Pain And Suffering Claims

December 2, 2010

Part 1: Louisiana Barge Case Showcases Divide and Conquer Strategy When Suing Multiple Defendants

The Third Circuit Court of Appeals for Louisiana released their decision in Cotone v. Corrosion Control Systems, Inc. The case highlights the importance of the plaintiff’s “divide and conquer” strategy when litigating against multiple defendants. Additionally, it illuminates the challenges defendants and plaintiffs may both face in lawsuits involving injuries occuring in settings controlled and occupied by multiple parties.

In 2006, Timothy Cotone was employed by Superior Derrick Services as a shipyard supervisor on a Lousisiana river barge. Superior was tasked with converting the barge into a drilling rig. In order to accelerate the conversion, Superior subcontracted temporary workers supplied by Maxum Industries to perform welding and fitting services. Meanwhile, Corrosion Control Systems was hired separately by the barge owner to provide sandblasting and painting services. Superior and Corrosion were separate companies otherwise unaffiliated with one another.

On November 3, 2006, Cotone stepped into an open hole on the barge and suffered injuries. Typically, the hole was barricaded by safety cables. However, when Cotone stepped into the hole, no such safety cables were in place. Furthermore, plastic had been placed over the whole, preventing Cotone from noticing the opening. Naturally, Cotone concluded that one of the other barge workers must have negligently removed the safety cables and placed the plastic over the hole. Consequently, he sued to recover for his injuries.

November 28, 2010

State Court of Appeals Explains Plaintiff’s Standard in Minden, Louisiana, Trip and Fall Case.

by Berniard Law Firm

In June, The Louisiana Court of Appeals published their opinion for Watts V. Scottsdale Ins. Co., a case involving a trip-and-fall that occurred at a restaurant in Minden, Louisiana. In the decision, the court articulated the plaintiff’s standard for prevailing in trip-and-fall cases that occur within the state.

The facts of the case are simple enough. In this case, 82 year old plaintiff Mildred Watts tripped over a metal strip located in the path between a restaurant parking lot and front entrance. Ms. Watts contended the metal strip, due to its dark coloration, was shaded by the shrubbery around it and therefore she couldn’t see it before her resulting fall. As a consequence of her trip-and-fall, Ms. Watts sustained serious injuries to her mouth and teeth. Accordingly, Watts sued the restaurant and its liability insurance carrier on a theory of negligence.

Before ruling on the matter, the court explained that trip-and-fall negligence cases brought against merchants in Louisiana are governed by La. R.S. 9:2800.6. This statute requires a plaintiff to prove, among other elements of her claim, that (1) a condition present on the defendant’s property presented an unreasonable risk of harm and that the harm was reasonably foreseeable; (2) the defendant created the condition, or had actual or constructive notice of the condition prior to the plaintiff’s trip-and-fall; and (3) the defendant failed to excercise reasonable care. In order to win her case, the court explained that Ms. Watts must prove all three of the La. R.S. 9:3800.6 elements by a preponderance of evidence.

November 24, 2010

Louisiana Products Liability Act Requires Swift Action by Plaintiffs

by Berniard Law Firm

In Louisiana, a tort suit must be filed within a certain period of time after the incident occurs. This is called the “prescriptive period,” and serves several purposes. It puts the defendant on notice within a reasonable period of time that a plaintiff has a possible claim against him and thereby allows him to preserve evidence that may be required for trial. It also supports the state’s efforts to resolve legal disputes in a timely manner. The prescriptive period for a specific tort is set by statute. For product liability cases, the Louisiana Products Liability Act “establishes the exclusive theories of liability for manufacturers for damage caused by their products” and creates a one-year prescriptive period for claims that “commences to run from the day injury or damage is sustained.” See LA. CIV. CODE Art. 3492.

