Pain And Suffering Claims

January 20, 2023

Insufficient Medical Evidence Leads to Louisiana Court Throwing Out Default Judgment in Bar Fight Lawsuit

bar fight lawsuit louisiana We all try our best to avoid trouble, but sometimes fights happen. It may be best to avoid a brawl if you see one occurring. However, when you see your friend in a bind, human nature kicks in, and before you know it, you’re in an altercation that you never signed up for. If you are injured in a fight, proceed carefully when suing the party that caused your injuries. Ryan Martinez learned this lesson the hard way following the Louisiana First Circuit Court of Appeal ruling in the following case.

Martinez intervened in an altercation between his friend and the defendant, Trevor Wilson, at Chevy’s nightclub in Hammond. (“Chevy’s). During the fight, Wilson allegedly attacked Martinez, and Martinez stated that the strike resulted in a mandible fracture. Martinez, after that, sued to recover damages, listing Wilson, Chevy, and their insurers as defendants and asserting Wilson’s liability for battery. The trial court entered a preliminary default against Wilson, as he was absent from court and had not filed a response to the petition.

Two years later, the trial court conducted a hearing to confirm the default judgment. Although Wilson did not appear at the hearing, Martinez submitted various items as evidence, such as a smoothie receipt and various uncertified medical records. As a result, the trial court signed the judgment finding Martinez entitled to collect $110,128.66 in personal injury damages and medical expenses from Wilson. Wilson promptly appealed the trial court’s decision awarding Martinez the previously noted damages.

January 17, 2023

Insurance Contract Confusion Leads to Louisiana Lawsuit

by Berniard Law Firm

Uninsured Motor Coverage Post
Car accidents are scary. Whether any parties are injured or not, dealing with the insurance company for vehicle damage or personal injury is not an enjoyable activity for the general public. The situation is even less enjoyable when the person dealing with the insurance company is not the policyholder.

In March 2007, Brian Duplichan’s daughter and the mother of his daughter were passengers in a car driven by Beverly Hooper. Although his daughter, Kadie, survived the accident, her mother, Sarah, did not. Both Sarah and Kadie lived with Sarah’s mother, Mary Elizabeth Reeves. Duplichan brought a lawsuit against State Farm Mutual Automobile Insurance for recovery of damages.

Kadie and her mother were riding with Beverly Hooper when Hooper swerved off the road into a culvert. These facts are not disputed—it’s the aftermath of the accident that put Spears’ mother—Mary Reeves—and Duplichan through the wringer.

February 16, 2020

Louisiana Supermarket Held Liable for Human Fingernail in Buffet

by Berniard Law Firm

assorted-cooked-foods-inside-food-warmers-2291367-1024x683 How often do you go through the buffet line at your local supermarket? Next time, you might want to think twice before digging in to your lunch.

On June 14, 2014, Cynthia Small entered Rouse’s Market hoping to enjoy a meal there. After purchasing items of prepared food from Rouse’s buffet, Ms. Small tried to enjoy her meal, but instead found a human fingernail hidden within. Ms. Small then brought a lawsuit against Rouse, claiming that she suffered from nausea, vomiting, and mental anguish on account of Rouse’s negligence. The lower court held a bench trial, which determined that Rouse’s was at fault. The court also awarded damages to Ms. Small in the amount of $2,500.00. Rouse’s appealed that decision to the Fourth Circuit Court of Appeals, arguing that the trial court erred.

The Supreme Court of Louisiana has held in cases similar to this that an analysis looking to risk and duty should be applied. The Court stated that a food provider owes a duty of care to behave like a reasonable person who is knowledgeable about cooking and preparing food. Porteous v. St. Ann’s Cafe & Deli, 713 So.2d 454, 457 (La. 1998). On appeal, the Court must determine if the lower court erred by finding that Rouse’s breached this duty of care.

February 8, 2020

Slidell Dollar General Not Responsible for Falling Merchandise Injury

by Berniard Law Firm

grocery-cart-with-item-1005638-768x1024 Dollar stores carry a wide variety of merchandise, and stacking these items on shelves saves space. When stocking, employees should always take reasonable care to stack items in a safe manner so they do not fall off the shelf and potentially injure shoppers. For one Slidell man, however, an everyday grocery trip to Dollar General turned into a 4-year, $50,000 lawsuit.

Charles Frazier went to Dollar General one August day to buy a quart of oil; however, when he went to grab the bottle, plastic tote lids on the shelf above him slid off, bumped him in the neck, and caused him to fall onto one knee. After getting up, he reported the incident to a store manager. Then, nearly a year later, he sued Dollar General for $50,000 in injuries, claiming that he suffered physical pain, mental anguish, medical expenses, and lost wages. According to his lawsuit, Dollar General was negligent in allowing its merchandise to fall off the shelf and onto customers.

