Louisiana Personal Injury Lawyer BlogHappy Holidays from the Berniard Law Firm! We will resume blog posting on Tuesday.
Articles Posted in Product Defect
Lawsuit Over Jackson Parish Car Wreck Dismissed Due to Late Filing
Under Louisiana law, the plaintiff in a personal injury lawsuit may file his complaint with the court by fax. However, the plaintiff must, within five days of transmitting the fax, forward to the clerk of court the original, signed complaint and any fees that are due. If the plaintiff fails to forward the original document, the faxed copy will “have no force or effect.” La. R.S. 13:580. The fax option can potentially help preserve an action that is facing the expiration of its prescriptive period. However, as we will see with the recent case of Taylor v. Broomfield, the courts do not take lightly the requirement that the original complaint must be submitted to the clerk within the time frame outlined in the statute.
On September 17, 2009, Jarred Taylor was involved in a serious car accident in Jackson Parish. The other party to the collision was Brandon Goss who was driving a Mack truck owned by Broomfield, Inc. Taylor suffered various injuries including two broken ribs, multiple contusions, and lacerations to his face. Taylor’s lawyer initiated a lawsuit against Broomfield and its insurer on September 17, 2010 (exactly one year after the accident and the last day of the prescriptive period) by transmitting a faxed complaint to the Jackson Parish Court. The faxed complaint was not notarized. Although Taylor’s counsel had, according to Louisiana statute, until September 24, 2010 to send the original complaint to the court’s clerk, the original document was not filed until October 5, 2010. The original complaint filed with the clerk on October 5 included a verification notarized by one Donna Kay Tucker on September 20, 2010.
On November 12, 2010, Broomfield filed an exception of prescription requesting that Taylor’s suit be dismissed because it was filed after the one-year prescriptive period had elapsed. A hearing was held on January 13, 2011. In opposition to Broomfield’s exception, Taylor’s attorney argued that when his office faxed the complaint on September 17, 2010, his staff immediately mailed the original complaint, along with the filing fees, to the clerk of court. Several staff members from the law firm testified to this effect, but none of them could explain who the notary, Donna Kay Tucker, was or why the complaint’s verification reflected a date after the day the firm put the document in the mail. Ultimately, the trial judge denied the exception of prescription and held that the notary date was “merely harmless error” and that the complaint had been timely forwarded by Taylor’s counsel per state law. Broomfield appealed.
Closing Overview of Class Action Certification for Chemical Leaks, Other Disasters
In this, our final post of the Union Carbide/Dow Taft plant chemical leak series, we will consider the fifth requirement for class certification under Louisiana law: that the class is “defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.”Chalona v. La. Citizens Property Ins. Corp. The intent of this requirement is to ensure that the class is not “amorphous, indeterminate, or vague,” such that any potential class members are challenged to determine whether they are actual members of the class. Plaintiffs initially submitted a class definition that included “[p]ersons throughout Louisiana” who were exposed to the ethyl acrylate that escaped the Taft plant and who suffered injury or loss as a result. The court desired a more precise definition, however. It reviewed the zip code maps, weather data, and expert testimony in evidence and incorporated Dr. Williams’s method in describing the symptoms suffered by people who were exposed to craft its own definition. This action on the court’s part was specifically permitted by Louisiana Code of Civil Procedure Art. 592(A)(3)(c), which envisions that the court may, prior to a final decision on the merits, enlarge, restrict, or otherwise redefine the constituency of the class. The court determined that its sharpened definition would mean that members “only need to determine if they were present in the geographically defined area on July 7, 2009, and if so, whether they experienced any of the symptoms commonly associated with the offending chemicals released.” This meant, in the court’s view, that its ultimate ruling as to whether the chemical released by the Taft plant caused the Plaintiffs’ injuries and losses would resolve the claims of all class members.
The court summarized its conclusions by reiterating that the substantive issue that will control the outcome of the case is whether ethyl acrylate “in the amount released can cause the damages as alleged by plaintiffs. This issue, along with the legal issues of duty of the defendants to the class … will predominate.” Accordingly, the court held that the Plaintiffs successfully demonstrated that certifying the class would not result in the action “degenerating into a series of individual trials.”
