Articles Posted in Pain And Suffering Claims

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On February 24, 2003, D H visited the North Monroe Medical Center to have a benign tumor removed from her breast. The procedure was performed by Doctor A, a general surgeon, and Doctor B, a radiologist. The procedure involved inserting a metal wire, guided by x-ray, into the breast and “hooking” the tumor. Once Doctor A removed the mass of tissue, Doctor B compared pre- and post-operation images and confirmed that the tumor had been taken out. The tissue was sent for pathological analysis, which revealed that it was not the intended tumor, but rather normal breast tissue. A mammogram several months later revealed that a section of the wire hook and the tumor remained in H’s breast. Doctor A, therefore, performed another procedure in which he successfully removed the wire fragment and the tumor.

H filed a medical review panel complaint against Doctor A and the North Monroe Medical Center. The panel found in favor of the defendants, and H filed a medical malpractice suit on January 19, 2007. She amended the complaint to include Doctor B on October 30, 2008. In February, 2011, following the completion of H’s case, the defendants moved for directed verdicts, which the trial court granted. H appealed the trial court’s granting of directed verdicts in favor of Doctor A and Doctor B. Under Louisiana law, a directed verdict should be granted when, after considering all the evidence, it is clear to the court that the “facts and inferences so overwhelmingly favor a verdict for the movant, that reasonable jurors could not have arrived at a contrary conclusion.” This, naturally, in the case of a defendant’s petition for a directed verdict, requires that all of the plaintiff’s evidence be properly before the court. Expert testimony is not absolutely required in order for the plaintiff to overcome the burden to show that the defendant was negligent. In fact, on appeal to the Second Circuit Court of Appeal, H argued that expert testimony was not necessary to establish malpractice, as the actions that led to her injury were “obviously careless acts” and, as such, negligence could be inferred. The court disagreed, offering that “although the procedure itself may be considered routine, considering the procedure as a whole, specifically the judgment calls required of Drs. A & B, it is clear that this is not a scenario from which lay persons could infer negligence.”

This conclusion led to the analysis of the trial court’s refusal to certify Dr. Roderick Boyd, H’s witness during the trial, as an expert in radiology. As a result of Dr. Boyd’s being certified in general surgery only, he was unable to comment on most of Doctor B’s involvement in H’s procedure during his testimony. The court’s review of the record of Dr. Boyd’s voir dire revealed that “Dr. Boyd had performed several hundred needle localization breast biopsies. He does regularly review radiographic images as a function of his occupation as a general surgeon and in connection with biopsies such as the one performed in this case.” Therefore, the court’s “not accept[ing] Dr. Boyd as an expert in this type of procedure to include a reading of the radiographic images was clear error. The court concluded, “We cannot speculate on Dr. Boyd’s opinion or its impact on the jury’s decision. Nonetheless, … we must reverse the trial court’s grant of both defendants’ motions for directed verdict, and remand for further proceedings.”

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Black’s Law Dictionary defines a common carrier as “A commercial enterprise that holds itself out to the public as offering to transport freight or passengers for a fee. A common carrier is generally required by law to transport freight or passengers . . . without refusal, if the approved fare or charge is paid.” Common carriers include vehicles such as buses, planes, trains, and even taxis. Generally, the individual who is driving or running the vehicle is unknown to the passengers and those passengers are, in effect, putting their lives in the hands of a complete stranger. As a result, a common carrier has special, heightened obligations to the people they are transporting. Therefore, if someone is injured, then the common carrier is more likely to be held liable.

The danger involving public transportation is especially apparent in situations where there are children involved. For example, in a recent case involving the Avoyelles Parish School Board, they were held liable for an injury that a child sustained on a school bus. In this case, a child was injured as a result of the bus driver backing up into a wet, grassy area and getting the school bus stuck in the mud. The school bus had to be hauled out of the mud while the children were on it. The child involved injured his knee; he suffered from bilateral knee contusions after he hit his knee on the back of one of the chairs.

The school bus is considered under the definition of a common carrier even though the children do not directly pay for their transportation as they get on the school bus. As a result, law surrounding the common carrier doctrine governs the school bus case. Although Louisiana generally relies on codes to make up their laws, the common carrier doctrine exists even in this state.

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A court granted a Louisiana woman’s motion to quash the criminal information against her granted in 2007. She was charged with theft after she removed some kitchen equipment from a premises on which she once operated a business. After this outcome she initiated a claim against various parties involved in the prosecution of this case for unlawful searches and seizures, unlawful arrest and malicious prosecution. Though her criminal case ended with a positive outcome for the woman, her civil action did not fare well.

When the criminal justice system does wrong by a criminal defendant, the civil justice system provides a few potential remedies. Unfortunately for this woman, she did not meet the standard for receiving such a remedy. Her case did not rise to a level where relief could be granted and had a summary judgment rendered against her. This judgment was upheld by the appellate court.

Proving that a criminal case was investigated, filed or prosecuted improperly is a difficult task. The woman in this case failed to even raise genuine issues of fact in her case. The appellate court held that she did not raise a genuine issue of fact as to whether she abandoned the property from which she removed the items she was eventually accused of stealing. The Supreme Court of the United States has held that Fourth Amendment rights do not reside in places but in people. In order to be protected under that Amendment, a person must have a legitimate expectation of privacy in a given space. The Court of Appeals for the Fifth Circuit later held that an individual cannot claim any legitimate expectation of privacy in property once it has been abandoned. The woman’s first unlawful search and seizure claim was defeated by this finding by the appellate court.

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A Louisiana Court of Appeals remanded a class action case back to the trial court for further determination on the size of a class of plaintiffs affected by a Livingston Parish hazardous waste dump. The case, while unfortunate in subject matter, is an excellent overview of the appeals process.

In this case, the trial court had decided to certify a class of all people living within 2.5 miles of a dump site of Combustion, Inc., that had released toxic chemicals into the air and water. Initially, over 14 lawsuits had been filed by 1200 people, but the trial judge had consolidated the cases to a single class action case. The defendants in the case appealed the trial judge’s decision on two grounds: first, that a class action lawsuit was not the appropriate means of deciding the matter because separate lawsuits would be better; and second, that the judge incorrectly set the eligible class of plaintiffs at all those people living within 2.5 miles of the site.

The Court of Appeals sided with the plaintiffs on the first issue. The Court noted that, under Louisiana civil procedure, a case is appropriately decided by class action if the plaintiffs are numerous enough, the named plaintiffs will adequately represent all plaintiffs in the class, and if there is a common character between the claims of all plaintiffs. The Court reasoned that, there being over 1200 plaintiffs in the initial class, there were clearly enough plaintiffs for the trial court to decide that a class action was fair. Also, the Court reasoned that the plaintiffs would likely all have similar damage from the toxic chemicals—namely, bodily injury and property damage—that would make the named plaintiffs adequate representatives of everyone in the class. Finally, the Court reasoned that the legal issues encountered by the plaintiffs were similar enough that there was a common character between them. For these reasons, the Court held that class action was appropriate to resolve the issues in the case.

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Lake Charles casino slip-and-fall showcases negligence analysis

When New Orleans residents go into a business, they expect that the premises are safe. Most of the time businesses are. But when business owners and their employees fail to maintain safety, serious injuries can result. A recent case from the Court of Appeal for the Third Circuit shows how these instances play out in court.

The case arose from a slip-and-fall incident at a casino restaurant in Lake Charles. Butter was spilled on the floor near the buffet and, after being notified, an employee mopped the floor and put up a wet floor sign. Minutes later, a casino patron went to the buffet, slipped on the wet floor and wound up with a cracked patella and a torn meniscus. The trial court awarded the injured plaintiff over $20,000 in damages.

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A mother in Alexandria, Louisiana (“Williams”) recently sued AT&T on behalf of her three-year old due to an unfortunate accident in one of the phone giant’s stores. Johnathan Davis, then two and a half years old, was playing on the floor of an AT&T store as his mother was shopping. While playing under and around a sandwich board sign in the corner of the store, he knocked it closed against a window. When the boy leaned over to pick up something he had dropped, the sign fell towards him, striking his head and sending him to the ground. Since the accident, Johnathan has suffered at least two seizures, causing his doctors to diagnose him with post-traumatic epilepsy and some serious cognitive issues.