These types of lawsuits are appropriately known as falling merchandise cases, and the statute that governs ensuing negligence claims is La. R.S.9:2800.6(A). The Louisiana law provides that a merchant, like Dollar General, must use “a reasonable effort to keep the premises free of any hazardous conditions.” When brought to trial, the Twenty-Second Judicial District Court of Louisiana ruled in favor of Mr. Frazier, but applied Section B of this statute. This section, instead of requiring an injured party to show that a hazardous condition existed, only requires a showing that the “condition presented an unreasonable risk of harm.” La. R.S.9:2800.6(B). The defendant, Dollar General, appealed this decision to the Louisiana First Circuit Court of Appeal.

January 26, 2020

Public Entity Ordered to Pay Damages After Accident on Film Set

by Berniard Law Firm

camera-event-live-settings-66134-1024x683 No one wants to be held liable for the injuries of another. Wet floor signs, warning tags, and regular inspections are all ways we provide notice to others of hazardous conditions. Sometimes, though, when a hazard is unexpected or has never presented itself as a potential risk of harm, liability is inevitable. The question then becomes, what is the cost?

On December 14, 2010 Vicki Badeaux (“Badeaux”) arrived at the set for an informational video that was to be filmed by the Louisiana Department of Economic Development (“LDED”). Badeaux was scheduled to act in the video and brought several outfits to the set for the crew to pick one for her to wear. James Dupree (“Dupree”), the LDED Fast Start Department Manager wanted to review the script with Badeaux before filming, so he instructed her to hang her clothes on a nearby C-stand, a general purpose stand that was kept on the set. When Badeaux tried to hang her clothes on the C-stand, it fell and hit the right side of her head. Badeaux declined medical assistance and ended up being able to act in the video that day. However, two weeks later, Badeaux began to feel sharp pain in her right temple. Almost a year after the incident, in December of 2011, she filed a personal injury lawsuit against LDED in the Nineteenth Judicial District Court for East Baton Rouge Parish.

At the end of the case, the District Court found that both parties were at fault for the 2010 incident, with LDED 75% at fault for Badeaux’s damages and Badeaux 25% at fault. It was held that Badeaux suffered $41,655 in general damages—damages that cannot be calculated with relative certainty, such as mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of daily life. Mack v. Imperial Fire & Cas. Ins. Co., 167 So. 3d 691 (La. App. 2014). With the general damages total and allocations of fault, the District Court held that LDED was liable to Badeaux for 75% of her total damages, plus interest, therefore owing her $37,500 and court costs. LDED appealed and the Court of Appeal for the First Circuit determined it would review the District Court’s finding of general damages, as well as its overall holding of LDED’s liability to Badeaux.

January 17, 2020

Personal Injury Lawsuit Brought Too Late For Court to Rule on

by Berniard Law Firm

person-grilling-sausage-and-meat-1857732-1-1024x683 The interests of justice are best served when the evidence in a lawsuit is new. This is because any potential witnesses can corroborate or deny evidence presented at trial with a fresh memory of the events or documents. Personal injury cases in Louisiana follow this principle with a one year deadline called the peremptory exception of prescription. A recent lawsuit between New Orleans family members demonstrated the value of having an excellent attorney who knows when these deadlines begin to run.

On April 20, 2014, Cynthia Dent attended an Easter party at Genevieve Willis Dent’s home in New Orleans. While walking in the backyard, Ms. Dent stepped into a hole. This hole was covered by outdoor carpet and was not visible. As a result of the accident, Cynthia Dent experienced pain and swelling in her left foot and ankle. Two days later, on April 22, 2014, Cynthia Dent went to the doctor for x-rays and eventually found out that she broke her left foot.

One year and three days after the original accident and one year and one day after her diagnosis, on April 23, 2015, Ms. Dent filed a lawsuit against Genevieve Dent and Genevieve’s home insurance company, State Farm Fire and Casualty Company. In response, Genevieve Dent and her insurance carrier filed a peremptory exception of prescription. This peremptory exception of prescription is used by defendants for a variety of reasons, which basically argues that there is no legal remedy for the plaintiff’s alleged injury because the lawsuit was brought too late. In Genevieve Dent’s case, she raised the peremptory exception of prescription because Cynthia Dent filed her lawsuit past the one year deadline. The Trial Court held a hearing on the peremptory exception of prescription and agreed with Genevieve’s argument. The lawsuit was dismissed. Cynthia Dent then appealed.

January 11, 2020

Can You Prove Your Injuries Were Caused by the Accident?

by Berniard Law Firm

blue-and-silver-stetoscope-40568-1-1024x683 To many who contemplate filing a lawsuit for an automobile accident, it may seem sufficient to show that the other driver was at fault – show he ran the red light, she failed to signal, and then it’s all downhill from there. But one element of all negligence cases is causation. You must prove that the injuries you have were caused by the accident itself. Normally this is pretty simple, but preexisting conditions can muddy the waters. Wayne Bouchon found out the hard way that proving causation was critical to his case.

