Negligence

July 27, 2013

5th Circuit Court of Appeals Rules in Favor of Drug Manufacturers in Suit for Damages

In 2011, a Louisiana woman appealed a decision issued by the state’s highest court in a case she filed after suffered damages from the drug metoclopramine. Julie Demahy filed a lawsuit in 2008, alleging that she had suffered damages from the generic version of metoclopramide, which she took between 2002 and 2007. The state court had dismissed Ms. Demahy’s claims against Actavis, the manufacturer of the generic version of the drug, and against prescription drug makers Wyeth, Inc. and Schwarz Pharma, Inc. Schwarz had acquired the name-brand rights to the drug in 2001.

As of 1985, the FDA required that generic manufacturers of the drug metoclopramide include a warning with the medication about the risk of tardive dyskinesia, an often irreversible neurological disorder. In 2004, Schwarz voluntarily requested a change to the name-brand label, adding a warning that the drug should not be used for more than 12 weeks. It was not until 2009 that the FDA issued a black-box warning that informed consumers about the risk of tardive dyskinesia and that warned customers that the drug should not be used for longer than 12 weeks except in rare cases.

Under federal law, generic drug labels are required to be the same as name-brand labels. This means that state law cannot require generic manufacturers to include more information than that which would be available on the name-brand product of a prescription drug, as this would be contrary to the federal law. On these grounds, the state court had found that Actavis was not responsible under a failure-to-warn claim brought by Ms. Demahy. On appeal, Ms. Demahy claims that the state court’s mandate to change the district court ruling in favor of the defendant was improperly interpreted as calling for the dismissal of all claims against Actavis; Ms. Demahy argued that Actavis could still be found liable outside of the failure-to-warn claim.

July 23, 2013

Workplace Injury Leads to Review of Statute Interpretation

by Berniard Law Firm

The district court dismissed the claims of Entergy, an electrical utility company, for indemnity from contractors involved with repairs to a building to which the utility company provided electrical service on the ground that the Louisiana Overhead

Power Line Safety Act (“OPLSA”) does not allow indemnification remedy. On appeal, having decided favorably for the plaintiff in the legal issue of whether OPLSA might require indemnity, the appellate court vacated the district court’s grant of summary judgment in favor of the contractors.

Shortly after Hurricane Katrina, a general contractor, Carl E. Woodward, LLC, (“Woodward”), entered into a contract with Eagle Enterprises of Jefferson, Inc., the owner of the Walgreens Shopping Center. Woodward subcontracted with Stewart Interior Contractors, LLC (“Stewart”) to install framing and exterior wall material at the shopping center. In turn, Stewart subcontracted with Landaverde Construction, LLC (“Landaverde”) to assist with providing labor. On January 5, 2006, Landaverde laborers, including plaintiff, Daniel Moreno, arrived at the shopping center work site. As Mr. Moreno was standing near the scaffold and evaluating how to best disassemble it, another worker at the top of the scaffold moved a piece of metal that came in contact with both the overhead power line and the scaffolding frame. A resulting arc of electricity flashed from the scaffolding to Mr. Moreno’s body, inflicting serious burns.

July 22, 2013

Dog Bite Incident Highlights Review of Ownership versus Custody for Liability

by Berniard Law Firm

In general, owners are responsible for any damage caused by the things that they own. Animals are no exception. For example, if you own a cow and it wanders into the road and a car hits it, then you are likely responsible for the damages related to that accident. Damages caused by household animals, such as dogs, are similar. Louisiana Code art. 2317.1 provides that “the owner or custodian of a thing is answerable for damage.” While owner is a relatively simple concept, custodian may not be.

The classic example of a custodian is someone who is watching a household pet while you are away. It is likely that if your dog bites someone while a caretaker is walking him, both you and the caretaker may be liable for the damage caused by the bite. In a recent case arising from the Parish of Jefferson involving a dog bite, the court explained the caretaker concept in a little more depth.

In that case, a family was visiting their father in a hospice and their dog accompanied them. The dog bit another visitor when the visitor attempted to pet him. The bitten individual has a permanent scar and lost feeling in his finger. All of the parties admitted that it did seem odd that the dog bit because he had never bitten anyone before and was not acting aggressive. In fact, the dog was sitting in the owner’s lap at the time of the incident. The dog had no history of aggressiveness, and all of its shots were up to date.

July 21, 2013

Second Circuit Affirms Notice Case Regarding Fallen Tree

by Berniard Law Firm

It is well established that an appeal court gives deference to a trial court’s finding of fact (ruling) unless the court was clearly wrong or acted in extreme error. In other words, even if the appellate court is convinced that they would have decided upon the evidence differently, the trial court’s findings cannot be reversed if it was reasonable that it could rule in the manner it did. Moreover, if there are two permissible rulings that could be determined, the trial court’s choice between the two cannot be found manifestly erroneous or clearly wrong.

