Litigation

February 20, 2023

Can the Time to File a Lawsuit in Louisiana Be Extended Due to Discovery Issues?

cable_electricity_cables_electric-575x1024 Have you ever noticed that running alongside power lines are other types of cables? They are not easily distinguishable from one another, but communication lines and support lines also run along our electricity source. Looking so similar, it would be hard for an ordinary person to tell to whom each line belonged. One New Orleans man’s inability to determine the owner of such a wire almost prohibited him from filing a lawsuit against a well-known communications company.

Donald Morgan was at Canal Street and South Jefferson Davis Parkway intersection in New Orleans when he tripped over a guy wire (anchoring wires) and was injured. Mr. Morgan’s attorney personally inspected the utility pole attached to the guy wire before filing a lawsuit. The pole was marked with the name of a company that was no longer in business. Mr. Morgan’s attorney traced the pole to Entergy New Orleans, Inc. (“Entergy”).

After filing a lawsuit naming Entergy as the defendant, Mr. Morgan sent discovery requests to Entergy requesting the name of the guy wire owner. The requests specifically asked for the names of any person/company with any interest in the guy wire and the names of any person/company responsible for maintaining the wire. In response, Entergy merely attached a joint use agreement for the pole between Entergy and Bellsouth.

February 18, 2023

Injured Employee Argues New Orleans Trial Court Judgment was Premature due to Inadequate Discovery

by Berniard Law Firm

lever_metal_handle_door-1024x685 Imagine getting hurt on the job, seeking help from a good attorney, following all the court’s requirements, and still having all your claims denied because your opponent did not appear for a deposition. For Raymond Schultz (“Schultz”), an employee of Blanchard Contractors, this scenario became his reality after the District Court in Orleans Parish dismissed all his claims and denied his motion for a new trial.

Back in 2012, Schultz was injured in a work-related accident after he inadvertently touched an unmarked pressurized lever that spewed rust and slag, striking him in the stomach and knocking him into some nearby water from which he was later rescued. As a result, Schultz filed a negligence lawsuit against Cox Operating, L.L.C. (“Cox”) and Terry Vincent (“Vincent”) (collectively “Defendants”), alleging that each of the Defendants mentioned above fault caused his injuries.

Defendants countered Schultz’s claims using a legal argument. They argued that since Schultz was Cox’s statutory employee, this made him Vincent’s statutory co-employee, and Schultz’s sole remedy falls under the Louisiana Workers’ Compensation Act. Defendants argued this legal argument would cause his negligence claims to be effectively barred from the lawsuit. After the District Court heard motions on each side of these arguments, it allowed Schultz six months to conduct discovery to build his case for trial.

February 17, 2023

A Doctor’s Indiscretion or Abuse of Discretion? Louisiana Supreme Court Weighs In

by Berniard Law Firm

hospital_ward_hospital_medical_0-1024x683 Sickness often begets a doctor’s visit, and sometimes severe illness calls for a trip to the emergency room. So when parents, David Pitts, Jr. and Kenyetta Gurley, arrived at Hood Memorial Hospital in Amite City, Louisiana, with their daughter, Lyric, it’s likely neither expected to leave there without their daughter’s health restored.

Upon arrival at the emergency room, Lyric’s mother described her daughter’s symptoms as breathing “funny” and faster than usual and disclosed that she had thrown up twice earlier in the day. The hospital recorded that “Lyric had not had any liquid intake since 4:00 PM, and no output (i.e., dirty diaper) since 2:00 PM.” Around 7:30 PM, after Dr. Rhoda Jones (“Dr. Jones”) examined Lyric, she noted Lyric’s “shortness of breath” and “wheezing” in her lungs. Dr. Jones’s initial diagnosis was “asthma, possible pneumonia, and RSV,” so she ordered a chest x-ray, CBC (complete blood count), CMP (comprehensive metabolic panel), and a test for RSV (respiratory syncytial virus). The results of the chest x-ray came back normal, and the RSV test came back negative. Nevertheless, one of the nurses tending to Lyric had asked Dr. Jones at least three times if Lyric could be taken to another facility. Still, Dr. Jones insisted that no one would admit Lyric with negative or normal lab results and no fever.

Lyric stayed at the hospital overnight. However, by 2:30 AM, Dr. Jones was called in to check on Lyric, and at approximately 3:00 PM, while she was holding Lyric, the 7-month-old baby had a seizure and stopped breathing. About an hour later, Lyric was declared dead, and the cause of death was listed as myocarditis (inflammation of the heart muscle).

