Articles Posted in Litigation

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offshore-gas-platform-1223799-683x1024The Jones Act is a set of federal rules that protects American workers injured while working at sea. Also referred to as the Merchant Marine Act of 1920, this law allows qualifying sailors who have been involved in accidents or become sick while performing their duties to recover compensation from their employers. So does everyone that is injured or who becomes sick while working offshore automatically qualify for benefits under the Jones Act? Not always. In the following case that stems from an oil platform injury we see how the courts evaluate the seaman status (status necessary to receive benefits) under the Jones Act.

Michael Alexander was employed by Express Energy Services Operating, L.P.’s plug and abandonment department which plugs decommissioned oil wells in various locations off the coast of Louisiana. In 2011, Michael’s foot was injured while working a project on a platform. Michael and the crew were working on the platform at the time of his injury but the crane that injured him was located on a liftboat operated for the benefit of the crew. Michael filed his action under the Jones Act (46 U.S.C. § 30104) seeking maintenance and cure benefits. Express filed a motion for summary judgment contradicting Michael’s seaman status stating that Michael was a platform-based employee who failed to satisfy the test for seaman status. A motion for summary judgment is a legal filing that states the law does prevents the other party in the lawsuit from proceeding for various reasons. In this case Express filed their summary judgment motion stating that Michael was not a seaman under the provisions of the Jones Act.

For the court to have decided against summary judgment, Michael would have had to show that there was a possibility of his employment status qualifying as a seaman and falling under the Jones Act. To qualify as a seaman an employee has to prove two things laid out by the Supreme Court in the Chandris case (515 U.S. 347 (1995). The first thing to prove is that the employee’s duties contribute to the running of the ship or vessel. The second thing to prove is that the employee performs a substantial amount of his duties on board the ship or vessel. The second part of this test is the most important to the analysis of seaman cases and is in place to separate the employees who are entitled to the protection of the Jones Act from the land-based employees who are not exposed to the same risks as employees who spend a majority of their time at sea.

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ivc filter lawyerInferior vena cava (IVC) filters were designed and sold as a supposedly secure fallback to help avert pulmonary embolism for patients who for various medical reasons could not take blood thinners. Unfortunately for over the last ten years these filters have continuously been alleged to have been at fault for adverse conditions due to breaking of the filter. The best IVC filter lawyers have been pursuing these claims on behalf of their clients for several years now. While you can get a full run down of this litigation from a Louisiana IVC filter claim lawyer here, IVC Filter Claims , the following are 4 things you need to know if you believe you or a family member have been injured by an one of these products.

  1. Removal of the device is only the first step

Most importantly, if you or a loved one has a IVC filter, you need to seek medical advice. The FDA released a bulletin in 2010 advising that IVC filters should be removed as soon as the danger of embolism has passed. Despite this removal itself can be difficult or impossible. A study conducted at the Boston Medical Centre in March 2013 found that, of the IVC filters studied, only 8.5% were successfully removed.

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Mesothelioma has been called “the working man’s disease” as it tends to effect a high percentage of blue collar workers who were exposed to asbestos in various construction trades decades ago. A diagnosis of mesothelioma can be devastating and often leads to many legal questions that the best mesothelioma lawyers in Louisiana can quickly answer. Those questions largely revolve around finding out who the responsible parties are who might owe compensation to the claimant and ultimately what financial award could be paid in mesothelioma cases.  The following asbestos case out of Jefferson Parish Louisiana provides some insight into the what a mesothelioma claimant and his family might receive if the case goes to trial.

William Oddo jr. was a handyman of sorts for over 30 years working with automobiles ships, and appliances. He raised a family on the Westbank of Jefferson Parish and lived to be 81, until he passed away from mesothelioma as a result of exposure to asbestos. Asbestos is a fibrous mineral which used to be common in building materials and automobile brake pads due to its properties of heat resistance. Over the course of his lifetime Mr. Oddo worked and lived with and around asbestos which is said to have given rise to his death.

On June 3, 2011, just one month before his death, Mr. Oddo filed a lawsuit against multiple defendants who allegedly contributed to his contraction of mesothelioma due to his exposure to asbestos. After his passing Mr. Oddo’s wife and two sons, hereafter referred to as the “Oddo family,” converted his case to a survival/ wrongful death action focused on two defendants from the defendant pool; Ford and Sud- Chemie Inc., formally known as and hereafter referred to as “Southern Talc.” The Otto family argued that Ford significantly contributed to Mr. Otto’s contact with asbestos by producing asbestos brake pads that Mr. Otto regularly serviced when he worked for the Jefferson Parish Sheriff’s Office. Additionally, the Otto family contended that Southern Talc was also responsible for Mr. Oddo’s death due to mesothelioma because Southern Talc manufactured fill that was used for Mr. Oddo’s driveway that allegedly contained asbestos.

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car-accident-1446905Being involved in an automobile accident or sustaining a serious injury can be very overwhelming.  This is especially true if the accident was someone else’s fault.  Although one may be disoriented after an automobile accident, it is pertinent that he/she follows all the necessary steps to ensure that the accident or injury is well documented.  One’s first instinct may be to try to minimize the gravity of the situation; however, it is important to understand that a personal injury may have been sustained even if the symptoms are not immediately visible.  One never knows if they will have a problem down the road from an injury sustained from the automobile accident, and therefore, a great attorney knows that their client will need proof and documentation to prove that the problem stems directly from the said automobile accident.  

Part of that documentation includes what will be considered “relevant evidence” and how to avoid using expert witnesses who may become impeached at trial.  The following case out of Monroe Louisiana discusses the standards courts use as the gatekeepers of allowable information that can be used at trial. On July 20, 2010, Michael W. Pratt (“Mr. Pratt”) was hit from behind by Brett O. Culpepper (“Mr. Culpepper”) while stopped at a red light on Desiard Street in Monroe.  Immediately following the accident, it is alleged that Mr. Pratt stated to the investigating officer that he was uninjured and did not require medical attention.  However, sometime after the accident Mr. Pratt begin to see a chiropractor for the various injuries he alleged were caused by the accident.

In July 2011, Mr. Pratt filed a lawsuit against Mr. Culpepper and his insurer for a variety of damages (i.e., past and future pain and suffering, medical expenses, loss of earnings, disability, etc.) associated with the alleged substantial injuries he sustained to his back, head, and neck in the aforementioned accident.  It was disputed amongst the parties as to (1) whether the force of the collision was significant enough to cause the alleged injuries and (2) whether or not the alleged injuries were from this particular automobile accident.  In 2014 the lawsuit was tried before a jury.  At the conclusion of the trial the jury found that Mr. Pratt failed to prove by a preponderance of the evidence that the accident caused him to suffer physical injuries.  The plaintiff then appealed the juries verdict.  Mr. Pratt argued before the appeals court that that the trial court’s allowance of the  records into evidence of his chiropractor’s suspension by the Louisiana State Board of Chiropratic Examiners was an error that should cause the jury’s verdict to be overturned.

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A trial is supposed to finalize your case, it should be the beginning of the end of the litigation process. However, after a judgment is rendered the Louisiana Code of Civil Procedure allows for a Motion for a New Trial which can allow for a second bite at the apple. For the most part those motions are denied and thus begins the appellate process. So what happens if after the conclusion of the first trial newly found witnesses show up? Will the Court allow a second trial and can those witnesses testify at that second proceeding? A recent case arising out of Abbeville Louisiana considers those questions and gives some guidance as to what is allowed under Louisiana trial procedures.

The original lawsuit arose from a boundary dispute between Bernard M. Boudreaux and family against Paul Cummings, all landowners of adjacent tracts of land in Vermilion Parish. In a possessory action and petition for injunctive relief and damages, the Boudreauxs alleged that they had peacefully possessed their property uninterrupted for over 60 years. However, the Boudreauxs claimed that possession was disturbed when Mr. Cummings drove large pipes into their property. There was some dispute also over whether the Boudreauxs had acquired property beyond the established section line boundary, per their alleged thirty-year acquisitive prescription.

At an original hearing, the trial court granted the Boudreauxs a preliminary injunction and established one particular survey as setting the boundaries of the Boudreaux’s property. Mr. Cummings then converted the matter into a petitory action, and after a trial on the merits, the trial court held instead that the Boudreauxs had not properly established the boundary line they sought possession of, and the trial court then set the boundary along the original title boundary. The Boudreauxs then filed a motion for a new trial. The Boudreauxs sought the new trial to permit them to enter two new witnesses, who the Boudreauxs alleged could not have been obtained by due diligence during the original trial. The new trial motion was granted, and after the second trial the trial court arrived at the ultimate decision to find in favor of the Boudreaux’s interpretation of the boundary line.

