Pain And Suffering Claims

August 10, 2016

Louisiana Appeals Court Finds Tangipahoa Parish School Board Partially Liable for Eye Injury Sustained on School Band Trip

independence-day-1436454 If you are fortunate enough not to sustain serious injury as a result of someone else’s negligent actions, you may not realize that the compensation for your injuries can be apportioned and spread to other liable parties. Further still, if you were partially responsible for causing your own injury, you will likely see a reduction in the amount of damages you can recover. This was the case for a Ponchatoula High School band student who was injured while on a school-sponsored band trip in Tennessee.

In May 2006, Kent Kinchen, while on a band trip to the Smokey Mountain Music Festival in Gatlinburg, Tennessee, sustained an eye injury after a game involving Airsoft novelty guns, purchased at a tourist shop earlier that day with his fellow classmates. A year later, Kent and his father Barry Kinchen, filed a lawsuit seeking damages against the Tangipahoa Parish School Board for the incident.

The trial court found the School Board partially liable for the injury because “allowing the students the opportunity to purchase various weapons while on the school sponsored trip created an atmosphere that did not provide all students with reasonable supervision…” The trial court awarded the Kinchens $20,000 in “general damages”, which cover mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be definitively measured, $14,329.34 in “special damages”, which are damages that can be more readily measured, like medical costs or loss of wages, and awarded Mr. Kinchen $1,000 for related claim of loss of consortium, which refers to the loss of love and affection, companionship, loss of material services, support, etc. The school board, appealed the finding of liability, and the Kinchens appealed the amount of damages, arguing that the amount was “abusively low.”

August 5, 2016

Failure to Prove “Constructive Knowledge” Leads to Dismissal of Mandevile Plaintiffs Lawsuit Claiming He Fell in Hole

by Berniard Law Firm

hole-1576687-1-658x1024 Sometimes what you do – or fail to do – before filing a lawsuit, can have a big impact on the final result, as Ross Lynch of Mandeville, Louisiana recently learned. Lynch owns property on Girard Street in Mandeville. Two of his neighbors own a lot directly adjacent to his property that is used by the City of Mandeville as a public parking lot. Overgrown grass and weeds were growing along the fence that separated the two lots. Until filing a lawsuit, Lynch never mentioned this problem to the neighbors or asked them to get rid of the overgrowth, which he considered to be an “obvious nuisance.”

In June 2010, Lynch entered the neighbors’ property without their permission in order to trim the grass and weeds. In the process, Lynch inadvertently fell into a four-foot deep hole that had been hidden by the dense growth. The hole was caused by a broken sewer pipe that belonged to the City of Mandeville. Lynch injured his foot and ankle and filed a lawsuit to get compensation for his injuries and reimbursement for medical bills, naming the property owners and the City of Mandeville as defendants.

Lynch argued that the property owners, as well as the City, had “constructive knowledge” of the dangerous hole on the property before he was injured because the overgrowth of weeds and grass had thoroughly hidden it and it therefore posed an unreasonable risk of danger. “Constructive knowledge” of a dangerous condition refers to the existence of facts that lead to an inference of actual knowledge of the condition. See La.R.S.9:2800(D). Lynch also argued that, because the property was used by the City as a public parking lot, it was under the control of the City, as well as of the property owners.

July 27, 2016

Speculation Not Enough to Find Electrical Shock from Taser as the Cause-In-Fact for a Subsequent Heart Attack In Shreveport Lawsuit

by Berniard Law Firm

electric-shock-hazard-1310056-1024x683 On the afternoon of April 13, 2011, Officer J.M. Bassett of the Shreveport Police Department heard loud music coming from a motorcycle parked at 251 E. 72nd in Shreveport Louisiana. When Officer Bassett attempted to make contact with the man, Jessie Scott, Scott became hostile. As the situation escalated, Officer Bassett employed his Taser stun gun and handcuffed Mr. Scott, placing him into custody and transporting Mr. Scott to the police station. At the station, Mr. Scott complained of chest pain and Mr. Scott was taken to the Louisiana State University Health Sciences Center, where it was determined that Mr. Scott was having a heart attack.

