Articles Posted in Pain And Suffering Claims

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crash-test-dummies-1251143-1-768x1024Car accidents are among the most common reasons for a lawsuit. An average car accident is often difficult to conclude which party is at fault. Issues are further complicated if insurance claims are involved. Who is truly at fault for the accident if a vehicle malfunctioned?  A trial becomes increasingly complex if a Plaintiff claims that a company is at fault for his injuries. Specific elements are required for a successful trial.

Recently, a multiple car accident occurred in near St. Tammy’s Parish. Mr. Bordelon allegedly caused the accident by swerving into multiple lanes and colliding with two vehicles. The second crash involved Mr. Reynolds who sustained serious injuries when his car landed in a ditch. However, Mr. Reynolds did not simply blame Mr. Bordelon for the accident, but additionally filled a lawsuit against Nissan- the company who designed and manufactured his vehicle under Louisiana Products Liability Act (“LPLA”). Mr. Reynolds sued Nissan due to his air bags’ failure to deploy. The trial court denied Mr. Reynolds’ claim and granted Nissan summary judgment.

However, Mr. Reynolds appealed the trial court’s decision to the Supreme Court of Louisiana. In reviewing the trial court’s decision, the Supreme Court utilized a de novo standard- using the criteria as the trial court. Overall, the Plaintiff took issue with the trial court excluding certain evidence. According to the Supreme Courts’ analysis, the trial court properly excluded evidence. Largely, evidence was excluded due lack of verification. Mr. Reynolds presented pictures of the alleged accident, but no verification of the date, time or address to prove pictures where in fact of the accident.  See La.Code Evid. Art. 401. and La.Code Evid. Art. 803.

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blacksmith-1500444-1024x768Accidents occur in daily life. Often, severe injuries result. However, prison accidents rarely are discussed. Prisoners who are victims of  accidents while serving time  are often provided with the same legal protections as an average person.

Mr. Fisher was serving time in Louisiana. During his time incarnated, Mr. Fisher worked within the prison where he was in charge of keeping the gas furnace running. On the day in question, Mr. Fisher followed the same procedure as he did daily for lighting the gas furnace. Unfortunately, upon lighting the furnace, an explosion occurred which caused Mr. Fisher’s severe injuries.

In his first trial, the Court concluded that Mr. Fisher did not meet the requirements to bring a lawsuit against prison officials for his injuries. In order to recover for this injury—much like an average person—Mr. Fisher was required to prove both of the following: vice or defect and actual or constructive notice. See La.R.S. 9:2800, La. Code Civ. P. arts. 966 and 967. The trial court held that Mr. Fisher did not meet his the standard for both elements. Therefore, the Court concluded summary judgment for the prison officials was appropriate. This decision dictated that Mr. Fisher could not recover for his injuries.

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church-1442139-1024x768Suppose a pedestrian is hit by a driver who is leaving a poorly-maintained parking area in rural Louisiana that is little more than a partially cleared grassy area. The pedestrian sues the property owner and its insurers, among other defendants. Now suppose that this plaintiff, on being questioned in a deposition taken by the defendants’ attorneys, cannot articulate anything at all that the property owner did or did not do to cause this accident. Suppose also that the pedestrian fails to refute evidence that this type of unpaved, unmarked “clearing in the woods” parking area is common in rural Louisiana and that there have never been any parking problems or collisions in this particular lot before. Will the case go to the jury, or will the judge find for the defendants due to a lack of disputed facts for the jury to consider, leaving the injured pedestrian without a chance to prove she has suffered damages and deserves compensation from the property owners?

The Supreme Court of Louisiana has considered just this issue in several recent cases; the latest was Allen v. Lockwood, decided in 2015. In that case, the Wesley Chapel United Methodist Church which is located in a rural area of St. Helen’s Parish, off Louisiana Highway 448, was sued by a pedestrian who was hit by an elderly church member driving in reverse at a high rate of speed through the church parking area, an unmarked grassy clearing in the woods. In her deposition, the pedestrian said “not really” when asked if she could think of anything the church did wrong that caused the accident. The plaintiff also failed to refute evidence from a church member’s affidavit that parking areas in this condition are common in rural Louisiana and that there had never been any accidents in the church lot before.