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old-house-1224719-1024x811Under Louisiana civil procedure, it is well settled that “proper citation is the cornerstone of all actions.” If a party to an action is not served with process in the manner required by law, the result of that action is considered null and void. This requirement is intended to ensure that the defendant in a lawsuit is fully informed of the existence and subject of the plaintiff’s complaint. The concept of proper service is so essential, in fact, that even a defendant’s actual knowledge of a legal action cannot correct a defective citation and service of process. Therefore, a key skill of the attorney that you hire to represent you is a thorough understanding of the various and sometimes complex rules that control how process must be served on the defendant(s) in your lawsuit.

An attorney’s command of the requirements of process service is especially crucial in disputes over a deceased person’s property. The following case of Martin v. Martin  in the Second Circuit Court of Appeal is instructive. In that case, two of the adult children of John Martin, Sr. objected to his donation of his home in West Monroe to his third child, John Martin, Jr. By the time the lawsuit was filed, however, both John Sr. and John Jr. had passed away, leaving the title to the home in the name of John Jr.’s widow, Sharon Martin. The Martin siblings filed their action against Sharon personally and against the “unopened succession of John Alexander Martin, Jr.” for which no succession representative (also known as an executor) had yet been identified. Nevertheless, Sharon Martin answered “individually and as testimony [sic] legatee,” despite never being identified as the succession representative of her late husband’s estate. From there, the trial court considered the Martin siblings’ objections to John Sr.’s gift, including that John Sr. was not of sound mind and lacked the capacity to make the gift, and that the gift should be declared invalid because it left John Sr. without means of support. Ultimately, the trial court found in favor of the siblings.

On appeal, however, the Second Circuit focused its attention on a more fundamental question: whether Sharon Martin had standing to represent the unopened succession of her late husband. Under state law, one cannot bring an action against an unopened succession for which no representative has been appointed. See Minden Bank & Trust Co. v. Childs, 658 So. 2d 216 – La: Court of Appeals, 2nd Circuit 1995. Accordingly, the court reviewed the formal requirements in Louisiana for appointing a succession representative — including furnishing a security and taking the oath of office — after which the clerk issues the representative letters of administration. And, although the law provides a specific procedure for filing a suit against a deceased person for whom no succession representative has been appointed, ( see La. C.C.P. art. 5091) the Martin siblings did not make use of it. Therefore, the court concluded, there was “no showing that Sharon was ever appointed as the succession representative,” as there was “no proof in this record that she had been recognized by any court of this state as the succession representative.”

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chinese-take-away-box-1319752No one wants to ever get involved in a slip-and-fall lawsuit.  If your unfortunate enough to be injured in a slip and fall finding out who is responsible to pay for your injuries can become a troublesome matter. A recent Louisiana Fourth Circuit Court of Appeal opinion demonstrates just how complicated these lawsuits can get when a woman alleged she slipped and fell in the China Palace restaurant on South Carrolton Avenue in New Orleans.

As a result of a fall at China Palace, Debra Hershberger filed a lawsuit against the restaurant in July of 2011. China Palace leased its commercial space from LKM Convenience, L.L.C. It is important to note that LKM Convenience leased the space to China Palace, but it did not operate the restaurant. LKM Convenience did have insurance through Montpelier US Insurance Company, but China Palace was not named or insured under its policy. China Palace filed a third-party demand against Montpelier demanding defense and indemnification for LKM Convenience. At the same time, LKM Convenience named Montpelier as a defendant and demanded that the insurance company provide a defense and indemnification for China Palace, its tenant. Consequently, Montpelier filed exceptions of no cause of action and no right of action. The exceptions are legal objections to LKM Convenience’s lawsuit against Montpelier and China Palace’s demand. Ultimately, the trial court maintained the exceptions and China Palace’s and LKM Convenience action were dismissed with prejudice in May of 2014. They appealed that judgement to the Fourth Circuit Court of Appeal for the State of Louisiana.

On the appeal, the Fourth Circuit looked at whether the trial court erred in sustaining both exceptions and whether the trial court erred in not giving China Palace and LKM Convenience a period of time to amend their petitions. Ultimately, the Court of Appeals agreed with the lower court regarding all of the questions.

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old-truck-1451289-1024x768Buying a car is a huge endeavor for most people. Most of the time we do our due diligence and make sure we have a fair understanding of what we are purchasing. However, only so much information is under of our control. When buying a used car, we are often forced to go off of what the seller tells us about the vehicle. This can be nerve racking for many. It’s safe to say that the nerves tend to lessen when we are buying a used car from a certified pre-owned dealership, and the car is under warranty. Unfortunately, for two Louisiana men, a truck under warranty purchased from a reputable dealership caused more problems than were conceivable.

In March of 2005, Barnaby Martinez bought a 2004 Ford F-250 truck. In 2008, he began to experience problems with the engine. The problems were so severe that Mr. Martinez alleged that at times have to use both his feet on the break in order to prevent hitting other vehicles. Mr. Martinez asked his brother-in-law David Leija, a mechanic, to take the truck to the Ford Dealer. In July of 2008, Mr. Leija took the truck to Hixson Autoplex of Monroe.

Hixon replaced the EGR valve and injector on the truck and informed Mr. Leija that the problem was fixed. However, 5000 miles later, the same problem came about. Mr. Martinez continued to bring the truck to Hixon several times. He was told that the warranty would take care of the repairs. Hixon kept the truck days, weeks, and even a month at a time. After getting fed up with the truck and its issues, Mr. Martinez sold the truck to Mr. Leija, who was fully aware of the truck’s problems. In 2012, Hixon informed Mr. Leija that they could not fix the problem, and that because the truck was out of warranty, the cost of repairs was $3000. Mr. Leija never took the truck back to Hixon.

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Farm-Land-expropriation Gerald O”Hara from Gone with The Wind said it best, “The land is the only thing in the world worth working for, worth fighting for, worth dying for, because it’s the only thing that lasts.” While land ownership is a sacred right in this nation it does not prevent the state government from taking your land through a process called expropriation.That process requires that the State of Louisiana pay a fair price for private land that has been expropriated for public needs.  The state must be careful in ensuring that they pay full value for the expropriated land as Louisiana statutes allow the landowner to recoup attorney fees if they are successful in proving the payment was less than adequate.  The following case out of West Feliciana Parish demonstrates what can happen when expropriation doesn’t lead to fair compensation.

In 2005, the Louisiana Department of Transportation and Development (DOTD) filed a petition under La. R.S. 48:442, in which it sought to expropriate part of a tract of land owned by the James Munson. Munson owned over fourteen acres of land, on which he had operated a bed and breakfast, plant nursery, and gift shop called “Stillwater Farms.” The compensation for the expropriated land was estimated to be $143,654.00, an amount that was deposited into the register of the court, where Munson could withdraw it without prejudice to his right to contest the amount as inadequate.

Munson subsequently filed a  demand alleging the amount paid for expropriation of the property was insufficient to cover the value of said property. Munson also requested attorney fees pursuant to R.S. 48:453(E) as well as recovery of expert witness fees. At a jury trial, both Munson and the DOTD offered expert testimony regarding the amount of compensation due for the expropriated property. The jury found that the value of the expropriated property was $148,640.00, that the remaining property was not damaged from the expropriation, and that Munson was not due any additional compensation for loss. At a subsequent hearing on attorney fees, the court ordered DOTD to pay attorney fees, legal interest on the difference between the amount deposited and the determined value of the property, court costs, and expert witness fees.

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IMG_0723Imagine your child passed away in the most horrific way. You seek remedies in the court system, but the court does not recognize your right of recovery as a parent. What a nightmare. In Louisiana, a putative (unestablished) father must timely file an action for avowal (a father’s action to establish paternity) in order to maintain a wrongful death or survivor action for the death of a child born out-of-wedlock. Failure to do so may forfeit your legal rights. A recent case from the Louisiana Supreme Court discusses the pleading requirements regarding paternity in filing wrongful death and survivor actions.

In March of 2011, six-year-old La’Derion Miller was killed shortly after being involved in a gruesome accident with a school bus. While La’Derion was attempting to board the school bus his was caught in the door. Harold Thibeaux, the bus driver, was unaware of La’Derion’s predicament and La’Darion was dragged for approximately eighty feet. When La’Derion’s arm was dislodged, he fell beneath the wheels of the bus and was critically injured.  La’Derion died less than an hour later. His six years of life were cut short. Tragically, La’Derion’s mother, Heather Jagneaux, watched the entire incident from her front yard, but was unable to reach him in time.

La’Derion’s father, Marcus Miller, filed a lawsuit individually and on behalf of the estate of his deceased son. Mr. Miller sought damages for La’Darion’s pain and suffering inflicted by the bus driver’s negligence, as well as damages arising out of the wrongful death of his son. Mr. Miller’s lawyers named as defendants the bus driver, his insurance insurer, his employer, and his employer’s insurer.

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