Articles Posted in Miscellaneous

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When a company defrauds the government, the taxpayers literally pay the costs for that crime. A whistleblower is someone who brings that fraud to the attention of the government or the public. At times, whistleblowers are fired from their jobs, and some seek to bring suit against the company. The whistleblower has to send the complaint to the government first, and if the government refuses to take over the case, then the whistleblower can bring suit on behalf of the government and seek recovery of the money that was fraudulently obtained. Under federal law, such actions are known as qui tam cases.

In qui tam cases, the whistleblower is known as the relator, as they are the one who relates information about the fraud to the government or the public. Depending on the specifics of the case, a relator is entitled to receive a portion of any award obtained on behalf of the government. While this may sound like easy money, the case of Stennett v. Premier Rehabilitation Center shows that qui tam actions can be very difficult to win in court.

From March 2007 to September 2007, George Stennett served as the Administrator of the Premier Rehabilitation Center in Monroe (Premier). He oversaw the company’s financial practices and business relationships. Mr. Stennett claimed that he discovered some of Premier’s billing practices violated both Medicare and Medicaid requirements; and he also claimed that he informed the company’s owners, Mr. Joubert and Mr. Markstrom.

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A summary judgment is strong medicine. When a trial court grants a motion for summary judgment, it precludes the non-moving party from having their case go to the jury and in some cases from presenting any evidence at all. Because this remedy is so potent, the granting of a motion for summary judgment is reviewed de novo on appeal. A summary judgment is a matter of law not a matter of fact so the trial court is not in any way in a better position to make this decision. The appellate court uses the same standard of review as the district court.

Wal-Mart Louisiana, L.L.C. was granted a summary judgment against Jean and Robert Gray. The trial court found that they had not presented any genuine disputes of material fact. The plaintiffs appeal was granted and a new trial ordered because the appellate court found that there were genuine issues of material fact. The appellate court reversed the trial court’s decision after commenting upon the meanings of the words “genuine” and “material.”

The appellate court found that a fact was “material” if when it is resolved in favor of one party or another it affects the outcome of the case under the governing law. A fact will only be found to be material if it could actually matter to the trial court’s decision. If a fact would not have any bearing on the case it cannot be deemed material. Facts that are presented that are immaterial do nothing to prevent a trial court from granting a motion for summary judgment.

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Back in 2000, a woman, Ms. Cheney, left her children with a man she knew in Louisiana, Mr. Peters. Shortly thereafter, Ms. Cheney gave Mr. Peters provisional custody of the children. Mr. Peters cared for the children just as a father would.

In 2004, the children were attending Oakdale Middle School when their mother suddenly showed up to take them out of school and move them to Texas. At this time, Ms. Cheney showed the principal of the middle school her provisional custody mandate. On the mandate, it said that the mandate would be effective until it was revoked in writing or one date from the signing date (August 2, 2001), whichever is shorter. Ms. Cheney also showed the principal the children’s birth certificates, which showed that she was their biological mother.

When the principal began reviewing the children’s records, however, she noticed a note saying that Mr. Peters has custody. Just to make sure that she was doing everything right, the principal called the police and the district attorney to make sure that she properly dealt with the custody issue. Just to be extra cautious, the principal was told to make sure that Ms. Cheney fill out paperwork to expressly revoke the custody mandate. The school counselor helped her make sure that all of the proper paperwork was filled out.

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Many laws or actions include a statute of limitation which provides for a certain length of time for claims to be brought. After that time runs out, the claim can no longer be brought in court. The case of Joseph v. Bach & Wasserman illustrates just how important the statute of limitations can be to a case.

The case arose out of an alleged insurance fraud regarding several retail food trailers in Jean Laffite. The Josephs alleged that Wasserman defrauded them by charging them rent from properties he had illegally possessed from them. They also allege that Wasserman was supposed to place them on the insurance policy for the properties in question, but never did despite charging them insurance premiums. Wasserman in turn claimed that the Josephs owed him $375,000 in back payments. In 2004, the Josephs state that they found out that they did not owe Wasserman any back payments and he had charged them exorbitant fees. They filed suit in Orleans Parish in December 2004. In January 2005, the state court found deficiencies in the Josephs’ claim and gave them fifteen days to correct the problems, but the Josephs failed to respond and their state claim was dismissed with prejudice.

In 2011, the Josephs filed a complaint in federal district court alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and various state law claims. On February 8, 2012, the federal district court granted Wasserman’s motion to dismiss and declined to exercise jurisdiction over the state law claims. This case deals with the Joseph’s appeal of the district court’s decision.

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The exception of prematurity determines whether a plaintiff has fulfilled a condition prior to filing suit. That is, in some occasions, Louisiana law requires a complaining party to bring the case somewhere else before they can actually file the case in court. Generally, that means that an administrative remedy exists elsewhere, and the complaining party should use that avenue first instead of the court.

There are two burdens involved in the exception of prematurity. The first is on the party raising the exception. The party raising the exception should prove that there is another remedy elsewhere available and that the complaining party failed to exhaust their administrative options before bring the case to court. Once the party raising the exception has satisfied their buren, then the burden shifts to the plaintiff to prove that he or she has actually exhausted all of the options before bringing the case to the courtroom. See Mosley v. Louisiana Dept. of Public Safety & Corrections, et. al., 07-1501 (La. App. 3d Cir. 4/2/08), 980 So.2d 836.

A case arising from Deridder Louisiana in the Parish of Beauregard shows an example of the exception of prematurity. In that case, the plaintiff was a patient at Westwood Manor Nursing Home following a surgery on his skull. While an attendant was moving the plaintiff, the plaintiff struck his head against a wall and had to have immediate surgery. It is alleged that one worker moved the plaintiff while the other watched, but the second person did not help the first when the first lost his balance, causing the plaintiff to hit his head against the wall. The plaintiff allegedly suffered permanent damage as a result of the collision with the wall.

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The case of Williams v. C&E Boat Rental shows how important it is to hire attorneys who navigate court proceedings in line with judicial expectations. This post’s case arose out of a maritime injury claim and centered around comments made by the defense attorney during closing arguments.

In 2007, Williams was a deckhand on a boat owned by C&E. He alleged that he was injured by fumes while cleaning out the vessel’s lube oil tanks. Later that year, he hired an attorney and filed suit against C&E. The suit was voluntarily dismissed the day after it was filed. In 2009, Williams re-filed his suit against C&E alleging negligence and unseaworthiness. After the defense made its closing statement, Williams moved for a new trial claiming that statements the defense made during its closing argument were inappropriate and prejudicial. The defense made six different statements that Williams argued were prejudicial, specifically regarding the fact the statements alleged various types of misbehavior on the part of Williams’ attorney.

When discussing closing statements, an important evidentiary requirement is that statements made during closing argument must have some basis in evidence that was presented to the court. This is an issue of fundamental fairness as the opposing side would not be able to challenge the validity of such statements.

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You have probably heard the phrase “accidents happen.” But if you are in an accident, the first thing that you want to ask is who is at fault. With all of the chaos that can be part of an accident, sometimes the answer to this question isn’t always clear. This is when comparative fault, also known as comparative negligence, comes into play. In general, negligence refers to conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. Comparative negligence is different from ordinary negligence in that ordinary negligence is a failure to exercise the care that a reasonable person would exercise in similar circumstances whereas comparative negligence describes conduct that creates an unreasonable risk to one’s self.

In 1979, Louisiana Civil Code Article 2323 was amended to provide for a pure comparative negligence regime where a plaintiff’s own contributing negligence did not bar the recovery of damages, but merely reduced it by his or her own portion of fault. The Louisiana Legislature, in 1996, further amended the Code, making Louisiana a “true” comparative fault jurisdiction and the language of that amendment provided:

In an action for damages where a person suffers injury … the degree or percentage of fault of all persons causing or contributing to the injury … shall be determined, regardless of whether the person is a party to the action, and regardless of such person’s insolvency, ability to pay, immunity by statute …

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When cases are appealed, the appeals court must grant a great deal of deference to the lower court as the fact-finder. The lower court sees both parties at trial and deals extensively with all of the circumstances of the case. The appeals court, however, may see the parties, but does not listen to testimony or review the facts nearly as extensively as the lower court. Often, the only facts that are presented are those in the record of the lower court. Where the lower court has leeway to find additional facts, the appeals court has no such ability. However, the appeals court does have the discretion to adjust findings of the lower court should they find that the lower court’s determination is not supported by the evidence in the record. Damages are generally vulnerable to changes at the appeals level.

Deference to the trial court may occasionally produce some results that one might question. For example, in a case appealed from the Abbeville City Court in the parish of Vermillion, the plaintiff, who was also the sole witness, and evidence seemed questionable, but because the lower court found in her favor, the appeals court had to defer to the lower court’s version of the facts. In that case, the plaintiff sought damages related to a car accident. The question of fault in the car accident was clearly on the other driver, but the issue in the case revolved around the plaintiff’s request for damages related to her injuries.

The plaintiff was involved in at least six car accidents in the past twenty years. The two most recent occurrences, however, were the issue in this case. The first accident involved the other driver in question. The second accident occurred one month later; she was at fault and it was much more serious because the air bag deployed in the second crash, but not in the first. Nonetheless, the plaintiff attributed back pain, neck pains and severe headaches to the first accident, which was not her fault.

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A medical malpractice claim in Natchitoches, Louisiana was dismissed by the District Court, but on appeal, the Third Circuit Court of Appeals reversed, keeping the claim alive. What led to the different outcomes was a difference in interpretation of the applicable Louisiana statute.

The claim was brought by the husband and children of 62 year old Margaret Benjamin, who was treated for abdominal pain by Dr. William Zeichner at Natchitoches Parish Hospital. Dr. Zeichner performed a surgery, and seven days later Mrs. Benjamin returned to her home in Lynwood, California. Enduring frequent vomiting, she was admitted to the Intensive Care Unit of St. Francis Medical Center a few days later. The source of the problem was a small bowel construction. Tragically, she passed away a few weeks later.

Mrs. Benjamin’s family brought a medical malpractice claim against Dr. Zeichner, alleging the small bowel construction that caused her death was due to Dr. Zeichner’s manipulation of her bowel. They also argued that Dr. Zeichner’s surgery was below the standard of care. They offered an expert witness, Dr. James Shamblin, to testify that Dr. Zeichner breached the standard of care in this case, causing Mrs. Benjamin’s death.

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Automobile accidents create questions of coverage and liability – the only problem is how to answer those questions. Who is liable? Are you covered? If you are covered, to what extent are you covered? If you are covered, are your passengers covered? The final point is a more complex question to which recent case law has provided guidance for us.

In February of 2009, an uninsured motorist crashed into a vehicle owned by Ann Bernard. Ann was the driver and she had two passengers with her, Andrea and Norell Bernard, both members of her family not living in her household. Ann filed suit against her insurance provider, Imperial Fire & Casualty Insurance Company in order to obtain uninsured/underinsured motorists coverage under Ann’s Imperial policy. This type of coverage was named “UM” coverage. Ann believed that herself, Andrea, and Norell were all “using” the vehicle and were, accordingly, all insured persons as defined under her policy; thus statutorily entitling them all to coverage under Louisiana law.

In her filing, Ann referenced La. R.S. 22:1295 which states, in relevant part:

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