Pain And Suffering Claims

June 19, 2017

Louisiana Court Upholds Jury’s Finding of No Causation Despite Uncontroverted Expert Testimony

trailerpark-1-1559039-1024x820 In any personal injury lawsuit, it is absolutely critical that the plaintiff documents his or her injuries and gather evidence in support of legal claims. In addition to establishing that the defendant breached a duty of care, personal injury plaintiffs must also prove – through medical testimony and documentation – that it was more probable than not that the accident at issue caused their injuries. See Maranto v. Goodyear Tire & Rubber Co., 650 So.2d 757 (La. 1995). This is particularly complicated when the plaintiff is already receiving care for preexisting injuries, as the law holds that defendants are not liable for damages caused by separate, independent, or intervening causes or injury. A recent case of the Louisiana First Circuit Court of Appeal is revealing. In this case, the Court of Appeal upheld a jury’s finding of no causation despite unconverted testimony by two expert witnesses.

On July 18, 2011, Wendy Richardson was returning to her home in Powers Trailer Park in Ascension Parish, Louisiana when her vehicle’s right rear tire fell into a hole. The hole developed suddenly in the gravel lining the entrance to the trailer park from Airline Highway. Ms. Richardson filed a lawsuit against the owner of the trailer park, Homewood Holdings, L.L.C. and its insurer, Scottsdale Insurance Company. Ms. Richardson argued that the hole caused her vehicle to unexpectedly stop, causing her serious injuries that necessitated undergoing spinal surgery.

At trial, Ms. Richardson presented the testimony of two treating physicians in addition to her own testimony. Ms. Richardson testified that she did not immediately seek medical attention for her injuries because she was already being administered a narcotic for serious injuries suffered in a domestic violence incident, and her contract prohibited her from receiving medication from any other source. She waited until her next scheduled appointment with her pain management specialist, Dr. Thomas Cockerham.

June 16, 2017

Company Loses Workers Compensation Denial in Ouachita, Louisiana when Plaintiff’s Medical Records Show Truth

by Berniard Law Firm

portal-2-1204680-1024x680 What happens when an accident happens at the workplace? Well, you would immediately head to the doctor. You would rely on your medical records to show the truth when you talk to your insurance company. However, what happens when the medical administration doesn’t agree that your medical records are demonstrative of the truth? Strengthening your case against corporations that attempt to veil the importance of your medical records requires the very best attorneys possible.

Plaintiff James Arness Thomas was a forklift operator for Marsala Beverage Company. In November 2010, Mr. Thomas fell off of his forklift when a truck driver pulled forward unexpectedly. The defendant, Marsala Beverage Company, never disputed that the accident occurred in the course of the plaintiff’s employment and that he was injured.

At the time of his injury, the plaintiff suffered damage to his neck, back, arms, and wrists. Mr. Thomas returned to work temporarily, and then stopped working. The Marsala Beverage admitted that he was temporarily disabled, and paid Mr. Thomas compensation and medical benefits. In the meantime, Mr. Thomas consulted a long line of specialists, including orthopedists and neurosurgeons.

June 15, 2017

When Is A Merchant Liable For A Patron Falling On Business Premises?

by Berniard Law Firm

grocery-store-1-1161348-1-1024x681 When a merchant sets up shop, he/she may become liable for any accident that occurs on the business’s premises. However, the merchant is not automatically at fault. Sometimes a person is injured and the merchant is not to blame, either because the plaintiff was careless or failed to satisfy his burden of proof. The law in Louisiana that governs a merchant’s liability for negligence also governs the plaintiff’s burden of proof when bringing a claim against a merchant. This law also provides a list of elements, which the plaintiff must prove in order to succeed in their claim. See La. R.S. 9:2800.6.

The first part of the law sets forth a merchant’s duties such as keeping their aisles, passageways, and floors free from hazardous conditions. The second part, which deals with an injured plaintiff bringing a negligence claim against a merchant, provides a test. Although this part is directed towards a claimant, it also puts merchants on notice as to their duties towards customers. In order for the plaintiff to prevail, the plaintiff must meet all elements of the test. A person who was lawfully on the merchant’s premises and sustained damages, injuries, or death must prove: (1) the condition which caused the plaintiff’s misfortune presented an unreasonable risk of harm and the risk must have been reasonably unforeseeable; (2) the merchant either created the condition or knew of the condition prior to the plaintiff’s injury; and (3) the merchant failed to exercise reasonable care. The absence of a merchant’s “clean up policy,” written or verbal, will not be enough for the plaintiff to prove a failure of reasonable care on the part of the merchant.

In this case, a store patron appealed the District Court’s judgment that allowed a grocery store to escape liability after the patron fell and injured himself in the store’s parking lot due to uneven pavement. The Plaintiff, Mr. Jerome Waddles, and a friend, Mr. Donald Robinson, arrived at Brookshire’s Grocery Store in Bossier City, LA. As the two walked towards the store, Waddles tripped on the uneven pavement and fell relatively hard. At trial, Mr. Waddles and Mr. Robinson described the area as a “crack and a hole.” Despite the damaged pavement being located in a heavily-trafficked area, the was no history of any prior incident.

June 13, 2017

Suspiciously Convenient Deposition Changes Ultimately Admitted in Slip and Fall Appeal in Louisiana Lawsuit

by Berniard Law Firm

shopping-cart-1550709-1024x768 When you suffer a personal injury such as a slip and fall and pursue a remedy in court, you must be able to support your allegations with sufficient evidence. After conducting initial discovery, a party may move for summary judgment and seek to have the case dismissed before it is ever heard by a trier of fact. When a party moves for summary judgment, it argues that the initial discovery shows that there are no issues of material fact to be decided by the trier of fact and that it is entitled to judgment as a matter of law. The opposing party, the party seeking to avoid having their case dismissed, must then present evidence to show that there are issues of material fact that should be heard at trial. In a recent case from the Louisiana Second Circuit Court of Appeal, a plaintiff conveniently “corrected” her deposition testimony attempting to defeat a motion for summary judgment. While the suspect changes were ultimately admitted, this was not sufficient to allow the case to go forward at trial.

In this case, Ginger Crawford slipped and fell on a wet floor in the dairy section of a grocery store owned by Brookshire Grocery Company in Springhill, Webster Parish, Louisiana. In response to a request by Brookshire, Ms. Crawford gave a deposition in which she swore to the court her version of the incident that happened in Brookshire’s Grocery. The deposition was certified by the court reporter. Brookshire then filed a motion for summary judgment, relying heavily on Ms. Crawford’s deposition. Brookshire’s motion argued that the case should be dismissed before trial because based on the initial discovery, it was evident that Ms. Crawford could satisfy her evidentiary burden under Louisiana’s Merchant Liability Statute. More specifically, Brookshire asserted that Ms. Crawford could not satisfy the “temporal” element of her claim.

In order to succeed in a slip and fall claim, a plaintiff must satisfy each and every element of Louisiana’s Merchant Liability Statute. See L.A. R.S. 9:2800.6. First, the condition that caused the fall must have presented an unreasonable risk of harm to the plaintiff and that risk of harm must have been reasonably foreseeable. Second, the merchant must have either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. Third, the merchant must have failed to exercise reasonable care. In determining whether the merchant exercised reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient to prove failure to exercise reasonable care.

June 8, 2017

Plaintiff Gets Another Bite: Louisiana Court Overturns Denial of Plaintiff’s Evidence of Disability

by Berniard Law Firm

$torn-ligament-and-fractured-bone-bandages-1631721-1024x727$ Workers’ compensation is a form of insurance run by the state government which pays wage replacement and medical benefits to employees injured on the job. Temporary Total Disability Benefits or “TTD” require the employer or its workers’ compensation carrier to pay indemnity benefits roughly equal to two-thirds of the employee’s average weekly wages. But in order to benefit from TTD or other types of disability benefits, the employee must prove an inability to work and that the accident at issue arose out and in the course of his or her employment. A recent case out of the Louisiana Second Court of Appeal illustrates these requirements.

