Articles Posted in Miscellaneous

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It is no secret that evidence and witness testimony are arguably the two most important aspects of injury litigation and the impact that each has on the outcome of an adjudication can either make or break your case. In order to understand these effects more fully, it is important to note that there is a difference between an ordinary and an expert witness. Ordinary, factual witnesses provide knowledgeable accounts of the facts of the case through either their direct participation or observation of the intricacies of the case, whereas expert witnesses hold specialized knowledge in a particular educational field and use this advanced knowledge to clarify or explain a piece of information. Ordinary and expert witnesses are viewed differently in the eyes of the court system and are governed under separate sections in the Federal Rules of Civil Procedure due to this distinction.

Unlike an ordinary witness, an expert witness is only permitted to testify at trial once an expert report has been filed with the opposing party. This is necessary to alleviate any future misunderstandings concerning the nature and purpose of the expert’s review and this extra measure fosters preparation, awareness and allows the parties to put their best foot forward during trial. Harmon v. Georgia Gulf Lake Charles, LLC, a recent opinion handed down from the United States Court of Appeals for the Fifth Circuit, illustrates the importance of complying with the mandatory standards regarding expert witnesses and the permissibility of their testimony and how not doing so can cause a party to conclude that it has insufficient evidence upon which to proceed to trial. This case involved injuries caused by an industrial accident in Westlake, Louisiana.

In this case, the Court held that Harmon did not properly comply with Federal Rule of Civil Procedure 26(a)(2)(B) and therefore, it decided to uphold the exclusion of imperative expert testimony. In 2006 and 2007, Ms. Harmon and four others claimed to have been injured when toxic chemicals were released into the air due to a fire and an explosion at the Georgia Gulf’s chemical facility in Westlake, Louisiana. Before trial was set to begin, the magistrate entered an order requiring Ms. Harmon and the other four plaintiffs, respectively, to provide an expert report within a timely manner for each expert witness to both Georgia Gulf Lake Charles L.L.C. and American International Specialty Lines Insurance Company.

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In order to take a case to the courtroom, you must have a cause of action. Generally, a cause of action means that there is some law that the other person has violated, and that violation has harmed you, so you should be compensated for that harm. If the law does not offer the plaintiff a remedy, then they cannot bring a case to court. When a court determines whether there is a cause of action, it does not look at the evidence of the case. Instead, it looks to only the petition that the plaintiff has filed. It assumes that all the facts are true to make this initial determination. Once a cause of action is established, then the case can go through the normal procedures to get into a courtroom.

Langston Hughes Academy Charter School’s former financial advisor stole money from the school in the amount of $667,000. She spent a portion of those funds at the Treasure Chest Casino. The school attempted to sue the casino to recover at least a portion of that money. In order to recover, the school needed to show that they had a cause of action against the casino. The school argued three major causes of action.

First, the school argued under the Louisiana Unfair Trade Practices Act (LUTPA). LUTPA provides a cause of action for “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” The plaintiff must “prove that the conduct offends public policy, is immoral, unethical, oppressive, unscrupulous, or substantially injurious to customers.” Hernaez v. Mothe Life Ins. Co., 09-0147, p. 7 (La. App. 5 Cir. 11/10/09), 28 So.3d 454, 458. While the LUTPA originally only applied to consumers and business competitors, the Louisiana Supreme Court recently expanded the definition to include all people.

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The arena of insurance law is a very confusing area in which, quite often, significant knowledge and experience is required for a quality outcome. It is important to know which types of coverage are available and applicable for different circumstances. Without knowing which coverage can apply and to what extent it can apply, an insured individual may find themselves without the coverage they thought they would have in the event of an accident. In some circumstances, insured individuals attempt to insure themselves in the event that the person who they get into an accident with is uninsured or underinsured. This has the result of allowing the insured to have access to a pool of money under all circumstances. Sometimes two different people may have uninsured coverage on the same vehicle or under the same policy. The impact of this kind of insurance largely depends on the relationship status of the parties. This type of a scenario was the focal discussion point in Hardy v. Augustine.

