Negligence

September 12, 2017

Court Rules Pre-Existing Conditions Not A Bar To Recovery for Person injured in Erath

crash-car-1180834-1024x827 Sometimes judges and juries make mistakes that prevent injured parties from obtaining the relief they deserve. Both judges and juries can be swayed by arguments and make rulings that seem contrary to the weight of the evidence presented at trial. In such a situation, it is important to have an excellent attorney on your side to assert your rights and present you with proper avenues of appeal. Kimberly Guidry found herself in just this position after the trial court awarded her no damages for injuries she sustained in a car accident in Erath, Louisiana.

Ms. Guidry was injured in a three car accident while a passenger in her brother’s pickup truck. The accident occurred when Karl Creduer ran a red light, striking another person’s vehicle. This other vehicle then crashed into a Ms. Guidry’s brother’s pickup truck. Ms. Guidry and her brother were both injured in the accident. Ms. Guidry was taken to the hospital in an ambulance due to complaints of pain in her back and knee. At the hospital, doctors took X-rays of Ms. Guidry, placed her in a cervical collar, and gave her prescription medicine for her injuries.

After leaving the hospital, Ms. Guidry saw three separate doctors in hopes of alleviating the pain caused by the accident. Through these doctor visits, it was determined that Ms. Guidry had pre-existing arthritis and pre-existing degenerative conditions in her spine and knee. These ailments arose prior to the accident. According to the doctors, the accident aggravated these ailments.

September 8, 2017

Injured Gym Member’s Claim Denied On Grounds That Member Was A “Sophisticated User”

by Berniard Law Firm

to-gym-1445095-1024x766 Many people own a gym membership but upwards of 80% of those people fail to regularly go to the gym. If you find yourself infrequently inside of a gym, it can seem like a strange place. There are many different machines and sometimes it isn’t so clear how to properly use those machines. Indeed, misuse of gym equipment can result in serious injury. So what sort of duty does a gym owe to its members? The following case may help shed some light on this issue.

Thomas Nearhood was injured while working out on a Precor Smith Squat Machine at Anytime Fitness in Pineville, Louisiana. Nearhood filed a lawsuit to recover damages for his injuries and one of the defendants was Fitness Partners, the owner of Anytime Fitness. At issue before the Trial Court was whether Nearhood was a “sophisticated user” of the squat machine. If Nearhood was a sophisticated user, the gym operators had no duty to inform or warn Nearhood about using the machine. But what exactly constitutes a sophisticated user?

Nearhood argued that Fitness Partners was negligent because it failed to properly instruct him on how to use the squat machine. Fitness Partners responded with a summary judgment motion arguing that it had breached no duty, there was no genuine issue of material fact, and judgment for Fitness Partners was proper as a matter of law. The Trial Court granted Fitness Partners’ motion and Nearhood appealed to the Louisiana Third Circuit Court of Appeal. The Court of Appeal affirmed the Trial Court’s decision.

September 3, 2017

Failure of Hospital Staff To Properly Notify Patient of Device Manufacturer Notice Leads to Medical Malpractice Liability

by Berniard Law Firm

chest-xray-1526779-1-1024x1004 Medical malpractice can be a nuanced area of the law and good lawyers rely on the facts of a case coupled with their knowledge of the law and expert opinions to adequately perform their jobs. The following case illustrates that a competent legal team can make the most out of a tragic situation by obtaining some measure of justice and relief for a victim via compensation from the responsible parties.

This case centers on Pete Bush, an elderly man with heart problems who had a pacemaker placed in his chest. The hospital staff in Richmond, Virginia explained to Pete’s wife, Dina, how to properly use and interpret the alerts from the device. One month after the device was installed inside Pete, the manufacturer of the device issued an “Urgent Correction Notice” (the “Notice”).

The Notice stated that a particular pump in the device could wear out and if not replaced could result in death. The Notice further stated that damage to the device would not be visible, but could be detected by “transient alarms.” Although a nurse initially instructed the Bushes about the various alarms and warnings and the proper response to each, the hospital never informed the Bushes about the Notice.

August 30, 2017

“Watch Out, Slugger!” Errant Baseball Cost Insurance Provider More Than Policy’s Time Limits in Case Out of Lafayette Parish

by Berniard Law Firm

baseball-in-the-grass-1557579-1024x683 Peanuts and cracker jacks are two cornerstones of the game of baseball. However, surgery is not. Yet, when one little leaguer got struck by a baseball during practice, the league’s insurer tried to get out of picking up some of his medical bills. The Louisiana Third Circuit Court of Appeal, however, was not going to let the insurance company off so easily.

