Negligence

September 21, 2010

Oil Rig Drilling Mud a Source of Asbestos Exposure for Workers in the Petroleum Industry

Asbestos was once used to make many common products including insulation, roofing materials, automobile brake pads, and other household and commercial goods. In the 1960s asbestos was used in the petroleum industry, where the the high heat-resistance of asbestos made it a useful additive to drilling mud. Drilling mud is used while drilling oil and gas wells to help clear debris out of the well and to help cool the drill bit. Various substances are often added to the drilling mud to adjust its thickness and fire retardant properties. Many of these, including lead, arsenic, and chromium, are toxic. Asbestos provided superior fire resistance and helped to improve the mud’s consistency. Unfortunately, we now know that asbestos is linked to several types of cancer and other health problems.

The use of asbestos in drilling mud has been eliminated today; however, when it was first prohibited by the U.S. government, some petroleum companies apparently took the position that the federal ban did not apply to their offshore oil rigs or inland drilling barges. Thus, asbestos products could have been used in these environments even as late as the mid-1980s. Many drilling workers can recall working with a white, flaky additive that was in 50-pound packages and added to the drilling mud in the mud shack. No proper breathing protection was provided to the workers who handled the mud additives, so many of these workers routinely inhaled pure asbestos fibers while mixing in the additives. Other oilfield workers such as roughnecks, mud engineers, and shaker hands also were likely exposed to asbestos on a regular basis during this timeframe. Even spouses and children of drilling workers were at risk of exposure if the workers came home with asbestos fibers clinging to their clothing.

Asbestos fibers are known to cause or increase the risk of many forms of cancer. The danger is highest among smokers, who face a substantially increased incidence of lung cancer. Studies have also shown a connection between asbestos exposure and gastrointestinal cancer, colorectal cancer, and a heightened risk for cancers of the throat, kidneys, esophagus, and other organs. Exposure is also linked to inflammation of the lungs, known as asbestosis, as well as pleural disease, which is inflammation of the tissue layers that line the lungs.

September 19, 2010

Class Action Lawsuit Filed Against Louisiana School Officials for Handcuffing and Shackling Student

by Berniard Law Firm

A July CNN report has brought to light a lawsuit filed against Louisiana school officials for repeatedly handcuffing and shackling a 6 year old. The lawsuit has been filed by rights advocates and the child’s parents on behalf of children in the Louisiana Recovery School District, a statewide entity managed by the Louisiana Department of Education. The superintendent of the district, and school officials and security officers at the school, Sarah T. Reed Elementary, were named in the lawsuit as well.

According to the suit, the 6 year old boy was handcuffed and shackled for “minor offenses,” involving a shoving match with another student. The School District stands behind the behavior of their employees and has indicated that the incident was an isolated one. They did not arrest the student or terminate the employee involved. The school principal, Daphyne Burnette also defended the school’s action, going so far as to state that it is school policy to handcuff “out of control” students, and that if children fail to follow rules in the future, they will be handcuffed. The plaintiffs in the lawsuit disagree with this policy and have argued that the punishment methods crossed the line and that the conduct was “unreasonable and excessively intrusive.”

The child’s father, Sebastian Weston, claims that his son’s life has been forever changed because of the incident.

September 17, 2010

New Technology Providing Plaintiffs Chance to Recover Due to Accidents with Tricky Circumstances

by Berniard Law Firm

Car accidents oftentimes are not simple, clear-cut events that lend a clear idea of who was right and who was wrong. Instead, many times it is left to a court to decide what the circumstances were that led to the collision and the amount of responsibility each party had for it occurring. As a result, because no court is perfect, individuals who have been harmed due to another party’s acts are left out in the cold because they could not prove their case. However, each year new technology comes out that provides a better opportunity for plaintiffs, and their attorneys, to prove their case and receive the compensation they deserve.

One firm, Advanced Research and Technology (ART) Corporation, works with the very technology required to prove cases. Utilizing Finite Element Analysis (FEA), commonly referred to as computer simulations, the company provides compelling engineering evidence to explain the cause of a crash-related case. FEA’s due this by calculating the kinematics of the investigated accident (speeds, relative motion, different parts of accident) and structural analysis (where the cars collided and relevant stresses, strains, failures, energy displacements, etc.). By analyzing this information, FEA can help plaintiffs win cases related to auto and motorcycle crashes, airbag and seatbelt related problems, structural analysis relating to accidents or blasts, slip and fall cases, fuel tank and pipeline pressure analysis and a variety of others.