The jury ruled in favor of AT&T, finding that Johnathan’s mother (the plaintiff) had not shown any negligence by AT&T. Williams appealed the decision, questioning whether certain instructions and interrogatories should have been given to the jury on negligence law. Jury interrogatories are sub-questions that the jury will need to decide in order to conclude on the issue at hand. In this case, in order to prove negligence, the jury had to decide whether the accident was caused by an unreasonably dangerous condition in order to conclude whether negligence was present. Jury instructions, on the other hand, are a set of legal instructions given to the jury to aid them in coming to a verdict, such as “If you believe A, B, and C occurred, then you must find D.”

Johnathan’s mother first argued that the jury verdict form should have included an interrogatory on general negligence. She believed that the verdict form was too narrow, essentially turning her claim into a premises liability case (“Was there an unreasonably dangerous condition without which the accident would not have occurred?”). On this issue, the appellate court affirmed the trial court decision, finding that the case was indeed a premises liability case since the plaintiff had not shown any negligence by the AT&T employees. Without any evidence of negligent conduct by the employees, the trial court was not required to put questions of general negligence on the verdict form. While his mother argued that none of the employees stopped the sign from falling on the child, the court found no evidence that the employees had even seen the sign falling. The appellate court upheld the trial court’s ruling.

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In order to sue, there are certain rules and procedures you must follow. There are not only federal rules; there are also state rules and local rules. All of these rules should be combined in order to correctly deal with the court system. In many cases, if you do not comply with these extensive rules, then the court will not hear your case. Obviously, these rules are important, but can be very time consuming to follow.

A recent case provides us with an excellent example of following the rules to the letter. In this case, an individual was killed on Highway 90 near Iberia Parish. His accident occurred on a temporary road near a construction zone; he was the only person involved in the accident. As a result, his mother sued for wrongful death. She listed Toyota Motor North American, Inc., Toyota Motor Engineering & Manufacturing North America, Inc., Toyota Motor Sales U.S.A., Inc., and the Department of Transportation and Development.

One of the many procedures that must be followed is the service of process. Service of process involves giving the other party a letter or some kind of notification that they are being sued. Its purpose is obviously to inform the other party that they are being sued, but also let them know that they will need to respond and possibly go to court to defend the suit.

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Recently, the Vermillion Parish School Board sued various oil, gas, and mineral companies based on mineral leases that were established over a period of nearly 70 years. The companies included Union Oil Company of California, The Pure Oil Corporation, and ConocoPhillips Company. After the school’s argument was rejected at the lower level in separate lawsuits, the school filed to appeal the trial court’s decision. The State of Louisiana Court of Appeal for the Third Circuit reversed the lower court’s findings and its justification for doing so is quite interesting. That court addressed the mineral leases generally, the use of Section 16 lands, and the school’s role in the use of Section 16 lands.

This case involved several unique concepts under the law. First, the dispute centered around mineral leases, which are an curious concept themselves. Basically, mineral leases allow another person or company the ability to mine or take the minerals that are on or underneath a portion of land. In order to take those minerals, the person or company has to pay for their use as if they are renting the entire property. The land above ground might also be used for another purpose that is completely unrelated to mining of minerals, oil, or gas underneath the surface. In addition to a specified rent, many times the person or company who owns the land may also require that they receive a portion of the profits that the land produces. This profit portion is commonly referred to as royalties. These royalties are the topic of discussion in the Vermillion Parish School Board case.

In this case, a school owned lands that they had leased to various oil, gas, and mineral companies. The school was situated on Section 16 land. This concept is also unique and deserves some historical explanation. The State of Louisiana Court of Appeals for the Third Circuit provides some background on the status of this land. It explains that in 1806, the United States government set aside some land for the use of public education. Therefore, when Louisiana joined the Union in 1812, the land that was set aside was passed to the State to establish public education. These lands are separate from other public lands because they are completely under the control of the state school authorities; therefore, they are held in trust for the benefit of Louisiana school children. The court further explains that although the school authorities control the use of the land, the land is actually owned by the State of Louisiana.

