Pain And Suffering Claims

September 29, 2011

Fireman’s Survivors File in Time in Shreveport

Timing is everything in civil litigation. The difference of a day or two can determine whether a suit is timely or not timely, meaning if the court will even hear the case being filed. As such, the difference between a suit that is timely and one that is not timely can make the difference between a plaintiff receiving full compensation for their claims and a plaintiff (or his or her surviving family members) receiving nothing.

Mr. Jerry Bozeman dedicated his life to protecting others from fire-related disasters. Sadly, while carrying out his duties he was exposed to asbestos due to improperly built and maintained facilities. As a result of the City of Shreveport failing to protect their employees, including Mr. Bozeman, from the hazardous material in the fire station where he spent a great deal of time, the loyal fireman suffered from asbestos,-related mesothelioma. Mr. Bozeman’s two children, Corey Bozeman and Matthew Bozeman, brought suit under theories of negligence and strict liability under a claim of wrongful death in addition to survival benefits.

The primary issue before the Court of Appeal for the Second Circuit State of Louisiana on appeal was whether the case was actually able to be appealed to the First Judicial District Court for the Parish of Caddo, Louisiana. There was some contention as to whether the plaintiff could appeal the trial court’s granting of the City’s exception of no cause of action as to the plaintiffs’ wrongful death claims and non-intentional torts. The City was denied motion for summary judgment and its request for another exception to intentional tort claims and executive officer liability; the plaintiffs did not want to appeal these parts of the trial court’s judgment.

September 27, 2011

Knee Replacement Leads to Debate of Understanding the Difference Between Fact and Law

by Berniard Law Firm

Louisiana Woman’s

This latter part of the discussion regarding the McGlothlin v. Christus St. Patrick Hospital case is based upon the difference between issues of fact and law, and to who or whom such issues are to be determined. In this case, the issue gets blended with the difference between a lay person’s opinion and the opinion of an expert. This difference, though most commonly an issue during a jury trial, where the rules of evidence permit certain statements and opinions specific to either a lay person or an expert witness. A lay person may make statements as to observations based upon the common five senses (sight, sound, tough, taste, and smell) and may not make a statement as to one’s opinion regarding a material fact in question, that is the job of the jury. Similarly, an expert is permitted to make statements and observations based upon scientific, scholarly, or professional opinion regarding the facts, but as with lay person testimony, an expert may not make an opinion of the material fact in question, as it is the job of the jury. Thus, the job of the jury is to observe and digest the testimonies and facts presented, scrutinizing and determining whose is most credible, and thus determine, within the parameter of the law, the material fact or facts at issue.

Referencing back to the discussion in Part I regarding the medical review panel, the sole purpose of the medical review panel is to review all evidence and examinations of either party, and then “to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care.” Specifically, the doctors on the panel would determine whether, in their expert opinion as doctors in the field of medicine, and even more specifically orthopedics in this case, if the hospital, doctors, nurses, etc. failed to act according to the proper standard of care owed to patients. Here is where the blur between such an issue between fact and law arises. It appears that the doctors, in their expert opinions, are making a statement to the determination of a material issue of fact, which as discussed is reserved to the jury, however, statutorily, the medical review panel is given the purpose to determine this issue and make its opinion and give reasons, in short, according to whether the evidence supports or does not support the conclusion that the defendant(s) (hospital, etc.) failed to comply with or meet the applicable standard of care. This is very similar to the question a jury would be asked if determining whether a hospital or doctor, etc. committed medical malpractice.

September 25, 2011

Louisiana Woman’s Knee Replacement Leads to ‘He Said, She Said’ Confrontation (Part I)

by Berniard Law Firm

Most people’s fear of hospitals is usually justified in that one does not usually go to a hospital unless there is something wrong, or something negative has occurred. Everyone who seeks medical treatment, whether in a hospital or private doctor’s office, is seeking an expert’s diagnosis and treatment to prevent future, or cure current, ailments, or to have one’s body ‘fixed’ in some way, as in a broken bone. Unfortunately, problems arise and the treatment one seeks does not always fully help, or even makes the issue worse. But sometimes, whose fault it is, that the problem does not subside, or that the problem only gets worse, is up for debate. That is where a medical malpractice issue arises, and the topic that shall be explored here.

The factual and legal basis of this discussion comes from the Louisiana Supreme Court case McGlothlin v. Christus St. Patrick Hospital, decided July 1, 2011. The issue in this case is, “whether [the Louisiana statute in question] mandates the admission of a medical review panel opinion when the panel exceeds its statutory authority and renders an opinion based on its determination of plaintiffs’ credibility, not on the medical standard.” The following questions must be asked first to clarify the terms and substance of this discussion: What is ‘medical malpractice’? And what is a ‘medical review panel?’

The term ‘medical malpractice’ gets thrown around more than it should. It is a specific legal negligence term devised to describe a cause of action that may be brought by a patient of a doctor and/or hospital claiming that the doctors, nurses, and anyone involved with the care and safety of the patient was negligent, and through this negligence, that a harm came to the patient that otherwise would not have occurred. More specifically, 1) a duty of care exists in which those that are employed to care for a patient must maintain the proper diligence in their medical and professional duties, 2) a doctor or nurse, or other individual employed in a professional and medical sense has breached this duty of care through his or her actions, or in the case of a hospital’s negligence, through that actions of its employees (doctors, nurses, etc.), 3) that this breach of duty is the cause of the resulting harm to the patient, a harm that otherwise would not have happened and can be linked to the action(s) or inaction(s), of those who owe a duty of care to the patient, and 4) that a harm is the result of that breach that would otherwise not have occurred, and is something not reasonably foreseen so that there is no other cause than the breach of the proper duty of care owed to the patient.

September 21, 2011

St. Landry Parish Accident Results in Reversal and DOTD Responsibility

by Berniard Law Firm

Car accidents are never pleasant, but when an accident is worsened by construction debris left on the side of the road, the outcome can be disastrous. Once the pain and suffering has subsided, the question needs to be asked, who’s responsible? Do we look to the construction company, or do we simply chock it up to the terrible luck of the drivers? More importantly, how does the state play into this accident, and when is it the responsibility of the state department to compensate for injuries resulting from construction debris? The 3rd Circuit Court of Appeals addressed those issues in the case of Thibodeaux v. Comeaux.

Jennifer Thibodeaux, the plaintiff in this case, was injured in a car accident off of Highway 190 in St. Landry parish. As Ms. Thibodeaux began to cross to the next lane, her car collided with another vehicle driven by Mr. Bill Comeaux. The collision caused Ms. Thibodeaux to lose control of her vehicle and travel off the highway, where her vehicle slammed into a large cement block and other debris on the shoulder of the highway. The cement and debris had been placed there during on-site construction by a contracted construction company, Gilchrist Constriction, hired by the defendant, Louisiana’s Department of Transportation and Development (DOTD). Ms. Thibodeaux was ejected from her car and sustained multiple injuries, including spinal fractures, lower jaw fractures, and a lacerated spleen. Among the others involved, Ms. Thibodeaux filed a claim against the DOTD for their responsibility in the accident. At the conclusion of the trial, the jury found that the debris and cement left at the site were the sole responsibility of Gilchrist Constriction, and not the responsibility of the DOTD. Therefore, the court found that the debris and cement created an unreasonable risk of harm and Gilchrist was 40% responsible (with the other 60% of liability ordered to Ms. Thibodeaux herself).

Ms. Thibodeaux’s appeal contends that the trial court erred in finding the cement and debris was not an unreasonable risk of harm caused by DOTD. The assignment of DOTD as responsible for the debris and cement questions the distinction between a factual and legal determination. For legal determinations, as stated in Becker v. Dean, the appellate court must review, de novo, the proper legal analysis to render a judgment on the merits. The appellate court looked to determine whether the factual determination by the trial was actually a legal determination that required a different form of review.

September 13, 2011

Jones Act Lawsuit Fails Under Seaman Claim

by Berniard Law Firm

“Plaintiff Lost at Seaman Claim”

Robert Teaver may have fancied himself a man of the sea but the United States Court of Appeals for the Fifth Circuit agreed with the District Court for the Eastern District of Louisiana that there was no way he could establish his status as a “seaman” for purposes of the Jones Act.

When dealing with litigation, especially when making a claim under a premise, words mean everything. To clarify, words mean specific things and those specific definitions are everything. Robert Teaver attempted to sue his employer under the Jones Act. The Jones Act was crafted to protect seamen who are injured in the course of their employment. This statute lays out the elements that must be met in order for a potential plaintiff to file a successful suit under it. Robert Teaver was a crane operator and installer for Seatrax of Louisiana, Inc. This company makes and installs cranes for offshore drilling platforms. Mr. Teaver’s work took him over water but he was not employed on a maritime vessel.

September 11, 2011

Third Circuit Court of Appeals Shoots Down Lafayette Woman’s Claim Damages Were Too Low

by Berniard Law Firm

Plaintiff Sherrie Lafleur was injured in an April 2007 rear-end collision on Ambassador Caffery Parkway in Lafayette. Mrs. Lafleur was waiting for a traffic signal when Brenda Nabours drove her vehicle into the rear of Mrs. Lafleur’s vehicle. The low-impact collision caused no damage to Mrs. Nabours’ vehicle and no structural damage to Mrs. Lafleur’s car.

Mrs. Lafleur filed suit against Mrs. Nabours (and Mrs. Nabours’ insurer Shelter Mutual Insurance Company) claiming that she suffered a severe neck injury as a result of the accident. Shelter admitted liability for the collision and the case proceeded to trial without a jury on the issues of causation and damage. The trial court found the debilitaing injuries claimed by Mrs.Lafleur were not a result of the collision and actually predated the accident by many years. The trial court awarded the medical damages incurred by Mrs. Lafleur from the date of the accident through August 2007 in the amount of $5,457.97. The court found Mrs. Lafleur failed to prove by a preponderance of the evidence that her remaining medical treatment was necessitated by the Collision. The trial court also awarded general damages of $10,000. Mrs. Lafleur appealed the award claiming both the calculations for special and general damages were abusively low and contrary to the evidence.

Special damages are awarded to repay you for financial losses you have suffered. In Lousiana, the amount of special damages awarded is a finding of fact subject to the manifest error standard of review. Under this standard, the appellate court looks to whether the factfinder’s conclusion was a reasonable one not whether the trier of fact was right or wrong. If the conclusion was reasonable, a reviewing court may not reverse even though convinced it would have weighed the evidence differently. Where the factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous.

September 9, 2011

3rd Circuit Ruling Regarding Workplace Injury – Part 3 of Series

by Berniard Law Firm

Though Mr. Herbert’s primary argument was that he was outside the scope of his employment, he argued in the alternative that, even if the injury occurred within the scope of employment, the Defendants committed an intentional tort. Such a tort is the only recourse available to defeat a workers’ compensation defense when the injury occurs within the scope of employment. When making an intentional tort claim one must prove that the act that resulted in the injury was intentional. An intentional act requires the actor to either consciously desire the physical result of the act or know that the result is substantially certain to occur from his conduct. “Substantially” in this context requires more than a probability that an injury will occur and “certain” alludes to inevitability. Negligent, reckless, or wanton action is not enough to satisfy an intentional tort. These high standards make it difficult to succeed in a suit for intentional tort within the workplace.

Mr. Herbert was unable to succeed in his alternative argument because no proof was provided that either Industrial or GMI desired to harm Mr. Herbert or that the companies were substantially certain that the injury would occur from the companies’ acts. The court concluded that there was no evidence to prove that safety modifications made to the helicopter were an intentional cause of the injury. Neither the Plaintiff nor the Defendants felt that the safety harness used was unsafe, which defeated any claim that the Defendants knowingly acted to cause harm to Mr. Herbert.

In addition to the intentional tort, Mr. Herbert also claimed that the Defendants were responsible for spoliation of evidence. Spoliation of evidence is an intentional tort that impairs a party’s ability to prove a claim due to negligent or intentional destruction of evidence. In essence, the ability to make a claim for spoliation of evidence protects not only the claimant’s rights to suit, but also the court’s ability to provide justice. The key question in these claims is whether or not the defendant had a duty to preserve the evidence for the plaintiff. A duty of preservation may arise through contract, statute, special relationship, agreement, or an already acted upon undertaking to preserve the evidence. Because spoliation of evidence can be satisfied by an act under a negligence standard, this claim is easier to succeed on than one for any other intentional tort.

September 5, 2011

Three Part Series Regarding Workplace Injuries

by Berniard Law Firm

3rd Circuit Uses Helicopter Injury Case to Clarify “Injury Within the Scope of Employment”

Injuries in the workplace occur frequently and thus many states have forced employers to purchase workers’ compensation insurance. Under workers’ compensation, the employer’s insurance agrees to pay for any lost wages and medical bills as a result of the employee’s injury. In exchange for this security the employer may use workers’ compensation as an affirmative defense with the burden of proof on the employer to insulate the employer from tort liability. This essentially minimizes an injured’s claim. However, as Herbert v. Richard illustrates, it is vital that one consider whether or not the injury occurred while within the scope of employment. Depending on the answer to this question, an employer may be barred from using workers’ compensation as an affirmative defense to protect itself from tort liability, resulting in a potentially greater claim by the injured.

In Herbert v. Richard, an employee fell from a helicopter while netting deer in Mexico on behalf of a game management company, Game Management Inc (GMI). Though the deer netting enterprise was GMI’s, the employee worked for Industrial Helicopters, Inc., a company owned by the same family that owned GMI. Mr. Herbert, the employee, had been a fuel truck driver for twenty nine years and had only been on GMI’s netting excursions once before the injury. Industrial sought to invoke a workers’ compensation affirmative defense arguing that Mr. Herbert was either within the scope of his employment, was a borrowed employee from Industrial, or, alternatively, that Industrial and GMI were joint employers.

September 3, 2011

Ouachita Parish Medical Malpractice Case Reminds Litigants of the Importance of Meeting Litigation Deadlines

by Berniard Law Firm

Previously on this blog, we have explored a number of cases where a party has faced defeat in court because of the failure to follow a procedural rule in litigation. Louisiana’s rules of civil procedure are designed to require a timely commencement to a suit and to ensure that the suit is then adjudicated in an expedient manner. Similar rules apply to the procedure for summary judgments. Motions either for or in opposition to summary judgments may be accompanied by affidavits (in fact, in some cases, affidavits are required). An affidavit must be filed no later than eight days prior to the hearing on the motion. La. C.C.P. art. 966(B). A party’s failure to observe this time requirement will result in the court’s excluding the affidavit from consideration. As the plaintiff in Sims v. Hawkins-Sheppard learned, such a failure can result in a dismissal of the case when the affidavit is critical to opposing summary judgment.

On May 22, 2009, Rebecca Sims sued Dr. Tonya Hawkins-Sheppard alleging medical malpractice after Sims’s son was severely injured and disfigured during delivery at the Glenwood Regional Medical Center in Ouachita Parish. During the discovery phase, Hawkins-Sheppard requested the identity of any medical expert who could support Sims’s claim of malpractice. Sims responded that she had not consulted a medical expert, and Hawkins-Sheppard filed a motion for summary judgment. A hearing on the motion was set for May 4, 2010. Sims requested, and was granted, a continuance of the hearing until July 7, 2010. Sims then filed an opposition to summary judgment that included an unsigned physician’s affidavit. Sims’s lawyer stated that the unsigned affidavit would be replaced with a valid affidavit before the scheduled hearing on the motion. No such substitution was made. On the day of the hearing, Sims explained to the trial judge that she had fired her lawyer and was seeking new counsel. Sims suggested that she had been misled by her attorney. Refusing to permit further delay, the judge went ahead with the hearing and then granted Hawkins-Sheppard’s motion for summary judgment. Sims appealed. The Second Circuit found that the trial court had abused its discretion in failing to permit Sims a reasonable amount of time to find new counsel and to substitute the unsigned affidavit with a valid, signed version. Hawkins-Sheppard then appealed to the Supreme Court of Louisiana, which reached a different result. “[W]e find no abuse of the trial court’s discretion in this case,” the supreme court stated. “[Sims] failed to show ‘good cause’ under La. C.C.P. art. 966(B) why she should have been given additional time to file an opposing affidavit.” Consequently, the court concluded, there was no genuine

issue to the material fact that Sims was unable to prove that Hawkins-Sheppard breached the standard of care. A medical malpractice action is one that, on summary judgment, requires a valid affidavit containing a medical expert’s opinion on the issue of the doctor’s breach of duty. Had Sims’s motion been accompanied by a valid affidavit, she could have avoided the trial court’s grant of summary judgment. Thus, the court reversed the Court of Appeal and affirmed the trial court’s grant of summary judgment in favor of Hawkins-Sheppard.

September 1, 2011

Court Explores Scope of Employment in Baton Rouge Car Accident

by Berniard Law Firm

After working at his job as a recruiter for the U.S. Army, Sergeant Sean Fowler went out drinking with friends on the evening of February 4, 2008. He returned to the recruiting station in Covington briefly to pick up some personal belongings before heading home, as he had the following day off from work. At about 12:30 am early Mardi Gras morning, Fowler fell asleep at the wheel of his government-owned vehicle (“GOV”).

At the intersection of Harding and Howell Boulevards in Baton Rouge, he collided with a car driven by Fartima Hawkins. Fowler, who submitted to a breathalyzer test at the scene, had a blood alcohol content of 0.112%, which was over the legal limit in Louisiana of 0.08%. Hawkins, who sustained serious injuries in the crash, sued Fowler and the U.S. government in federal district court. Her complaint asserted that Fowler was acting within the course and scope of his employment at the time of the crash and, therefore, the government was liable under the doctrine of respondeat superior. The district court granted the U.S. government’s motion for summary judgment. Hawkins appealed, arguing that a genuine issue of material fact existed over whether Fowler was acting within the scope of his employment at the time of the accident.

The U.S. Court of Appeals for the Fifth Circuit conducted a de novo review of the district court’s decision. Hawkins’s case against the federal government was premised on the Federal Tort Claims Act (FTCA), which limits responsibility for injury to that which is “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Under the FTCA, the question of whether a negligent act occurred within the course and scope of a federal employee’s duty is settled according to the law of the state in which the alleged act occurred. See Garcia v. United States. Thus, the Fifth Circuit applied Louisiana jurisprudence in its analysis. Generally, an employee’s conduct is within the course and scope of his employment if it is (1) of the kind of conduct that he is employed to perform; (2)it occurs within the authorized time and space of employment; and (3) it is initiated, at least in part, by a purpose to serve the employer. See Orgeron v. McDonald. The default approach in Louisiana is the “going and coming” rule: that is, when an employee is involved in a car accident on his way to or from his place of employment, it is considered to be outside of the course and scope. An exception to the rule is when the employee uses an employer-owned vehicle in the “performance of an employment responsibility.” Factors that influence the analysis include: (1) whether the employee’s use of the vehicle benefitted the employer; (2) whether the employee was subject to the authority of the employer at the time of the accident; (3) whether the employee was authorized to use the vehicle; and (4) whether the worker was motivated to use the vehicle, at least in part, by the employer’s concerns. Brooks v. Guerrero. The court found “no evidence … that Fowler’s use of the GOV was related to any employment responsibility or was of any value to the Army.” Instead, the court found that “Fowler was going home for the Mardi Gras holiday at the time of the accident” and, accordingly, was not acting within the course and scope of his duties as an Army recruiter. Although the court recognized that Fowler’s “permission to use a GOV on the evening of the accident [was] genuinely disputed,” it held that the settlement of that issue was not essential to determining the course and scope of employment. Thus, the court concluded that “no genuine issue of material fact exists that might preclude entry of summary judgment in favor of the United States.”