FEA simulations are widely recognized by the engineering community as a reliable and advanced tool for solving structural dynamics, crash, blast and impact-related matters. Automotive companies often use FEA for car testing in the same way that highway safety systems are designed using the technology. The reliability of FEA comes down to the simulator being able to develop accurate formulations or equations to explain how the millions of small elements involved in a collision react when variables are at a certain set. Because of its ability to determine how a car will behave in a collision and the effects of a collision, technology experts are able to move backwards and determine what variables were in place to lead to the results suffered.

September 14, 2010

Chalmette Catalyst Powder Release Raises Alarm in SE Louisiana

by Berniard Law Firm

A power failure at Chalmette Refining LLC has led to a thin layer of white powder descending upon Southeast Louisiana, raising concerns about the toxicity and potential harm that could emerge from exposure. Citing a power failure for the reason that up to one ton of catalyst were released into the air and falling down atop cars, homes, businesses and other property, the company has attempted to assure the public that safety is not a concern. However, the care that the refinery recommends during clean-up tells a much different story.

Spreading across the communities of Arabi and New Orleans’ lower ninth ward, the powder used for refinery processes resembled simple dust or powdered sugar and alarmed many during a time in which little to no information can cause significant panic. Taking place on September 6th, many in these communities are left wondering just why chemical releases keep happening and what is being done to prevent them from happening.

Louisiana’s Department of Environmental Quality (DEQ), already investigating the unapproved release of catalyst, has notified the public that, after photographic any and all damage the powder has caused to their property, they can move forward with clean-up. Yet, in their required notice to the DEQ, the Chalmette refinery warned that gloves and safety glasses should be used when cleaning up the material. St. Bernard Parish Fire Chief Thomas Stone warned that the powder could be an irritant to individuals with respiratory problems and that the powder should be cleaned in order to prevent extended exposure.

September 13, 2010

Calcasieu Parish Medical Malpractice Case Shows Complexities of Delays, Negligence

by Berniard Law Firm

In November of 2005, Shane Kerry checked into the ER at West Calcasieu Cameron Hospital in Sulphur, Louisiana after fracturing the heel bone in his right foot. Kerry was examined by Dr. Charles Pearson, who discharged him later in the day with instructions to report for a follow-up at the LSU Medical Center in Shreveport the following week. As he was being transported back to his home, Kerry detoured to another ER, this time at the Christus St. Frances Cabrini Hospital in Alexandria. There, Kerry underwent surgery on his heel by a podiatric specialist. In September of 2008 Kerry filed a suit against Dr. Pearson, alleging that as a result of “delay, negligence, and deviations from the standard of care” on Dr. Pearson’s part, he suffered “extreme disability, loss of sensation, and tissue necrosis with loss of muscle, tendon, skin, and subcutaneous tissue” around his heel. Kerry argued in his complaint that Dr. Pearson was negligent in failing to immediately decompress his foot, perform surgery, call in an orthopaedic surgeon, or arrange for his immediate transport to a hospital willing to properly treat him.

According to Louisiana procedure in medical malpractice cases, Kerry’s complaint was submitted to a state medical review panel. On June 5, 2009, the panel returned a unanimous opinion that “the evidence [did] not support the conclusion that [Dr. Pearson] failed to comply with the appropriate standard of care as charged in the complaint.” Accordingly, Dr. Pearson filed a motion for summary judgment with the trial court, requesting that the suit be dismissed on the grounds that Kerry could not establish that Dr. Pearson had failed to meet the applicable standard of care in his treatment of Kerry’s foot.

In support of his motion, Dr. Pearson included the written opinion of the medical review panel, the affidavits of two doctors who sat on the review panel and who held licenses to practice emergency medicine in Louisiana, the medical records from Kerry’s visit to the ER at West Calcasieu Cameron Hospital, and the discharge summary prepared by the podiatry specialist who treated Kerry at Cabrini Hospital. In his response, Kerry offered the affidavits of his mother and brother, both of whom suggested that there were clear indications that Kerry was in dire need of surgery when he entered the West Calcasieu Cameron ER, but that Dr. Pearson refused to perform it because Kerry lacked health insurance and couldn’t afford the procedure. Kerry also attacked the accuracy medical records from his stay at that hospital, alleging that Dr. Pearson prepared them and that they did not reflect the severity of his injury. The trial court granted Dr. Pearson’s motion and dismissed Kerry’s claim because it “did not find that the submissions at th[at] point [were] adequate to establish a genuine issue of material fact as to the burden that is required under the unique specialization of medical malpractice.” Kerry appealed.

September 9, 2010

Delay and Lessening of Charges in Criminal Trial Shows Complexities in litigation

by Berniard Law Firm

In the town of Duson, a mother of a child slain in a car accident is frustrated and discouraged by the legal system after years of delay in the prosecution of the responsible driver. What’s more, there now remains the possibility that charges may be lessened against the man charged in her son’s death. This situation is an extremely unfortunate one but does illustrate the differences between civil and criminal litigation, as well as the standards involved.