In this case, the Court discussed a way in which the plaintiffs attempted to add more claims to the general damages claim. Mr. Augustine was driving down the road and swerved into oncoming traffic. Mr. and Mrs. Hardy’s son was driving a motorcycle and was involved in a tragic head-on collision with Mr. Augustine after he swerved into oncoming traffic, which ultimately took his life. The tragic event led to Mr. and Mrs. Hardy bringing action against Mr. Augustine and his insurance company. The Hardys brought two distinct claims: they sued for past and future loss of love, affection, and companionship and they also sued for past and future grief and anguish. At the trial level, the jury awarded damages for each distinct claim. The jury awarded damages for both claims plus medical expenses and funeral costs.

Assuming that the amount of damages were going to exceed Mr. Augustine’s insurance coverage, the Hardys brought suit against State Farm, its own insurance company, under two different uninsured insurance policies. One policy was owned by Mr. Hardy and the other was owned by Mrs. Hardy. Each policy would pay up to $100,000 for each incident. State Farm paid $100,000 under the first policy, but refused to pay under the second policy citing the anti-stacking statute as a legal basis for denial of making a payout under both policies.

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In Louisiana, an employee can only be compensated for a work related injury through workers’ compensation. This means that if an employee is negligently harmed during the course of work, the only remedy available is what is provided through the workers’ compensation act. This is true unless the injury was as a result of intentional conduct. In the business world, many general contractors contract out work to subcontractors. Legally the issue in such a case becomes how to define who the employee is employed by in case of an injury. In Louisiana, there is a doctrine called the two contract theory. The basic outline of this theory is that in a situation where there are three parties in a contract which includes a general contractor, subcontractor, and subcontractor’s employee, the subcontractor’s employee is considered an employee of the general contractor. This mean that if the subcontractor’s employee is injured while performing work for the general contractor, the employee will only be able to receive workers’ compensation, not any damages based on negligence or any other branch of tort law. This may, at first glance, seem like a harsh result. However, in the modern business world, there are so many employment contractual relationships that liability must be limited to what is reasonable under the circumstances. The two contract theory should not be viewed as a way to protect business, but rather as a means for the judicial system to not be able to overreach.

In a recent case, Mason v. Waste Management Inc. Et Al., the law concerning employee rights is discussed in such a circumstance. Lamare Kindle and Wallace Bradley, were employed by Waste Management Inc. Mr. Bradley was employed directly by Waste Management. Mr. Kindle was employed by CPST Inc. CPST was a subcontractor which had contractually agreed to supply Waste Management with employees in an effort to help Waste Management collect trash it was required to contractually pick up. Waste Management had agreed to pick up trash in a contract with the Morehouse Parish Police Jury. So the contractual relationships are broken down as follows: Morehouse Parish Police Jury needed a company to come pick up trash in its area. Waste Management agreed to pick up the trash and signed a contract with Morehouse Parish to do so. Mr. Bradley was employed by Waste Management. In an effort to fulfill its obligation to Morehouse Parish, Waste Management needed to hire temp workers. CPST contractually agreed to supply Waste Management with employees. Mr. Kindle was employed by CPST.

Mr. Bradley was driving a truck registered to Waste Management. Mr. Kindle was a passenger in the truck driven by Mr. Bradley. Upon coming to a train track Mr. Bradley made the tragic mistake of crossing over the tracks as a train passed the intersection. Both Mr. Bradley and Mr. Kindle was sadly killed as a result of the collision with the train. Mr. Kindle’s parents sued Waste Management alleging that it was liable for any negligence that was attributed to Mr. Bradley while he was driving the garbage truck. The police report stated that the accident was likely the result of Mr. Bradley’s inattentivness. Waste Management argued that under the two contract theory, Mr. Kindle was its employee and because there was negligence and not intentional conduct, the only remedy available was workers’ compensation. Because Waste Management held a position as a general contractor in relation to Morehouse Parish, and CPST held a relationship with Waste Management as a subcontractor, the circumstance of the contractual relationships fell under the definition of the two contract theory. Therefore, Mr. Kindle was considered an employee of Waste Management and the only remedy available was workers’ compensation.

