Articles Posted in Miscellaneous

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Imagine taking your mother to the emergency room for abdominal pain and vomiting. A CT scan and x-ray do not reveal any serious medical issues, and blood work merely shows that her potassium level is low. But within a few hours, she is dead. Now imagine witnessing her death – seeing her break out in convulsions, foam at the mouth, gasp for breath, and lose consciousness.

Such was the experience of one of Virginia Martin’s thirteen adult children. Ms. Martin’s daughter, Betty Farmer, brought her to the emergency room after Ms. Martin complained of abdominal pain, vomiting, and diarrhea. Ms. Martin was 69 years old, and she was otherwise in very good health at the time of her hospital visit. She did not have any heart problems or other serious health-related issues.

The ER physician determined that she suffered from simple gastroenteritis. A chest x-ray came back normal. Ms. Martin began to receive pain medication via an IV, and her blood work revealed that her potassium was low. A CT was performed and showed that there were no abdominal abnormalities that could have caused her gastric distress. Ms. Martin returned from the CT scan to the ER at 9:35 p.m. By 9:44, Ms. Martin started convulsing, her face turned red, she began to foam at the mouth, and her eyes rolled into the back of her head. She lost consciousness, and efforts to resuscitate her failed. Her cause of death was listed as acute cardiac arrhythmia and arteriosclerotic heart disease.

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In Louisiana, a civil law doctrine known as “prescription” limits the amount of time that may pass before someone files a lawsuit. Prescription is the extinction of a right of recovery and occurs due to a failure to exercise that right over a period of time. In other states, this doctrine may be referred to as a statute of limitations or a statute of repose. Louisiana’s prescription period for filing a lawsuit based upon personal injury is one year. Often this doctrine is not an issue in litigation, but in a recent case in St. Tammany Parish, one doctor’s objection of prescription has fundamentally altered the life of a woman, alleging to have suffered from medical malpractice.

On November 21, 2008, Glenda DeBram was hospitalized by her attending physician, Dr. Keshelava, after complaining of painful urination, fever, and cough. On October 15, 2009, pursuant to LSA-R.S. 40:1299.47(A)(2)(a), Ms. DeBram filed a request for a medical review panel with the Patient’s Compensation Fund. According to her request, Ms. DeBram alleged that St. Tammany Parish Hospital and Dr. Keshelava fell below the standard of care owed to her between November 21, 2008 and October 20, 2009. Subsequently, Dr. Keshelava filed a peremptory exception raising the objection of prescription, arguing that Ms. DeBram’s complaint was prescribed on its face as it was filed on January 29, 2010, which was more than one year following her discharge from the hospital stay during which she claims Dr. Keshelava and the hospital breached the standard of care. As such, on September 16, 2010, the trial court sustained the exception and dismissed Ms. DeBram’s medical malpractice claims.

The prescriptive period for a medical malpractice claim is contained in LSA-R.S. 9:5628A. Any action seeking damages, regardless of whether for a fatality or the severity of injuries, and whether against a doctor, nurse, or the hospital within which they work, may be brought unless the action is brought within 365 days (1 year) from when the incident or injury occurred or was found to have occurred, regardless of whether the act was that of unintentional or intentional neglect, omission or some other form of injury. Even with claims filed within the time limit, the law suit must be filed within three years of the incident’s occurrence, regardless of discovery

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Under the respondeat superior legal theory, an employer can be held liable for his employees’ acts that occur within his scope of employment. This means that a truck company, for example, may be held responsible for an accident caused by one its drivers who was speeding or intoxicated while driving his route. This doctrine can be complicated when questions arise as to whether or not the employee was within the scope of his employment, or whether the person who caused the injurious accident was in fact an employee.

To determine scope of employment, one must look to what the employer pays the employee to do and what, exactly, the employee was doing when the accident occured. If a truck driver deviated from his route to go to a bar, for example, then it will likely be determined the driver was engaged in frolic for his own benefit and therefore was not within the scope of his employment. This means if an accident occurs while that truck driver is on his way to the bar, then the truck company will not be held liable. If, on the other hand, the truck driver had to deviate from his standard route because of a flooded road, then the detour is still considered to be to the employer’s benefit and within his scope of employment. An accident that occurs while on detour will still be imputed to the truck company.

A recently decided case by Court of Appeal for the First Circuit helps illustrate issues of determining the employee/employer relationship. The importance of this aspect is if the party responsible for the accident is found to be an independent contractor rather than an employee, liability cannot be placed on the employer. So, in the case heard on appeal by the First Circuit, a woman who was injured by the negligent driving of a delivery van driver sought to join the subcontracting broker and the delivery service that hired the individuals responsible for the accident. To determine whether an independent contractor relationship existed, the court looked to case law and the facts before it.