Mr. Scott and his wife later filed a lawsuit against the City of Shreveport for the tasing and subsequent heart attack which they alleged was directly caused by the tasing event. After receiving the lawsuit the City of Shreveport filed a motion for summary judgment in which they argued the Scotts failed to produce any medical evidence showing a causal link between Mr. Scott being tased and his heart attack later that day. The district court agreed with the City of Shreveport and dismissed the Scott’s case. They then appealed that ruling to the Second Circuit Appellate Court of Louisiana.

The Appellate Court agreed with the District Court of Caddo that summary judgment in favor of the City dismissing the allegations brought by the Scotts was correct. Summary judgment is proper when there is no genuine issue of material fact for all or part of the relief sought by a litigant. See Samaha v. Rau, 2007-1726 (La. 02/26/08), 977 So. 2d 880. Here, the Scotts are required to provide proof that there is a causal link between the tasing and Mr. Scott’s heart attack, but the Scotts failed to produce such evidence.

July 26, 2016

Cleaning Grandma’s Roof Turns from Chore to Lawsuit as Ouachita Resident Falls from Ladder

by Berniard Law Firm

old-rusty-ladder-1426340-770x1024 In a recent personal injury case, the plaintiff, Angela Lawrence, from Ouachita, Louisiana, sued her 76 year old grandmother Dorothy Dell Sanders and Allstate Insurance Company, for injuries sustained when Ms. Lawrence fell from the top of a ladder after cleaning her grandmother’s roof. Ms. Lawrence was no stranger to the task her grandmother asked her to complete. From the age of 15 until the time of the accident, Ms. Lawrence had performed the task of going up a ladder and cleaning her grandmother’s roof approximately 20-24 times. Although on the day of the accident, the circumstances changed. The usual ladder that Ms. Lawrence normally used was stolen, so Ms. Lawrence elected to use an older, shorter ladder than usual. Ms. Lawrence did not tell her grandmother that she did not want to use this replacement ladder and elected to clean the roof even though her grandmother, Ms. Sanders, was not insistent that the job be completed immediately.

After her fall Ms. Lawrence filed a lawsuit against her grandmother and her homeowners’s insurance company. In that lawsuit Ms. Lawrence claimed that the ladder was defective and that her grandmother, Ms. Sanders, was negligent in letting Ms. Lawrence use a defective ladder. As the claimant in the lawsuit, Ms. Lawrence not only needed to allege the injuries caused to her by the defendants, she must also prove her injuries were the fault of the defendants. Ms. Lawrence’s only evidence was her own deposition, her statement to the court about what happened.

Ms. Lawrence alleged that she was injured due to the dangerous and defective condition of the ladder, which caused her to fall and sustain injuries to her wrist, neck and back. Ms. Lawrence testified that she thought the ladder fell by “someone not holding it” but did not ask for her aunt or grandmother to hold the ladder for her. After the accident, AllState conducted an investigation and determined that the ladder was not damaged. As it stood, it was Ms. Lawrence’s word that the ladder was defective against AllState’s investigation, and Ms. Lawrence’s words alone were not enough for the case to withstand a filing for a summary judgment by the Defendants.

July 20, 2016

Defendant in Superdome Personal Injury Case Not Let Off the Hook So Easily

by Berniard Law Firm

IMG_1314-1024x768 When a Louisiana resident is injured, she should consider filing a lawsuit against the person, group, or organization whose negligent or intentional acts were a proximate cause of the injury. However many potential plaintiffs do not realize that there may be several other persons and entities, not readily perceptible to the layman, who could be added as defendants and help ensure the plaintiff’s just compensation. Additional defendants can be extremely helpful when a plaintiff is going after substantial compensation because there will be more individuals to help pay out the sum should one or more parties be unable to pay a judgment due to bankruptcy or some other issue. Accordingly when Kenneth Truxillo was injured while attending pre-game festivities at Champions Square, the outdoor entertainment area bordering the Mercedes Benz Superdome, he did not just seek compensation from the owners of the Superdome but added several other defendants that he believed shared responsibility for his injuries.

According to Mr. Truxillo, while he was attending pre-game festivities at Champions Square before a home football game he was struck in the head by a large stucco column that had fallen over. He sustained several injuries and sought damages from several defendants, claiming that the stucco column that struck him created an unreasonably dangerous condition. The defendants included: The Louisiana Stadium and Exposition District, owners of the Superdome; SMG, the company that operates the Superdome and the property on which it is located; Mardi Gras Productions, the company that owned the stucco column that allegedly fell onto Mr. Truxillo; and Centerplate, a food and beverage service provider with whom Mardi Gras Productions contracted and provided the stucco column on the day of the alleged event.

In trial court, Mardi Gras Productions filed a motion for summary judgment, arguing that it was not liable for Mr. Truxillo’s injuries because it neither had custody, control, or garde over the area in which the stucco column struck Mr. Truxillo, nor over the column itself. Summary judgment is a ruling made by a judge in a court of law, and is granted only if the pleadings, depositions, answers to interrogatories, and admissions together with affidavits, if any, admitted for the purposes of the motion for summary judgment show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law.

July 19, 2016

Quachita Parish Medical Malpractice Lawsuit Discusses Prescription and Whether Amended Complaints “Relate Back”

by Berniard Law Firm

surgeon-3-1504757-1024x906 Prescription is a legal doctrine that serves to prevent people from filing lawsuits after a specified lapse of time has passed. The public policy behind the idea of prescription is not to prevent people who have been harmed from receiving relief. Instead, prescription is meant to allow someone who has caused harm piece of mind knowing that they cannot be sued after the passage of a certain period of time. Prescription allows lawsuits to be brought up to a certain time after the events leading to a lawsuit have occurred. These time limits are commonly specified in the specific texts of the laws they serve.

Prescription is a doctrine that often comes into conflict between parties to a lawsuit when one side amends their original complaint after the designated time for prescription has already lapsed. These amendments often include either new parties or claims. The question that courts must decide is whether these amended complaints “relate back” to the original complaints in order for the amended complaint to move forward. This question was central to the conflict in the case of Correro v. Caldwell, a medical malpractice lawsuit arising out of the Fourth Judicial District Court for the Parish of Ouachita.

The facts of this case revolve around the plaintiff, Carolyn Correro. On April 22, 2011, Correro fractured her left hip after a fall. She was taken by ambulance to IASIS Glenwood Regional Medical Center, L.P. (“Glenwood”). At the hospital, the fracture of her left hip was verified and she was scheduled for surgery to repair the fracture two days later. During preparation for the surgery, her right hip was misidentified as the injured hip. Correro was positioned on the wrong side when she was brought into the operating room. As a result, a doctor began surgery on Correro’s right hip. A few minutes into the surgery, after the doctor had made his incision, the surgical team realized they made a mistake. The surgical team closed the incorrect incision and flipped Ms. Correro over onto her left side and the surgery continued on the injured left hip without further incident.

July 18, 2016

Local Man’s Lawsuit Against Hammond Police Alleging Beating Is Dismissed After Two Day Trial

by Berniard Law Firm

ready-to-roll-1315121-1024x768 When a person files a lawsuit, they generally have the right to be heard on their complaint. However, depending on when the lawsuit is brought, the action may be barred due to the lapse of time between the events leading to the lawsuit and the date the lawsuit is filed. This rule is known as prescription and the problems that can arise for plaintiffs from this rule can be seen in a lawsuit arising out of of Hammond, Louisiana.

The plaintiff, Robert DeVance, brought a lawsuit in April of 2007 alleging that he was falsely arrested and beaten while handcuffed by two Hammond police officers. Later, on March 5, 2009, Mr. DeVance filed an amended complaint naming three new Hammond police officers as defendants. In his amended complaint, Mr. DeVance alleged that he was “hogtied” by the three new defendants while being held at the local jail. This treatment, claims Mr. DeVance, caused him to receive severe injuries due to tightly placed handcuffs on his wrists.

The new defendants filed an exception of prescription, which may release a defendant from responsibility by a lapse of time between the action and the time a lawsuit may legally be brought. These periods are usually laid out in the text of the laws themselves. The rule of prescription has its origins in public policy. This policy is not to deny relief for those who have been harmed, but to provide the liable individual with some assurance that if a lawsuit is not filed against them in a timely manner they do not have to remain constantly worried that they will be sued at anytime in the future.

