Pain And Suffering Claims

August 19, 2013

Appeal Dismissed Because of Late Payment, Abandonment

In a recent case, Johnson v. University Medical Center in Lafayette, the Louisiana Court of Appeal for the Third Circuit reversed a trial court decision to dismiss a plaintiff’s case for abandonment due to her failure to timely pay the costs of appeal. The plaintiff in the case, Lela Johnson, originally filed a medical malpractice action against both the University Medical Center in Lafayette and the Medical Center of Louisiana in New Orleans. The case has proceeded through courts since the original petition for damages was filed on March 15, 2006.

Both defendants, whose principal places of business correspond with the last word of their names, are operated by the State of Louisiana. After a dismissal of her original suit by the Supreme Court of Louisiana due to her failure to properly notify the defendants of the action because she had requested service of process on individuals who had not been individuals who were authorized to accept such information on behalf of the defendants, Ms. Johnson’s decided to re-file the original suit in trial court. Once again, Ms. Johnson’s service of process was held insufficient by the trial court and she moved to appeal that judgment.

Service of process is a legal term of art which essentially describes the process in which plaintiffs notify defendants of a pending suit. When the plaintiff files a complaint with a court, any defendant in the case must be given notice of the pending case and an opportunity to be heard and defend themselves against the complaint. This requirement is a basic constitutional right conferred upon everyone who has been accused of some wrongdoing and it is the accuser’s responsibility to ensure that the constitutional right of the accused is protected. The importance of service of process to our legal system and the rights of defendants makes it necessary for trial courts to dismiss actions, without regard to the merits of the plaintiff’s claims, if service of process is deficient in some way or another.

August 18, 2013

Injury at Store Leads to Case Involving Past, Present, Future Injuries

by Berniard Law Firm

While Ms. Jo Anna Savant shopped at Hobby Lobby in Lafayette, two large, seventeen-pound clocks fell from a wall display and struck her on the head. She filed a suit against Hobby Lobby, alleging negligence.

Negligence is a common law tort that requires the victim to prove that the defendant had a duty to the victim, that the defendant breached that duty, that the defendant’s negligent conduct was the cause of the harm to the victim, and that the victim was, in fact, harmed. In this case, Ms. Jo Anna Savant was able to prove that Hobby Lobby was negligent. Even Hobby Lobby’s store manager testified that the manner in which the clocks were suspended on the display was unsafe.

The jury awarded Ms. Savant damages for past, present, and future physical pain and suffering, past lost wages and past medical expenses. The jury also awarded Ms. Savant’s children damages for loss of consortium because Ms. Savant was unable to spend quality time with them after she sustained her injuries. Loss of consortium is the deprivation of the benefits of a family relationship due to injuries caused by the defendant. Awards to children for loss of consortium compensate them for “loss of love and affection, society and companionship, aid and assistance, comfort and felicity.”

August 17, 2013

Court Re-Allocates Liability for U-Haul Accident in New Orleans

by Berniard Law Firm

Appealing turned out to be a beneficial move for U-Haul International, Inc., and U-Haul Company of Georgia, who were sued when Mr. Omar Erazo’s truck came off his rented U-Haul van while he was moving back to Louisiana from Georgia. Unfortunately, when the truck detached from the van on I-10 in eastern New Orleans, it collided with Mr. James Gaunt’s vehicle, resulting in serious injuries to Mr. Gaunt.

On appeal of the trial court’s findings against them, U-Haul raised a number of issues. The first issue was whether the trial court erred by conducting improper research, considering outside evidence that should not have been admitted. The appellate court sided against U-Haul on this issue, stating that a judge may conduct legal research on a site such as Westlaw and see the number of hits that “U-Haul” and “auto transport” returns.

Another issue was whether the trial court erred by assessing 90% of the fault to U-Haul and only 10% to the driver, Mr. Erazo. Here the appellate court agreed with U-Haul that 90% was too much liability considering that U-Haul employees largely followed protocol based upon the information Mr. Erazo provided them. When Mr. Erazo noticed that his truck was coming unhinged and called U-Haul, he did not convey that he felt it was unsafe to continue towing the truck. However, his subsequent conduct – driving slowly with lights blinking while making sure his wife kept a safe distance away – showed he did believe continuing to tow the truck was unsafe. If he had informed U-Haul of this belief, they would have sent someone out to help him.

August 15, 2013

Judge’s Ruling for Medical Malpractice Patient in Lafourche Parish Overturned on Appeal

by Berniard Law Firm

In a recent medical malpractice case, the jury found that the plaintiffs did not prove, by a preponderance of the evidence, the standard of care applicable to the emergency room doctor they had sued for a medical malpractice allegation. Because the plaintiffs had not proved their case the suit was dismissed. However, on a motion by the plaintiffs, the trial judge issued a judgment notwithstanding the verdict, reversing the jury’s decision and awarding the plainiffs over five million dollars in damages. The doctor and hospital board appealed this decision.

A plaintiff in a medical malpractice case alleging that the doctor was negligent must prove 1) the amount of skill or knowledge possessed by a typical doctor or the amount of care ordinarily exercised by licensed doctors in Louisiana practicing in a similar community or under similar circumstances as the doctor being sued. 2) that the doctor either did not have required level of knowledge or skill or did not use ordinary level of care and 3) that the result of this lack of knowledge, skill or care caused the plaintiffs injuries which would not have otherwise occurred. The jury found that the plaintiffs failed to establish the level of care used by Louisiana emergency room physician in similar circumstances therefore they could not have proved either of the other elements.

A judge may issue a judgment notwithstanding the verdict when the evidence is so strongly in favor of one party that reasonable jurors could not give a verdict for the other party. When a party (the party who lost the jury verdict) moves for a judgment notwithstanding the verdict the motion must be denied if there is evidence for the other party (which won the jury verdict) that could lead a reasonable person to side with the other party. The court should resolved all reasonable inferences and factual questions in favor of the party who won the jury verdict. This is a very difficult standart for the moving party to clear. The jury verdict must have been completely illogical and unfounded for a judge to override it. When an appeals court reviews a trial judge’s decision to grant a judgment notwithstanding the verdict the same standard is used. In this case the courts must evaluate the evidence given my both sides medical experts to determine whether reasonable people could have found that the plaintiffs failed to prove the applicable standard of care.

August 14, 2013

Summary Judgment Upheld by 3rd Circuit in Negligence Suit

by Berniard Law Firm

Regardless of the issue at law, parties in a civil suit can halt further litigation by obtaining a motion for summary judgment. The party seeking summary judgment, known as the movant, must show there is no genuine issue of material fact despite the allegations asserted by the non-moving party. The court will consider a fact “material” if “its existence potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the relevant legal dispute.” Furthermore, a fact will be deemed at issue “if there exists any reasonable doubt as to its existence.”

On July 12, 2006, Raymond Alex, Sr. (hereinafter “plaintiff”) was driving his employer’s, BNSF Railway Company (hereinafter “defendant”), truck south on North Eastern Avenue in Crowley when he was rear-ended by a large tractor-trailer rig driven by Edward Zenon, Jr. (hereinafter “Mr. Zenon”) of Creole Fermentation Industries, Inc. The plaintiff alleged the accident injured his neck and caused radiating pain down his right arm into his hand. His recovery consisted of neck injections and surgery.

Interestingly, the plaintiff signed off on the operating condition of the truck before driving it and after the accident signed a report admitting the defendant was not to blame for his injuries.

August 13, 2013

Louisiana Court of Appeals Gives Deference in Chemical Exposure Case

by Berniard Law Firm

In September 2006, Georgia Gulf Lake Charles, LLC’s Westlake facility suffered a fire and explosion. Because of the fire and explosion, hazardous chemicals were released into the air. Several people filed suit because of the medical complications that the exposure caused. Georgia Gulf stipulated that it was the cause of the chemical release, but argued that the release did not cause the Plaintiff’s medical complications and that it should not be charged damages. The trial court disagreed and awarded the Plaintiffs damages. Georgia Gulf appealed.

Georgia Gulf’s major concerns were about two major decisions of the trial court. The first was that the trial court excluded their expert witness. Second, the lower court found a link between the Plaintiff’s symptoms and the chemical exposure, which Georgia Gulf argued did not really exist.

In Louisiana, the Court of Appeals reviews these types of decisions with great deference to the lower court. The lower court gets to see all of the witnesses and hear the testimony whereas the Court of Appeals generally does not. As such, the lower court may be a better judge of character and credibility because they actually see the person making the testimony and can observe their demeanor and evaluate how truthful they seem. The court is set up in this way so that people do not have to come back repeatedly to testify and attorneys do not have to present the same evidence to different people again; it is a matter of convenience and timesaving for everyone involved.

August 12, 2013

Shreveport Property Owner Found Liable for Kitchen Ceiling Collapse

by Berniard Law Firm

Many people in New Orleans rent property. Whether a house, a duplex, or an apartment, these residents typically rely on property owners to make necessary repairs to the premises. Proper maintenance ensures that residents are safe and their well-being will be protected. Unfortunately, all too often property owners fail to remedy dangerous situations, which can lead to serious injuries. Wynn v. Luck, a recently decided lawsuit by the Court of Appeal for the Second Circuit, illustrates how a negligence claim can help victims of these situations obtain the compensation they deserve.

In that case, two women were injured when a large section of the kitchen ceiling in a rented house collapsed on them. Though the property owner claimed he did not know of the condition and therefore was not negligent for failing to repair it, the court found the record full of evidence to the contrary. First, an inspection of the property days after the incident found that almost all of the ceilings in the house were in dangerous disrepair and would have been noticeable during any visit by the property owner. Second, a maintenance man hired by the property owner provided services to the house on several occasions and, according to the court, he should have noticed the conditions and conveyed that information to the property owner. Finding the property owner constructively knew of the dangerous condition, the court held the property owner liable for negligence and the victims’ injuries.

According to Louisiana law, an owner or lessor of a property is responsible for the condition of his premises when leased to another. Therefore, the owner is liable for any damage or injuries caused by a defect in the property that he knew of or should have known of through the exercise of reasonable care, provided the dangerous condition could have been prevented through the exercise of reasonable care and the owner failed to exercise that care.

August 11, 2013

Third Circuit Court of Appeals Reverses 10-2 Jury Holding in Medical Malpractice Case

by Berniard Law Firm

A February 27, 2013, decision issued by the Court of Appeals of Louisiana overruled a jury verdict in favor of defendant Dr. Robin Yue, finding that he failed to obtain informed consent before performing surgery on his patient, Plaintiff Clyde Snider, Jr.

At only 26-years old, Mr. Snider already had a personal as well as a family history of heart trouble, diabetes, and high blood pressure. On November 28, 2007, Mr. Snider and his wife Lisa went to the Emergency Room at Beauregard Memorial Hospital (Beauregard) in DeRidder, after Mr. Snider experienced chest pains and an extreme drop in his pulse rate. At Beauregard, Mr. Snider expressed a desire to be transferred to his primary cardiologist, Dr. J. King White, but Dr. Yue asserted that Mr. Snider required immediate attention and scheduled him for a heart catharization. Right before the procedure, Mr. Snider signed a consent form, provided to him by Dr. Yue. The implant procedure left a permanent scar, and Mr. Snider suffered pain and lost normal use of his left arm for several weeks.

Mr. Snider was later examined by Dr. White, after an injury and infection around the location of the pacemaker (which were unrelated to the implant procedure). Dr. White removed the pacemaker, and he told Mr. Snider that the implantation of the pacemaker was unnecessary and unwarranted given his condition when he went to Beauregard. A three-member Medical Review Panel unanimously agreed that Dr. Yue violated the proper standard of care in performing the surgery on Mr. Snider under the non-emergent circumstances.

August 10, 2013

Findings of Fact: Just As Important As Conclusions of Law?

by Berniard Law Firm

Findings of fact refer to the findings of a jury on issues of fact submitted to it and are distinct from conclusions of law. Generally, a jury resolves questions of fact, whereas a judge, or an equivalent resolves questions of law. However, in Rayne, Louisiana, Mary Betty Williams, the plaintiff in a personal injury case, appealed the trial court judge’s determination that she did not carry her burden of proving that the defendant caused the accident at issue.

On December 8, 2009, Ms. Williams and Paula Trahan were involved in an automobile accident in Rayne, Louisiana. Accordingly, Ms. Williams filed suit against Ms. Trahan, asserting that Ms. Trahan caused the accident and was responsible to pay damages to Ms. Williams for pain and suffering, medical expenses, and lost income. At trial, both Ms. Williams and Ms. Trahan offered conflicting testimony that the other was to blame for the accident. Moreover, Ms. Trahan testified that the accident report filed included only portions of the statement she made to Patrolman Joshua Board at the scene of the accident. According to Patrolman Board, he found “a little plastic shard” of debris in the area where the accident occurred, which he believed fell from one of the vehicles involved in the accident. However, Patrolman Board further testified that he never checked either Ms. Williams’ or Ms. Trahan’s vehicle to determine whether the plastic shard had fallen from one of their vehicles or had resulted in damage to either vehicle.

After the accident, Ms. Trahan submitted an amended statement to reflect what she says accurately describes the incident and includes the portions of her statement not included in the initial accident report filed by Patrolman Board. However, at trial, Patrolman Board denied that Ms. Trahan’s amended statement reflected what the she told him at the scene of the accident. Nonetheless, the trial court awarded judgment in favor of Ms. Trahan and dismissed Ms. Williams’s claims, concluding that Ms. Williams had not carried her burden of proof. According to the trial court judge, “the scales are evenly balanced. I don’t feel that the plaintiff has carried her burden, because both versions are plausible, but neither one has more credibility than the other. So this is a case where plaintiff cannot recover, because she could not prove, by a preponderance of the evidence, that the accident was the fault of the defendant in this case.” As a result, Ms. Williams appealed the trial court’s determination and submits that the trial court erred in its conclusion that she did not prove Ms. Trahan caused the accident.

August 8, 2013

Casino Accident Lawsuit Carried On By Surviving Family Members

by Berniard Law Firm

The essential elements necessary to form a binding contract are usually described as: (1) an offer, (2) an acceptance, (3) a legal purpose or objective, (4) a “meeting of the minds,” (5) consideration, and (6) competent parties. Ambiguities typically arise with offers and acceptances that often lead to litigation. An offer is generally defined as the manifestation of the willingness to enter into a deal so as to justify to another party the offeror’s assent to the deal. Although an acceptance of an offer can occur in several ways, it is most typically described as the assent to the terms made by the offeror. In a recent case in Lake Charles, Louisiana, a finding made by a trial court that an offer and acceptance were ambiguous is under appeal.

On December 13, 2006, a woman robbed Jalil Abushanab as he was about to enter the Isle of Capri Casino in Lake Charles. While attempting to chase the woman, Mr. Abushanab was struck by an SUV and suffered bruises, abrasions, and a broken hip. After Mr. Abushanab’s death in early 2008, his surviving spouse and ten children were substituted as party plaintiffs and asserted claims against the Isle of Capri Casino for wrongful death and survivor damages. In May of 2011, the Isle of Capri Casino filed a motion for summary judgment seeking to dismiss the plaintiff’s claims for lack of liability. But on August 6, 2011, before the hearing, the casino made a written offer to the plaintiffs seeking to settlement the matter for $250,000.00. Prior to the hearing, the plaintiffs accepted the casino’s offer with a signed acceptance letter.

On October 6, 2011, a trial court ruled in the plaintiffs favor and agreed with their motion that the offer made by the casino was exclusive of medical and statutory liens and court costs. At that time, Mr. Abushanab’s family was awarded a lump sum payment of $250,000.00, plus any Medicare/Medicaid liens, a lien on behalf of a drug company, and court costs. Accordingly, Isle of Capri Casino appealed, contending that the trial court was legally incorrect in its finding and that based on the law and on the totality of the circumstances, the offer and acceptance were ambiguous. The casino contends that not only did the trial court err in refusing to consider the casino’s intent when it made the offer, but that the court erred in concluding that there was a “meeting of the minds” and that the parties had reached a compromise agreement.