February 16, 2023

Discrimination Lawsuit Against Florida Parishes Juvenile Justice Commission Dismissed Due to Prescription

by Berniard Law Firm

clock_time_time_indicating_6-1024x768 Timing is always important; however, in legal matters, it determines whether you can even bring a lawsuit to the courts. In most states, the time frame to bring lawsuits is called the statute of limitations, and in Louisiana, it is called prescription. Generally, you have one year to file a lawsuit. However, that time period can change depending on several factors. The intricacies of prescription recently resulted in dismissing a case out of the Florida Parishes.

In 2006, Tammy L. Briggs was hired as a cook by the Florida Parishes Juvenile Detention Center. She was fired on August 19, 2014, for violating the Detention Center’s rules and procedures. Ms. Briggs filed an Equal Employment Opportunity Commission (EEOC) complaint with the Louisiana Commission on Human Rights, stating that her termination was based on racial and gender discrimination.

A year later, the EEOC sent Ms. Briggs a “Dismissal and Notice of Rights” letter, stating that, after its investigation, it could not conclude that any violation had occurred. The “Dismissal and Notice of Rights” included information saying that Ms. Briggs only had 90 days to file a lawsuit against the defendants, Florida Parishes Juvenile Justice Commission, and the Detention Center. However, she filed her lawsuit on December 8, 2015, and the defendants raised the objection of prescription by filing a peremptory exception or in the alternative, motion for summary judgment. This means that the defendants argued that the lawsuit was filed too late. Because the case was filed too late, they argued that the Twenty-First Judicial District Court for the Parish of Tangipahoa should dismiss it.

February 15, 2023

Who should be held liable for a pileup on the highway shoulder?

by Berniard Law Firm

highway_jam_baustelle_jam-1024x769 Imagine you were just in an accident, and you pulled over on the shoulder of the interstate highway. Traffic is roaring in your ears, the wind is whipping past your face, and you can feel the congested car flows as your tires buzz. Luckily, you are not injured. As you are waiting for the police to arrive, another collision happens right beside you two. Brakes are being slammed, and horns are being blown, but the chain reaction is just unstoppable. A third car darts into the road shoulder, toppling the vehicle behind you and slamming it in your direction. You are hit again.

According to the National Highway and Traffic Safety Administration, rear-end collisions are the most common type of car accident in the United States. A pileup accident multiplies the danger of a single rear-end accident. It often causes severe body injuries, expensive medical bills, and piles of insurance paperwork. Who should be held liable for your pain and suffering when pileups occur? A recent case on Interstate 10 explored this question and provided answers for the poor victims.

Mr. Chanthasalo found himself in such a position where he just had a narrow escape from one life-threatening accident but got involved in another. In the first accident, Mr. Chanthasalo was rear-ended by Ms. Deshotel. In the second accident, Ms. Schum was rear-ended by Mr. Mitchell and hit Ms. Deshotel. Mr. Chanthasalo filed a lawsuit in Louisiana trial court against all three cars behind him and their respective insurers, State Farm, USAA Casualty Insurance Company, and Progressive. He later settled with Mr. Mitchell, the last driver, and his insurer. The controversy in the appeal focused mainly on Ms. Deshotel’s (the lady that first hit Chanthasalo) liability.

February 14, 2023

Decretal Language: Last Words in a Final Judgment

by Berniard Law Firm

town_sign_place_name_1-1024x678 Decretal language, what on earth is it, and why is it so important? The Louisiana Third Circuit Court of Appeal recently dismissed an appeal because the trial court’s judgment lacked proper decretal language. So what are these “magic words”? Why are they indispensable for a final judgment to be given legal effect?

Vera Bernard injured herself when exiting the Lafayette Regional Airport through a turnstile allegedly malfunctioning. Later she filed a lawsuit against various parties. Ms. Bernard settled with several defendants, leaving the turnstile company (Stanley) as the only Defendant. Stanley argued that they provided no service before Ms. Bernard’s misfortune that could cause the malfunction of the turnstile.

After a hearing on a motion filed by Stanley, the District Court dismissed all of Ms. Bernard’s claims, but the final judgment did not include the all-important “decretal language.” An appeal followed, and the appellate court spelled out precisely what was required for the Appellate Court to proceed with their review.

February 13, 2023

Caddo Parish Trial Court Required to Consider Factual Evidence to Appoint Only One Estate Executor

by Berniard Law Firm

certificate_bavaria_notary_866100-1024x683 It is a sadly familiar scenario: a family suffers a loss and soon after devolves to fighting over the will. The family may never imagine turning against one another, yet it happens over and over. The Youngblood family from Caddo Parish recently found themselves in such a fight.

Frances Youngblood from Caddo Parish had her longtime family attorney draft a will dividing her estate amongst her three children: Ray, James, and Mary Anne. Frances named her son James as her sole executor, and Ray and James left their estates to one another. The family lawyer, Patricia Miramon, drafted each of these wills. Ms. Miramon also drafted an addition to James’ original will, naming herself his executor.

Frances passed in 2011, Ray in 2012, and James in 2016. Once Frances passed, James granted Ms. Miramon general power of attorney and broad powers to act on his behalf, including as executor of Frances’ estate.

February 12, 2023

Adequate Medical Evidence Required To Establish Causation Of Alleged Injuries

by Berniard Law Firm

ladder_sky_pig_iron-1024x684 Imagine an injury on a ladder, lawnmower, boat, or other manufactured product. The product might appear defective; however, is defectiveness sufficient to win a lawsuit against the manufacturer? Under Louisiana law, to prevail in a lawsuit alleging medical injuries from a defective product, a plaintiff must provide adequate medical evidence to support that the injuries likely resulted from the defective product. This is referred to as “medical causation.” Without establishing medical causation, you may not be able to recover for your injuries.

Craig Andrews was a river pilot. He injured his hip after climbing a ladder that he alleged was negligently rigged. After that, he and his wife sued Lomar Shipping, alleging that his injuries resulted from climbing their negligently rigged ladder.

The United States District Court for the Eastern District of Louisiana granted summary judgment under Fed. R. Civ. P. 56 in favor of Lomar Shipping. Summary judgment means that the court ruled in favor of a party (here, Lomar Shipping) before trial. The District Court explained that Mr. Andrews did not submit adequate medical evidence to support that climbing the ladder he alleged was negligently rigged caused his injuries. Therefore, summary judgment was warranted because there was no genuine issue for trial.

February 11, 2023

Fifth Circuit Court in Louisiana Affirms Dismissal of Asbestos Lawsuit Because Of Prior Settlement Agreement

by Berniard Law Firm

firefighters_equipment_portrait_756828-1024x819 The difficulty of losing a loved one is compounded when death results from a faulty product. Further anguish occurs when a lawsuit against the defective product manufacturer is dismissed, barring recovery. It is essential to be aware that there are many deadlines and requirements to comply with to avoid the dismissal of a lawsuit. This is the situation in which the Lemieux family found themselves following their loved one’s death.

Raymond J. Lemieux Sr. (“Raymond Sr.”) worked in Marrero, Louisiana, from 1956 to 1970. During this time, he was exposed to asbestos and wore a respirator designed by American Optical. Because of this exposure, he developed asbestos-related lung cancer, culminating in his death in 2015.

Before he died, Raymond Sr. sued American Optical based on his use of their respirator. Raymond Sr. entered into a settlement agreement dated February 10, 2011, with American Optical. As part of the settlement, Raymond Sr.’s wife and children had to sign a release of any potential future claims they might have had against American Optical. They individually initialed each page of the settlement agreement and a notarized statement. The agreement stated that the parties had executed it of their own free will after discussing the terms with an attorney.

February 10, 2023

Fifth Circuit Court Finds Succession Administrator Can Bring Civil Rights Action

by Berniard Law Firm

maracaibo_venezuela_building_old-1024x788 What would you do if you were heir to property and found out the City had issued a demolition order for that property? A recent case decided in New Orleans discusses that question. The City of New Orleans, Louisiana, brought administrative proceedings against property owners whose property was allegedly blighted. However, the situation became more complicated because the property owners were deceased.

Before the City of New Orleans (“the City”) held the hearing, it sent the property owners notice by certified mail. The notice stated that if the property owners did not appear for the hearing, their absence would be considered an admission of liability. Even though the U.S. Postal Service returned the notice as “Not Deliverable” and “Unable to Forward,” the City still proceeded with the hearing.

At the hearing, the City assessed significant fines for code violations and issued a demolition order for the property. After the hearing, the City sent the property owners a notice via certified mail stating the property owners had 30 days to correct the code violations or else the City would demolish the property. The U.S. Postal Service again returned the notice as “Not Deliverable.”