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Anyone with experience in the court system knows that seeing a lawsuit through to completion takes time. While the wheels of justice may turn slowly, the plaintiff in certain cases may require urgent action to put a stop to the defendant’s behavior that gave rise to the litigation in the first place. In those situations, a plaintiff can turn to the courts for help in the form of a petition for an injunction.

Under Louisiana law, an “injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result” The Louisiana Supreme Court has explained that “injunctive relief” is designed “to prevent the occurrence of future acts that may result in irreparable injury, loss or damage to the applicant.” The issuance of a permanent injunction requires the court to assess the merits of the request, which may itself require time; the court can issue a preliminary injunction–which only requires a prima facie (on its face) showing that the plaintiff is entitled to relief–to maintain the status quo while the permanent injunction is pending. Key to the success of a plaintiff’s petition is that the court’s compulsion or prohibition of some conduct is required to stave off harm. An injunction cannot be issued for monetary damages. In addition, there is an exception to the requirement that the plaintiff show irreparable harm. The courts disregard this element when the conduct at issue “constitutes a direct violation of a prohibitory law or a constitutional right.” In other words, if the defendant’s conduct is illegal, harm is implied.

The Court of Appeal for the Third Circuit provided a useful analysis of the requirements for an injunction in the recent case of Desselle v. Acadian Ambulance Service, Inc.. The trial court granted of a preliminary injunction against Acadian to prevent it from collecting any amount in excess of the reimbursement rate it had negotiated with Keisha Desselle’s health insurance provider. Desselle disputed that any amount was due to Acadian, and was in litigation with her health insurance company over the matter. The court reversed the issuance of the injunction, stating that the case “[ran] afoul of [Louisiana law] insofar as [Desselle] did not demonstrate that “irreparable injury, loss, or damage may otherwise result” to her. First, Desselle has “already been subjected to the complained-of billing procedure.” Further, “any alleged injury, loss, or damage is monetary is nature. It is unclear how the anticipated injury, loss, or damage is irreparable insofar as “Desselle’s] suit is one for monetary damages.”

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Late in the afternoon of April 15, 2001, Geraldine Fruge and her eight-year-old granddaughter, Hannah Lejeune, were involved in an auto accident on US Highway 171 in Beauregard Parish. Fruge, who was driving southbound, lost control of her Pontiac and veered into oncoming traffic. Tragically, both she and Lejeune were killed when their car struck a Ford pickup truck heading northbound. It had been raining on and off throughout the day and Highway 171 was wet at the time of the crash. The victims’ family brought a wrongful death action against Louisiana’s Department of Transportation and Development (DOTD). The plaintiffs alleged that due to the highway’s construction, water was allowed to collect and pond on the roadway. They alleged that this condition amounted to a defect that caused Fruge’s car to hydroplane. After jury returned a verdict in favor of DOTD, the plaintiffs appealed.

The primary duty of Louisiana’s DOTD is to maintain the public roadways in a condition that is reasonably safe and which does not present an unreasonable risk of harm to motorists who exercise ordinary care. As discussed in this prior blog post, a plaintiff must prove the following elements in a tort action against DOTD arising from accident on the roadway: (1) that the condition that caused the damage was in DOTD’s control; (2) that the condition amounted to a defect that presented an unreasonable risk of harm; (3) that the DOTD was aware or should have been aware that the defect existed; and (4) that the defect was the cause of the plaintiff’s injuries. Upon review, the Court of Appeal for the Third Circuit began “with the second element: whether Highway 171 contained a condition that created an unreasonable risk of harm.”

The court reviewed the record and examined the testimony presented by eyewitnesses, experts, and accident investigators, much of which centered around the ridges or ruts in the travel lane that on the day of the accident held water on the road. The court noted that “it is clear that the jury could not have come to any conclusion other than the fact that the travel ruts on both lanes of Highway 171 were holding some water at the time of the accident. Thus, the pivotal question is whether this retention of water was a defect in the highway that created an unreasonable risk of harm.” After an exhaustive review of matters such as rut depth, roadway gradient, tire tread depth, and the physics of hydroplaning, the jury found that the condition of the road did not present an unreasonable risk of harm. “The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Accordingly, the court held that “the evidence in the record provides a reasonable factual basis for the jury to have concluded that Highway 171 was not defective,” and affirmed the trial court’s judgment.

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