Articles Posted in Litigation

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image-for-post-70-from-email-5-14-19-1024x679The Louisiana Supreme Court has recognized that awarding damages for medical expenses without awarding pain and suffering damages, though seemingly inconsistent, is not invalid on its face. See Wainwright v. Fontenot, 774 So.2d 70 (La. 2000). Appellate courts afford juries great deference and disturb verdicts only when they are clearly and objectively unsupported by the evidence in the trial record. One such example of this can be seen in an auto accident case involving a “serial plaintiff.”

Joseph Wiltz was rear-ended in stop-and-go traffic by Maya Welch. Wiltz filed a petition in state court against Welch and her insurance company, State Farm, claiming he was injured in the accident. He sought damages for past and future medical expenses, lost wages, loss of enjoyment of life, and pain and suffering. The trial moved to the U.S. District Court for the Middle District of Louisiana by the defendants and the case proceeded to trial.

The defendants admitted Welch’s fault in the accident, leaving the main issue whether Welch’s negligence was the cause of Wiltz’s injuries. Discovery revealed that Wiltz was a “serial plaintiff” with pre-existing injuries that he failed to disclose to the doctors that treated him following the collision. Between 1991 and 2011, Wiltz had four different accidents and incidents that resulted in injuries to his neck, back, and shoulders. Furthermore, Wiltz told doctors that he’d never experienced back or neck pain previously and answered discovery in a similarly untruthful and incomplete manner. Even with the information concerning the pre-existing injuries, the jury still returned a verdict in favor of Wiltz; however, the jury awarded him compensation for past medical expenses only. Wiltz filed a motion for a new trial or an amendment to the judgment, contending the verdict amounted to an abuse of discretion by the jury. The district court denied the motion because Wiltz failed to prove he endured any compensable pain and suffering.

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image-for-post-69-from-email-5-14-19-1024x384Offshore drilling platforms enable petroleum companies to access oil deposits beneath the ocean floor. Although these platforms are anchored to the sea floor, they are technically movable and can be relocated. Whether a platform is considered “immovable property” under Louisiana law became a central issue in a case involving an injured worker because different prescription periods apply to personal injury claims depending on the nature of the property at which the injury occurred.

 In 2002, McDermott, Inc. designed and delivered the Front Runner Spar, an offshore facility used for removing and processing petroleum from the seabed of the Gulf of Mexico, to Murphy Exploration & Production Company. Murphy affixed the platform to the sea floor at the edge of the continental shelf offshore from Louisiana. James Hefren was hired by Murphy as the lead operator. In June, 2011, Hefren was injured when he was struck in the face by the flange of a valve. He filed a lawsuit suit against Murphy for negligence under the Jones Act, as well as specifically alleging that McDermott failed to properly design and construct the facility. The U.S. District Court for the Western District of Louisiana entered summary judgment for Murphy, dismissing Hefren’s tort claims as barred by the exclusive remedy provision of the Longshore & Harbor Workers’ Compensation Act.

McDermott filed a motion for summary judgment arguing that Hefren’s claims were barred by Louisiana’s rule that actions arising out of deficiencies in construction or design must be brought within five years after the date the property was accepted by the owner. See La. R.S. 9:2772. Holding that the Front Runner Spar was an “immovable object” under Louisiana law, and considering that nine years had passed between Murphy’s acceptance of the facility and the date Hefren’s lawsuit was filed, the district court dismissed the claim against McDermott.

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adult-ambulance-care-263210-1024x802Often, in litigation – as in life generally – timing is everything. Courts and legislatures set certain time periods for each step in a legal proceeding to establish fairness and to impose reasonable order on the disposition of the case. Occasionally, these deadlines can be ambiguous or open to various interpretations. Louisiana’s Second Circuit Court of Appeal considered such a situation in a medical malpractice case.

In 2011, Francis Grayson was admitted as a patient at Northeast Louisiana Kidney Specialists in Monroe, Louisiana. After contracting an infection from a catheter used for his treatment, he underwent surgery that left him a quadriplegic. A medical review panel requested by Grayson found that his doctors and the medical facility adequately met the standard of care in his kidney treatments and surgery. In February 2015, Grayson initiated a lawsuit for medical malpractice against his physicians and the facility. The following month, the defendants filed a motion for summary judgment on the basis of the medical board’s decision. A hearing was set for August 17. On August 7, ten days prior to the scheduled hearing, Grayson served the defendants with a memorandum opposing summary judgment. The memorandum was accompanied by an affidavit from a medical expert who would testify on Grayson’s behalf about the medical errors that led to his initial infection. Grayson filed the motion with the court on August 10, seven days prior to the scheduled hearing. The defendants then argued that Grayson’s opposition memorandum and affidavit were invalid because they were filed with the court less than eight days before the hearing, as required by the district court rules. The trial court eventually granted the summary judgment in favor of the defendants and dismissed Grayson’s claims.