Most personal injury cases are tried under a negligence theory. To prove that the defendant was negligent, the plaintiff must show that the defendant had a legal duty toward him or her and caused the accident or injury by failing to fulfill that duty. When a court grants summary judgement in a case, the case does not go to the jury. Instead, the judge decides the case on the basis of the law because he or she has determined that there are no disputed issues of fact for the jury to consider. In its recent personal injury cases involving summary judgement, the Supreme Court of Louisiana has decided that the question of whether the defendant had a legal duty toward the plaintiff is a question of law that the judge decides. If the judge decides there was a legal duty, the case goes to the jury, who decides, based on the evidence, whether the defendant fulfilled the duty. If the judge decides that there was no legal duty toward the plaintiff because the dangerous condition that caused the accident was “open and obvious,” the defendant can be granted summary judgement, which is an “automatic win.”

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pharmacy-1507606-1-1024x768Recently, the Louisiana Fifth Circuit Court of Appeals increased a trial court’s award of damages to a plaintiff in a negligence action against Walgreens. Negligence involves showing the court that one person (or company) failed to do their duty—and as a result, someone was hurt. In this case, Peggy Williams asked her son Derrick to pick up a medication for her from the Walgreens pharmacy in Gretna. Walgreens’ pharmacist handed Derrick another person’s medication, and Ms. Williams took the pills without noticing the mistake. As a result, she suffered several strokes and long-term loss of physical capacity. The jury found that Ms. Williams and her son were 40% at fault, and that Walgreens was 60% at fault for the harms Ms. Williams suffered.

Ms. Williams appealed the judgment on two grounds.

First, she argued that the trial judge made a mistake by entering a judgment different from the jury’s responses on the verdict form. The verdict form apportioned the fault to the parties in the following manner:

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parking-lot-1445848-768x1024When a person is injured and they file a lawsuit to recover damages for their injuries, they expect to “have their day in court,” to be able to present their case and all of the facts and evidence that support their case. But what if the other side argues that there is no real disagreement about the facts and that the facts do not support the injured party’s claim? A judge can decide early on in a lawsuit that there is no real question about a material fact and that reasonable persons would come to the same conclusion when considering the facts. This is what happened to Mr. Salvadore Tramuta when he filed suit for personal injuries in Jefferson Parish, Louisiana.

Mr. Tramuta fell as he stepped from the raised sidewalk in front of a strip mall to the parking lot. The reasons for his fall are the crux of the lawsuit. The strip mall’s owners, Lakeside Plaza, L.L.C., had recently corrected what they thought was a dangerous hazard to customers and unwittingly created for themselves the basis for Mr. Tramuta’s lawsuit.

Lakeside’s strip mall has about eight stores with a raised sidewalk running the length of the building. At first, the step was reasonably manageable from the sidewalk to the parking lot, but over time the soil settled and the step became larger as the parking lot settled lower. Lakeside corrected this problem by having an additional step made between the sidewalk and the parking lot so that customers would not have such a large step down or up. The parking lot had parking spaces fronting the sidewalk and perpendicular to it. Each parking space also has a parking bumper parallel to the sidewalk. When Lakeside added the additional step they chose to leave the parking bumpers in place. As a result, the step down from the sidewalk was shorter but the area between the parking bumpers and the step was lessened, creating less space for customers to step as they exited the stores.

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cards-1456946-1-1024x768A night at Harrah’s Casino in New Orleans not only can not only break your bank but it could break your back as well if your not careful.  Unfortunately for one Louisiana man black jack turned into broke back when he slipped and fell on water on the bathroom floor.  Gregory Beggs was out for an evening of black jack at Harrah’s Casino, in New Orleans when he had to use the restroom. Mr. Begg’s noticed that the bathroom floor had a large puddle of water on the floor. Begg’s let a Harrah’s employee know of the situation, and it became clear several other employees already knew the issue existed. The Casino failed to clean up the spill on the floor, and when Begg’s returned to the bathroom needing to go “Urgently” around an hour and a half later the water was still littering the floor. Noticing the liquid, Begg’s attempted to use the urinal but nevertheless slipped and fell injuring his back.