On June 1, 2010, nine-year-old Michael Folley was hit in the mouth by an errant baseball during his baseball team’s practice. On May 20, 2011, Tonya Csaszar, on behalf of her son Michael, brought suit against Nationwide Insurance, alleging that Michael would require future medical treatments and surgeries as he got older. Nationwide, having paid some medical expenses, denied further coverage based on a provision of the policy limiting coverage to medical expenses incurred within three years of the accident. Nationwide moved for summary judgment arguing coverage for Michael under the policy had terminated. The Judicial District Court for the Parish of LaFayette denied the motion and Nationwide appealed.

The parties disputed when the injuries were “incurred” and thus subject to coverage. Nationwide argued that there was no ambiguity in the meaning of “incurred” in the language of the policy and any medical treatment beyond the three-year cap was not subject to coverage. The Plaintiffs contested however that due to Michael’s young age, he would need additional medical treatment to accommodate physical changes as he grew. Nationwide’s policy did not define the word “incur.”

August 15, 2017

Tell It to the Jury: Louisiana Court of Appeal Reverses District Court in Medical Malpractice Case

by Berniard Law Firm

historical-medical-devices-3-1566087-1024x678 Upon entering a facility for medical treatment, we all hope that we will be treated properly. However, what happens when a medical or health care professional deviates from the profession’s standards? What happens if there is a mistake in the diagnosis or treatment? Such victims certainly have an opportunity to seek redress however sometimes a jury verdict can prove disappointing. This case out of Jefferson Parish demonstrates what happens when a trial court jury does not get the proper instructions necessary for deciding a complex medical malpractice claim in Louisiana.

Doris Greathouse was admitted to East Jefferson General Hospital on June 2, 2008 for elective heart surgery. Shortly after Dr. Cougle and CRNA Wilkinson intubated Mrs. Greathouse, she suffered cardiac arrest and her brain was deprived of oxygen. Mrs. Greathouse was transferred to the Intensive Care Unit with fatal brain damage until her family removed her life support. Mrs. Greathouse’s children then filed a wrongful death and survival action against Dr. Cougle and Ms. Wilkinson alleging that they committed medical malpractice resulting in their mother’s injuries and death.

Pursuant to La. R.S. 40:1299.47(B)(1)(a)(i), health care providers in Louisiana cannot be sued for medical malpractice under the the Medical Malpractice Act (“MMA”) unless the plaintiff submits a complaint to a Medical Review Panel (“Panel”), composed of three healthcare providers and an attorney. The Panel’s sole duty is to express its expert opinion as to whether the evidence supports the conclusion that the defendants complied with the standards of care. See La. R.S. 40:1299.47(G). The Panel may not render an opinion on any disputed issue of material fact that does not require its medical expertise. See La. R.S. 40:1299.47(H).

August 14, 2017

Entertainment Company Not Responsible For Concert Goer’s Injuries Sustained at Baton Rouge Centroplex, Despite Venue Hazards

by Berniard Law Firm

concert-1436178-1024x768 What starts out as an entertaining night out for a concert with friends, ends with painful injuries. Instead of enjoying your favorite music with companions, you must go to the hospital to treat injuries sustained due to negligent maintenance of the concert venue. You are now recovering from your injuries and are faced with medical expenses. You know that you shouldn’t be responsible for the medical bills; after all, you are hurt because someone failed to do their job. But who exactly is responsible? Determining the party responsible for personal injuries was a recent issue in a case out of Baton Rouge.

In March of 2006, Ms. Shannon Rodrigue went to a concert with her friends at the Riverside Performing Centroplex in Baton Rouge, Louisiana. As Ms. Rodrigue and her friends waited in line to enter the Centroplex, a Spectator Management Group (“SMG”) employee instructed the group to go around the side of the building and go down a flight of stairs in order to get their seats. As the group proceeded to head down the stairs, Ms. Rodrigue missed a step and fell down the flight of stairs. The fall was the result of a poorly lit stairwell. Ms. Rodrigue sustained several injuries to her head, back, neck, knees, and wrists.

Ms. Rodrigue filed a lawsuit against several parties whom she believed were responsible for the poorly lit stairwell that ultimately led to her injuries. The parties included the Centroplex, the Centroplex’s insurer, and the City of Baton Rouge-Parish of East Baton Rouge; SMG and its insurer. In response to Ms. Rodrigue’s filing of the lawsuit, SMG and its insurer filed a motion to have Ms. Rodrigue’s lawsuit against them dismissed. SMG asserted that Ms. Rodrigue had no claim against them and their insurance company because they did not have custody of the stairwell where Ms. Rodrigue fell. SMG further claimed that even though Ms. Rodrigue and her friends were directed to the stairwell by one of its employees, SMG was not aware of the lighting situation of the stairwell before her fall. The District Court for the Parish of East Baton Rouge granted SMG’s motion and Ms. Rodrigue’s claims against it were dismissed. Ms. Rodrigue appealed to the Louisiana First Circuit Court of Appeal.

August 13, 2017

Louisiana Court of Appeal Upholds Jury Award for Bossier Parish Family in School Bullying Case

by Berniard Law Firm

management-school-3-1524193-1024x348 School bullying is a commonly discussed problem in our generation. Parents are often faced with dilemmas on how to protect their children and instruct them in dealing with bullies at school. In earlier eras perhaps this was considered a problem for the individual family to bear alone. In a recent case out of Plain Dealing, Louisiana however, the Louisiana Second Circuit Court of Appeal affirmed that school teachers and the school board can now be held liable for such bullying and its effects.

On December 10, 2012, a fourth-grade boy, J.B., at Carrier Martin Elementary School in Plain Dealing, Louisiana broke his arm during playground recess when three boys knocked him to the ground to keep him from tattling. J.B.’s parents filed a lawsuit on behalf of their son against the Bossier Parish School Board (“Board”), and teacher Tricia Huckaby seeking damages. After a trial before the Judicial District Court for the Parish of Bossier, Louisiana, the jury found in favor of the parents and awarded $125,000 in general damages, $12,674.14 in special damages, and $25,000 to the mother for the loss of consortium for a grand total of $166,784.63 with legal interest. The Board appealed the finding of liability and argued that the award was excessive.

A school board, through its agents and teachers, owes a duty of reasonable supervision over students pursuant to La. C.C. art. 2320. For liability to be imposed on a school board for inadequate supervision of students, there must be (1) proof of negligence and (2) proof of a causal connection between the negligent supervision and the resulting damage to a student. See Creekbaum v. Livingston Parish School Board, 80 So. 3d 771 (La. Ct. App. 2011). The standard of care required by the school supervisors over the students is only what would be expected of a reasonably prudent person in same or similar circumstances. The risk of injury had to be both foreseeable and preventable if a requisite degree of supervision had been exercised. In awarding damages, a jury is empowered with great discretion and the award will only rarely be disturbed on appeal if an abuse of discretion is found.

August 11, 2017

Work-Product Privilege Available Only to Parties to the Lawsuit in Recent Case Out of De Soto Parish

by Berniard Law Firm

semi-truck-4-1518489-1024x651 During litigation, a party may attempt to claim some form of privilege as an avenue not to produce certain evidence. There are various types of privileges that may be asserted. One that is familiar to many is attorney-client privilege. One that is not as familiar is work-product privilege. Work-product privilege is claimed in civil cases and is used to keep materials that are created in anticipation of litigation from being discovered by opposing counsel. However, to assert work-product privilege the party claiming it must be an adverse party in the lawsuit. A non-party is not entitled to work-product privilege, as Louisiana State recently learned when the Louisiana Second Circuit Court of Appeal affirmed that work-product privilege can only be claimed by an adverse party.

In 2011, Ramanand Naik was in a car accident on highway 84 in De Soto Parish, Louisiana. Mr. Naik was driving a Ryder box truck when a semi-truck, driven by Nathaniel Anthony, hauling a flatbed trailer carrying a boom lift veered across the center line, jackknifed, and crashed into Mr. Naik’s truck. The impact of the crash caused the boom lift to fall off the trailer and onto the cab of the Ryder truck essentially crushing Mr. Naik and his passenger, Norman Latcha. Following the accident, Naik filed a lawsuit against various parties and their insurance company. Mr. Naik did not name Louisiana State as a defendant and the named defendants did not bring Louisiana State in as a third-party defendant.

Despite being a non-party to the lawsuit, ORM was brought into the case during discovery when Mr. Naik filed a notice to have ORM produce all the documents that they had pertaining to the accident. The named defendants in the case did not oppose Mr.Naik’s request. ORM did not produce the documents leading Mr. Naik to file a motion to compel: a request to have the court force ORM to produce the documents. ORM filed a motion to quash: a request to invalidate the motion to compel and avoid producing the documents asserting the documents were protected by the work-product privilege. The First Judicial District Court for the Parish of Caddo, Louisiana denied ORM’s motion, requiring the production of the documents based on ORM’s non-party status thus the lack of available work-product privilege.

August 2, 2017

Court Finds Coca-Cola Employee Not Within Scope of Employment During Car Accident in Lafayette

by Berniard Law Firm

coke-1483373-1024x768 When are you on the job? While seemingly a simple question, many personal injury cases revolve around the issue of whether an individual was acting within the scope of his or her employment. The ramifications of the answer to this question determine whether a business is on the hook for its employee’s negligence. Recently, a Louisiana Court of Appeal (“the Court”) addressed this question when determining whether a Coca-Cola Bottling Company United, Inc. (“Coca-Cola”) employee was working for the company at the time of an accident.

It all began when Ralph McFarland, a salaried employee for Coca-Cola, rear-ended a vehicle belonging to Darius Jack. Prior to the accident, Mr. McFarland had just finished meeting with his final Coca-Cola client for the day and was on his way home from work. At the time of the accident, Mr. McFarland wore a Coca-Cola polo shirt and was in possession of his Coca-Cola cell phone and laptop. Mr. Jack sued both Mr. McFarland and Coca-Cola. At trial, Mr. Jack insisted that Coca-Cola was vicariously liable for Mr. McFarland’s actions. Vicarious liability attributes the actions of a company’s employee onto the company itself. It is normally found when an employee’s action is closely connected to his or her employment duties. See LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974). Courts usually consider many factors when determining vicarious liability like the payment of wages by the employer, the employer’s power of control over the employee, and the time, place, and purpose of the act in relation to service of the employer. See Orgeron on Behalf of Orgeron v. McDonald, 639 So.2d 224, 227 (La. 1994); see also Reed v. House of Décor, Inc., 468 So.2d 1159, 1161 (La. 1985).

Mr. Jack, in arguing that Coca-Cola was vicariously liable, emphasized that Coca-Cola paid for Mr. McFarland’s mileage, that Mr. McFarland met with a Coca-Cola client prior to the accident, and that Mr. McFarland wore a Coca-Cola polo shirt at the time of the accident. Coca-Cola argued against vicarious liability. It pointed out that Mr. McFarland was on his way home from work and that Mr. McFarland did not do any further work after leaving his final Coca-Cola client’s place of business. Coca-Cola also pointed to a statement made by Mr. McFarland where he said that he made a personal stop at a gas station after finishing his last appointment and that while it is possible that he could be called back to office before its closing at five o’clock he could count on one hand the number of times where that happened. Coca-Cola also emphasizes that Mr. McFarland’s typical work day was over by half past three. The trial court held that Mr. McFarland was not working within the scope of his employment with Coca-Cola at the time of the accident and that Coca-Cola was not vicariously liable for Mr. McFarland’s actions.

July 30, 2017

Louisiana Court Awards Plaintiff $404,028.21 for Loss of Big Toe.

by Berniard Law Firm

toes-1438916-1024x683 As if having car troubles was not bad enough, imagine also losing your toe in the process. Well, that exact scenario happened to Valerie Babin. After her vehicle broke down in Gonzales, Louisiana, Ms. Babin called American Towing Enterprises to tow her vehicle. An American Towing Enterprises’s employee, Floyd Russo, arrived to help Ms. Babin. At this point, Ms. Babin’s day went from bad to worse. As Mr. Russo partially loaded the vehicle onto the truck’s flatbed, Ms. Babin went to turn off her vehicle’s emergency flashers. At the same time, Mr. Russo lowered the truck bed, which landed on Ms. Babin’s foot, crushing her big toe. Despite attempts to save her big toe, Ms. Babin eventually required surgery to remove it.

Ms. Babin filed a lawsuit against Mr. Russo and American Towing Enterprises. At trial, the court awarded $673,380.35 in damages, finding Mr. Russo and American Towing Enterprises 60% at fault and Ms. Babin 40% at fault. When the injured individual is found partially at fault for his or her injury, his or her damages are reduced by the amount he or she was at fault. In Ms. Babin’s case, her fault reduced the total amount of damages to $404,028.21. Ms. Babin appealed the trial court’s determination of damages, claiming that the awarded amount was insufficient. Conversely, Mr. Russo and American Towing Enterprises appealed the trial court’s determination claiming that the amount awarded was excessive.

The Louisiana Court of Appeals (“the Court”) was tasked with determining whether the damages were insufficient or excessive. The Court examined two types of damages, general damages, and special damages. General damages often include mental or physical pain, suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle. McGee v. A C And S, Inc., 933 So. 2d 770, 774 (La. 2006). The goal of general damages is to make the injured party whole. In other words, put the injured party in the same position he or she was at prior to the injury. Special damages are damages that the injured person will experience in the future. Ms. Babin argued that at minimum she should have received $400,000 for general damages and $557,028 in special damages for future medical care. The Court found that the trial court’s determination of general and special damages was reasonable. When addressing the amount of special damages for future medical care, the Court noted that the trial court awarded Ms. Babin $223,77.00 based on the testimony of two doctors at trial. When seeking future medical expenses, “the appellate record must establish that future medical expenses will be necessary and inevitable.” Bass v. State, 167 So. 3d 711, 716 (La. 2014). In addition, future medical expenses will not be supported when there is not medical testimony. The Court found the trial court’s determination of special damages was reasonable and disregarded the defendants’ argument that the awarded amount was unsupported by evidence. Lastly, the Court examined the loss of future wages. The loss of future wages requires the trial court to determine how much work the injured party will miss in the future because of his or her injury. For Ms. Babin, the trial court determined that Ms. Babin will lose $81,735.00 in future wages. The Court also found this amount reasonable.