Filing a lawsuit even one day past the expiration of the prescriptive period can prove fatal to a plaintiff’s effort. For example, Carter v. Matrixx Initiatives, Inc., No. 09-31134 (5th Cir. 2010) involved a plaintiff who filed her lawsuit just six days too late and was barred from recovering. On February 23, 2007, Ruth Carter of Livingston Parish used Zicam No Drip Liquid Nasal Gel Cold Remedy and immediately experienced excruciating burning pain in her nose. By the next day, she lost her sense of smell and sense of taste. The pain was so severe that Carter was unable to work and told her employer that she believed the Zicam had caused the burn when she called in sick. Carter sought medical treatment from her primary care physician who did not confirm the cause of her injury but referred her to a radiography center for further examination. During the imaging appointment on May 7, 2007, Carter told the technician about her suspicions about the Zicam. The technician responded that she had received an e-mail communication warning “to be on the lookout for [the same kind of] problem with Zicam.” Carter filed suit against Matrixx Initiatives, Inc, the maker of Zicam, on February 29, 2008 in Louisiana state court. The case was removed to federal court where the Louisiana Products Liability Act was to be applied by the court. Matrixx then filed a motion for summary judgment seeking a dismissal, arguing that because Carter’s suit was filed six days after the expiration of Louisiana’s one-year prescriptive period for product liability suits, Carter’s action should be barred. The district court granted Matrixx’s motion on this ground, and Carter appealed.

In her appeal, Carter argued that the doctrine of contra non valentem should apply. Under this doctrine, the running of the prescriptive period is suspended “until the facts necessary to state a cause of action are known or reasonably knowable to the plaintiff.” The idea is that the plaintiff is not penalized for failing to act until she has “actual or constructive notice of the [tort], the resulting injury, and the causal connection between the two or that the plaintiff’s lack of such knowledge was willful, negligent or unreasonable.” See Sharkey v. Sterling Drug, Inc., 600 So. 2d 7013 (La. App. 1st Cir. 1992). In effect, Carter’s position was that not until her conversation with the radiography technician on May 7, 2007 did she become aware that the Zicam caused her injury and, accordingly, the prescriptive period should not have begun running until that date. The Fifth Circuit rejected this argument. The court found that it was “apparent that Carter first sustained the injury that allegedly resulted from her use of Zicam on February 23, 2007 and that she had actual knowledge of pain and sensory loss on that same day.” The court noted that “from the very outset, Carter suspected and attributed her injury to Zicam, and she never wavered in that belief.” In the court’s view, Carter “indisputably” had both the belief that Zicam caused her injury and a reasonable basis for seeking to hold its manufacturer responsible “on February 24 at the latest.” Therefore, the prescriptive period “began running on February 23 (February 24 at the latest),” and so Carter’s filing of her lawsuit “was at least five days late.” The court affirmed the lower court’s dismissal of Carter’s claims.

November 20, 2010

St. Martin Parish Accident Shows Review Standard for General Damages

by Berniard Law Firm

On May 22, 2006, Patricia Case was driving on Oday Road following a tractor driven by Barry Frederick, an employee of Burt Oubre of Burt Oubre Farms. She then decided to pass the tractor at the same time that Barry Frederick was turning left across Mrs. Case’s path. The two vehicles collided.

Following the collision, Mrs. Case “experienced back pain radiating into her legs.” Utimately, Mrs. Case received lumbar microdiskoctomy and laminectomy from Dr. Louis Blanda in 2007. Dr. Blanda testified that Mrs. Case would have some permanent restrictions on her activity level. For example, Mrs. Case was determined to not be able to participate in lifting involving objects over 50 pounds. Dr. Blanda also testified that the surgery was a minimally invasive procedure; in his opinion, Mrs. Case should be

able to return to work within limitations.

November 18, 2010

Faulty Jury Instructions in Iberville Parish Accident Result in De Novo Review by Appellate Court

by Berniard Law Firm

Faulty Jury Instructions in Iberville Parish Accident Result in De Novo Review by Appellate Court

On the afternoon of June 20, 2005, Jesse Brooks, an operating engineer who worked for Industrial Plant Maintenance in St. Gabriel, was driving a backhoe along the shoulder of La. Highway 30. Brooks was followed by his coworker, Steve Harris, in another vehicle. As Brooks approached a driveway that connected with the highway, the backhoe hit a depression and rolled over on its right side. Harris immediately approached the backhoe, where he found Brooks unconscious in the cab. Brooks died shortly thereafter. Brooks’s widow, Lola, filed a wrongful death action against the State of Louisiana through the Department of Transportation and Development (DOTD). At trial, the jury found the DOTD negligent in maintaining the shoulder of the highway, returned a verdict for Mrs. Brooks, and awarded her approximately $812,000 in damages.

The DOTD appealed, alleging several errors on the trial court’s part. Among them was an improper jury instruction. Under Louisiana law, the trial judge is required to instruct jurors on the law applicable to the issues submitted to them to decide. La. C.C.P. Art. 1792(B). The jury charge “must correctly state the law and be based on evidence adduced at trial… Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues.” LeBlanc v. Landry, 21 So.3d 353, 358-359 (La. App. 1st Cir. 2009). If the trial judge “omits an applicable, essential legal principle, [the] instruction does not adequately set forth the law applicable to the issues to be decided by the jury and may constitute reversible error” which is remedied by a de novo review of the jury’s findings by the appellate court. Leblanc, 21 So.3d at 358-359; see also Picou v. Ferrara, 483 So.2d 915 (La. 1986).

November 16, 2010

Bossier Parish Car Accident Explores the Court’s Role in Setting General Damage Awards

by Berniard Law Firm

In a tort action for a car wreck, the court is authorized to award a successful plaintiff two types of damages. Special damages are intended to reimburse a plaintiff for the quantifiable costs and expenses he incurred as a result of his injuries. Medical expenses and car repair costs fall into this category. To recover special damages, the plaintiff is required to show the amounts he paid and show that they were the consequence of the accident. General damages, on the other hand,

“involve mental or physical pain and suffering, inconvenience, loss of intellectual or physical enjoyment, or other losses of lifestyle which cannot be measured exactly in monetary terms.” Robbins v. State ex rel. Dept. of Labor, 728 So. 2d 991 (La. App. 2d Cir. 1999).

Naturally, arriving at an amount for general damages is far less precise, and so Louisiana law leaves “much discretion … to the judge or jury” in setting the award amount. La. C.C.Art. 2324.1. In fact, in order for an appellate court to modify a general damages award, the trial record “must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and individual circumstances peculiar to the case under consideration.” Youn v. Maritime Overseas Corp., 623 So. 2d 1257 (La. 1993).

November 14, 2010

Case Demonstrates Slip/Trip and Fall Accidents Can Be Complicated, Require Skilled Attorney

by Berniard Law Firm

Louisiana Court Stresses Importance of Constructive Notice in Trip-And-Fall Cases

In Smithwick v. City of Farmerville, the Second Circuit Louisiana Court of Appeals affirmed a trial court’s dismissal of a plaintiff’s trip-and-fall case for failure to prove that the municipal defendant had actual or constructive notice of a shallow depression in the city-maintained right-of-way.

The plaintiff, Carol Smithwick, was waiting at a street corner in Farmerville, Louisiana for her child’s school bus to arrive. Smithwick was traversing a sidewalk, and as she stepped off the sidewalk and onto the street, she tripped on a depression in the street’s shoulder. The depression was shrouded by grasses growing around it, and the depression was not immediately visible to Ms. Smithwick at the time. Accordingly, she tripped, fell, and sustained immediate injuries that later caused reflex sympathetic dystrophy.

November 8, 2010

Negligence on the Rise in Louisiana in Spite of Texting Ban

by Berniard Law Firm

In Louisiana, a study shows that crash rates continue to rise for drivers under the age of 25 despite outlawing text messaging while driving. In three other states, crash rates were shown to have actually increased after the enactment of anti-texting laws, and, in all four states researched, there were no reductions in crashes after the enactment of these laws.

The study, conducted by the Highway Loss Data Institute (HLDI), was carried out in Louisiana, California, Minnesota, and Washington. Researchers compared statistics of crashes before and after the texting bans were enacted in these states. The four states’ data was then compared to the states that do not have texting bans. The results were obviously not the expectation of lawmakers and has left many troubled by what can be done to counter the dangers technology is creating.

HLDI says that one possible explanation for the increasing negligence and rise in crash levels could be that people are continuing to text in spite of these laws.