Ms. Maxwell was working as a caregiver for Care Solutions when she was attacked and severely beaten at Glenwood Regional Hospital in West Monroe. Ms. Maxwell was attending to a client at his home. On Care Solutions’ instructions, she took him to the hospital when he complained of chest pain and breathing problems. She was assaulted by an unknown assailant in the parking lot and sustained severe injuries to her face.

Ms. Maxwell was not able to work since January 22, 2014. She filed a disputed claim for workers’ compensation the following February because Care Solutions refused to provide her with workers’ compensation benefits. Care Solutions admitted that she had been injured while employed with them but disputed that the injury arose out of and in course of her employment.

June 7, 2017

Louisiana Court Rules Out-of-State Pharmacy Not Entitled to Reimbursement for Expense Claim

by Berniard Law Firm

Companies that do business in multiple states must consider that individual states have their own laws, which must be followed if a company plans to do business in that state. It can never hurt to do your due diligence before you begin operations and a good attorney can be a vital resource. Recently, a Louisiana appellate court overturned the decision of a Worker’s Compensation Judge (WCJ) who ordered an out-of-state pharmacy to receive over $7,000 in reimbursement for providing prescription drugs to a worker’s compensation claimant over a seven-month period in 2010.

The Louisiana Second Circuit Court of Appeal held that Injured Workers Pharmacy (“IWP) was not entitled to reimbursement for fulfilled prescriptions for Oxycodone, Tizanidine, and other medications. Louisiana state law only allows an employee to seek out of state treatment and services when they are unavailable in Louisiana or are provided at similar prices to those found locally.

The case’s origins lie in a slip and fall accident at a Sonic hamburger restaurant. Clenon Naron was performing job duties in the restaurant’s freezer when he injured his back in July 1999. Naron was issued a prescription card for medications relating to the workplace injury. The claim was eventually assigned to the Louisiana Insurance Guarantor’s Association (LIGA). Naron used the prescription card to refill his prescribed medications without incident until February of the following year.

May 31, 2017

Injured by Ambulance Driving to Emergency Call, Louisiana Court Reviews Emergency Call Driving Standards

by Berniard Law Firm

We’ve all been in the situation where we’re sitting at a red light or approaching an intersection and all of a sudden we hear sirens and see flashing lights. Everyone knows to stop and yield to the oncoming ambulance. Sometimes, however, a driver might not yield for whatever reason. This is exactly what happened in this case, which involves an EMT who was injured on the job while riding in an ambulance.

Two volunteer firefighters with the Washington Parish Fire Department (WPFD) responded to a call in Varnado, Louisiana. When they arrived at the scene, they found a man lying on the ground and proceeded to provide CPR until an ambulance arrived. Once the ambulance arrived, the two firefighters loaded the man into the back of the ambulance and continued to tend to him, as is customary. The Defendant in the case agreed to drive the truck.

While en route to the hospital, the ambulance was struck in the right rear by a blue Honda at the intersection of Highway 21 and La. Highway 10. The ambulance slid and collided into another vehicle. The Plaintiff, who had been sitting in the back of the ambulance without a seatbelt, sustained injuries from being thrown around due to the force of the crash.

May 28, 2017

Defamation Claims Prove Hard To Prevail In Case Against St. Tammany Parish Hospital And Treating Physician

by Berniard Law Firm

Imagine you go to a hospital for a medical emergency such as leg weakness, back pain, and paresthesia. While you are at the hospital, you feel that you are treated harshly and unprofessionally by the physician that examines you. Later, you find out that the physician wrote insulting things about you in your consultation report, which is now a part of your permanent medical record. This situation was a reality for Ms. Michelle Conner.

Because of these unfortunate events, Ms. Conner filed a lawsuit claiming defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress against Dr. Taylor, the physician, and the hospital, St. Tammany Parish (the “Hospital”). Ms. Conner later added a medical malpractice claim after a medical review panel found Dr. Taylor free of any wrongdoing.

Dr. Taylor and the Hospital filed a motion for summary judgment on Ms. Conner’s medical malpractice claim. The Trial Court granted the motion and Dr. Taylor filed another motion for summary judgment as to the claims of defamation and intentional infliction of emotional distress. Again, the Trial Court granted the motion. The Trial Court dismissed Ms. Conner’s claims of negligent infliction of emotional distress and invasion of privacy, as well. Ms. Conner appealed this second summary judgment ruling, but not the summary judgment on her claim of medical malpractice.

May 26, 2017

Louisiana Woman Survives Six Car Crashes But Loses on Appeal for More Damages

by Berniard Law Firm

After someone has been through six, separate car accidents, it might be difficult to keep track of which injuries and treating physicians stemmed from which accident. Nevertheless, if you find yourself before a court you must present a detailed and accurate record of everything. The following case, in which one Baton Rouge woman claimed that the Trial Court considered the wrong evidence in deciding her case, illustrates this point.

Linda Williams has had the bad luck of being involved in six car accidents in the last 40 years. Her most recent accident, a collision on Perkins Road in East Baton Rouge Parish in 2008, was the subject of a recent Court of Appeal decision. The initial trial began in 2009 with Williams bringing a lawsuit against her insurance company, Liberty Mutual. Williams asserted that her injuries from the 2008 crash were severe enough to warrant additional money damages under her insurance policy. However, as Williams had an extraordinarily unfortunate personal history of being injured in car accidents, the Trial Court was faced with the difficult task of determining which injuries were the products of the 2008 crash and which injuries were the lingering effects of Williams’s five prior accidents. Since even a single car accident can give rise to multiple injuries with multiple courses of treatment overseen by multiple doctors, the lawyers for both sides had plenty of opportunities to argue about which doctors were connected to the 2008 accident and thus, relevant to the case at hand.

At trial, the jury awarded $14,800 in damages to Williams for past medical expenses, the past and future physical pain and suffering, the past and future mental suffering and distress, and the past and future enjoyment of life. However, Williams felt that the Trial Court made some errors that reduced the amount of damages she received and so she appealed. In her appeal, Williams alleged that the Trial Court incorrectly admitted evidence on two instances that were related to her prior accidents and also improperly allowed Liberty Mutual to remove a juror based on race. The Louisiana First Circuit Court of Appeal, referring to the Trial Court’s record and hefty body of medical evidence therein, considered these issues in turn.

May 25, 2017

Judge ‘Splits the Difference’ On Issue of Compensation for On-the-Job Knee Injury

by Berniard Law Firm

You may be entitled to compensation for any injury that occurs on the job. The extent of compensation depends on the extent of your injuries. See La. R.S. 23:1221. The employer and the employee often disagree on the amount of compensation. When this happens, a court of law often becomes the forum for resolution. Such was the case with an employee in Louisiana named Ta’Shanta Dupard.

In November 2013, a hammer fell on Ms. Dupard and struck her in the knee while she was working at MMR Construction. The blow resulted in a knee contusion and laceration, which left a permanent scar on her knee. Dupard filed a claim against her employer claiming that she was entitled to worker’s compensation benefits due to the serious and permanent disfigurement to her knee. The parties agreed that Dupard was entitled to compensation for her injuries, but disagreed as to exactly how much.

Ms. Dupard had a weekly salary of $1,058.62 at the time of her injury. According to Louisiana Worker’s Compensation laws, this yielded a maximum compensation rate of $619 per week. MMR believed that five weeks’ compensation was adequate for the scar, whereas Dupard’s attorneys claimed 25 weeks was the proper benchmark because the scar was a permanent disfigurement.