the initial burden of showing that another remedy or procedure applies, and therefore the lawsuit is premature. For example, this can be done by filing a copy of the contract between the parties into the record, assuming the contract discusses a prelawsuit procedure. After the existence of the alternative remedy is established, the burden then shifts to the other party to show that the specific remedy or procedure has been exhausted.

March 14, 2023

Employee vs. Independent Contractor. When is an Employer Responsible for Negligence?

by Berniard Law Firm

nyc_taxi_taxi_berlin-1024x768 Often people are injured by a person who appears to be an employee of a company. However, just because someone seems to be working for a business doesn’t necessarily mean they are an employee. If you’re hurt by an employee of a company and want to seek damages, whether the person is an employee or an independent contractor could make a big difference in your case. The following case explains the difference between an employee and an independent contract for determining who will be liable for the injured party’s claims.

In January 2013, a cab driver was involved in a crash in Shreveport, Louisiana, where the cab passenger, Ms. Franklin, was injured. The cab driver, Mr. Gary Dick, leased the taxicab from Crawford and Yellow Checker Cab Company each day for $85. However, Mr. Dick kept all proceeds from his driving, and the cab companies received the same $85 a day regardless of how much Mr. Dick made. As a result, Ms. Franklin filed a lawsuit against Dick, Crawford, and the Yellow Checker Cab. Filing a lawsuit against all the possible defendants who may be liable is customary after an auto accident, as before litigation Ms. Franklin would have no way of knowing whether or not Dick was an employee or an independent contractor.

The cab companies filed a partial summary judgment motion arguing that there was no employee/employer relationship between themselves and Mr. Dick. Therefore, if successful, the cab companies would not be liable to Franklin for any of her injuries caused by the car accident, only Dick would. The trial court granted the motion in favor of the cab companies, and Franklin appealed the ruling.

March 13, 2023

How can I Remove the Executor of an Estate in Louisiana?

by Berniard Law Firm

hand_writing_pen_people-1024x683 Removal of estate executors can be difficult and require many hours of work. Not only does a petition need to be filed with the court, but the executor being removed must be notified, which often results in a legal battle. Things can become even more complicated when long-lost relatives appear. The following case discusses how the heirs of an estate may seek to remove the executor.

George Fisher died in a car accident. He was not married and had no surviving parents at the time of his death. However, there was a man by the name of Shawn Poullard (Poullard) who claimed to be Mr. Fisher’s son. This posed an issue for Harry Fisher, Mr. Fisher’s uncle and the executor of his estate.

In 2015, Poullard, and a few other relatives, reached an agreement that gave Pollard ownership of some property within Mr. Fisher’s estate and ordered Harry Fisher, as executor, to pay Poullard from a lawsuit from Mr. Fisher’s car accident. The judgment also dismissed any claims the parties had amongst themselves with prejudice.

March 12, 2023

Wal-Mart Not Liable For Slip And Fall Accident in Houma, Louisiana

by Berniard Law Firm

walmart_carrefour_langelier_entrance-1-1024x723 If you slip and fall at a store, you might think the store will be liable for your injuries. However, to succeed in a slip-and-fall claim in Louisiana, there are various elements you must show before you can recover. You might not recover for your injuries if you do not provide evidence to support your claims.

Joycelyn Griffin claimed that she slipped and fell at a Walmart store in Houma, Louisiana, because Wal-Mart’s employees were negligent in causing or failing to remove a foreign substance on the floor. She fell as she headed toward the register to check out. Griffin testified that around the time of the accident, she observed a store employee operating a waxing machine. Wal-Mart testified that this machine was not dispensing any type of liquid. Notably, Griffin testified that she did not recall if the floor was slippery, did not look to see if anything caused her to fall, and did not recall what caused her to fall. Under Louisiana law, in a lawsuit involving slip and fall incidents on a merchant’s premises due to a condition in or on the premises, the plaintiff (here, Griffin) is required to show that: (1) the condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable; (2) the merchant either created or had actual or constructive notice of the condition which caused the damage, before the occurrence; and (3) the merchant failed to exercise reasonable care. See La. R.S. 9:2800.6(A).

Wal-Mart moved for summary judgment. Under Rule 56(a) of the Federal Rules of Civil Procedure, a court should grant summary judgment when there is no genuine dispute of any material fact. Wal-Mart argued that Griffin had not made a positive showing of the condition’s existence before her fall. The district court granted summary judgment in Wal-Mart’s favor because Griffin failed to provide sufficient evidence to support the elements of her claim, as she could not recall what caused her to fall or provide other evidence supporting her claim. Griffin appealed.

March 11, 2023

Louisiana Court Reverses Company’s Liability to People Allegedly Exposed to Chemical Leak, Finding No Evidence of “Specific Causation”

by Berniard Law Firm

gefahrguttransport-1024x768 When a chemical leaks from a local business and spreads to a residential area, it is easy to assume that the company has exposed itself to liability for every person exposed to the leak. But what does someone have to prove to be compensated for their exposure? A case out of Avondale explores this question after twenty people were claimed to have been exposed to hydrochloric acid (HCl).

In 2001, a storage tank belonging to McGowan Working Partners, Inc., an oil and gas company, began to leak, causing a vapor solution of HCI and water to blow from the defendant’s property in Avondale to the northwest into the intersection of Jamie Blvd. and Highway 90. Before the leak, a McGowan employee replaced a clear plastic hose on the storage tank and used a nylon fitting to connect the hose to the tank’s valve. Unfortunately, the employee was unaware that HCI causes nylon to deteriorate. Several days later, 600 gallons of an HCl solution were unloaded into the storage tank, and about 470 gallons escaped onto the ground of the McGowan property. The HCI vapor began to spread off the property at 3:10 am, and the valve from the storage tank was shut off at 4:35 am. People exposed to HCI can experience eye and nose irritation which could develop into throat irritation and breathing difficulty. The HCI emissions were shown to stop affecting people at 5:30 am.

Twenty people who lived and worked in the surrounding area sued McGowan in a mass tort suit for exposure to the HCI vapor. A mass tort is when multiple people come together to file a lawsuit against a person or entity responsible for causing all their injuries. The trial court ultimately sided in favor of all twenty plaintiffs and awarded them damages ranging from $1,000 to $8,000.

March 10, 2023

What does “Not Charted, Not Done” Mean in Louisiana, and How Does it Apply to Medical Malpractice Cases?

by Berniard Law Firm

When one enters the hospital in times of a medical emergency, they hope that they will receive the highest standard of care possible. Often there can be uncertainty, however, as to what the threshold is for the highest acceptable standard of care. In an emergency, it can also become unclear what treatment was received exactly.

What does “not charted, not done” mean, and how does it apply to medical negligence cases in Louisiana? This very issue arose recently at the Louisiana Court of Appeals recently when the testimony of a doctor at Lakeland medical center conflicted with his documented treatment of a patient who subsequently died.

Wonica Royal died on April 1, 2003, after she had been discharged from Lakeland hospital. When Ms. Royal presented to the emergency room there had been no nurse at the triage desk. Dr. Juan Blanch, an emergency room physician, was at the desk, however, and he performed the assessment of Ms. Royal. Ms. Royal was administered breathing treatment and antibiotics and discharged on the same day in “good condition.” The next day she died of a pulmonary embolism.

March 9, 2023

Can a Contradictory Medical History Affect the Outcome of a Louisiana Motor Vehicle Accident Case?

by Berniard Law Firm

wreck_shattered_broken_accident-768x1024 Injury and negligence alone cannot support a personal injury claim. There must be causation or a link connecting a negligent act and the related injury to succeed at trial. A consistent medical history and a plaintiff’s credibility can enormously impact whether a jury decides that a negligent act caused an alleged injury. This principle was affirmed by the Calcasieu District Court when plaintiff Treima Williams was unsuccessful in her claim for damages arising from a road traffic accident. The case below shows how contradictory medical history can affect the outcome of your injury lawsuit.

