Pain And Suffering Claims

December 16, 2019

Tulane University Student Lawsuit About Dorm Room Incident Remanded Back to Trial Court

A 2016 case demonstrated the importance of making sure our universities remain safe and secure. While one would like to think our schools would be free from the dangers of larger society, Tulane learned the necessity of vigilance.

While a student at Tulane University, the Plaintiff, Stephanie Boyd, shared a dorm suite with shared bathroom. One of her suitemates guests, Defendant Andrew Cebalo, took advantage of the shared bathroom to sneak into Stephanie’s bedroom at night and molest her.

In the initial trial, Ms. Boyd alleged Tulane University was negligent for failing to properly secure the premises, provide safe housing, and comply with industry standards regarding door locks and security. In response, Tulane filed an exception of no cause of action. Boyd filed an opposition to the exception of no cause of action, and an amended and supplemental petition alleging a failure to implement measures protecting students from foreseeable criminal harm. The trial court sided with Tulane, and dismissed the case with prejudice (meaning the lawsuit could not be filed again in the future).

December 1, 2019

New Orleans Baptist Church Liable for Horrific Accident on Leased Premise

by Berniard Law Firm

48-Email-06-24-19-Part-II-PHOTO-768x1024 When writing leases, it is important to pre-determine who is at fault if an accident or injury occurs on the rented land. Yet, this determination can become complicated when the border of the leased land comes into play. Other issues can involve the exact lease language which states whether one party is indemnified, or is free from having to pay damages. A case out of western New Orleans shows how damages and fee allocations for a horrific accident involving a loose metal gate depends on which lease governs, what clauses are met, and where fault should be allocated.

On July 1, 2010, Lisa Plaia dropped off her daughter at a daycare run by the First Baptist Church of New Orleans (“FBCNO”). As she drove away, a metal gate suddenly swung into the road, crashed through the windshield, and hit her in the face, causing permanent facial and brain damage. Ms. Plaia then sued the following three parties: Fireman’s Charitable & Benevolent Association (“FCBA”) which owned the land the gate was located on; Stewart Enterprises and its subdivision SEFH, a funeral home company which mowed the grass around the gate and leased property from FCBA; and FBCNO which subleased land from SEFH and leased land from FCBA. Each of these parties subsequently filed indemnity claims against one another in order to avoid paying Ms. Plaia for any damages related to her injury.

In the Civil District Court of Orleans Parish, the jury allocated fault between these parties as follows: 15% for SEFH and 42.5% for both FCBA and FBCNO. Due to indemnity claims, the District Court ruled that FBCNO owed indemnity (reimbursement) of defense fees to FCBA as well as reimbursement of defense fees to SEFH. FBCNO subsequently appealed to The Louisiana Fourth Circuit Court of Appeal, arguing in part that the District Court used the wrong lease and incorrectly ruled that it was required to defend FCBA.

November 30, 2019

New Orleans Mother of Two Issued Retrial After Horrific Accident Near Baptist Church

by Berniard Law Firm

48-Email-06-24-19-Part-I-PHOTO-1024x676 Freak accidents can happen in the most unexpected ways. When these life-altering events occur, it often affects more than the injured person. Depending on the circumstances, family members can receive compensation for non-physical injuries, such as loss of consortium (companionship).

On July 1, 2010, Lisa Plaia dropped off her young daughter, Carolina, at a Baptist Church daycare and drove away with her other daughter, Petra, who was sitting in the backseat. As she left the facility, a hinged metal gate swung into the road, crashed through the windshield, and hit Ms. Plaia in the face. While Petra received no physical injuries, Ms. Plaia alleged that she suffered, among other injuries, partial facial paralysis, permanent facial disfigurement, traumatic brain injury, memory damage, and hearing loss. To recover for these injuries, Ms. Plaia sued three defendants potentially responsible for the loose gate.

The case required a trial by jury which the Civil District Court, Orleans Parish, scheduled for April 15, 2013, but then rescheduled for April 22th. The District Court also reserved a trial period of two weeks with the possibility of a third if necessary. Due to a lack of jurors available, the District Court rescheduled again, this time for the trial to begin August 5, 2013. Additionally, the District Court only set aside ten days for this trial, as opposed to the originally granted two to three weeks.

November 8, 2019

Employers Potentially Liable After Seaman Injured on Tugboat

by Berniard Law Firm

46-1024x685 In the workplace, providing a safe environment through training, communication, and safety standards can help create an injury-free workplace. Yet, despite every precaution, accidents can still happen and then the situation becomes one of determining whose negligence caused the injury. This issue was explored in a maritime action filed on May 9, 2012 in the Twenty-Ninth Judicial District Court for the Parish of St. Charles.

On November 11, 2011, Jeffrey L. Soudelier, Jr. was aboard the towboat M/V Steven M. Bryan as its captain. The towboat was one of many vessels owned by the defendants: PBC Management, Inc., Florida Marine Transporters, Inc. and Florida Marine, LLC. On this day, Soudelier was instructed to move a big, steel-reinforced, cross-over hose from a barge to the towboat. The hose was heavier than it should have been due to material inside it that was supposed to be removed. Soudelier and four others were in the process of moving the hose when a painful pop in his hip forced him to stop. Soudelier tried to wait and see if the pain would go away but it did not and though he finished moving the hose, he was injured.

Soudelier filed a lawsuit against the defendants, seeking recovery and claiming unseaworthiness in accordance with the general maritime law, as well as a claim for maintenance and cure. He claimed that his injury required surgeries and caused permanent and disabling problems, and that the required heavy physical work caused even more trauma. Soudelier stated that the defendants’ boat was unseaworthy and defendants were negligent because they did not offer alternative ways to move the hose and failed to train workers about this safety issue.

November 7, 2019

Parties Take Issue with Compensation Awarded to Victim of DeSoto Parish Car Accident

by Berniard Law Firm

50-Email-1024x683 Sometimes it is easily apparent when one party is liable in a car accident, such as when the facts leave little room for dispute. However, it may not be as easy to determine the amount of damages the plaintiff should receive. How should pain and suffering be calculated? And how much of this pain and suffering is a result not of the accident but of natural course of aging or a preexisting condition? This issue of calculating damages was recently explored in a DeSoto Parish, Louisiana, lawsuit.

Following a three-vehicle accident, plaintiff, McLawrence Fuller, underwent a three-level lumbar fusion with instrumentation as a result of injuries and pain in his neck, lower back, and leg. However, at the time of the accident, Mr. Fuller was 70 years of age with pre-existing, asymptomatic, degenerative disc disease and congenital spinal stenosis. After treatment following the car accident, Mr. Fuller complained of pain and limitations to his mobility and ability to carry out day-to- day activities. Mr. Fuller tried to go as long as he could without having surgery, even after he had gotten a recommendation from several physicians to do so, but went through with it when he was no longer able to dress himself or participate in volunteer positions in his community.

Mr. Fuller filed a tort action due to injuries on September 20, 2011. The defendants, D.L. Peterson Trust Company, it’s insurer National Union Fire Insurance of Pittsburgh, Adam Keys, and National Oil Well Varco all agreed to their liability. The only job for the jury as fact-finders was quantum, which is to calculate the amount of damages.

November 6, 2019

Louisiana Court Affirms Caregiver’s Dog Bite Worker’s Compensation Claim

by Berniard Law Firm

9-819x1024 In the typical employee-employer relationship there is a certain aspect of trust. For the employer, they must trust that the employee is doing their job properly, and the employee must trust the employer will ensure a safe environment to perform their job. This case deals with a situation involving the trust of a safe workplace, and answers the question if an injury can be considered “on the job” if symptoms do not materialize for days following the accident.

On April 8, 2013, Deborah Gaines was going through her typical work routine for Home Care and was tending to a client. While tending to the client, Ms. Gaines was bitten on her right leg by the client’s dog. As a result of the bite, Ms. Gaines immediately felt an injury in her right leg, and a few days later she began to feel pain in her back. The day after the incident, Ms. Gaines filed a report with her employer, Home Care, to receive indemnity benefits and medical expenses from the accident. Home Care then responded to Ms. Gaines saying she did not sustain an “accident” according to the Louisiana Workers’ Compensation Act.

In response, Ms. Gaines filed a suit against her employer in March 2015, and the trial court decided that Ms. Gaines had suffered a work-related injury and awarded her disability benefits, past medical expenses, and reasonable future medical expenses related to her injury. Home Care appealed this decision, arguing that Ms. Gaines’ back pain was not a work-related injury and that Ms. Gaines did not suffer from a temporary total disability.

November 4, 2019

Court Finds in Favor of School Teacher in Worker’s Compensation Claim

by Berniard Law Firm

44-Email-1024x723 If injured at work, many people will turn to a lawyer to learn about the legal options and damages available to them. Yet, a good lawyer can do more than just obtain damages, such as negotiate with the employer to facilitate accommodations needed in order to return to work.

Louisiana school teacher Dena Wempren was injured when a student pulled a chair out from under her, causing her to fall in a seated position. Ms. Wempren filed a “Disputed Claim for Compensation” which she later amended after being instructed by the School Board to return to work even though her pain management doctor had instructed otherwise. When a court-appointed doctor examined her, she was told she could return to work but only in a modified capacity. The School Board responded to the doctor’s findings by demanding she return to work, and Ms. Wempren was forced to comply or else lose some of her worker’s compensation. After returning to work, Ms. Wempren filed a third amended complaint when she felt her job demanded more than she was capable of given her injured condition.

At trial, the court looked at whether Ms. Wempren was able to work and if the School modified her work position enough to accommodate her injuries. The trial court sided with Ms. Wempren finding the job description Ms. Wempren was working under did not relay the physicality that would be required on the job, after she presented medical evidence which indicated she should not have returned to work without treatment. The School Board appealed the decision.

November 3, 2019

Jury Award of Limited Damages to “Serial Plaintiff” in Personal Injury Case Upheld by the Fifth Circuit Court of Appeals

by Berniard Law Firm

image-for-post-70-from-email-5-14-19-1024x679 The Louisiana Supreme Court has recognized that awarding damages for medical expenses without awarding pain and suffering damages, though seemingly inconsistent, is not invalid on its face. See Wainwright v. Fontenot, 774 So.2d 70 (La. 2000). Appellate courts afford juries great deference and disturb verdicts only when they are clearly and objectively unsupported by the evidence in the trial record. One such example of this can be seen in an auto accident case involving a “serial plaintiff.”

Joseph Wiltz was rear-ended in stop-and-go traffic by Maya Welch. Wiltz filed a petition in state court against Welch and her insurance company, State Farm, claiming he was injured in the accident. He sought damages for past and future medical expenses, lost wages, loss of enjoyment of life, and pain and suffering. The trial moved to the U.S. District Court for the Middle District of Louisiana by the defendants and the case proceeded to trial.

The defendants admitted Welch’s fault in the accident, leaving the main issue whether Welch’s negligence was the cause of Wiltz’s injuries. Discovery revealed that Wiltz was a “serial plaintiff” with pre-existing injuries that he failed to disclose to the doctors that treated him following the collision. Between 1991 and 2011, Wiltz had four different accidents and incidents that resulted in injuries to his neck, back, and shoulders. Furthermore, Wiltz told doctors that he’d never experienced back or neck pain previously and answered discovery in a similarly untruthful and incomplete manner. Even with the information concerning the pre-existing injuries, the jury still returned a verdict in favor of Wiltz; however, the jury awarded him compensation for past medical expenses only. Wiltz filed a motion for a new trial or an amendment to the judgment, contending the verdict amounted to an abuse of discretion by the jury. The district court denied the motion because Wiltz failed to prove he endured any compensable pain and suffering.

October 27, 2019

Red River Parish Worker Allowed to Proceed in Action Against Jointly Liable Party in Well Accident Despite Settlement with the Other

by Berniard Law Firm

image-for-post-26-1024x791 What’s wrong, Lassie? Did Timmy fall down the well in Red River Parish? No? It was John Cantu who fell in the well, because of someone’s negligence? Let’s let Louisiana’s Second Circuit Court of Appeal figure this one out.

John Cantu, a truck driver, made a delivery to a well site owned by Encana Oil & Gas and operated by Schlumberger in Red River Parish. Cantu had to climb up a short stairway to a Schlumberger trailer in order to have the delivery receipt signed. While attempting to climb up the staircase, he fell down a hole and injured himself. Cantu claimed the hole represented an unreasonable risk of harm and that Schlumberger had neglected to fix the hole. On October 2, 2013, after filing a lawsuit, Cantu settled with Schlumberger out of court; Cantu agreed to release Schlumberger from all liability following the accident in exchange for a cash settlement of $375,000. Following this settlement — which is also known as a compromise — Cantu and Schlumberger jointly filed a final motion to dismiss the case on October 24, 2013.

However, one day earlier, on October 23, 2013, Cantu had filed a supplement and amended petition in which he named Encana as a defendant. In his amended petition, Cantu alleged that Encana allowed a dangerous condition to exist at their drill/work site. On February 26, 2014 Encana sought dismissal on the theory that the trial court no longer had jurisdiction over the case because the filed order for dismissal by Cantu and Schlumberger had the effect of a final judgment; such a final judgment was not subject to alteration by the trial court. Encana cited the October 24 motion to dismiss as evidence that the case had been settled between Cantu and Schlumberger and had been dismissed by those parties. The trial court agreed with Encana and dismissed Cantu’s amended petition. Cantu then appealed this decision to the Second Circuit.

October 18, 2019

Appellate Court Rejects Appeal from Transportation Company Regarding Comparative Fault and Award

by Berniard Law Firm

bus-locomotive-transportation-system-2261702-713x1024 Once a trial court determines a judgment, it is difficult to obtain a reversal, especially if the judgment is one in which a jury awards compensation for a personal injury plaintiff. In the case below, the defendant appealed the amount the Trial Court awarded the plaintiff. The Appellate Court was deferential to the Trial Court’s judgment.

Joc-Kia Wilson suffered from cerebral palsy and thus moved around on a motor scooter. While she attempted to board a bus operated by Veolia Transportation Services in New Orleans, the wheelchair lift ramp had apparently malfunctioned and caused her to fall. When she visited a hospital, an MRI revealed that various parts of her body were sprained. Ms. Wilson filed a claim against Veolia Transportation Services for compensation. The Trial Court awarded a total of $19,879.00 to Ms. Wilson for her pain and suffering and medical expenses. This amount was reduced by forty percent because of Ms. Wilson’s fault in the accident. However, Veolia Transportation Services disagreed that Ms. Wilson was only forty percent at fault. Veolia also argued that the amount awarded to Ms. Wilson was faulty because she had not presented relevant evidence for her medical injuries. Veolia asked the Appellate Court to set aside the trial court’s decision.

An appellate court may cast aside a trial court’s finding of fact only if it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La. 1989). In order to rule that a finding of fact is “clearly wrong,” the appellate court must first show that it cannot find any factual basis for its decision from the trial record. Second, the appellate court must determine from the record that the trial court’s finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). To put it simply, the appellate court must determine whether or not the decision made at the trial court level was a reasonable one. Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La. 1992).