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The Berniard Law Firm is proud to be a New Orleans-based organization and nothing says NOLA better than Mardi Gras!

We wish all of our readers a happy, and safe, Mardi Gras holiday!

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There are some circumstances under which states and local governments are immune from liability. For example, in most states a state or local government is immune in relation to the normal acts of governance. However, what things a government can be liable for is defined by the state constitution and state legislation. The government can limit its liability in any responsible and constitutional manner possible. In Louisiana, as it pertains to civil liability, state and local government liability is dealt with in La. R.S. 9:2800. In pertinent part this provision states:

“…no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity had a reasonable opportunity to remedy the defect and has failed to do so.”

This provision clearly describes the liability imposed on a Louisiana government in the case that the governmental entity owns and operates property. The types of property can range from sidewalks, roads, public educational institutions, and many other types of property. The essential aspect of when the governmental entity can be liable is based on actual or constructive knowledge and an opportunity to remedy the defect after acquiring the knowledge. Courts have taken great care in defining actual and constructive knowledge. The Louisiana Supreme Court has defined actual knowledge as knowledge of dangerous defects or conditions by a corporate officer or employee of the public entity having a duty either to keep the property in repair or report any defects to the proper authority. The Louisiana Supreme Court has defined constructive knowledge as it is defined in La. R.S. 9:2800, as the existence of facts that infer knowledge. What is crucial is understanding the scope of the definition of constructive knowledge. For example, an absence of a plan to inspect does not confer constructive knowledge on a governmental entity. In the past, plaintiffs have brought claims that attempted to expose local governments to liability based on the governmental entity’s lack of a procedure to inspect publicly owned property on a regular basis.

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Larry Carriere was unable to bring a successful legal malpractice claim against his lawyer because he brought the claim in the wrong venue. Carriere filed suit in Lafayette Parish, where he lived when he hired his attorney, David Szwak. Instead, the suit should have been brought in Caddo, where his lawyer’s law office is because that is where the wrongful conduct occurred.

Filing improperly is a mistake than can be fixed, but such delays can be detrimental; The suit must be brought within a certain period of time. Here, the action was not filed in the proper venue, Caddo, until after the peremptive period had ended. Peremption is a period of time for the existence of a right. If the right is not exercised within that specified time period, the right expires when the peremptive period ends.

Carriere argued on appeal that he exercised his right in a timely manner by changing to the correct venue, and thus interrupted the peremptive period. However, the appellate court disagreed, stating that under Louisiana Law, peremption may not be renounced, interrupted, or suspended.

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A recent case within the Kentucky Court of Appeals demonstrates very extremely the need for quality counsel in all court proceedings. Regardless the subject or reasons you may find yourself in court, it is important that the lawyer you hire is not only able to represent you well in the courtroom and past it. While you would like to think the courts have the rule of law well established in the minds of their judges, a qualified attorney will also review the matters at hand to make sure all ‘facts’ are correct in the proceedings.

In the case of Bramer Crane Servs., LLC v. Structure Builders & Riggers Mach. Moving Div., LLC, a lien issue was reviewed by the superior court of the state. While the actual facts of the case are not important for this post, what is important is that the findings of the court were inherently flawed. Cited in the case was a fact that was severely outdated, as much as 20+ years and two revisions.

As the blog Zlien notes, instead of a clean finding, the court had lapsed in its research and failed to note updated law. The issue was that the ruling relied on judicial precedence rather than a review of legislation passed during this time. While one would like to consider the issue a simple lapse in judicial research, the fact remains that this unpublished decision could very easily have gone unnoticed without people stepping up.

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In a semi-recent Third Circuit Court of Appeal decision, the Louisiana Medical Malpractice Act was explored in order to determine whether the lower Vernon Parish District Court’s decision was appropriate. Despite the sad facts of the case, the appellate court may only overturn a trial court’s decision if there was clearly an error in the record. The appellate court analyzed the necessary requirements of the Louisiana Medical Malpractice Act in order to decide whether or not a doctor’s actions met the standard of care in treating a seriously injured young man. Medical Malpractice requires numerous steps for claimants to take before even reaching the court room. For instance, a person with a claim against a doctor, hospital staff, or the hospital itself has to first submit the claim to a medical review panel. This medical review panel was the primary focus for the appellate court, who had to establish whether or not the panel’s ultimate decision regarding a surgeon’s actions lived up the the applicable standard of care.