A truck driven by Marvin Gainous rear-ended Williams’ vehicle. Gainous had been stopped behind Williams. However, his truck moved forward and struck her vehicle when his foot slipped off the break. Williams claimed that her head, neck, and left shoulder started hurting immediately after the incident. Following the accident, she called an ambulance, which arrived shortly afterward. Williams complained of pain in her left shoulder and back at the hospital, and she was prescribed pain medication. X-rays of her back were interpreted as normal.

Williams had prior back injuries from a motor vehicle incident in 2006, another motor vehicle injury in 2011, and an injury she sustained at work in 2011. Williams had also complained of back pain during her pregnancy in 2012. Williams received treatment for neck and back strain from 2013 to 2015. In 2016, an independent medical exam was conducted by an orthopedic surgeon who testified that while he believed Williams suffered neck and back strain based on a subjective assessment, there was no objective evidence. He deduced that the MRI could be that of a completely asymptomatic patient.

March 8, 2023

Missing Golden Ticket: Lafayette Final Judgment Lacks Decretal Language

by Berniard Law Firm

ticket_cinema_admission_theater-1024x1024
What do the movie, “Charlie and the Chocolate Factory,” and final judgments have in common? Both require a “golden ticket” to succeed in the next phase. In Charlie and the Chocolate Factory, each contestant must have a golden ticket to gain access to Willy Wonka’s Chocolate Factory. In trial-level court cases, judgments must include clear, specific language that makes them valid and disputable. Although the chances of Charlie discovering one of the five golden tickets were rare, the chances of an appeal being heard are less likely without a valid, disputable judgment.

What language is required to make a judgment valid and disputable? How does a court correct a judgment that does not include clear and specific language? A recent case out of Lafayette addressed these questions and offered preventative measures to avoid future occurrences of the same dilemma.

Curley Mouton lost his life in an automobile accident on April 24, 2014, after a tire on a tractor-trailer failed and burst, causing debris to fly into the roadway. Mouton’s surviving spouse and oldest son filed lawsuits against the truck driver, Arthur Huguley, Huguley’s employer, AAA Cooper Transportation, Inc. (ACT), and the insurance company, Ace American Insurance Company (ACE). After a jury trial, a decision favoring Mouton’s spouse and son was made. The jury found Huguley and ACT responsible for the accident, with 10% of the responsibility allocated to Huguley and the remaining 90% allocated to ACT. The jury awarded the Mouton family damages for the survival action and wrongful death damages.

March 7, 2023

Can a Worker’s Compensation Claimant Receive Spinal Cord Stimulator Treatment in Louisiana?

by Berniard Law Firm

skeleton_bone_medical_doctor-1024x768 Injuries sustained on the job present challenges for the employee and employer, especially when multiple sites of injury are involved. In addition, injuries all over the body can require different medical treatments for each affected area. Specialized treatments such as a spinal cord stimulator can be recommended to alleviate pain to an injured worker. However, a workers compensation insurance company may not be amenable to pay for such treatment. The following case addresses the question, can a workers compensation claimant receive spinal cord stimulator treatment in Louisiana?

Byron Gulley sustained injuries to his head, shoulder, wrist, back, knee, hip, foot and ankle as a result of a golf cart accident while working for the Hope Youth Ranch in June 2009. The claimant was seeing a pain management specialist, Dr. Chad Domangue, who recommended a spinal cord stimulator trial because other medications and treatments failed to address Gulley’s significant low back adequately, left hip, and leg pain. As such, Dr. Domangue filed the proper form requesting this treatment pursuant to the Medical Treatment Guidelines. This request was ultimately denied by the employer’s insurance carrier. Gulley brought the denial to the Medical Director of the Office of Workers’ Compensation, which also rejected the request and the Workers’ Compensation District two affirmed the denial.

Thereafter, Dr. Domangue continued to see and treat Gulley. Even though the spinal cord stimulator could not address all areas of Gulley’s pain, he believed it was the best option to treat his most significant pain areas. As such, he filed a second request, which was also denied by the employer’s insurance carrier. Gulley then sought approval for the procedure from the Medical Director, who again denied approval because the topography of the claimant’s pain was not amenable to stimulation coverage.