Litigation

October 23, 2023

When Does Prescription Start To Run In False Imprisonment and Arrest Cases?

prison_jail_barbed_wire-1024x768 Prescription refers to the amount of time you have to file a lawsuit. If you do not comply with this procedural requirement, your case will be dismissed. In order to determine the date by which you must file your lawsuit, you need to know both the prescription period and when the period started to run. This case analyzes when the prescription period starts to run for false imprisonment and false arrest claims.

The Eunice Police Department arrested Paul Powell, Marlon Eaglin, and two others. They were charged with second degree murder. A few months after his release from prison, Eaglin filed a lawsuit against the police department, the city of Eunice, and the chief of police (the “defendants”) for false arrest and imprisonment. Over a year after their arrest, but less than year after they were released from prison, Eaglin amended his lawsuit to add Powell as a plaintiff.

The defendants filed an exception of prescription, arguing Powell’s claims were prescribed because he filed them over a year after the date of his arrest. Powell argued he had not exceeded the one-year prescription period because his claims related back to Eaglin’s claims, which had been filed within the required time period. Powell also claimed his false imprisonment claim was not prescribed because he had filed it within a year of being released from prison.

October 21, 2023

When Are Oil Companies Liable For Damage to Oyster Leases?

by Berniard Law Firm

oyster_oyster_roast_seafood-1024x683 While many people enjoy oysters, few people are aware how oyster leases work. This case involves a couple who held oyster leases that were harmed when a company decided to renter a nearby oil well. Can that company be held liable for the damages to the holders of the adjacent oyster leases?

Pero and Mary Ann Cibilic held oyster leases in a lake in St. Bernard Parish, Louisiana. Because of the lack of oysters following the BP oil spill and increase in prices, the Cibilics made a large investment to purchase and spread cultch, which is used for oyster cultivation. This resulted in the Cibilics having a good sized oyster crop in their leases.

Cox Operating started a project to re-enter one of its oil wells that was adjacent to the Cibilic’s oyster leases. Ships has to cross over the Cibilics’ leases in order to reach the well. To turn to the well, ships had to go down and back up with their propellers, which resulted in sedimentation harming the Cibilics’ oyster beds.

October 20, 2023

Worker Did Not Commit Fraud In Pre-Work Medical History Questionnaire

by Berniard Law Firm

fire_department_resuscitation_1256591-1024x768 Honesty is the best policy. This is especially true in the workers’ compensation space, because if you are found to have been fraudulent, you forfeit your right to workers’ compensation benefits.

Before Alex Turner started working for Chicago Bridge, he completed the Louisiana Office of Workers’ Compensation Second Injury Questionnaire. He then started working as a carpenter’s helper for Chicago Bridge at a site in Hackberry, Louisiana. Approximately a month after he was hired, Turner injured his back while on the job. He immediately reported his injury to his supervisor and was taken to the onsite medical facility.

Chicago Bridge reassigned Turner to sedentary work. Turner complained the work still hurt his back because he had to lean over a table, so he refused to complete the sedentary work. He was eventually fired for insubordination. In Turner’s workers’ compensation case, the workers’ compensation judge found he was entitled to Supplemental Earnings Benefits and denied Chicago Bridge’s argument Turner had forfeited his right to workers’ compensation benefits by committing fraud.

October 19, 2023

Causation in Personal Injury Cases: Analyzing the Impact of an Accident on Pre-existing Injuries

by Berniard Law Firm

surgery_eye_health_operation-1-1024x681 “Causation is an issue of fact.” “It is the test for determining the causal relationship between an accident and an ensuing injury.” D’Angelo v. Guarino. This definition was vital in the following case.

In this case, court records revealed that Dwayne Levine (Plaintiff) was involved in an accident in 2012 that required two surgeries to his right ankle: one to help stabilize it and the other to fuse his bones to his ankle. In early 2013, the Plaintiff was recovering and about to transition from a boot to a shoe, though he still reported faint pains.

However, on July 26, 2013, before the Plaintiff’s six-month follow-up, he re-injured his right foot when he slammed on his car brake to avoid a road collision. Soon after the incident, the Plaintiff experienced pain and went to the hospital. There, he received a splint and medication. At his follow-up visit, he did physical therapy and was given more pain medication. When his pain continued, a CT scan revealed the sub-talar joint had not fused since his initial surgery. As a result, a revision surgery was done in October 2013 to fuse the joint and remove the metal implant. A skin graft procedure was also done to stop an infection and care for the injury.

October 4, 2023

Expert Witness Testimony Key For Defense Victory In Lawsuit Involving Car Accident

by Berniard Law Firm

accident_auto_crash_car-1-1024x768 Car accidents can often give rise to lawsuits with complicated issues of causation and damages. Often, one or both sides will have expert witnesses to help explain complicated issues to the jury. What happens if one side argues the other side’s expert witness should not be allowed to testify as an expert witness?

Sherman Turner was driving an 18-wheeler owned by AAA Cooper, his employer. While on the job and making a delivery in Alexandria, Louisiana, he accidentally missed where he was supposed to turn. Turner turned into another street to turn around the 18-wheeler. Chelsea Mace claimed she turned on to the same street as Turner, saw the 18-wheeler, and stopped her car five feet behind it. She claimed while her car was stopped, Turner started to reverse the 18-wheeler and ran into her car. Mace claimed as a result of the accident, she injured her back and her doctor recommended she undergo a lumbar fusion. A jury found Turner was not at fault for the accident. Mace appealed.

On appeal, Mace argued the trial court erred in allow defendant’s expert, Joseph Peles to testify as an expert in accident reconstruction and biomechanical engineering. Article 702 of the Louisiana Code of Evidence governs whether given expert testimony is admissible. At trial, Mace filed a Daubert challenge, arguing Peles should not be allowed to testify as an expert. Prior to being qualified as an expert, Peles explained his education and professional background involving biomechanical engineering and reconstruction.

October 2, 2023

How Long Do You Have To File A Legal Malpractice Lawsuit?

by Berniard Law Firm

hammer_books_law_court-1024x768 If you retain a lawyer, you expect they will fairly represent you. What happens if after you hired a lawyer, you learn that lawyer had previously represented one of the parties you are suing, multiple times? Just like in other lawsuits, it is essential that you file any lawsuit within the required time period for bringing a claim. If you wait too long, then a court may be unable to hear your claim.

A tractor trailer hit John Hoogacker’s vehicle while he was driving in Orleans Parish, Louisiana. Hoogacker hired Charles Hughes Jr. to represent him in a lawsuit against the truck driver and the truck’s owner. Hughes filed the lawsuit, brought on Brian Trainor as co-counsel, and retained expert witnesses. During a mediation, Hoogacker first learned Hughes had previously represented the truck’s insurance carrier multiple times. Hoogacker claimed Hughes pressured him to sign a settlement agreement. Hoogacker refused to comply with the settlement agreement.

Hughes and Trainor filed motions to withdraw as Hoogacker’s counsel and to enforce the settlement. Hoogacker retained new counsel and agreed to proceed with the original settlement and release Hughes and Trainor from any claims. Hoogacker then file a lawsuit against Hughes and Trainor, alleging they conspired to commit fraud with the truck’s insurance carrier by not disclosing that Hughes had previously represented the carrier multiple times. Hughes and Trainor filed a motion claiming Hoogacker had no cause of action against them and had waited to file his lawsuit. The trial court granted the motion.

October 1, 2023

No Underinsured Motorist Coverage When Damages Less Than Responsible Party’s Policy Limit

by Berniard Law Firm

car_accident_bellingham_fire-1-1024x683 If you purchase an under or uninsured insurance policy, you might expect it to cover you if you are involved in a car accident. However, such insurance policies only apply in limited circumstances. By understanding your under or uninsured insurance policy and what evidence is required to establish your damages, you can avoid surprises down the road.

Tracy Brumfield was driving near Independence, Louisiana in her pickup. As she slowed to a stop, a car that Jacob Currier was driving hit into the back of her truck. Although Brumfield tried to turn to avoid hitting another car, her front door to hit into the rear bumper of the car in front of her, which allegedly hurt her leg and back.

Brumfield filed a lawsuit against Currier, his insurer, and Allstate, who was the carrier for her under or uninsured motorist policy. She claimed Allstate was liable to her for all available relief under La. R.S. 22:1892 and 22:1973, including attorney fees and costs. At trial, Allstate stipulated Currier was solely at fault for causing the accident. However, Allstate moved for an involuntary dismissal of Brumfield’s claims for attorney fees and penalties. Allstate argued Brumfield had not proven her claim’s value exceed Currier’s liability policy limits. Allstate also claimed it had not been arbitrary capricious in failing to pay Brumfield, so she was not entitled to recover penalties and attorney fees.

September 30, 2023

When Are You Entitled To Have Counsel Appointed In A Section 1983 Case?

by Berniard Law Firm

police_policemen_guards_security-1024x702 Although the Constitution provides for the right to an attorney in criminal cases, this right does not apply to civil cases. What happens if you bring a claim for excessive force but your attorney withdraws? Are you entitled to have counsel appointed to represent you?

Bobby Byrd was arrested on suspicion of burglary. Byrd filed a lawsuit against the cities of Bossier and Shreveport and four police officers under the Louisiana Constitution and 42 U.S.C. § 1983. He alleged the officers had used excessive force when arresting him. The defendants all filed summary judgment motion, which the district court granted and dismissed Byrd’s claims. Byrd filed an appeal.

The appellate court reversed the district court’s grant of summary judgment for three of the police officers, finding there were genuine issues of material fact about how those officers had acted. Because Byrd’s counsel had withdrawn prior to trial, he filed a motion that the court should appoint him counsel under 28 U.S.C. § 1915(e)(1) and pursuant to the Americans with Disabilities Act as he had several mental illnesses. The district court denied Byrd’s motion, explaining there were no exceptional circumstances. Further, nothing in the Americans with Disabilities Act required the court to appoint Byrd counsel.

September 29, 2023

Patient Awarded General Damages Where Surgeon Failed To Review Pre-Operative Test Results

by Berniard Law Firm

surgery_eye_health_operation-1024x681 Undergoing a surgery is always a nerve-wracking experience. You want to be able to trust that your surgeon conducted and reviewed the appropriate pre-operative tests. Can a surgeon be held liable if he or she fails to review the results of the pre-operative tests before performing the surgery?

Roger Burchfield was admitted to Willis-Knighton Medical Center to receive non-emergency surgery on his gallbladder. Before the surgery, Burchfield’s surgeon, Forrest Wright, ordered a chest x-ray and EKG. However, Wright did not review the results prior to performing the surgery. If Wright had reviewed the tests, he would have seen Burchfield had congestive heart failure and multiple other possible heart issues. Burchfield himself did not know he had these heart issues.

The surgery was successful, and Burchfield went home. However, about a day later, Burchfield started experiencing swelling. He went to the emergency room and was admitted into the hospital. The hospital found Burchfield had suffered a heart infection, respiratory failure, heart failure, and other issues. He was put in a medically induced coma before undergoing a heart transplant. Although Burchfield recovered from the transplant, he was no longer able to work as a mechanic and requires medical care for the transplant for the rest of his life.

September 8, 2023

Employer succeeds in Summary Judgment Motion in a Retaliatory Hostile Work Environment.

by Berniard Law Firm

usps_post_office_building-1024x757 In the bustling corridors of the U.S. Postal Service in Istrouma, Louisiana, a tale of workplace strife and legal intricacies unfolded. Catherine J. Valdry, a dedicated mail carrier, found herself entangled in a web of allegations against her supervisor, Clifton Maryland, a Customer Service Manager. What began as a refusal to join Maryland on a fishing trip soon spiraled into an alleged hostile work environment, as Valdry claimed she faced emotional distress and aggressive conduct. When she summoned the courage to report Maryland’s behavior, the situation took a turn for the worse, with ominous warnings and intensified micromanagement. Valdry’s pursuit of justice led her to the courtroom, where she aimed to prove her case, facing the challenging task of establishing a retaliatory hostile work environment. This article delves into the legal intricacies of her journey, from the district court’s initial ruling to the appellate court’s ultimate decision, which ultimately declared the case moot.

Valdry filed a retaliatory hostile work environment lawsuit. When bringing forth a prima facie case of retaliatory hostile work environment, the district court stated the harassment must be severe and affect the complainant’s employment. In response to the lawsuit, Maryland filed a motion of summary judgment. Summary judgment is appropriate when there is “no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” The facts are considered in the light most favorable to the nonmoving party. Galindo v. Precision Am. Corp.

The district court granted the summary-judgment motion, although the Fifth Circuit was undecided on whether the retaliatory hostile work environment claim was applicable under Title VII. The district court also presumed the motion would consider all events occurring after Valdry’s internal complaint about Maryland on September 13, 2013.