The underlying facts giving rise to the case occurred on August 11, 2002, when a young man entered the emergency room at Byrd regional Hospital in Leesville, Louisiana, after suffering a two and one-half centimeter knife wound to the left side of his chest. The emergency room staff noticed that the young man appeared alert despite his labored breathing and low blood pressure. The emergency room physician on duty suspected that the young man was suffering from the presence of air between the lung and the wall of the chest. A chest x-ray, an electrocardiogram (EKG) lab work, and an IV infusion of saline were ordered, and as such procedures were being performed on the young man, the emergency room doctor decided to telephone a general surgeon in private practice in Leesville, asking for his assistance. The general surgeon arrived at the emergency room and ordered a second x-ray in order to determine if there was any other issues involved with the young man’s condition. Throughout this time period, the young man’s blood pressure continued to decrease and his condition worsened. Over one hour later, the general surgeon determined that a large amount of blood had collected in the young man’s chest cavity, but he failed to confirm the emergency room doctor’s determination of a cardiac injury because the young man’s heart sounds were still normal and there was no swelling in the neck vein. The general surgeon then decided that the young man had to undergo surgery to repair what appeared to be a large hole in the left ventricle of the young man’s heart. However, at this point, the young man’s blood pressure plummeted, despite the doctor’s attempts at ordering blood transfusions. Within ten minutes after the young man’s third blood transfusion, the general surgeon made an incision into the left side of the chest cavity, he attempted to repair the laceration with sutures, but the young man continued to bleed at the point of injury. The young man went into ventricular fibrillation and as a result, passed away on the operating table. The young man’s parents sued the general surgeon, asserting that his failure to transfer their son to a hospital with a heart bypass capabilities and staffed with a cardiovascular surgeon constituted malpractice. Following the bench trial, the trial court ruled in favor of the general surgeon, relying on the Louisiana Medical Malpractice Act in order to support their decision.

The Medical Malpractice Act requires a number of steps to be followed in order for a claim to move forward for trial. Importantly, when exploring a medical malpractice issue, La. R.S. 40:1299 states, “[a]ny report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law.” Thus, the first argument the plaintiff’s allege as error on the trial court’s part may have been in vain. They alleged that the trial court erred in admitting the medical review panel opinion into evidence and that this error requires the appellate court to undergo a new factual finding of the trial court’s decision. Following the Louisiana statute’s language, the opinions of medical review panels may be utilized by the trial court in handling a medical malpractice case. In fact, medical review panels are designed to review the evidence after any examination of the panel and conclude that either:

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In nearly all cases, sand on a beach is enjoyable and safe. Sand used for sandblasting, however, creates dust that, upon being inhaled by an unprotected worker, increases the risk of lung disease or other lung-based medical concerns. The Louisiana Court of Appeal decided in Bates v. E. D. Bullard Co., that the possibility of problems does not make the sale of a product like sand unreasonable, especially when that use is outside the normal, non-technical purpose.

Wilbert Bates worked for the SBA Shipyards during the 1980s doing tasks that included cleaning and sandblasting. Both types of duties exposed him to silica dust — pieces of sand so small that he inhaled them and they stuck in his lungs that led to silicosis. Silicosis is an industrial disease that leaves its victims short of breath due to small sand particles becoming lodged in the lungs. The presence of particles encourages the growth of fibrous tissue in the lungs, reducing lung capacity. A lifetime of work can result in wheezing and body strain in an attempt to get air.

Bates and his wife sued Specialty Sand Co. and Southern Silica of Louisiana, Inc., which provided sand to the shipyard. The Bateses claimed that the sand was unreasonably dangerous or defective because the sand companies failed to warn and instruct him and the shipyard of the potential hazards.

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