Articles Posted in Litigation

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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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abandon house
In litigating or defending against claims, timing and rule compliance matters. A failure to timely bring a claim can forfeit your right of recovery. A failure to comply with the time limits and requirements of discovery rules can have a similar effect. When parties fail to take steps to prosecute or defend a claim in trial court in three years, the claim is considered abandoned. A recent case from the Louisiana Supreme Court discusses the “abandonment rule” and what sort of steps are required to avoid dismissal of a case.

In 2008, Bryon Guillory and Margo Guillory brought a lawsuit against Pelican Real Estate, Inc. and St. Paul Fire and Marine Insurance Company. In their, the Guillorys claimed that he purchased a home with a redhibitory defect (a defect so substantial that his home was virtually unusable) voiding or nullifying the sale. The issue in the case was not the underlying merits of Mr. Guillory’s claim, but a rule of discovery. Discovery is the process of obtaining evidence for use at trial.

On December 17, 2012 the Guillorys served written discovery on Pelican, but failed to serve it on the St. Paul. The Guillorys then scheduled a discovery conference and sent the notice of the conference to Pelican only. Counsel for the Guillorys and Pelican participated in the discovery conference on January 28, 2013. Perhaps feeling a bit left out, St. Paul filed an ex parte motion to dismiss the Guillorys’ lawsuit. St. Paul argued that under La. C.C.P. art. 561, the lawsuit was abandoned because no steps were taken in prosecution or defense of the matter in more than three years since the taking of depositions on March 4, 2010. The Trial Court granted St. Paul’s motion and signed an ex parte judgment of dismissal.

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estatehouse-1218427
In Louisiana, you cannot “disinherit” your children. What does this mean exactly? It means that upon death, Louisiana law will allow a decedent’s children to share in his or her estate, even if the decedent left those children out as beneficiaries. The left-out children are called “forced heirs,” and will take a portion of the decedent’s estate (called the “legitime” or “forced portion”) unless the decedent has a just cause for leaving them out. La. C.C. art. 1494. A recent case of the Louisiana First Circuit Court of Appeal describes the rights of forced heirs to take in a decedent’s estate.

This case arose out of the death of Geronimo Ji Jaga, and the division of his annuity account at Western National Insurance Company. Mr. Ji Jaga had five children from various marriages: Shona Pratt, Hiroji Pratt, Nikki Michaux, Kayode Ji Jaga, and Tkumsah Geronimo Jaga. He named his eldest two children, Shona and Hiroji (“the Pratts”), as the beneficiaries to the annuity. After Mr. Ji Jaga’s death, one of his surviving spouses – Jojuyounghi Cleaver – filed a lawsuit in the Parish of St. Mary against Wester National alleging that her son, Kayode, should be considered a forced heir and entitled to share in the annuity.

In response, Western National filed asserted that the Pratts, the named beneficiaries of the annuity, should be joined in the lawsuit. After Mrs. Cleaver amended her petition adding the Pratts as defendants, the Pratts filed, among other exceptions, a peremptory exception of no cause of action. Tkumsah’s mother, Laila Minja, later filed a petition to intervene. She claimed that Tkumsuh was also a forced heir. The Pratts filed the same exceptions against Mrs. Minja as they did against Mrs. Cleaver. The Trial Court sustained the Pratt’s exception of no cause of action and dismissed Mrs. Cleavers’ and Mrs. Minja’s claims. The Trial Court considered the Pratt’s other exceptions as moot. Mrs. Cleaver and Mrs. Minja appealed the Trial Court’s judgment.

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hospital-s-corridor-1631146-1024x765If your unlucky enough to slip and fall at a business the first person you would think about suing is the business itself. However, businesses today contract out many aspects of cleaning and other maintenance and in doing so also alleviate their responsibility for negligence on their property.  The following case out of St. Tammany Parish discusses the concept of who might be at fault for a slip and fall when the cleaning of floors is contracted out to another party.

In 2005, Joy Smith was visiting a friend who was a patient at Northshore Regional Medical Center (Hospital) in Sidell, Louisiana. As Ms. Smith was walking down the hall, she slipped and fell in some water near where the floors had just been buffed. Ms. Smith filed a lawsuit against the Hospital alleging they were negligent in failing to properly warn her of the hazard that caused her fall. The Hospital answered the lawsuit and filed a third party demand, adding as third party defendants Hospital Housekeeping Systems (HHS), and the employee of HHS who had just buffed the floor. The Hospital had a contractual relationship with HHS to provide the Hospital with housekeeping services for the hospital.

The Hospital filed a motion for summary judgment in the lower court seeking to have Ms. Smith’s claim against the hospital dismissed. The Hospital alleged that it was merely the property owner, and it should not be held liable for conditions created by HHS as they contracted with them to clean the floors.  See LSA-C.C.P. art. 969. Within the contractual obligations of the Hospital and HHS, HHS was responsible for maintaining the area where Ms. Smith had fell. The lower court agreed, and granted the summary judgment.

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angel-of-final-judgement-1466539

Accidents happen, and sometimes it takes years before the effects of those accidents show up. So what happens in Louisiana if you are exposed to a toxic chemical and go through the traditional lawsuit process including resolving all of your claims but later develop cancer?  Can you come back and file another lawsuit seeking recourse for your newly acquired damages?  It depends on the language of the release that was signed when you settled the first lawsuit. The following case highlights the importance of receiving thorough legal consultation before signing a settlement agreement to ensure you know exactly what rights are being extinguished.

In 1996, Leonard Bracken was exposed to mustard gas while working for the Payne & Keller Company. A tort suit was subsequently filed against the company, but in 1999 before the case reached trial, Leonard agreed to settle his tort suit for $275,531. In addition to settling his tort claim, Leonard signed a compromise agreement where he released Payne & Keller and any other potential tortfeasors from any other claims arising under the Louisiana Workers’ Compensation Act. Under the compromise, Leonard was forever barred from seeking compensation for any medical expenses or any other benefits from the company stemming from the 1996 chemical exposure.

Unfortunately, around six years after settling his lawsuit Leonard developed cancer. Believing that the cancer was related to his exposure to mustard gas Leonard filed a workers compensation claim against his employer, the Payne & Keller company seeking compensation relating to the 1996 incident. Leonard declared no wage benefits had ever been paid, his medical treatment had been discontinued, and his previous attorneys had filed and settled the workers’ compensation claim without his knowledge. Payne & Keller responded by filing exceptions raising the objection of prescription and additionally sought sanctions against Leonard. The Office of Workers Compensation (OWC) sustained Payne and Keller’s exceptions and order Leonard to pay sanctions as the OWC determined Leonard’s pleading violated Civil Louisiana Code of Civil Procedure Article 863 by being frivolous and without merit. Leonard appealed the OWC’s decision. Additionally, Leonard turned to Louisiana Code of Civil Procedure Article 2002(A)(1) in filing a motion with the OWC declaring the 1999 judgment should be nullified, as 2002(A)(1) states a final judgment shall be annulled if it is rendered against an incompetent person. The OWC did not hold a hearing on Leonard’s motion, rather it dismissed Leonard’s motion with no explanation.

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tall-ship-silhouette-1449207
It seems rare in insurance coverage litigation for a court to wholeheartedly agree with an insurer that the coverage requested is not in fact provided for in the contract for insurance.  Yet, the U.S. Court of Appeals for the Fifth Circuit did just that, upholding a decision out of the U.S. District Court for the Eastern District of Louisiana finding without question that Bollinger Shipyards, Inc. was not entitled to defense by its insurers in a lawsuit brought against it by the United States.

Bollinger, a shipbuilder headquartered in New Orleans, won a multi-million dollar “Deepwater” modernization contract to upgrade eight (8) 110-foot U.S. Coast Guard cutters to make them 123-foot vessels.  Despite the Coast Guard’s concerns that the boat hulls were not able to accommodate the 13-foot extensions, Bollinger pushed forward on the project.  On several occasions, Bollinger submitted analyses to the Coast Guard purporting to show that the hull strength was sufficient.  In reality, the hull strength was not sufficient which became apparent when one of the ships “suffered a structural casualty that included buckling of the hull.”  The Coast Guard determined that the seven remaining ships were equally faulty and unusable.

Eventually, the United States filed a lawsuit against Bollinger over the faulty work. The Court allowed the United States to move forward with two claims under the False Claims Act.  Days prior to the government’s filing, Bollinger notified its general maritime insurer, XL Speciality Insurance Company, and its excess insurer, Continental Insurance Company, of the impending claims in an effort to shift the burden of the expense of the defense to the insurers.  In response, XL issued a “reservation of rights” letter stating that it was unsure if Bollinger’s policy included this coverage.

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technology
A Luddite is a person who is opposed to technological innovation. A Luddite will refuse to learn about new technology and will not incorporate it into their skills, either at work or at home. Having this mindset has obvious drawbacks for workers in today’s world, but what happens to the individuals who do not necessarily avoid technology, but are slow to catch up?

In 2015, a 52-year old employee of Jefferson Parish fell into this unfortunate cohort. This employee had been working for Jefferson Parish for over twenty years of service. When it came time for Jefferson Parish to choose who to promote to the position of Executive Assistant, there were two options: Maria Cooper, a young 28-year old employee with technological know-how, or the 52-year old, an experienced and loyal employee.

To Jefferson Parish, the choice was obvious. Since the essential job requirements of the position of Executive Assistant included working knowledge in the maintenance and updating of all computers, servers, and wiring of the computer network, as well as experience in setting up Excel spreadsheets, Ms. Cooper seemed like the best fit. But what about the 52-year old? She was left in the dust. After being passed up for the position, the 52-year old filed a lawsuit against Jefferson Parish, alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.  

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