The First City Court of New Orleans found Mr. Begg’s to be 50% at fault for the accident. On Appeal Harrah’s argued that the lower court erred in finding Begg’s only to be 50% at fault, stating instead he should have been seen as 100% responsible for the damages.

In examining this problem, the appeals court looked to the Louisiana Supreme Court, and its decision in Duncan v. Kansas City Southern Railway Co., 773 So.2d 670, 680-81. In the Duncan ruling the Louisiana Supreme Court determined that “‘the trier of fact is owed some deference in allocating fault’ since the finding of percentages of fault is also a factual determination. Clement v. Frey, 666 So.2d 607, 609, 610.” In plain English the court determined that under ordinary circumstance the finding of degree of fault should be left to the trier of fact, or jury, to determine. Only if the amount apportioned is clearly wrong should the court intervene.

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medical-faculty-1530317-1024x768A recent medical malpractice lawsuit stemming from a surgery performed at West Jefferson Medical Center defines your right to make an informed decision about the course of treatment you wish to take.  The patient in this case suffered from heavy menstrual bleeding primarily resulting from fibrin tumors in her uterus.  A General Practitioner previously prescribed the patient Depo-Provera, a steroid injection that alters hormone levels associated with the menstrual cycle.  The prescription had little effect treating the symptoms and caused the patient to gain over twenty-five pounds.  Unhappy with the treatment, the patient consulted her OBGYN, who recommended a hysterectomy to completely remove the tumored uterus.  The OBGYN recommended the operation two more times before the patient consented to the surgery, over two years after the initial consultation.  Unfortunately for everyone involved, the patient’s bowel was perforated during the surgery.  The patient subsequently sued, claiming that the OBGYN failed to inform her of all the potential treatment options before the operation and that she would never have gone through with the operation had she known of less risky treatments.

The doctrine of informed consent protects a patient’s right to choose which therapeutic or surgical treatment to pursue by requiring doctors to provide the patient with the information needed for that decision.  Exactly what information the doctor must disclose is the primary issue in this case.  The patient contends that all information pertaining to the associated risk and any potential treatment options should be disclosed while the doctors believe they must disclose only those risk and options that are feasible or appropriate given the patient’s unique circumstances.  The law favors the doctors.  In 2013, the Supreme Court of Louisiana, when faced with a similar question, decided that doctors must provide sufficient information and disclose reasonable alternatives rather than all information or all alternatives. See Snider v. La. Med. Mut. Ins. Co., 130 So. 3d 922 (La. 2013).  What constitutes “sufficient” information and “reasonable” alternatives changes depending largely on the medical history of the patient.  The doctor is given some discretion determining what is reasonable and sufficient, but he or she must adhere to the standard of the profession.  The doctor must do what most other doctors would have done in the same situation.

In this case, the OBGYN told the patient that her options were limited to a hysterectomy, a mastectomy, or continued injections of Depo-Provera.  She also told the patient that, as with any hysterectomy, there was a risk of bowel perforation during the surgery.  The patient signed an informed consent form stating that she was aware of the options and the risks; however, a couple of months after the surgery, and after the perforated bowel, the patient found an article published by the American Congress of Obstetricians and Gynecologists (ACOG article) that listed options beyond those disclosed by OBGYN.  One option in particular, Lupron, was an injection that has been shown to reduce the size of fibrin tumors.  In her suit, the patient specifically claims that had she known of Lupron, she would not have needed nor consented to a hysterectomy and that the OBGYN was liable for her injury for failing to inform her of the option.

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helicopter-1450413-1-683x1024Many people have nightmares of falling and nobody being there to catch them. For Tommie Hebert, that nightmare became a reality when he fell from a moving helicopter, landing directly on his back, causing severe injuries such as a broken back and a damaged hip that would likely require replacement. To make matters worse, the company he worked for, Industrial, was not there to catch him.