Wayne and his wife, Roberta, were driving down Highway 22 near Mandeville on their way to get lunch when their vehicle was struck from behind. The Bouchons told the officer who came to the scene that they were not hurt, but later that day, Wayne started experiencing lower back pain. Despite the pain, the Bouchons did not file a lawsuit until nearly twelve months after the accident.

Of the evidence presented at trial, Wayne’s medical records showed he had been treated for a back injury a few years before after lifting a heavy box. Also, the Trial Court heard testimony that Wayne had taken a job at Office Depot a few months after the accident, which required standing for long periods and occasionally moving furniture. His doctor testified to a correlation between his Office Depot job and the worsening of his symptoms. As a result, the Trial Court found that the Bouchons had not proved the accident was the cause of Wayne’s injuries, and awarded only $5,000 in minimal pain and suffering. The Bouchons appealed.

December 28, 2019

Unreliable Medical Expert Methodology Equals No Case Under Daubert in Chalmette Refinery Case

by Berniard Law Firm

gasoline-station-during-night-time-92077-1024x489 The five factor Daubert test is used in federal courts to determine if the methodology used by medical and other experts is reliable. The five factors that may be considered under the Daubert standard to determine whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. See Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

In this case, Natalie Konrick (“Ms. Konrick”) worked as a security guard at a refinery in Louisiana that was owned by Chalmette Refinery, L.L.C. (“Chalmette”) and operated by Exxon Mobil Corporation (“Exxon”). She, unfortunately, had a stillborn baby, allegedly as a result of the toxins to which she was exposed to while working at Chalmette. Ms. Konrick obtained experts Dr. Robert Harrison, Dr. Cynthia Bearer, and Dr. Lauren Waters to testify regarding the general causation of her having a stillborn baby.

The District Court granted Chalmette’s motion to exclude the three expert’s testimony because it found that their opinions were based on unreliable methodologies. As a result of the grant of the motion to exclude expert testimony, summary judgment was granted in favor of Chalmette because there was no evidence of general causation as to the stillborn baby.

December 21, 2019

What Happens When A Car Accident Aggravates a Pre-Existing Injury?

by Berniard Law Firm

pexels-photo-1028742 Sometimes, car accidents happen. Someone speeds, gets distracted, or makes a mistake that causes an accident. Crashes can be unexpected. No one gets to decide what time of day it happens, where it happens, or who gets injured. Instead, you have to take the whole situation as it is.

Jay Schwartzberg (“Plaintiff”) was a 23-year-old law student on April 25, 2013 when the driver of an armored van failed to yield to Schwartzberg’s vehicle and caused a collision in East Baton Rouge, Louisiana. Prior to the accident, Schwartzberg suffered from a bulging of the C3-C4 and C6-C7 intervertebral discs and chronic neck pain. In the lawsuit, he argued that the collision on April 25, 2013 exacerbated these previous injuries. Schwartzberg filed against the defendants seeking damages for his neck injury due to the collision. The trial court awarded Schwartzberg $49,999.99 worth of damages, plus legal fees.

Miller Guillory and his employer, Garda CL Southeast, Inc. (collectively “Defendants”) appealed the trial court’s award for two reasons. First, the Defendants argued that the trial court erred in finding that the collision caused an aggravation to the Plaintiff’s pre-existing neck injury. Second, the defendants argue that the trial court erred in the amount of damages awarded because the court relied on Schwartzberg’s expert witness that was contradictory to the medical records and other evidence admitted at trial.

December 19, 2019

Appellate Court Upholds Finding that Accident Did Not Cause Employee’s Injuries

by Berniard Law Firm

clouds-crane-drill-414936-1024x384 Everyone gets injured, but what happens when you are injured on the job and had been in an accident in the past? Does the court take that into consideration if you file a lawsuit, or does the court presume an accident was work-related? In one local case, the workers’ compensation judge found that the injury at issue was not caused by the work accident. The injured party, Todd Porche (“Porche”), appealed this determination.

Generally, when reviewing workers’ compensation cases, the appellate court must determine whether the commission’s conclusions are reasonable using the clearly wrong standard. Richardson v. North Oaks, 91 So.3d 361, 365 (La. App. 2012). If there are two acceptable views of the evidence, the fact finder’s decision may not be found manifestly erroneous, or clearly wrong. Here, Porche alleged that the workers’ compensation judge erred in denying the reopening of the case, which is within the discretion of the court. Reopening the case would have allowed Porche to prove causation.

On September 11, 2013, Todd Porche (“Porche”) was working for Guichard Operating Co., LLC (“Guichard”) when he fell between eight to fourteen feet onto a steel rig floor, where he allegedly injured his back and head. As a result, Porche received workers’ compensation benefits from the date of the accident through March 13, 2014. When Guichard terminated Porche’s benefits, the company alleged that Porche violated La. R.S. 23:1208 and 23:1208.1. If true, it would mean Porche forfeited all benefits and would owe the company restitution, interest, and costs. After a four-day trial, the workers’ compensation judge denied Porche’s claims.