July 17, 2016

Ovarian Cancer and Baby Powder Lawsuits: 5 Things You Need to Know

by Berniard Law Firm

baby powder ovarian cancer Fortune 500 company, Johnson & Johnson is in hot water over recent lawsuits contending that the medical device, pharmaceutical and consumer goods manufacturer was aware of an increased risk of ovarian cancer in women who regularly used talcum powder on or near their genital region, but failed to disclose those dangers to its Baby Powder consumers. The company’s Baby Powder product is talcum powder, or talc, based. Amidst the potential and pending lawsuits, which now number over 1,000 and span across the nation, arising against Johnson & Johnson, we broke down five things you should know about the recent and potential claims.

1. The Potential Link Between Talcum Powder and Ovarian Cancer Was Published 45 Years Ago

In 1971, British researchers initially linked talcum powder to ovarian cancer when they published a study conducted on 13 tissue samples from ovarian tumors. Over 75 percent of the tumors tested contained talc particles. Since the initial finding, multiple published studies validated this association. Some existing research contradicts these findings, but the majority of studies corroborate these findings.

July 10, 2016

5 Things You Need to Know About Essure Birth Control Device Lawsuits

by Berniard Law Firm

1. What is Essure?

Essure Permanent Birth Control Device is a non-invasive permanent sterile alternative. Essure has been implanted in over half a million women. Essure is “nearly 100 percent” effective in preventing pregnancy. The 10 minute procedure consists of placing two four-centimeter, metal coils made of stainless steel in the inner coil, and a nickel Titanium (nitinol) expanding out coil. These metal coils are inserted in the woman’s fallopian tubes, causing scar tissue to obstruct the tubes and permanently prevent fertilization. It takes about 3 months for the scaring to fully develop.

2. When did the FDA approve Essure?

July 9, 2016

Everything you need to know About Taxotere Lawsuits

by Berniard Law Firm

taxotere lawsuits
If you have been diagnosed with cancer or know someone who has been diagnosed with cancer, chances are you have heard of the drug Taxotere. The drug is manufactured and marketed by the company Sanofi-Aventis was first approved by the FDA in 1996. Sanofi-Aventis is a major pharmaceutical company based out of France that does business all over the world. The drug that they manufacture, Taxotere, is a popular drug used in chemotherapy across the United States. Specifically, it is utilized in the majority of breast cancer treatments, as well as other forms of cancer. Taxotere is administered intravenously and is meant to slow the cancer cell growth in patients. When Taxotere first became available, it was the go to treatment for women with breast cancer. Approximately 75% of breast cancer patients were prescribed Taxotere to fight the growth of the cancer. Chemotherapy is never a fun thing for anyone, but Taxotere made chemotherapy even harder on hundreds of thousands of women.

As you also may be aware of, chemotherapy and Taxotere are accompanied by some pretty detrimental side effects. Some common side effects include your typical nausea, vomiting, fatigue, pain, etc. Also, one of the most common side effects that is associated with chemotherapy is hair loss. Many chemotherapy patients will experience some sort of hair loss while being administered Taxotere. Although this is common in chemotherapy, Taxotere is associated with the permanent loss of hair without the ability to grow back post-chemotherapy. Usually in chemotherapy hair loss is not permanent, but rather temporary during the chemo and radiation treatment. However, many patients using Taxotere experienced permanent hair loss after being administered the drug.

This permanent hair loss is a very serious and unexpected result of the drug Taxotere. The condition of permanent hair loss as a result of Taxotere is referred to “alopecia.” Alopecia can have a severely adverse impact on the morale of the patient, as well as the patient’s families. Although Sanofi is a multinational company and marketed Taxotere in other countries with the warning of potential permanent hair loss, customers in the United States were not given this important warning. As a result, many patients were being administered Taxotere without their knowledge that they could be at risk for permanent loss of hair. In 2015, the FDA issued a warning statement that “cases of permanent alopecia have been reported” after being administered Taxotere. Before this FDA warning, Sanofi’s label in the United States indicated that a patient’s hair will generally grow back after completing the treatment. However, a great number of women in the United States have already felt the negative impact as a result of Taxotere not giving a clear warning of alopecia to consumers.