On March 29, 2009, plaintiff Franklin Scott (“Mr. Scott”) was driving his tractor/trailer rig carrying saltwater west on Keatchie-Marshall Road in Caddo Parish (“Caddo”) where he failed to observe and avoid a fallen tree blocking the road. Mr. Scott’s truck slid 350 feet after the collision and hit several other trees before stopping. Among other injuries resulting in the crash, Mr. Scott suffered a “serious injury” to his neck.

Mr. Scott filed a personal injury suit in District Court against Caddo, property owners Roger and Marilyn Connell (“property owners”) and State Farm Fire and Casualty Company (“State Farm”) for failure to maintain the road from potentially hazardous conditions. After weighing the oral testimony of several witnesses, the District Court found in favor of Caddo. Mr. Scott appealed.

July 18, 2013

Workers Comp Case Involves Settlement Dispute, Rights Review

by Berniard Law Firm

In a recent Louisiana workers’ compensation case, a man filed suit after deciding that the settlement agreement he signed was reached based on misrepresentations. The man was rendered quadriplegic after falling from a roof he was working on during his employment as a roofer. After his injury, he hired an attorney and attended several mediations, which resulted in the signing of a settlement agreement. However, about half a year after the settlement agreement was approved, the man filed a disputed claim for compensation, asking for the settlement to be set aside because it was based on misrepresentations.

What is interesting in this case, though, is that It was not the other party that the man believed misrepresented the facts, but rather, his own attorneys. The plaintiff claims that his own attorneys told him that he would continue receiving 24-hour nursing care and other medical services after the settlement, but this was not the case.

The plaintiff’s motion to set aside the settlement agreement was denied, and the plaintiff then brought suit against his own attorneys, claiming legal malpractice in their representation of him. After a three-day trial, the jury decide to rule in favor of the attorneys and against the injured man. Furthermore, when the plaintiff filed a motion for a new trial, the trial court also denied that request. The plaintiff appealed the case at that point.

July 16, 2013

The Standard for Reviewing Medical Evidence After Auto Accidents

by Berniard Law Firm

Medical testimony after an automobile accident is complicated enough. When two accidents close in time are involved, it can get downright confusing. All the more so when a court is trying to determine which accident is to blame for not one but several different injuries. But despite questions of accuracy and the sufficiency of evidence, the role of a court of appeals is not to second-guess or set aside the trial court’s facts – provided they are reasonably arrived at and not obviously wrong.

This principle was on display in a case out of Vermilion Parish. Wanda Turner was involved in two accidents in 2010 – one in September and one in October. After the second accident, Turner filed suit against the insurer of the vehicle from the first accident, alleging neck pain, back pain, and migraines. She attributed all of her injuries to the first accident, rather than the second one, despite the fact that the second was more serious. The trial court ruled in Turner’s favor and awarded $8,500 in general damages ($3,500 for the migraines; $3,000 for aggravating her back condition; and $2,000 for her neck pain) and $1,800 in special damages to cover her medical expenses related to the first accident.

The defendant insurance company appealed the ruling, claiming a lack of medical evidence and unsupported testimony. The appellate court even noted numerous inconsistencies in Turner’s testimony. Despite this, and citing past legal precedent, the court explained that it was obligated to give great deference to the factual findings of the trial court. Unless those findings are obviously unreasonable or rife with manifest error, the appellate court will not set them aside. This was the standard applied to Turner’s claims.

July 14, 2013

Prescription Leads to Patient Injury – What Legal Remedy Exists?

by Berniard Law Firm

Imagine that your doctor gives you a prescription drug to alleviate a persistent headache or cold, or recommends for you a new pacemaker or prosthetic joint. If your doctor’s prescription drug or medical device ends up injuring you—what do you?

The general rule is that a consumer who is injured by a prescription drug or medical device may be able to seek compensatory damages from the physician that prescribed that drug or device and from the manufacturer who manufactured that drug or device. For example, a doctor may be liable for a patient’s damages if he should not have prescribed the drug or medical device or if he failed to warn of a non-obvious risk. Likewise, the manufacturer could be liable if the product is unreasonably dangerous or if the manufacturer failed to warn of non-obvious dangers.

However, there’s an important exception regarding a drug or device manufacturer’s liability—the learned intermediary doctrine. A majority of states, including Louisiana, have adopted some form of the learned intermediary doctrine. The doctrine works as a shield to protect manufacturers from being liable for not informing the patient of the product’s risks if the manufacturer has adequately warned the patient’s physician of the risk. Essentially this means that a manufacturer has no duty to warn you- the patient; instead, the manufacturer must warn your physician of the drug or device’s dangers. The physician then becomes responsible for warning the patient of the risks. The physician is quite literally the intermediary between the patient and the manufacturer.