21-year-old Shawn Lancon was killed when the driver of the vehicle in which he was a passenger drove their vehicle into oncoming traffic while attempting to make a left turn. The driver, the man charged in Lancon’s death, was under the influence of alcohol and drugs at the time of the accident. This accident took place in 2007. Three years later, delays in going to trial are still anticipated and now the defense is trying to lessen the criminal charges from vehicular homocide to a first-offense OWI. The OWI charge comes with considerably less jail-time, leading to the anger being expressed in the community.

The reasons for all of these issues are varying. The defense is attempting to lessen the criminal charges by insisting that the blood alcohol level is not high enough for a vehicular homicide, and also that the positive drug test should be excluded because the drugs detected by the drug test does not prove that the drugs were “active” at the time of the accident. Procedural delay is slowing the calendar for trial, due to courts having to postpone cases in Lafayette, Acadia, and Vermillion parishes due to a legal dispute within the court system regarding the allotment of judges.

September 7, 2010

Narcotics Suspected in Leesville Crash: Legal Implications of Impaired Driving

by Berniard Law Firm

John C. Elliott, 26, of Zavalla, Texas was driving a 1999 GMC pickup east on LA.8 and he lost control while passing another vehicle in a curve. He collided with several trees before the truck stopped on La. 8 facing the other direction. Elliot was injured seriously and taken to Lake Charles Memorial Hospital. There were two passengers in the car.

As reported in the Leesville Daily Leader

His two passengers,19-year-old Susie Dixon and an infant, both of Zavalla, Texas, suffered minor injuries and were transported to Byrd Regional Hospital.

September 3, 2010

Addis Woman’s Medical Malpractice Claim Against LSU Doctor Dismissed

by Berniard Law Firm

In November 2000, Debra Anne Addis of Addis, Louisiana filed a request for review with the Louisiana Patient’s Compensation Fund alleging that Mary Eschette M.D. of LSU Medical Center acted negligently in changing her prescription medications and violated the appropriate standard care in failing to properly diagnose a problem with her left wrist. The medical review board entered their decision in September 2003 and concluded that Ms. Addis failed to show that the defendant’s did not meet the applicable standard of care in her treatment. Two and a half years later the defendant doctor and medical center filed a motion for summary judgment and submitted the medical review panel opinion, asserting that the plaintiff Ms. Addis failed to name an expert despite almost six years of discovery.

The Louisiana Court of Appeals (first circuit) entered their decision in March of last year in favor of the defendants. The court found that the record of the case showed Ms. Addis failed to submit any evidence to counter the medical review panel’s opinion or show she could meet her burden of proof should the case go to trial. Therefore, the court granted summary judgment to the defendants and ordered the Plaintiff to pay all costs associated with her appeal.

The granting of a summary judgment motion means that a case will not proceed any further because the plaintiff has failed to present evidence showing sufficient issues of material fact that can be decided by a jury. Therefore the decision is decided by the court as a matter of law. Summary judgment motions can be granted for the plaintiff or defendant. Here, the motion was granted for the defendant, effectively dismissing Ms. Addis’ case.

September 1, 2010

Understanding the Law: Bystander Recovery After Tragedy Strikes

by Berniard Law Firm

In certain situations, a person that witnessed another get physically injured has a legal claim against the person that caused the physical injury—even when the witness suffered only mental anguish, without any direct physical injury. The rule allowing this recovery is known as the bystander recovery rule.

Louisiana’s bystander recovery is governed by Louisiana Civil Code Article 2315.6 and the Louisiana Supreme Court case of Trahan v. McManus. As stated in Trahan, the bystander recovery rule does not “compensate for the anguish and distress that normally accompany an injury to a loved one under all circumstances.” Rather, the bystander recovery rule is more limited and has four requirements in order for a bystander to recover damages for his mental anguish from witnessing another’s injuries.

Those four elements are:

August 30, 2010

Falling Drywall Case Demonstrates the Concept of Res Ipsa Loquitur in Tort Actions

by Berniard Law Firm

In a tort case based on negligence, a plaintiff must be able to show that the defendant owed a duty to the plaintiff and that the defendant breached that duty, resulting in harm to the plaintiff. In some circumstances, though, it can be difficult for a plaintiff to obtain clear evidence of the defendant’s breach of duty.

The concept of “res ipsa loquitur,” which is Latin for “the thing speaks for itself,” can be employed in certain situations to establish the defendant’s breach of duty in the absence of direct evidence. Under this doctrine, the mere occurrence of an accident raises the inference of negligence on the part of the defendant. When res ipsa loquitur is applied, the defendant bears the burden to put on other evidence to dispute the presumption of negligence.

There are two essential elements for applying res ipsa loquitur in a particular situation: