Articles Posted in Litigation

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office-4-1484175Following proper procedure is critical when it comes to preserving your legal rights. While some rules might seem a bit harsh the best lawyers know the rules and will make sure you do not lose your case simply because you did not dot your I’s and cross your T’s. The following case out of Rapides Parish demonstrates what can happen when a fax filed lawsuit is not followed up with the mailed petition in the proper time.

The Plaintiff in this case, Brenda Quire, was a patient suing her former physician for alleged battery and was asking for alleged damages she incurred under a physician’s medical care. The original lawsuit and filing fee were not received by the clerk of court within the required period of time.  In short, she missed the deadline and consequently her case was dismissed.

The Defendant, the physician, filed an exception of prescription requesting the court to dismiss the case, which the court granted.  An exception of prescription is a motion filed asking the court to  dismiss a lawsuit without probing into the underlying claims, and to demonstrate that the plaintiff has no right to bring such action because the time period elapsed.  This is a legalese way of saying the court dismissed Ms. Quire’s claims because she filed her lawsuit past the deadline to file.  

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yellow-building-1561908In  executing the terms of a construction contract, a builder and its subcontractors may not perform their duties as mandated under the terms of the contract. If a builder fails to perform its duties, then a property owner may file a claim for breach of contract and damages against the builder for defects in performance. However, the property owner’s ability to bring a claim against the builder is limited to a specific period of time prescribed by state law. The state legislature has the ability to pass laws that change the period of time in which a property owner can bring a claim against the builder for defects in performance; and in 2003, the Louisiana Legislature exercised this power to make changes in the law barring this type of claim, reducing the period from seven to five years.

When changes to the law have occurred, parties to a lawsuit may dispute which law is controlling in their claim. A recent example of litigation concerning changes in law occurred in Lafayette, Louisiana. In 2002, a property owner, Crescent City Property Partners, LLC (hereinafter “Crescent”), and a builder, Greystar Development and Construction, LP (hereinafter “Greystar”), entered into a contract for the construction of a mixed-use development in Lafayette, Louisiana. This development was completed in phases with construction of the multiple buildings being completed a year after the parties entered into the contract. Five years later, Crescent filed an arbitration claim under the terms of the construction contract, alleging defects in the builder’s performance, against Greystar and its insurer. In response, Greystar filed a third party demand against various subcontractors.

At the time the construction on the mixed-use development was completed there was a seven-year period of peremption for construction claims; however, only a month after completing the project, the legislature amended the law to provide for a five-year period of peremption. On July 11, 2011, shortly before the parties were scheduled to arbitrate the matter, the Supreme Court of Louisiana decided Ebinger v. Venus Construction Corp., discussing the retroactivity of the 2003 amendment.

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KONICA MINOLTA DIGITAL CAMERAWhen you are injured by the actions of another person, seeking monetary damages from them in court is one way to ensure that your costs can be met. However, sometimes judges and juries can make factual or legal mistakes that result in damages that are too high or too low, and in these instances it is often up to an appellate court to set the correct monetary amount. If you have received a monetary damage judgment, but you believe it does not represent the true cost of the injuries you suffered as a result of the other person’s actions, you have the option of seeking an appeal from a higher court to modify your damages.

Mr. Becnel did just that in an automobile accident case arising out of a Louisiana trial court. After he was rear-ended in a car accident, Mr. Becnel went to court to recover his past and future medical expenses and general damages, which covers pain and suffering other than the cost of medical treatment itself. Because medical costs are very concrete and measurable, on appeal Mr. Becnel argued only that his general damages award was too low, because he claimed the jury did not take into account any future pain and suffering, only past.

In an earlier Louisiana case, the court had held that any evaluation of the amount a jury awards by an appellate court must be done by first giving a lot of deference to the determination of facts that has already occurred. (Wainwright v. Fontenot (La. 2000) 774 So.2d 70, 74.) The idea behind this is that the jury was able to hear all of the evidence and testimony first hand, and it would be improper for an appellate court that did not get to hear everything first hand to overturn a decision the jury has already made, unless the jury’s amount awarded was clearly wrong.

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grocery-store-1-1161348
In 2009, the Louisiana Legislature enacted a statute establishing a medical treatment schedule for workers’ compensation claims. This statute took into account the combined concerns of the labor force, insurance companies, and medical providers to establish harmonized guidelines for the treatment of injured employees. The need for this statute stemmed from the formerly burdensome and expensive process of obtaining medical treatment. Since the statute’s enactment, questions have arisen as to whether the medical treatment guidelines should apply retroactively to claims arising before the enactment of the statute and entry into force of the guidelines. The Louisiana Fourth Circuit Court of Appeal resolves these questions in a case arising out of a shooting at Whole Foods.

In 2001, Malord Gales was shot while on the job at Whole Foods Company, Inc. Since the shooting, Mr. Gales has been in a permanent vegetative state. Mr. Gales’ mother has since taking care of him and acting as his representative or “curatrix.” Because of his paralyzed state, Mr. Gales was required to be bowel fed with Isosource 1.5 calorie food which contains the appropriate amount of biofiber for normal bowel function. For many years, Whole Foods paid for this special food. Eventually, it refused to pay. Claiming that the food was too expensive, Whole Foods approved a different food which caused Mr. Gales significant bowel problems.

Finding his symptoms intolerable, Mr. Gales filed a disputed compensation form with the Office of Workers’ Compensation. Mr. Gales sought an order requiring Whole Foods to pay for the formerly authorized Isosource food, and to pay attorney fees for arbitrarily stopping his prescribed food. Whole Foods countered with the dilatory exception of prematurity. In its exception, Whole Foods argued that Mr. Gales claim was premature because he failed to comply with the administrative procedures for filing a claim for medical treatment. The Workers’ Compensation Judge (“WCJ”) granted Whole Foods’ exception and dismissed Mr. Gales’ claim. Mr. Gales’ appealed.

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police-5-1572837-1024x768It’s common sense that self defense class instructors should teach the students how to defend themselves and not inflict pain or broken bones while instructing. However some instructors can go overboard while trying to “teach” these skills. The following case out of Lafourche Parish highlights what can go wrong when simulations in a self defense course get a bit too real for one participant causing her a broken arm and other damages.

In 2010, plaintiff participated in a 3-day Rape Aggression Defense (RAD) self-defense course being taught by the Lafourche Parish Sheriff’s Office. During the course, plaintiff and other participants received instructions for two days and on the third day, participants engaged in a series of exercises simulating attacks upon them by “aggressors”, at this time they were instructed to deploy the defensive techniques they had learned. During one of these simulated attacks, in which a Lafourche Parish Sheriff’s Deputy played an “assailant”, plaintiff’s arm was broken. Plaintiff had to undergo surgery to repair the comminuted fracture, requiring two plates and 21 screws to be inserted into plaintiff’s arm.

At the initial bench trial, the recorded RAD simulations were played on video, showing the RAD instructor was close to plaintiff during the exercise and was constantly giving instructions to the plaintiff on how to properly perform defensive techniques. In the video, the Sheriff Deputy playing the “aggressor” pushes and hugs the plaintiff while the instructor tells the plaintiff how to defend herself. The trial court concluded after watching the video, it did not find the Sheriff’s Office or the Sheriff’s Deputy negligent, as the only way they could have prevented the plaintiff’s injury would have been to not engage physically with the participants, which would have defeated the purpose of the exercising teaching them to defend themselves against aggressive criminals. The trial court subsequently dismissed the defendants with prejudice, and plaintiff appealed.

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hospital-s-corridor-1631146-1-1024x765Class action lawsuit certification is one of the most complex areas of the law to explain. The question of whether a lawsuit would be best as a class action or as individual lawsuits often comes down to a determination of what is the best method for fair and efficient adjudication for both the plaintiffs and the defendant.

Across the state of Louisiana, people are filing lawsuits against health care providers under the Health Care Consumer Billing and Disclosure Protection Act, hereafter referred to as the Balance Billing Act.  See La. Rev. Stat. § 22:1871 et seq. As a result of these lawsuits,  the Louisiana Second Circuit had denied class certification for a group of plaintiffs while the Louisiana Third Circuit had approved a class certification in their jurisdiction. Thus a split of the circuits existed and therefore it was time for the Louisiana Supreme Court to weigh in.

Certain Plaintiffs filed a class action lawsuit in 2011 claiming the Defendant, Minden Medical Center, “engaged in unlawful billing practices by billing them in an amount in excess of the agreed upon rate negotiated between the hospital and plaintiffs’ respective insurers.”  As a result of that lawsuit a question was presented for review to the Supreme Court of the State of Louisiana whether these types of lawsuits (balance bill violations) would be better handled as class action or on an individual basis.

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law-education-series-3-1467430-1024x769In litigation, “discovery” is the legal procedure by which parties obtain evidence from other parties or non-parties. Examples of common discovery tools include depositions (a witness’s out-of-court testimony) or requests to produce documents or other things. In Louisiana, attorneys must sign discovery requests, responses, and objections to discovery requests. This certifies that the request, response, or objection is consistent with the rules of discovery and is warranted by existing law or a good faith argument for extension, modification, or reversal of existing law. ( See La. C.C.P. art. 1420.) It also certifies that the request, response, or objection is reasonable and not issued for an improper purpose such as to harass a party or to cause increases in litigation expenses. If a court determines that an attorney’s certification violates the rules of discovery, it will impose sanctions upon the attorney who made the certification and/or the represented party. A 2015 case from the Louisiana Fifth Circuit Court of Appeal discusses discovery sanctions, holding that non-parties to lawsuits cannot bring actions for sanctions against a party or attorney for violating discovery rules.

In 2011, Deadre Thiel and Germaine Dyer were involved in a motor vehicle accident and sought treatment from Dr. David Wyatt. Dr. Wyatt’s practice is conducted through a medical entity, Orthopedic Care Center of Louisiana (“OCCL”).  OCCL was not a party to the initial lawsuit brought by Mr. Theil and Dyre against State Farm, David Podewell and Banu Gibson. After conducting initial discovery, State Farm became aware of evidence suggesting that Dr. Wyatt may have been improperly influenced by bias and financial motive in treating Mr. Thiel and Mr. Dyer.  It then deposed Dr. Wyatt and determined that OCCL – a non-party to the lawsuit – was the only source of discovery concerning OCCL’s billing processes and any contingency fee relationship with the Womac Law Firm.

State Farm then issued a notice of deposition to OCCL and a subpoena duces tecum (a court order requiring the recipient to appear before court and produce documents or other evidence). In response, OCCL filed a motion to quash (void) the subpoena duces tecum. It also sought to have to have the Trial Court issue a protective order and award sanctions. The Trial Court granted OCCL’s motion to quash and awarded sanctions in favor of OCCL and against State Farm. State Farm then filed an application for a supervisory writ, seeking to have to the Court of Appeal reverse the Trial Court’s ruling.

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the-bank-1469518-682x1024Countless lawsuits are decided under the legal standard of summary judgment. Summary judgment occurs when lawyers request a court to decide  whether there are enough facts in dispute to even proceed with a lawsuit. The party requesting summary judgment must show that there is simply no dispute of any material fact and that the person requesting summary judgment is entitled to judgment as a matter of law. In answering this question, judges determine whether there is enough evidence in a case that a jury would be able to side with the person not requesting summary judgment.  As a tactical matter, good lawyers often request summary judgment to dispense with certain claims early on in a lawsuit thus saving their clients time and money.

A recent decision by the United States Court of the Appeals for the Fifth Circuit, demonstrates the principles of summary judgment within the context of an employment discrimination lawsuit. See Fed. R. Civ. P. 56(a). The Western District of Louisiana (the lower court) determined that summary judgment was appropriate for all causes of action and thus dismissed the entire case. The Court of Appeals however only agreed with the lower court on certain claims thus providing guidance on surviving summary judgment in age discrimination, retaliation, disability,  and defamation claims.

The case involves a lawsuit between Lloyd Flanner and his former employer JP Morgan Securities, L.L.C (JP Morgan). Mr. Flanner worked at JP Morgan at their branches in Monroe Louisiana from August 2003 to August 2010. In April 2010, Mr. Flanner underwent surgery and was granted medical leave under the  Family Medical Leave Act (FMLA). Shortly after returning to work, Mr. Flanner was involved in an incident wherein he withdrew $25 from his personal  bank account, purchased a money order, and gave it to his attorney’s assistant. Learning about the incident, JP Morgan investigated and subsequently  fired Mr. Flanner. Mr. Flanner was replaced by two employees, aged 53 and 32. Mr. Flanner was 59 at the time of his termination.

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plataforma-1339356Being an employee aboard a ship in the Gulf of Mexico can be hard work, and it can also be dangerous work.  For Mark Baldwin, who worked as a sandblaster and painter for Cleanblast, LLC, danger presented itself when he was assigned to the vessel Brody Paul and serviced oil platforms located in the Gulf of Mexico.  Baldwin allegedly suffered severe injuries to his back and neck when he fell while working on a Tennessee Oil and Gas Company platform.  In a personal injury lawsuit, Baldwin claimed that Cleanblast failed to provide the proper equipment to complete the task.  However, the trial court dismissed the case, granting Cleanblast’s motion for summary judgment because it found that there was no genuine issue of material fact as to whether Baldwin, the plaintiff, was a seaman for Jones Act purposes.  Baldwin appealed and the Third Circuit reversed, finding that a jury should decide whether the plaintiff’s work duties qualified him for seaman status under the Jones Act.  See  46 U.S.C. § 688.

The most important aspect of this case is the Third Circuit’s interpretation of the Supreme Court’s ruling in Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172 (1995), which discussed the requirements for seaman status under the Jones Act.  In Mark Baldwin’s case in Louisiana, he alleged that he suffered injury because Cleanblast failed to provide the proper equipment to blast the risers on the rig they were instructed to service.  The plaintiff argued that as an employee covered by the Jones Act, Cleanblast “violated its non-delegable duty to provide him with a safe work environment.”  In order to be covered by the Jones Act, an employee must qualify as a “seaman.”  Cleanblast argued that the plaintiff was not a seaman and presented testimony by the plaintiff in a deposition wherein he admitted that he spent less than 30% of his time at work in service of the vessel to which he was assigned.  In fact, Cleanblast calculated that he spent “at most 28.65 percent” of his time at work in service of a vessel and posited that he spent most of his time working on oil platforms.  This percentage is important because in Chandris the Supreme Court held that there are two requirements for seaman status under the Jones Act.  First, the employee must “contribute to the function of the vessel or to the accomplishment of its missions.”  Second, the employee must have a link to a vessel or vessels in navigable waters that is “substantial in terms of both duration and nature.”

Cleanblast focused its motion for summary judgment on the durational requirement and pointed to the Supreme Court’s statement in Chandris that it is a “rule of thumb” that “a worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.”  Based on Baldwin’s admission to spending less than 30 percent of his time in service of the vessel, Cleanblast argued that it was entitled to summary judgment and the trial court agreed, essentially holding that the 30 percent figure mentioned by the Supreme Court was a dispositive rule.

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jury

Even a minor car accident can result in injuries causing pain and disability. Some injuries are more difficult to prove than others. When a personal injury lawsuit resulting from a car accident goes to trial, a jury often makes determinations as to the extent of the injuries and the credibility of witnesses. If the court does not believe the credibility of your witnesses sometimes that can lead to your case being dismissed. Such determinations were made by a jury in a personal injury lawsuit brought by Andre Stevenson against Sandra Serth and her insurer, Travelers Casualty Insurance Company of America.

In November 2011, Andre Stevenson was stopped at a gas station waiting to pull out onto Veterans Memorial Boulevard. From the eastbound direction, Sandra Serth, in her PT Cruiser, ran a red light and struck another driver in a Nissan Maxima. This collision produced a domino effect sending the Maxima into Mr. Stevenson’s stopped vehicle. Mr. Stevenson claimed that he suffered neck and back injuries as a result of the collision. At trial, he testified as to the resulting injuries. He asserted that he did not have any pain before the accident, but started having neck and back pain after the accident occurred. In addition, he testified that he began treating the pain with an orthopedist and was given epidural steroid injections twice in his back and once in his neck. After Mr. Stevenson completed his testimony, his attorneys did not call any further witnesses. His medical records and the orthopedist’s two depositions were admitted into evidence. However, the orthopedist’s depositions were not read to the jury and pursuant to La. C.C.P. art. 1794(B), the depositions were not allowed into the jury room. Thus, it is unclear what effect, if any, the orthopedist’s depositions had on the jury.

On the other side, the defense produced as one of their witnesses an expert in neurosurgery. The expert reviewed Mr. Stevenson’s cervical and lumbar MRIs in addition to the reports of the radiologists who previously reviewed those same MRIs. The defense’s expert noted that there were some abnormalities in Mr. Stevenson’s neck, but made no statements or indications as to the significance of those abnormalities.

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