November 6, 2010

Heart Stent Procedures Done Without any Need

by Berniard Law Firm

After having faced a significant heart-related scare and receiving a stent implant, many patients are now facing a rather unbelievable reality: it has been discovered that doctors across the nation have been performing unnecessary surgical procedures in order to financially benefit. Doctors, implanting the device intended to unblock clogged heart vessels, are now accused of recommending the procedure in order to bill private and government health insurers for unnecessary medical procedures. A stent is essentially a mesh tube that is inserted most commonly inside the heart and then expanded, using a small balloon to open blocked arteries that prevent blood flow to heart muscle. Despite the fact that stents are a medical breakthrough, it seems as though many individuals are having these devices implanted without having any need for them. While some might believe this does not have any significant drawbacks, the reality is that the procedure implanting them, and the devices themselves, expose patients to a risk of future medical complications due to the fact they have an unnecessary foreign device inserted into their body.

As a result of these discoveries, numerous doctors all over the United States are currently being investigated or indicted, even sentenced to prison for performing unnecessary procedures on individuals. The main criminal charge these medical professionals face is health care fraud. Many times, this situation would go unnoticed if it were not for the hundreds of patient complaints pouring into the hospital boards, motivating investigations into why the doctors have performed so many of these specific procedures on individuals. One investigation of Dr. Mark Midei, of Maryland, led the Maryland Medical Board to hold that Medei was involved in “gross overutilization of health care services… and willfully making a false report or record in the practice of medicine.” One statistic in particular leads some to believe that Dr. Midei is not alone in this practice: the number of stent procedures has almost tripled within the past ten years. What’s more, the number of patients receiving this type of implant has increased steadily every year since 1993, and continues to rise.

Additionally, in Lafayette, Louisiana, in 2009, Dr. Mehmood Petel, formerly of Our Lady of Lourdes Hospital and Lafayette General Hospital in Louisiana, was convicted of 51 counts of fraudulent medical procedures and received the maximum sentence of ten years in a federal state penitentiary. Over 75 patients charged Dr. Patel with fraud and of performing unnecessary heart stent procedures on them. Testifying experts, as well as the Department of Justice, revealed that the majority of the patients who received such implant had little or no disease. Patel was also found to have falsified patient symptoms in medical records, including specific symptoms such as heart pain. The amount of money that Patel billed insurers was astronomical; between 1999-2003, Patel billed Medicare and provate insurance companies more than $3 million, pocketing more than $500,000.

November 4, 2010

Substantial Jury Award Upheld in Jeep Accident Involving Defective Vehicle

by Berniard Law Firm

Substantial Jury Award Upheld in Jeep Accident

Recently, the 4th Circuit Court of Appeals upheld a substantial jury award to a Louisiana couple whose unborn son was tragically injured after their Jeep Grand Cherokee reversed and hit the expecting mother, pinning her against a brick column. This injury, sustained by the mother, resulted in the baby being born with permanent brain damage. Unfortunately, the child survived less than a month, when the couple decided to remove him from life support. This traumatic event is claimed to be the result of DaimlerChrysler’s defective design of the Jeep Grand Cherokee. The couple was awarded $5.08 million in 2008, which Daimler Chrysler recently attempted to appeal; however, the state appeals court affirmed the jury award. Critics have alleged that the award was excessive, and that the couple did not prove that the car’s design was actually defective in order to be awarded such an amount. However, their complaint was not the first in regards to the “Park to reverse” problem that year Jeep Cherokee was experiencing.

Analysis of the time line of the case has given rise to speculation that the jury award should not have been upheld. The accident initially occurred on May 21, 1999, and the fatally injured baby was taken off of life support on June 7, 1999. The couple filed their petition against DaimlerChrysler on November 30, 2001, after being informed by a Los Angeles Times reporter that their experience was not unique and that numerous investigations into Jeep Grand Cherokees had been made due to a “Park to Reverse” problem. The matter went to trial on March 31, 2008 and on April 10, 2008 the jury awarded the couple $5.08 million. Following the decision, DaimlerChrysler appealed. The company argued that the trial court erred in not finding that the couple’s case had prescribed, as it was filed two and half years after the date of the accident. Further, the company alleged that the trial court abused its discretion in admitting expert testimony and other evidence that allowed the jury to find a defective product and causation. The state appeals court went through DaimlerChrysler’s allegations one by one and consistently held the company to be at fault.