In 2015, when Grayson’s original petition was filed, Louisiana district court rules required that memoranda opposing summary judgment must be served on the opposing parties at least eight days prior to the hearing. La. Dist. Ct. R 9.9. The defendants, citing a number of cases, argued that the courts had routinely interpreted that the memoranda must also be filed with the court within that same eight-day period. However the Second Circuit noted that in each of the cases relied on by the defendants, the documents in opposition to summary judgment was either filed within an extremely short time—one even being minutes before the hearing—or had some other defect. The Second Circuit focused on the fact that Grayson had properly served the defendants with the memorandum and affidavit within the required time; that the motion was not filed with the court until some days later was not controlling. Therefore, the Court reversed the trial court’s granting of summary judgment in favor of the defendants and remanded the case for further proceedings.  

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action-business-cargo-2449454-1024x683Christmas is usually a busy time for families, especially those traveling to visit loved ones. For many businesses it is also a time for increased sales and higher profits. For this reason, it is common for companies to set strict targets and deadlines for employees to meet in order to capitalize on the opportunity. Such deadlines, however, can be dangerous if they push employees beyond their capacities for safety.

On the night of December 25, 2008, Tammy Westbrook, an employee of Western Star Transportation, was driving a truck carrying plants belonging to Nurserymen, Inc. on Interstate 10 near Laplace, Louisiana. Westbrook collided with a GMC Yukon, the impact of which caused the GMC to strike the rear of a Lincoln sedan. The occupants of the vehicles suffered major injuries and a fatality. At the time of the accident, Westbrook had been driving for 33 the prior 36 hours. 

The victims of the accident filed a lawsuit for personal injuries and wrongful death against Westbrook, Westerm Star, and Nurserymen. After the jury concluded that Westbrook was not within the scope of a master-servant relationship with Nurserymen at the time of the accident, the trial court entered judgment in favor of the plaintiffs and awarded damages against Westbrook and Western Star. The plaintiffs appealed the judgment to Louisiana’s Fourth Circuit Court of Appeals.

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blur-car-drive-451590-1024x665Have you ever been in an accident where you were found at fault, but you know in your heart it wasn’t your fault? In this case, the trial court granted summary judgment in favor of the defendants because the plaintiffs failed to provide evidence that the driver of the car, in which they were passengers,  was not at fault for the accident. The issue addressed by the Louisiana Court of Appeal in this case was the appropriate time for summary judgment.

A motion for summary judgment may only be granted when there is no genuine issue of material fact, and it is used to avoid the cost of a full-scale trial. Johnson v. Evan Hall Sugar Co-op, Inc, 836 So.2d 484 (La. Ct. App. 2002). Moreover, a motion for summary judgment is properly granted only when the pleadings, depositions, answers to interrogatories, and admissions on file, show that there is no genuine issue of material fact and that the mover (i.e., the party moving for summary judgment) is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).

In this case, Lachona Charles, Tranika Charles, and Qu’Von Charles (collectively “the Charles”) were passengers in Latrica Robinson’s (“Ms. Robinson”) car, when she entered the center lane of traffic through a gap between cars, colliding with John Guidry (“Mr. Guidry”). Mr. Guidry was making a delivery for Cintas Corporation (“Cintas”). The police were called, and Ms. Robinson was found to be at fault for failing to yield, although she was not issued a citation. See La. R.S. 32:123. The Charles family filed a lawsuit against Cintas for personal injuries sustained during the accident. Cintas moved for summary judgment providing that Ms. Robinson was at fault, regardless of whose version of events was accepted, because she failed to yield when entering the center lane. In support of its motion for summary judgment, Cintas submitted the deposition of the on-scene officer, excerpts from Mr. Guidry’s and Ms. Robinson’s depositions, and an aerial image of the intersection where the accident occurred. In response to the Cintas motion for summary judgment, the Charles family faxed their opposition memorandum, using essentially the same evidence Cintas used in their motion.

