Pain And Suffering Claims

May 30, 2013

Asbestos Case Involves Rules for Testimony and Exclusion

Joseph Trascher of Slidell, LA, was born in April 15, 1940 and died April 11, 2007. Shortly before his death in March of 2007, he filed a petition in the district court seeking an ex parte order to perpetuate his testimony. He alleged that in August 2006, he was diagnosed with asbestosis, and that it was unlikely that he would survive longer than six more months. In the petition, Trascher also alleged that he sustained occupational exposures to asbestos while working as a tack welder at the Avondale Shipyard from 1960 to 1964, and at the Equitable Shipyard from 1965-1974. He requested service on these parties and a number of other parties he identified as expected defendants in his anticipated suit for damages. The district court granted the order.

The video deposition began on April 3, 2007, but was halted due to Trascher’s failing health and fatigue. He tragically died before his deposition could be continued and before he could be cross-examined by opposing counsel. The district court admitted the deposition as trial evidence, and the admissibility of the deposition reached the Supreme Court of Louisiana. The LA Supreme found that “while most of the video deposition is inadmissible, parts of the deposition are admissible under an exception to the hearsay rule.”

Typically, witnesses are to testify in court during a trial in order for the testimony to be admissible. However, there are exceptions to this general rule, and one such exception is to allow a party to perpetuate testimony. Perpetuating testimony is when testimony is prepared so that it can be used as evidence during a trial, even though the person who made the testimony will not be present at the trial. Article 1430 of the Louisiana Code of Civil Procedure grants perpetuation orders when

May 29, 2013

Pothole Blamed for One-Car Accident in East Carroll Parish

by Berniard Law Firm

After being involved in a one-car accident in 2008, a Louisiana woman sued East Carroll Parish Police Jury, claiming that a pothole on Perry Road resulted in her accident. She later amended her claim to state that other factors had further contributed to her injury and that the road was defective. In response, the Police Jury filed a motion for summary judgment, and the hearing on the matter was set for August 1, 2011.

Because the hearing date was set for August 1, 2011, this meant, according to Louisiana law, that if the woman wanted to file an opposition to the motion for summary judgment, she had until eight days before the already set hearing date to do so. This deadline for filing the opposition materials was then set as July 24, 2011. However, July 24th came and went, and no opposition materials were filed on the plaintiff’s behalf. On July 29, 2011, three days before the hearing, the plaintiff tried to move the hearing back, claiming that she needed more time for discovery. When the day of the hearing came about, the court pointed out that the plaintiff did not file her motion for continuance until after the eight-days before the hearing deadline.

At the hearing, the court did finally grant the motion for continuance, despite the fact that it was filed late, and the hearing was rescheduled for September 20, 2011. The plaintiff was told that any opposition had to be filed on or before September 6, 2011 (even though this would be more than eight days before the newly scheduled hearing). Basically, the court had offered the plaintiff a 45-day extension of her deadline, from July 24th to September 6th.

May 28, 2013

Workers’ Compensation Act Protects Louisiana Employees Injured on Job

by Berniard Law Firm

If you ever become injured in a work-related accident in Louisiana, or if you become ill with an occupation-related condition, workers’ compensation can help cover your expenses while you seek the treatment and take the time off that you need.

The Louisiana Workers’ Compensation Act is a piece of legislation that details the rules and regulations of Workers’ Compensation in the state of Louisiana. Specifically, the Act provides for compensation if an employee sustains a personal injury in an accident arising out of and in the course of his employment. Much like any other legal document or piece of legislation, it is best interpreted by trained and qualified legal representation.

In Harvey v. Brown, the Second Circuit Court of the State of Louisiana recently examined the Louisiana Workers’ Compensation Act in the context of whether an employee/employer relationship existed and, if so, whether the injury arose out of and in the course of this employment. On October 8, 2009, McNeil C. Harvey died when a piece of farm equipment he was working under fell and crush him. Subsequently, his daughter, Valerie Harvey filed a suit seeking survivor’s damages and wrongful death damages against Joseph Patten Brown, Jr., Gailliard Farms, Inc., and Gailliard Gin, Inc. According to Valerie Harvey, the accident was caused by the parties’ negligence in: (1) exposing McNeil to ultra hazardous perils; (2) assigning McNeil to work outside the course and scope of his employment; and (3) other fault and negligence to be discovered. Moreover, Valerie Harvey added MAPP, Inc. as an additional defendant and claimed that MAPP was negligent for the same reasons as the original defendants.

May 24, 2013

Slip at Large Retail Store Leads to Summary Judgment and Subsequent Appeal

by Berniard Law Firm

A summary judgment is strong medicine. When a trial court grants a motion for summary judgment, it precludes the non-moving party from having their case go to the jury and in some cases from presenting any evidence at all. Because this remedy is so potent, the granting of a motion for summary judgment is reviewed de novo on appeal. A summary judgment is a matter of law not a matter of fact so the trial court is not in any way in a better position to make this decision. The appellate court uses the same standard of review as the district court.

Wal-Mart Louisiana, L.L.C. was granted a summary judgment against Jean and Robert Gray. The trial court found that they had not presented any genuine disputes of material fact. The plaintiffs appeal was granted and a new trial ordered because the appellate court found that there were genuine issues of material fact. The appellate court reversed the trial court’s decision after commenting upon the meanings of the words “genuine” and “material.”

The appellate court found that a fact was “material” if when it is resolved in favor of one party or another it affects the outcome of the case under the governing law. A fact will only be found to be material if it could actually matter to the trial court’s decision. If a fact would not have any bearing on the case it cannot be deemed material. Facts that are presented that are immaterial do nothing to prevent a trial court from granting a motion for summary judgment.

May 21, 2013

Prematurity Raised in Nursing Home Injury Case

by Berniard Law Firm

The exception of prematurity determines whether a plaintiff has fulfilled a condition prior to filing suit. That is, in some occasions, Louisiana law requires a complaining party to bring the case somewhere else before they can actually file the case in court. Generally, that means that an administrative remedy exists elsewhere, and the complaining party should use that avenue first instead of the court.

There are two burdens involved in the exception of prematurity. The first is on the party raising the exception. The party raising the exception should prove that there is another remedy elsewhere available and that the complaining party failed to exhaust their administrative options before bring the case to court. Once the party raising the exception has satisfied their buren, then the burden shifts to the plaintiff to prove that he or she has actually exhausted all of the options before bringing the case to the courtroom. See Mosley v. Louisiana Dept. of Public Safety & Corrections, et. al., 07-1501 (La. App. 3d Cir. 4/2/08), 980 So.2d 836.

A case arising from Deridder Louisiana in the Parish of Beauregard shows an example of the exception of prematurity. In that case, the plaintiff was a patient at Westwood Manor Nursing Home following a surgery on his skull. While an attendant was moving the plaintiff, the plaintiff struck his head against a wall and had to have immediate surgery. It is alleged that one worker moved the plaintiff while the other watched, but the second person did not help the first when the first lost his balance, causing the plaintiff to hit his head against the wall. The plaintiff allegedly suffered permanent damage as a result of the collision with the wall.

May 20, 2013

Statements Made at End of Trial Reviewed for Propriety in Workplace Lawsuit

by Berniard Law Firm

The case of Williams v. C&E Boat Rental shows how important it is to hire attorneys who navigate court proceedings in line with judicial expectations. This post’s case arose out of a maritime injury claim and centered around comments made by the defense attorney during closing arguments.

In 2007, Williams was a deckhand on a boat owned by C&E. He alleged that he was injured by fumes while cleaning out the vessel’s lube oil tanks. Later that year, he hired an attorney and filed suit against C&E. The suit was voluntarily dismissed the day after it was filed. In 2009, Williams re-filed his suit against C&E alleging negligence and unseaworthiness. After the defense made its closing statement, Williams moved for a new trial claiming that statements the defense made during its closing argument were inappropriate and prejudicial. The defense made six different statements that Williams argued were prejudicial, specifically regarding the fact the statements alleged various types of misbehavior on the part of Williams’ attorney.

When discussing closing statements, an important evidentiary requirement is that statements made during closing argument must have some basis in evidence that was presented to the court. This is an issue of fundamental fairness as the opposing side would not be able to challenge the validity of such statements.

May 17, 2013

Understanding Comparative Fault/Negligence and How it Impacts Judgments

by Berniard Law Firm

You have probably heard the phrase “accidents happen.” But if you are in an accident, the first thing that you want to ask is who is at fault. With all of the chaos that can be part of an accident, sometimes the answer to this question isn’t always clear. This is when comparative fault, also known as comparative negligence, comes into play. In general, negligence refers to conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. Comparative negligence is different from ordinary negligence in that ordinary negligence is a failure to exercise the care that a reasonable person would exercise in similar circumstances whereas comparative negligence describes conduct that creates an unreasonable risk to one’s self.

In 1979, Louisiana Civil Code Article 2323 was amended to provide for a pure comparative negligence regime where a plaintiff’s own contributing negligence did not bar the recovery of damages, but merely reduced it by his or her own portion of fault. The Louisiana Legislature, in 1996, further amended the Code, making Louisiana a “true” comparative fault jurisdiction and the language of that amendment provided:

In an action for damages where a person suffers injury … the degree or percentage of fault of all persons causing or contributing to the injury … shall be determined, regardless of whether the person is a party to the action, and regardless of such person’s insolvency, ability to pay, immunity by statute …

May 16, 2013

Car Accident Claim Relies on Finding of Lower Courts

by Berniard Law Firm

When cases are appealed, the appeals court must grant a great deal of deference to the lower court as the fact-finder. The lower court sees both parties at trial and deals extensively with all of the circumstances of the case. The appeals court, however, may see the parties, but does not listen to testimony or review the facts nearly as extensively as the lower court. Often, the only facts that are presented are those in the record of the lower court. Where the lower court has leeway to find additional facts, the appeals court has no such ability. However, the appeals court does have the discretion to adjust findings of the lower court should they find that the lower court’s determination is not supported by the evidence in the record. Damages are generally vulnerable to changes at the appeals level.

Deference to the trial court may occasionally produce some results that one might question. For example, in a case appealed from the Abbeville City Court in the parish of Vermillion, the plaintiff, who was also the sole witness, and evidence seemed questionable, but because the lower court found in her favor, the appeals court had to defer to the lower court’s version of the facts. In that case, the plaintiff sought damages related to a car accident. The question of fault in the car accident was clearly on the other driver, but the issue in the case revolved around the plaintiff’s request for damages related to her injuries.

The plaintiff was involved in at least six car accidents in the past twenty years. The two most recent occurrences, however, were the issue in this case. The first accident involved the other driver in question. The second accident occurred one month later; she was at fault and it was much more serious because the air bag deployed in the second crash, but not in the first. Nonetheless, the plaintiff attributed back pain, neck pains and severe headaches to the first accident, which was not her fault.

May 11, 2013

Previously Dismissed Medical Malpractice Claim in Natchitoches Revived Due to Contrasting Interpretation

by Berniard Law Firm

A medical malpractice claim in Natchitoches, Louisiana was dismissed by the District Court, but on appeal, the Third Circuit Court of Appeals reversed, keeping the claim alive. What led to the different outcomes was a difference in interpretation of the applicable Louisiana statute.

The claim was brought by the husband and children of 62 year old Margaret Benjamin, who was treated for abdominal pain by Dr. William Zeichner at Natchitoches Parish Hospital. Dr. Zeichner performed a surgery, and seven days later Mrs. Benjamin returned to her home in Lynwood, California. Enduring frequent vomiting, she was admitted to the Intensive Care Unit of St. Francis Medical Center a few days later. The source of the problem was a small bowel construction. Tragically, she passed away a few weeks later.

Mrs. Benjamin’s family brought a medical malpractice claim against Dr. Zeichner, alleging the small bowel construction that caused her death was due to Dr. Zeichner’s manipulation of her bowel. They also argued that Dr. Zeichner’s surgery was below the standard of care. They offered an expert witness, Dr. James Shamblin, to testify that Dr. Zeichner breached the standard of care in this case, causing Mrs. Benjamin’s death.

May 11, 2013

How Underinsured Motorist Coverage Applies to Passengers of an Accident

by Berniard Law Firm

Automobile accidents create questions of coverage and liability – the only problem is how to answer those questions. Who is liable? Are you covered? If you are covered, to what extent are you covered? If you are covered, are your passengers covered? The final point is a more complex question to which recent case law has provided guidance for us.

In February of 2009, an uninsured motorist crashed into a vehicle owned by Ann Bernard. Ann was the driver and she had two passengers with her, Andrea and Norell Bernard, both members of her family not living in her household. Ann filed suit against her insurance provider, Imperial Fire & Casualty Insurance Company in order to obtain uninsured/underinsured motorists coverage under Ann’s Imperial policy. This type of coverage was named “UM” coverage. Ann believed that herself, Andrea, and Norell were all “using” the vehicle and were, accordingly, all insured persons as defined under her policy; thus statutorily entitling them all to coverage under Louisiana law.

In her filing, Ann referenced La. R.S. 22:1295 which states, in relevant part: