Pain And Suffering Claims

August 6, 2012

Boat Swell Accident Provides Look Into Res Judicata

The first element of an independent action in equity that allows an individual to bypass res judicata analyzes whether the judge’s determination in the original case was truly fair and made in good conscience. When a judge shows bias, as in the boat swell case, the judge’s decision is likely swayed and not independent. This is unfair to the losing party and therefore helps a claim bypass res judicata.

The second element requires that the original case claim have merit. If the claim is frivolous, then there is no reason for the court to negate res judicata and grant a new trial. This again protects judicial efficiency and duplicitous suits. When determining the merit of the underlying suit, a judge will simply read the complaint to see if it makes an actual claim that, if true, would lead to recovery. In the boat swell case, the personal injury claim did have merit and thus satisfied this prong.

The third element requires courts to determine whether fraud was a reason that the losing party did not prevail in the underlying case. Similar to the first element, fraud is likely to sway a judge’s decision to the detriment of the losing party. This is what happened in the boat swell case as the judge’s decision was basically bought with lavish hunting trips.

August 1, 2012

Houma Boat Swell Accident Victim Convinces Court of Appeals to Bypass Res Judicata

by Berniard Law Firm

Though courts are busy and judges have overflowing dockets, our justice system requires courts to find time to hear cases worthy of adjudicating. This means that judges must be as efficient as possible. One way of doing this is to require claimants to converge all of their complaints into a single lawsuit. Failure to do this will bar a claimant from bringing a second lawsuit against the same party. This legal theory based in civil procedure is known as res judicata. It seeks to maintain judicial efficiency and protect litigants from facing duplicitous lawsuit from the same claimant. This important principle is important to understand for anyone going forward in a lawsuit because it could prevent a claimant from asserting any material claims against a wrong-doer that were not asserted in the first legal action.

Though courts are assumed to be honest, deceit and bias can seep into the legal fabric. When this occurs, the justice system must reanalyze the applicability of res judicata. One illustrative example of an instance like this took place recently in the United States District Court for the Eastern District of Louisiana. The issue was complicated and was later resolved by the United States Court of Appeals for the Fifth Circuit.

The case in question involved a personal injury lawsuit where a yacht’s boat swells threw another boat into the air and injured a woman in that boat. That injured woman filed suit against the yacht owners and their insurance company. At trial, the judge found for the defendants, essentially stating that the defendant’s expert witness was more reliable than the plaintiff’s expert.

July 30, 2012

Belle Chasse Mold Case Shines Light on Expert Testimony

by Berniard Law Firm

Southern Louisiana is known for its historic buildings, easy going attitude and humid climate. Though these ingredients mix well for a great place to live or vacation, they can wreak havoc on the health and safety of residents’ homes and work places. This was the case recently in Belle Chasse. There, an individual who rented an office for her business discovered the building contained toxic mold that posed serious health risks. The problem needed immediate remediation. After being contacted, the property owners began removal of the mold. However, the mold, according to the tenant, was so exacerbated that she was forced to abandon the office. The tenant then filed suit against the landlords and their insurance company seeking compensation for business and health related damages.

The importance of this case lies in its examination of expert testimony. In this instance, the tenant sought to have her doctor testify that her chronic fatigue syndrome and other health conditions were directly related to the toxic mold in her office. The landlords claimed it would be erroneous for the court to classify the doctor as an expert and asked that the lawsuit be excused. The court agreed with the landlords and, on appeal, so did the Court of Appeal for the Fourth Circuit.

Expert testimony is governed by the Daubert rule. According to this rule, in order for expert testimony to be heard it must be deemed to be relevant and reliable. The Supreme Court in Daubert provided that relevancy and reliability are determined by a set of factors: (1) testability of the scientific theory; (2) whether the theory has been subject to peer review; (3) knowledge of the theory’s rate of error; and (4) whether the theory has gained general acceptance within the scientific community. These factors are non-exclusive, but provide a solid framework for courts when determining whether to allow an “expert’s” testimony.

July 27, 2012

Train Accident Tests Requirements of Accident Liability

by Berniard Law Firm

Doyle, a resident of Eunice, Louisiana, lost his appeal of the summary judgment verdict denying him damages resulting from injuries he received in an automobile-train accident. On March 5, 2009, Doyle finished up an evening of cards with friends and a half pint of whiskey before getting in his car to drive home. While he was crossing the train tracks, a train owned by Union Pacific Railroad Co. collided with his car. When Doyle’s blood alcohol level (BAC) was tested at the hospital, it measured .108% – the legal limit in Louisiana is .08%. A toxicologist testifying for the defense argues that his BAC at the time of the accident would have been well above a level associated with mental and physical impairment. This impairment significantly increased his risk of ending up in a car accident.

As a result of this intoxication, unfortunately Louisiana Statute § 9:2798.4 bars Doyle’s claim. The statute does not permit recovery to a driver if the driver was (a) legally intoxicated, (b) more than twenty-fiver percent negligent, and (c) his or her negligence was a contributing factor in the accident. Many states have similar laws on their books due to the public policy concerns of allowing an intoxicated person to recover for injuries that resulted from his own voluntary intoxication. If someone chose to drive while intoxicated, why should the other party have to pay for the drunk driver’s negligent behavior? However, in order to prevent injustice, most of these laws have a requirement that the intoxicated person’s actions be somewhat negligent and that that negligence be a relevant factor of the accident.

Doyle admitted that he hadn’t looked for the train when he crossed. The crossing was marked with lights and there is evidence that the lights were flashing and the train honked its horn to warn of its approach, despite Doyle’s argument to the contrary. The first responder to the scene, a police officer, testified that the lights were working when he arrived and the event recorder on the train showed the engineer began blowing the horn 25 seconds before the collision. These two signals would have alerted a reasonable person to the train’s proximity. The trial court concluded and the appellate court affirmed that no reasonable juror could come to the conclusion that Doyle was less than 25% negligent in the cause of his own accident due to his intoxicated state and his failure to look properly for an incoming train while crossing the tracks. While the train company could be considered at fault in this case, Doyle was also at fault for driving while impaired under alcohol. Since no reasonable juror could find in Doyle’s favor in this case, summary judgment was appropriate.

July 23, 2012

Precarious Louisiana Rental Situation Leads to Tenancy Debate

by Berniard Law Firm

Rental situations are often particularly hairy, with unfortunate stories emerging of how renters can be put into uncomfortable circumstances due to issues with the property. A landlord in Ouachita Parish, Louisiana, lost his appeal of the landlord liability judgment against him. While the landlord was able to collect some of the back-due rent owed to him, he is still liable for damages to a tenant who was injured in his apartment.

Green, a tenant in a building owned by Erwin Enterprises, reported a leak from his bathroom ceiling to his apartment manager on October 1, 2008. While a maintenance employee was dispatched the next day to fix the leak, the employee could not do so without bringing in some outside assistance and left the premises without taking any action to fix the problem. Four days later while Green was sitting on the toilet, the bathroom ceiling caved in on the tenant, causing him to jump up in surprise and slip on the water coming down above. After slipping on the water, Green suffered injuries to his back, legs, and foot, resulting in multiple doctor appointments over the next month to fix the problem.

Landlords are liable for defects in their buildings that result in injury if the building was in the landlord’s custody, that the building containing a effect presented an unreasonable risk of harm to others, that this defect caused the damage and that the landlord knew or should have known of the defective condition. In this case, the building was owned by the landlord company, and the Erwin knew of the defect since it had been reported to him several days earlier. The trial court determined that this leak in the bathroom ceiling was the cause of Green’s injuries and constituted an unreasonable risk of harm. Erwin appealed the judgment, claiming that the court erred in determining that the ceiling falling was the proximate cause of Green’s injuries.

July 20, 2012

Malicious Prosecution Case Lends Elements of Successful Gain

by Berniard Law Firm

Two former employees of a large loan business located in Bossier Parish, Louisiana, succeeded in their malicious prosecution against their former employer. Deborah LeBlanc and Teri Shirey left the Cash Back Loans company where they both had held management positions. After their employment terminated, Linda Mills, another employee began reorganizing the accounts of the store which had been in disarray for years. On her inspection she found nineteen loans in sixteen names that she suspected were fraudulent. She brought her suspicion to Ray Pynes, Sr., the owner of the company, and told him she thought it was likely that the Shirey and LeBlanc had stolen the money. Based on Mills’ statement and documentation, the two women were arrested for felony theft. The case was dropped nine months later.

A successful claim for malicious prosecution has several legal elements, all of them inherently important and core to successful litigation. In short, the terms require the case must have been terminated in favor of the present plaintiff, the plaintiff must show the absence of probable cause for arrest and that the defendant acted with malice in bringing the case forward anyway.

The court found that Mills’ investigation into the suspicious loans was lackluster. There was evidence that she had fabricated documents and her testimony varied significantly through the trial process. Mills told the police that employees were not allowed to take loans from the company like LeBlanc and Shirey did when this was patently false and many employees had loans with the company. She told the police that the required documentation for loans was never submitted for Shirey’s loan when the company had drivers’ licenses and several other documents to validate the loan. She also presented inconsistent testimony as to whether or not she actually tried to contact the bogus loan customers. She claimed at one point that she called each one but admitted later that she did not bother to contact any of the sixteen loan customers to try to verify their legitimacy. Three of the “bogus” loan customers came forward claiming they had legitimate loans with the company. One had made payments on the loan after Shirey and LeBlanc left the company. Several of the loans were approved after the two women had left the company. The arrests of Shirey and LeBlanc were made exclusively on Mills’ inaccurate statements. The company had no accounting discrepancies that they could find to support their theft claims. They didn’t even admit bank account records into evidence.

July 16, 2012

Deposition Two-Step: Conflicting Reasons for Quitting Job Early Leads to Perjury Charge

by Berniard Law Firm

This case is a welcome reminder of how an attorney’s advice may sometimes lead to more harm than good. Brown brought suit against his former employer, Skagit, under Title VII claiming racial harassment and constructive discharge. In a deposition, Brown testified that his sole reason for quitting his job at Skagit was due to racial harassment. However, in a deposition four months earlier in an unrelated personal injury case, Brown testified that he left Skagit solely because of debilitating back pain suffered during a car accident. Skagit sought dismissal of Brown’s claims based on his conflicting testimony, which the district court allowed and dismissed with prejudice. The court also went one step further finding Brown committed perjury. Brown’s appeal is based on a matter of fairness, arguing that a less severe sanction is in order and that he was entitled to explain the discrepancy between the testimonies.

To emphasize the facts, in the first case, based on racial harassment and constructive discharge under Title VII, 42 U.S.C. sec. 2000e, Brown testified as to how he felt endangered by his co-workers’ threatening behavior, which involved dropping heavy plates and pipes near him. He was also distraught by his co-workers flinging derogatory remarks at him on a daily basis. He felt compelled to quit his job, as his supervisors purportedly ignored this behavior. When asked why he quit his job, he testified that the only reason he quit was because of the racial harassment. He reiterated that there were no other reasons for his quitting.

In a completely unrelated deposition for a personal injury claim, Brown testified that the exclusive reason he left Skagit was due to his debilitating back pain, which prevented him from performing his job as a welder. He again emphasized and confirmed that this was his only reason for leaving his job.

July 9, 2012

Timeliness to Rebuild in New Orleans Still an Issue after Hurricane Katrina

by Berniard Law Firm

The idea of timeliness is a common contract clause that requires that one of the parties perform a mandatory act within a certain amount of time. There is often a specific amount of time attached, but sometimes the clause can simply state that an action be carried out “within a timely manner” or similar wording. Usually if a party does not follow a timeliness requirement, the other party can dissolve the contract. However, if there are extenuating circumstances that create a situation in which the timeliness requirement could not have been satisfied, then courts may take that into consideration and allow the contract to continue.

In the aftermath of Hurricane Katrina, many companies were scrambling to rebuild their companies and manage rebuilding in hopes of returning to some form of New Orleans normalcy. Due to the myriad of weather and levee related problems, common damages included flooding within buildings, broken windows, roof damage, and a number of other damages relating to the huge amounts of wind and rain. The damage was enough to force the city of New Orleans shut down for at least thirty days after the storm. One would think that these conditions might fit with those extenuating circumstances to avoid a timeliness provision regarding how quickly to rebuild.

Conversely, the court ruled that this was not the case. Expert testimony stated that contractors were working to rebuild within two weeks after the storm. Therefore, contracts that included timeliness provisions still had full force. In one case, a lessee had a provision in their rental agreement that stated if there was significant damage the lessor could choose to either repair the property or terminate the lease within thirty days after the disaster. If the lessor chose to rebuild, then he would be required to rebuild within 120 days. In this case, the lessor chose to rebuild, was unable to fulfill the timeliness requirement. Instead, the property was returned to a “shell condition” nearly a year after Katrina hit. The “shell condition” consisted of very few substantial repairs, so that the building could not be used for its intended purpose. Instead, vital things were missing such as doors and doorframes.

April 23, 2012

Third Circuit Upholds Alexandria Doctor’s Actions As Within Standard of Care

by Berniard Law Firm

Every year thousands of medical malpractice claims are filed. Why? The answer is simple. The practice of medicine is complex, and, as advanced as our medical sciences are, mistakes are made, false diagnosis are given, and new conditions emerge. Since there are so many complexities, the fact that a patient is misdiagnosed or suffers from a condition that the doctor missed does not necessarily guarantee a successful medical malpractice claim. As illustrated by Cheramie v. Norem, in order to succeed on such a claim, a plaintiff must establish that the doctor did something or failed to do something that fell below the appropriate standard of care which resulted in harm to the patient.

In most medical malpractice cases, including Cheramie v. Norem, the most contested issue regards the standard of care. Typically, healthcare providers are held to a reasonable care standard, requiring them to use diligence and their best judgment in applying their skills. General practitioners are held to local standards which are the standards that prevail in the area they live or a similar location. Specialists, on the other hand, are held to a single national standard that applies to the entirety of that particular specialty. Regardless of which locale’s standard applies, all standards are comprised of a number of elements which the failure to comply with can give rise to a medical malpractice claim.

Cheramie v. Norem provides a glimpse into one of these standard of care elements. In this case, a doctor provided post-operative treatment to a patient after repairing a hernia. After the hernia operation, a small hole opened in the patient’s small intestine, requiring permanent sutures. As time passed, the patient’s body began rejecting the sutures and the question arose as to whether or not the doctor should operate to remove them. After years of the doctor’s recommendation that the sutures should remain, the patient was forced by his insurance company to get a second opinion. This second doctor operated to remove the sutures, resulting in a full recovery by the patient. Afterwards, the patient filed suit against the original doctor for malpractice.

April 16, 2012

Crowley Auto Accident Gives Rise to Causation Examination in Louisiana Auto Case

by Berniard Law Firm

When an auto accident results in an injury and is taken to court, one of the most important issues a judge must decide is causation. If a plaintiff can show that an injury was directly caused by the accident, then the judge will determine the amount of damages to be awarded. However, the determination of causation can be difficult. This is especially true when figuring out whom exactly caused the accident. For example, if a car on the interstate swerves into a lane and slams into another vehicle it may appear that the driver of that car directly caused the accident. If this were true, then the driver would be liable for any injury damages. Yet, there are several factors that must be considered. Consider, was any part of the car defective? Was there a problem with the road that caused the car to swerve? The various answers to these questions can change what actually caused the accident and the injury, thereby shifting liability to differing parties.

When making a personal injury claim, the burden of proof is on the plaintiff to prove both that the defendant caused the accident and that the injuries resulted from that accident. The plaintiff need only prove these elements by a preponderance of the evidence, meaning that it is more likely than not that the defendant caused the accident and that the injuries resulted from that accident. If causation is proved, then the judge will determine the damages that are to be awarded.

Damages awards may be found in several different areas. The most obvious is damages via costs accrued through medical treatment. Costs for medical transportation, doctor visits, prescriptions, and other hospital services are likely to be awarded as damages once causation has been proven. In addition to medical costs, a plaintiff may make claims for pain and suffering. These awards are highly discretionary, and are dependant upon the plaintiff’s ability to show that he has suffered disfigurement, impairment of ability to work, anxiety attributable to the injury, and mental distress. Pain and suffering damages cover a broad area, but to succeed on such claims it is imperative that the pain and suffering is proximately related to the accident and/or injury. A plaintiff may claim other damages such as loss of wages, loss of enjoyment of life, and loss of consortium. However, all must be a result of the accident and injury that serves as the claim’s foundation.