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adult-city-democracy-2422395-1024x679Parties are entitled to immediately appeal during litigation as long as a decision has been properly designated as the final judgment. However, the Louisiana First Circuit of Appeal (“the Court“) also has a policy against multiple appeals and piecemeal litigation. So, how does a system balance the right of parties to immediately appeal while considering the workload of the court? The following case discusses this issue regarding the appellate jurisdiction (the legal authority of a court to decide on a particular case).

The claimant, Timothy Stewart (“Stewart”) was injured in the course and scope of his employment of the Bogalusa Police Department on July 9, 2013. The City of Bogalusa paid Stewart workers’ compensation medical and temporary total disability benefits. On March 17, 2015, Stewart filed a lawsuit seeking compensation for permanent total disability, as well as statutory penalties and attorney’s fees for the late payment of temporary total disability benefits. The City of Bogalusa timely denied Stewart’s claims and filed a motion for partial summary judgment regarding the permanent disability issue. The workers’ compensation judge (“WCJ”) granted this motion and dismissed Stewart’s claim for permanent total disability on August 4, 2015. Stewart then filed a motion for devolutive appeal (in which the appellate courts can determine on some issues while the trial court continues on separate issues) and requested that the August 4, 2015 judgment be made final and appealable pursuant to La. C.C.P. art. 1915(B). On September 4, 2015, the WCJ granted Stewart’s request and designated the August 4, 2015 judgment as final and appealable.

The court has a duty to decide whether the court has appellate jurisdiction to review the partial summary judgment, because the designation of WCJ is not determinative of the court’s jurisdiction. Stewart argues that the appellate process should not be delayed. The Appellate Court found that the WCJ did not provide a reason as to the determination of a final judgment, so it must re-evaluate the designation before hearing an appeal. The Appellate Court should consider two factors: (1) the goal of the Workers’ Compensation Act as achieving speedy resolution of injured workers’ claims, and (2) allowing piecemeal appeal causes delay and inefficiency. Marquez v. Jack Ussery Construction, 965 So. 2d 400 (La. Ct. App. 2007). The immediate appeal is justified if it can speed up the adjudicative process. Partial judgment should not prolong and complicate the process. 

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beauty-body-hands-56884-1024x683An automobile accident is not a lottery ticket. It is not an opportunity to take a negligent party to court and “sue their pants off” in an effort to win a hefty money judgment sufficient to pay for a bed-and-breakfast getaway in Natchitoches. But it should not leave the plaintiff in the lurch, either, without enough money to even cover medical bills. And sometimes, when you strive for one, you end up missing out on the other. One Louisiana couple learned the limits of revenue-generating potential for automobile accidents the hard way.

Eureka Ellis was driving up the onramp to the I-20 in East Monroe when she was sideswiped by Gregory Brown’s vehicle. Ellis also had her three children in the car with her. Brown apparently merged into Ellis’ lane prematurely. Brown did not deny he was at fault, but he asserted that the impact was minimal, reportedly asking after the collision if they even needed to call the police. The resultant “tap” of Brown’s vehicle left a few scratches on the driver’s side quarter panel of Ellis’ Charger; whether or not there was even a dent was a matter of dispute. When police arrived at the scene, none of the parties reported injuries, and no ticket was issued.

Despite the mild nature of the collision, 12 days later, Ellis and her children all went to see a chiropractor. This chiropractor, Dr. Holt, diagnosed them with neck and back pain. Over the course of the next three months, Dr. Holt saw Ms. Ellis and her three children twice a week, over 20 times each, billing them in excess of $15,000. The Ellises then filed a lawsuit against Brown and his insurer for general damages, special damages arising from the chiropractor visits, loss of consortium, and lost wages. Though the Trial Court denied a few of the claims, it determined that some damages were in order, and awarded the Ellis family a grand total of $7,692.50. This figure was far below their total claim requested and barely half of what they owed the chiropractor. 

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balance-commerce-composition-261658-1024x768Trials are an economic drain on society. Though they serve an important role in our society, they are costly and time-consuming. As a result, courts cannot take every case to trial, and the judicial system must be selective. Thus, sometimes a court makes a judgment without a trial because there would be no purpose for a trial. These judgments are called summary judgments. Below is a case in which the Trial Court granted summary judgment because one of the parties did not even have a valid legal claim.