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Work-related injuries, especially in construction, are not uncommon. However, the outcomes in workers’ compensation cases vary because the contractual relationship between the parties is often not clear. Under Louisiana law, workers’ compensation is provided to an employee if they’re injured by an accident “arising out of” and “in the course of” his employment with a statutory employer. However, the issue centers on whether the defendant is a statutory employer thereby limiting the plaintiff to workers’ compensation as their sole remedy. If a valid, written contract recognizes the existence of a statutory employer relationship, it creates a rebuttable presumption; this requires careful interpretation of the terms of the contract.

On August 12, 2008, Louis Fox (hereinafter “plaintiff”), employee of Foster Wheeler North America Corp. (hereinafter “Foster”), was assisting with the installation of boiler units at the Rodemacher Power Station near Lena. While working inside a cyclone tower, the plaintiff alleged that he sustained an injury when an object fell from above striking his head and neck. The plaintiff sought damages beyond workers’ compensation against several defendants including CLECO Power (hereinafter “CLECO”), owner of the power station, and general contractor Shaw Constructors, Inc. (hereinafter “Shaw”).

The installation of the boiler units was the result of a written contract between CLECO Power, owner of the station, and Shaw Constructors, Inc. As general contractor, Shaw selected Stone and Webster, Inc. (hereinafter “Stone”) to take charge of engineering and procurement services. Stone then entered into a purchase order agreement with Foster for the sale and installation of the boiler units.

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A recent case appealed from the Parish of East Baton Rouge provides a great example not only of the potential difficulties of recovering damages for negligence from a merchant, but also of summary judgment and how it works. In November 2006, the plaintiff entered the defendant’s store, tripped on what she claims was a ‘flipped-up’ doormat, and struck her head on some shelving. She was injured as a result and tried to recover damages from the merchant, claiming that she was injured as a result of the merchant’s negligence in maintaining the premises. The trial court granted summary judgment in the merchant’s favor, and the appellate court affirmed.

If someone is injured while lawfully on a merchant’s property and wishes to recover damages for negligence from that merchant, they must meet four requirements provided by Louisiana law. The claimant must show that their injury was the result of an unreasonably dangerous condition on the merchant’s property, that the danger presented by that condition was reasonably foreseeable, that the merchant knew or should have known of the danger prior to the claimant’s accident, and that the merchant did not take reasonable steps to correct the situation.

Summary judgment is rare and requires clearing some pretty high hurdles. A court must first find that there is no genuine contention as to any facts that might influence the outcome of the case. If the court so finds, then it will simply apply the law to the relevant facts and rule in a party’s favor as a matter of law, perhaps before there is even a chance for a trial. Where the party moving for summary judgment will not bear the burden of proof at trial, for instance if that party is a merchant defending against a negligence claim, then s/he need only show the opposition’s inability to prove or disprove one or more key elements of his/her action or defense. The opposing party must then answer somehow to prove that s/he will be able to prove the element(s) in question at trial, or lose on summary judgment.

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Louisiana merchants must keep their premises safe not only for their guests or customers but also for any person invited onto the property for business purposes. This also includes persons delivering goods to restaurants like in the case of Jones v. Jula Trust, LLC.

Jones was a deliveryman for Pepsi. En route, he stopped at a Jennings Popeye’s restaurant to deliver some Pepsi products that morning. While pulling his loaded dolly through the restaurant’s back door, he slipped and fell. His slip caused the boxes of Pepsi to topple on top of him. About a year after his accident, Jones initiated suit against Popeye’s by filing against the landlord of the property, JULA Trust, LLC. Jones claimed that either water or grease on the floor caused his fall, but he could not explain where the substance had come from. The Popeye’s manager said that he had conducted a walk-through inspection of the premises that morning and had not seen anything slippery on the floors. Nor had any employees notified him about any slippery substance on the floor the morning of the accident.

La. R.S. 9:2800.6 requires a merchant to maintain the through ways of the premises in a safe manner, and in a condition so as to not cause harm to patrons. The burden of proof remains with the plaintiff to show the following elements: (1) The conditions at hand posed a reasonably foreseeable danger to the injured person in the case, and that the harm was not a reasonable harm one would expect in the situation; (2) The merchant, prior to the incident, caused the conditions responsible for, or could have prevented the accident, after becoming aware of the problem; (3) The merchant violated the standard of care necessary for the situation. Not having a written or verbal safety and cleanup code is not enough on its own to prove that a standard of care was violated when evaluating reasonable care in a situation or incident.

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It is vital to know proper court procedures at the outset of litigation or else an otherwise valid claim might be thrown out of court without ever being heard. One prime example is the need to send initial court documents to a defendant within a set deadline (sending such documents, such as a citation or summons, is known as service of process). Case in point, the Lafayette Parish Court of Appeal, in Boka v. Oller, recently upheld the dismissal of a claim without even considering the merits because service of process was delivered too late. Therefore, it is important to know the rules before bringing a lawsuit or a good claim might be lost due to a mere technicality, such as delivering papers too late. For a non-lawyer, an attorney can be instrumental in making sure proper procedures are followed so that the party has a chance to present their case in court.

In Lafayette Parish, Louisiana Code of Civil Procedure Article 1201 requires that service of the citation must be requested within a deadline of ninety days from commencement of the action. Article 1201 also notes that service of process on defendants is “essential” and “without them all proceedings are absolutely null.” The deadline for service is to ensure that defendants are aware of an action and have enough to prepare. Therefore, as a delay in service is deemed unfair to the defendant, a court may dismiss a claim if service of process is sent too late.

There are some limited exceptions to the rule, but, due to the risks involved in these exceptions, generally a party should attempt to serve process on time. For example, one exception permits late service if there is good cause for the delay. However, as the court is unlikely to accept run-of-the-mill excuses for delays, proving a good cause for failure to serve process on time can be difficult. As noted below, the court in Lafayette Parish found that there was no good cause for late service as the plaintiff knew the defendant’s address.

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Companies manufacturing items that are inherently dangerous in the course of its normal use have certain legal obligations under products liability law. This case illustrates the necessary components of a successful products liability claim in Louisiana.

The plaintiff was working on a backhoe to clean out a drainage culvert when the clamps holding the vehicle’s hydraulic lines broke free and caused the lines to spew out hydraulic fluid. While attempting to reconnect the clamps, the plaintiff fell off the vehicle and was injured. He brought suit against the backhoe’s manufacturer and claimed that the company knew of the existence of an alternative design of the clamps that would better protect the hydraulic lines from leaking.

The trial court denied two separate motions for summary judgment by the defendant finding there were issues of material fact that precluded the granting of a motion for summary judgment. Subsequently, the plaintiff filed his own motion for summary judgment against the manufacturer under the Louisiana Products Liability Act (LPLA) which the court granted. The manufacturer appealed the trial court’s decision, and this appeal followed.

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A class action suit occurs when a group of people bring a case together as representatives of an entire class of people who are similarly situated. In order to bring a class action in Louisiana, a judge must certify the class. This means that the class of plaintiffs meets the requirements for their class action to go forward. One of the requirements a class must meet to be certified is that it must have what is known as numerosity. In Louisiana numerosity is defined as meaning that the class is too large for the individual plaintiffs to pursue their claims separately or it is too large for the individual plaintiffs to be joined to the case in a practical manner. The following case illustrates what happens when questions about numerosity arise in a class action.

On May 15, 2009 a vacuum truck owned and operated by Environmental Services, Inc. was driving on Louisiana Highway 27 between Singer and DeQuincy when a valve broke and 300-500 gallons of motor oil leaked out onto the highway. The leak was discovered when the truck arrived in DeQuincy, and the impacted portion of the highway was closed within approximately 15 minutes of the truck’s arrival.

The plaintiffs seeking to certify this class action brought suit alleging that they suffered physical injury due to inhaling the fumes from the spilled motor oil and also alleged that they suffered damage to their vehicles and livestock in their vehicles from driving over the spilled oil. The plaintiffs sought to certify a class that included everyone who drove over the spilled oil before it was cleaned up.

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When treatment provided by a health care professional falls below the accepted standard of practice in the medical community and causes injury or death to a patient, it is said that medical negligence or medical malpractice has occurred. To establish a claim for medical malpractice, a plaintiff must prove: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. These three elements must be proven by a preponderance of the evidence, which is the requirement that more than fifty percent of the evidence be in the plaintiff’s favor.

Nearly a month after surgery, it was discovered that John Roberts had been suffering from a staph infection after having a vasectomy performed by, urologist, Dr. Don Marx. On November 17, 2010, Mr. Roberts filed a lawsuit against Dr. Marx seeking damages for allegedly failing to provide appropriate medical care and treatment and diagnosis of the surgery’s complications. In addition to those allegations, Mr. Roberts’ complains that Dr. Marx failed to inform him that just days before performing Mr. Roberts’ vasectomy procedure, the doctor himself had undergone eye surgery after losing part of his vision in his right eye.

After the filing of the initial complaint, Dr. Marx moved for judgement as a matter of law and argued that Mr. Roberts would be unable to adequately prove his case at trial due to the lack of expert testimony to establish a breach of duty by the Dr. Marx.  Accordingly, the trial court agreed with Dr. Marx determined that no genuine issue of material fact existed and granted summary judgment against Mr. Roberts.

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