J. Oran Richard, owner of Industrial, owned another company, Game Management Inc., ( GMI) that leased large tracts of land for hunting, fishing and farming in Louisiana and Texas. GMI did wildlife surveys in Mexico by helicopter, where deer were tracked and netted. It was common for employees to work for both companies.  Tommie Hebert was primarily a truck driver for Industrial, and would only go on the helicopter trips because Michael Richard, the owner’s son, was someone he considered his friend.  Typically Hebert would only go when another person could not make the trip.  Unfortunately for Herbert on one of these trips he fell from the helicopter and a lawsuit against his employers followed.

One would assume that netting deer in Mexico would not be considered in the scope of employment for someone whose job is to drive a freight truck. But that is exactly what Industrial was claiming in the lawsuit that Hebert brought against them. In the original lawsuit, a jury found in favor of Industrial that Herbert was working for them when injured, mainly because they had determined through testimony that Hebert had been on the job and had done this type of work many times before.  Therefore Herbert could not recover damages from Industrial or its owner, J. Oran Richard, or his son, Michael Richard in tort.  Herbert would only be allowed to recover workers compensation benefits. GMI was found to have no legal duty to Hebert, Industrial was found to be forty-four percent at fault, and Hebert, the man who was determined to be permanently disabled, was found to be fifty-six percent at fault for his injuries.

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the-old-sawmill-hdr-1209113-1-1024x759If  you are injured while at work, there are many paths that you may take for financial relief. The path that you choose along with how you navigate that path will be a decision that will affect you for the rest of your life. The following case out of  Tangipahoa parish demonstrates why it is necessary in workers compensation cases to comply with certain orders and if you don’t why objections to rulings based on your lack of responses will not be considered.

On May 2, 2008, Mr. Carlton Williams was injured during the course of his employment at a sawmill as a delivery driver when a forklift driver dropped several pallets on top of him, knocking him unconscious. Mr. Williams alleged injuries to the head, shoulder, neck, left foot, right knee, lumbar, and various other injuries. Mr. Williams filed a tort claim against the forklift operator’s employer and the employer’s insurer, which settled out of court.

After being injured at the sawmill Mr. Williams received workers compensation benefits because the injury occurred at his job. If a third party is responsible for someones injuries that occur at work, which occurred in this case, the injured worker can file a lawsuit against that third party and at the same time receive workers compensation benefits.  However, when you resolve the lawsuit against the third party you will be forced to pay back the workers compensation carrier all the benefits they paid you.

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workers-1215831-1-1024x683It  seems an insurance company’s first response to a claim is to deny the claim. The Louisiana Workers’ Compensation Corporation (“LWCC”) is no exception. The following case out of Loreauville Louisiana demonstrates the  arguments that can be made and standards to assess whether an injured employee is due LWCC’s benefits or benefits as a longshoreman.

Luis Hernandez was working on the Bayou Teche in Loreauville when he suffered an injury while cutting timber. Mr. Hernandez was hired to build a boat ramp into the Bayou Teche. He was injured  while working in a grassy area between thirty and one hundred feet away from the boat ramp. Mr. Hernandez filed a claim for compensation with the Office of Workers’ Compensation in 2014 after  receiving his injuries. He was employed by UNO Enterprises, LLC and Louisiana Workers’ Compensation Corporation was UNO’s workers’ compensation carrier. LWCC denied  coverage of the claim asserting that Mr. Hernandez was a longshoreman under the Federal Longshoreman & Harbor Workers’ Compensation Act (“LHWCA”) found in the United States Code in Title 33. Therefore,  the LWCC reasoned that their policy did not provide for coverage for Mr. Hernandez but rather the LHWCA applied.

Good lawyers know to challenge an insurance company’s claim denial, which is what Mr. Hernandez’s  attorney did in this case. After a lower court decision an appeal was filed and the Louisiana Third Court of Appeals received the case to utltimately decide whether the LHWCA did apply and thus whether LWCC would be required to provide workers’ compensation coverage to Mr. Hernandez.

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