In 2002, Kimberly Moe incurred injuries from a car accident in the Orleans Parish of Louisiana. She hired Allen Borne, Jr. to be her attorney. After four months, however, Ms. Moe decided to hire a different attorney, Darryl Carimi. Mr. Carimi filed a personal injury lawsuit against the driver at fault, Frank Bastian, and his insurer, Allstate. But Mr. Borne, despite no longer being Ms. Moe’s lawyer, asked Allstate to put his name on any settlement checks that were to be issued. While the litigation was ongoing, Ms. Moe died. Upon her death, her surviving spouse filed a wrongful death claim, but eventually settled with Mr. Bastian and Allstate. The settlement check did not have Mr. Borne’s name. In fact, though Mr. Borne had filed a claim against Allstate in order to receive some portion of the settlement, Allstate filed a motion for summary judgment. The Trial Court granted Allstate’s motion.

For an appellate court to consider whether a trial court properly granted a motion for summary judgment, the court must determine whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Citron v. Gentilly Carnival Club, Inc., 165 So.3d 304, 313 (La. Ct. App. 2015); La. C.C.P. art. 966 A(3). A party wishing to defeat a motion for summary judgment must show that there are sufficient facts the party can show at trial to support its claim. La. C.C.P. art. 966 C(2).

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hospital-bc-laboratory-form-with-syringe-1-1315580-1024x768Trial courts can make mistakes. Some mistakes are permanent, so a redo is impossible. In other cases, the mistakes can be reversed on appeal by an appellate court. When an appellate court reverses a trial court’s decision, the trial court could have to revisit the entire case and put things in correct legal standing between the parties.

Gordon Serou, Sr. resided at the Specialty Hospital of New Orleans, Inc. (“SHONO”), which is a long-term care facility located in the Touro Infirmary (“Touro”). He suffered from Parkinson’s disease and a number of other illnesses. Unfortunately, he was also a patient at SHONO when Hurricane Katrina struck New Orleans in 2005. Two days after Hurricane Katrina struck New Orleans, Mr. Serou passed away due to a generator failure. Upon his death, Mr. Serou’s family members sued Touro, SHONO, and the manufacturer of the faulty generator, Aggreko. Touro then sued Aggreko to recover any damages that the court found Touro liable for in relation to the faulty generator. Aggreko filed a motion for summary judgment, claiming the company was not at fault for the generator failure. Though the Trial Court granted this motion, the Appellate Court reversed and sent the case back to the Trial Court. Aggreko filed another motion for summary judgment, again claiming that the company was not at fault for the generator failure. The Trial Court again granted Aggreko’s motion. Touro argued that this was inappropriate because Aggreko had submitted the motion without any alterations and the Appellate Court had already overturned the granting of this same motion.

A party whose summary judgment motion gets denied at the appellate level may be able to file the motion again. Zeno v. Colonial Mortgage & Loan Corp., 4 So.3d 93, 100 (La. Ct. App. 2008). In fact, a trial court may grant the motion even if the party does not submit new evidence. Paragon Lofts Condo. Owners Ass’n, Inc. v. Paragon Lofts, L.L.C., 32 So.3d 303, 306 (La. Ct. App. 2010). This is because a party files an initial summary judgment motion before the actual trial. Therefore, if an appellate court decides to reject an initial summary judgment motion, it is not making a final judgment on the case. Because the appellate court does not make a final judgment, the party can file a second motion for summary judgment. Hargett v. Progressive Ins. Co., 996 So.2d 1199, 1202 (La. Ct. App. 2008).

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clipboard-close-up-composition-893894-1024x683Navigating a lawsuit is a difficult task. Not only do you have to prove the merits of the case, but you also have to navigate the judicial system’s complex procedural requirements. Even if your case seems likely to succeed on the merits, failure to comply with procedural requirements can leave you without recourse. 

On March 22, 2001, the Meladines’ boat struck an unknown object submerged at Lake Hermitage while they were fishing in the early morning. In 2002, the Meladines sued six companies in a lawsuit for personal injuries. In the lawsuit, the Meladines alleged that the companies were the owners and/or operators of oil and gas platforms and pipelines located in the Lake Hermitage area. The Meladines alleged that their boat collided with what seemed to be an unmarked, old gas pipeline. They alleged that the defendants had failed to adequately mark or maintain the pipeline or warn of its potential harm. All six of the defendants denied having any ownership interest or control of the object that struck the plaintiffs’ boat.

Over the next three years, the plaintiffs dismissed the claims they had brought against all the defendants except Stone Energy and Chevron USA. In 2007, the plaintiffs added Jefferson Lake and Plaquemines Parish Government (“PPG”) as defendants. A year later, Jefferson Lake filed an exception of prescription because it had not been renamed as a defendant until over six years since the accident. Jefferson Lake also argued that prescription was inappropriate because there was no solidary liability between Jefferson Lake and any original defendants. The case then proceeded to trial. 

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