July 12, 2013

Demonstrating Permissive Use of Vehicles Key to Insurers’ Liability

by Berniard Law Firm

Motorist Jennifer Lopez was injured in a hit-and-run accident with a truck near Vinton. At the time of the accident, the truck was being driven by someone other than its owner, Teri Ardoin. The driver fled the scene but the truck was tracked down and Ardoin identified as the owner. Lopez filed suit against both Ardoin and her insurer, Safeway Insurance Company. At trial, the issue was Safeway’s liability as insurer of the truck. The trial judge awarded damages to Lopez, but because of Safeway’s policy limits, Lopez’s own insurer, State Farm, had to cover the balance.

On appeal, Safeway contended that its coverage of the vehicle could not be proven without first establishing that the insured gave permission to drive the truck to the unknown driver. The appeal raises questions of the omnibus insurance clause provided by Louisiana statute, La.R.S. 32:900(B)(2). Under this law, an automobile insurance policy shall cover any person who uses the insured’s vehicle with express or implied permission of the insured. It’s up to the plaintiff to establish use of the vehicle with express or implied permission of the insured.

Demonstrating this permissive use requires fact-finding at the trial level. Without some proof of “manifest error,” such fact-finding will not be overturned on appeal. The trial judge in this case found that Ardoin’s truck was the truck involved in the accident. Further, he found Safeway liable for the accident. Several pieces of evidence were put forth to show this, including eyewitness reports identifying the truck and careful observation and recording of the license plate number.

July 10, 2013

Second Circuit Confirms that Employee Was At Fault in Personal Injury Lawsuit

by Berniard Law Firm

Last August, the Second Circuit Court of Appeal upheld a ruling against plaintiff Dennis Quillian in a tort claim ensuing from a work-related injury in Pineville. At the time of the accident, Mr. Quillian was working as a truck driver for Swift Transportation Company, Inc., carrying paper manufactured by Georgia Pacific. Mr. Quillian’s job was to move the shipment of paper from Dixie in West Monroe to Plastipak, located in Pineville. Mr. Quillian was hurt when he went to unload the paper at Plastipak and was struck in the side by a bundle of paper. Mr. Quillian subsequently filed a lawsuit against Dixie.

In a personal injury lawsuit against an employer the main question is, who is responsible? If the employer failed to take a precaution or committed an act that was in breach of his “duty of care”, then the employer should be held accountable for damages caused to the employee. If the injury was the result of the employee’s own wrongdoing, and not the result of an unsafe work environment, then the employer will not have to compensate the employee for his injury. If the fault of the accident can be attributed in part to the employer and in part to the employee, then the employer can be held responsible for the employee’s injuries, but only up to the amount corresponding to his percentage of fault. So if an employer is found 60% responsible for a work accident, then he will have to pay for 60% of the employee’s damages.

In Mr. Quillian’s case, the issues that were in contention were whether any pertinent safety measures had been contravened and whether Mr. Quillian had assumed any risks associated with transporting the shipment. A contract regulation to ensure secure transportation stated that Dixie was to use Georgia Pacific air bags to secure the cargo being moved. Another safety measure was the use of load locks to secure the bundles of cargo, to ensure that the cargo would not fall out when the truck doors were opened; Georgia Pacific requires the use of two load locks. According to expert testimony, the air bags were meant to ensure the safety of the cargo, whereas the load locks are used to protect the driver from falling cargo. when opening the truck. Mr. Quillian agreed in his testimony that load locks are the main safety mechanism used to prevent cargo from falling out when the truck doors are opened.

July 5, 2013

No Contest Ruling Means Damages in Marrero Car Accident Case

by Berniard Law Firm

On May 8, 2007, in Marrero, Louisiana, two cars were sitting at the intersection of Ames and Lapalco Boulevards. One car carrying a couple sat ahead of a truck carrying one individual. The man driving the truck’s foot slipped off the clutch and the truck rolled into the back of the car. The couple said that the truck hit the car with such force that they jumped out of their seats. Their trunk and bumper had also been slightly pushed in, where there were no damages to the vehicle prior to the accident. The police arrived to document the accident and no injuries were reported on either side.

However, shortly after the accident, the couple experienced a variety of medical issues. While soreness and bruising is common after accidents, the couple experienced a much more serious version of injuries following the accident. The woman claimed roughly $13,000 in medical bills while the man claimed roughly $19,000 after the accident.

During trial, the man driving the truck admitted that this foot slipped off the clutch and he ran into the back of the car. Therefore, the court awarded a directed verdict that concluded that the man in the truck was 100% at fault, and therefore 100% liable, for the accident. The only issue that remained for the jury to decide was how much the couple should be awarded for damages. However, the jury came back with an award of $0.00 for the couple.