As we observed previously in the class certification litigation related to the Chalmette Refinery leak in 2007, the court’s task in determining whether to certify a class is an extraordinarily fact-intensive one. In many cases, the certification process is just as complex and involved as the trial on the merits of the ultimate issue. In fact, the class certification in the Taft plant case has not yet been finalized. Subsequent to the issuance of Judge Cade’s Order on December 15, 2011, the Defendants filed a motion to appeal the class certification.
Second Part in Understanding the Anatomy of a Class Action Certification
In our previous post, we began a discussion of the Union Carbide/Dow Chemical Taft plant chemical leak litigation filed by the Berniard Law Firm. This post continues with a review of the court’s analysis of numerosity in certifying a class. Under this requirement, the class must be so large that joinder of all members is impracticable. La. Code Civ. P. Art. 591(A)(1). Generally, a class action is favored when there are so many plaintiffs that individual suits would unduly burden the court, and so the class action would be more judicially expedient than other available procedures. See Cotton v. Gaylord Container. There is no distinct number of plaintiffs needed to fulfill the numerosity requirement. In this case, the proposed class included all the residents of St. Charles Parish as well as certain residents of Jefferson and Orleans Parishes–clearly a large number. The court found persuasive the fact that “the size of the individual claims of class members is small enough that individual lawsuits are impracticable,” but that that “separate suits would unduly burden the courts.” In the court’s view, a class action would “be more useful and judicially expedient.” Thus, the court concluded that “numerosity exists,” but that “the class is not too numerous to manage effectively.”
The court next examined the issue of commonality, or whether there were questions of law or fact common to the class. To satisfy the commonality requirement, there must exist “as to the totality of the issues a common nucleus of operative facts.” McCastle v. Rollins Environmental Services. of La., Inc. A common question is one that, when resolved for one class member, is resolved for all members. This issue is closely related to the predominance requirement, where the common questions predominate over any individual issues not shared among the class members. The Louisiana Supreme Court has indicated that predominance “entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class.” The goal is to “prevent[] the class from degenerating into a series of individual trials. Brooks v. Union Pacific R. Co. The same court has also held that a mass tort can only be brought as class action if it arose from one single cause or disaster; however, this requirement does not mean that the amount or extent of damages must be identical for all class members. “[V]arying degrees of damages … does not preclude class certification.” In order to meet the common cause requirement, each member of the class must be able to show individual causation based on the same set of facts and law that any other class member would use. See Bartlett v. Browning-Ferris Indus. Chem. Services, Inc.
With these considerations in mind, the court analyzed the common threads identified by the Plaintiffs as to their claims. First, all class members were physically located in the identified parishes on the date and time of the chemical release. They all suffered various (but similar) physical injuries and financial losses as a result of the release. Also, common questions of law and fact surrounded the Defendants’ negligence in failing to maintain its plant and prevent the chemical release. The court concluded that it was “satisfied … from the evidence presented that common factual issues predominate with regard to whether Defendants took reasonable steps to prevent the release of [ethyl acrylate] that occurred on July 7, 2009 and whether or not the release could cause the harm as alleged by the Plaintiffs to the members of the class.” The court’s reasoning was based in part on the testimony offered at the hearing by Dr. Patricia Williams, a toxicology expert. Dr. Williams concluded that the symptoms described by the class were consistent with the type of exposure to ethyl acrylate that resulted from the release at the Taft plant. Although the Defendants offered its own expert witness to rebut Dr. Williams’s testimony, the court nevertheless found that “a method of assessing general causation for the whole of the class exist[ed].” This permitted the court to reach the conclusion that common factual issues were present. The court thus identified a “common nucleus of operative facts” that permitted a finding that “uniform allegations of complaints of harm amongst the large number of class members that stem from one central release event” involved common legal issues among all members that superseded any individual concerns.
Third Circuit Rejects Trial Court’s Apportionment of Fault in Lafayette Auto Accident
It is well settled in Louisiana jurisprudence that an appellate court’s review of a trial court’s apportionment of fault in a negligence action is subject to the manifest error standard. In other words, in order for an appellate court to overturn a trial court’s assessment of fault, it must conclude that no reasonable factual basis exists to support the trial court’s finding and that it is clearly wrong. The Third Circuit reached this conclusion in Thibodeaux v. Trahan, a recent case that was marked by witness testimony that was “externally conflicting and often internally inconsistent.”
On the afternoon of October 18, 2006, Melinda Trahan was driving a school bus owned by the Lafayette Parish School Board on Richfield Road in Duson. Harold Thibodeaux, driving an RV, pulled out from a side road in front of Trahan’s bus and made a quick left turn into the parking lot of Thib’s Corner, a grocery store. Trahan, who approached Thibodeaux’s RV from the rear, also turned her bus into Thib’s Corner, at which point the two vehicles collided. Thibodeaux suffered a knee injury in the collision and sued Trahan and the school board for damages. The trial court heard testimony from the parties as well as several witnesses and ultimately found both Trahan and Thibodeaux at fault for the accident. It awarded Thibodeaux damages for pain and suffering and medical expenses, but reduced the amount by 40 percent, the amount of his fault. Thibodeaux appealed, arguing that the trial court erred in finding him partially at fault for the accident. On appeal, the Third Circuit noted that “the trial court was left with numerous conflicting versions of how the accident occurred.” It did, however, make specific findings of fact. Specifically, the trial court found Thibodeaux at fault “for having pulled out in front of Ms. Trahan while driving an RV in the rain while she was driving a school bus.” It concluded Trahan was at fault because she should have maintained better control of her bus when she saw Thibodeaux’s RV pull out into her path. The Third Circuit reviewed the testimony from the record and arrived at a different explanation of how the collision occurred: it concluded that Thibodeaux did nothing wrong when he pulled onto Richfield Road from the side street, but that he “failed to ascertain that the left turn could be made with reasonable safety” and therefore breached his statutory duty to execute the turn properly. Still, the court concluded that “the majority of the fault in this instance should be allocated to Ms. Trahan,” as she “was in a better position, as the following vehicle, to prevent the accident from happening.” The court concluded that the accident would have been avoided if Trahan had stopped her bus “within the adequate stopping distance existing between her and the RV,” rather than being forced to take an evasive turn into the Thib’s Corner parking lot. Accordingly, the court reversed the trial court’s apportionment and assessed 80 percent of the fault to Trahan and 20 percent to Thibodeaux.
Summary Judgment on Sand Built of Solid Foundation by Louisiana’s Third Circuit
Summary judgment can seem like a punishment to the defeated party. Because of the final nature of these judgments, appellate courts review them de novo. This standard of review grants the appellate court the ability to look at the entire record in the court below. The Bates family experienced an additional loss at the appellate level in Bates v. E. D. Bullard Company. They lost at the trial level as a result of a summary judgment and was later affirmed on appeal.
When a judge grants a party a summary judgment he or she is in effect saying that the opposing party has no case as a matter of law and that there will not be a trial. The party that has been defeated will, however, be able to appeal this decision to the higher court. De novo review is necessary when appealing a summary judgment so that the appellate court can make the most educated decision about whether the winning party deserved a summary judgment. This level of scrutiny is higher than most.
In the case in question, it was determined that the plaintiffs did not establish a case as a matter of law against the sand defendant for several reasons. Sand is not a dangerous instrumentality; there is nothing about sand’s very nature that makes it explicitly dangerous or harmful. The defendant sold the sand to the ill plaintiff’s employer, deemed by the court to be a sophisticated user. If a buyer is sophisticated, there is no duty on the part of the manufacturer to warn the buyer of possible ill effects of certain uses of a product. This is true even though the seller likely knew or should have known that the sand would be used for sandblasting. The sand defendant’s knowledge, real or constructive, did not bear on its lack of a duty to warn the sophisticated user buyer because there was no real way of telling what the buyer would do with the sand.
Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits
As part of our Constitutional right to due process, an individual is allowed to bring grievances before a court. However, certain judicial policies may be enacted to deny plaintiffs from bringing suits that have already been litigated, are being brought with the intent to harass, or are frivolous. The purpose behind such policies is to make courts as efficient as possible by deterring such actions. A recent case out of the Louisiana Fourth Circuit Court of Appeal shines a light on several of these deterrents.
In Mendonca v. Tidewater, Inc., the plaintiff sought to nullify several final judgments made by the district court. Mendonca’s list of suits stretched over four years, with multiple appeals and pleas for annulment. However, none of Mendonca’s nullity claims or his appeals were successful. In his final appeal for anulment, the Fourth Circuit Court of Appeals handed down three restrictions that laid Mendonca’s long line of cases to rest.
The first of these restrictions was the court’s upholding of the defendent’s plea of res judicata and failure to state a claim. When res judicata is enacted, the court declares one of two denials. First, that the claim has been subject to a final judgment and thus no longer qualifies for an appeal, or second, that the litigant cannot bring a claim against the same party in a second claim because all claims should have been brought against that party in the initial suit. The policy considerations supporting res judicata is to preserve court resources and protect defendants from being subject to litigation multiple times, with the possibility of having to pay damages more than once. A defendant’s plea that a plaintiff has failed to state a claim goes hand-in-hand with res judicata. If res judicata is applicable, then all duplicitous claims cancelled. In Mendonca’s case, this means that there were no new claims. Since there were no such claims, the court held that Mendonca’s nu
Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription
The following case highlights the importance of waiting no time in bringing a cause of action that is available. In 2008, Debra Goulas worked as a bookkeeper for Sunbelt Air Conditioning Supply in Baton Rouge. Jessie Touchet, owner of Sunbelt, and Diane Jones, Goulas’s manager, accused her of stealing over $500 from the company during February and April that year. This serious accusation resulted in Goulas being tried for felony theft. The crime of theft is committed when one is involved in a trespassory taking and carrying away of the property of another with the intent to permanently deprive the true owner of that property. Goulas was subsequently acquitted of this particular theft.
Following the criminal trial and Goulas’s ultimate accquital, she filed a lawsuit against Touchet and Jones in July, 2010 alleging defamation. Specifically, Goulas argued that Touchet and Jones “intentionally and negligently inflicted emotional distress” upon her, and that their accusations were “founded in malice to damage her person and reputation.” The complaint sought damages for medical expenses, physical and mental pain and suffering, and loss of wages. The defendants filed an exception of prescription. The basis of the exception was that Goulas’s claims were based on the defendants’ actions that allegedly occurred during February and April of 2008. By the time Goulas filed suit in 2010, more than one year had passed, thereby prescribing the claims. In October, 2010, the trial judge granted the defendants’ exception of prescription and dismissed Goulas’s claims with prejudice.
Goulas appealed, alleging error on the trial court’s ruling that her defamation claim was prescribed. Goula’s reasoned that she could not initiate her defamation action until her criminal trial was concluded in March, 2010; accordingly, she argued that prescription did not begin to run until Frederick Jones publicly accused her of theft when testifying at her trial. The First Circuit noted that Louisiana recognizes a qualified privilege that protects parties from charges of defamation related to statements they make during a trial. “It necessarily follows that, during this time, the one-year period that applies to the filing of a defamation action is suspended.” However, the court explained, the suspension of prescription applies “only to allegedly defamatory statements made by parties to a lawsuit.” In this situation, Frederick and Jones were not parties to Goulas’s criminal prosecution, so the prescription suspension did not apply. The court concluded that “since there has been no suspension of the 2008 alleged defamatory statements,” the trial court properly granted the defendants’ exception of prescription.
Class Action Plaintiff Has High Bar to Avoiding Federal Courts
Under the Class Action Fairness Act (CAFA), federal courts have jurisdiction over class action claims. There are exceptions, however, including what is known as the “local controversy exception.”
The plaintiff, Opelousas General Hospital Authority, sued in state court three defendants, located in Texas, Illinois and Louisiana, for violations of the Louisiana Racketeering Act. The defendants removed the case to a federal district court under the Class Action Fairness Act and diversity of jurisdiction. The defendants were able to claim diversity of jurisdiction because they asserted that joinder of the only in-state defendant, LEMIC, was fraudulent. The plaintiffs then attempted to remand the case back to state court, asserting that the case fit within CAFA’s narrow “local controversy exception.”
The “local controversy exception” of the CAFA allows a plaintiff to bring a class action lawsuit in state court rather than federal court when several requirements are satisfied. These requirements are that: 1) more than 2/3 of the proposed plaintiffs (as a class) are citizens of the state in which the action was originally filed; 2) principal injuries resulting from the alleged or related conduct of each defendant occurred in-state, and 3) at least one defendant falls under a very specific category. This category covers defendants who meet all of the following: 1) significant relief is being sought from that defendant, 2) the defendant’s conduct forms a significant basis for the claims, 3) it is a citizen of the originally-filed state, and 4) the principal injuries the plaintiffs suffered happened in the originally-filed state. In such a case, the federal district court will “decline to exercise its jurisdiction” and the case will go back to state court. Additionally, for the 3 years before the original class action is filed, no other similar class action, alleging similar facts, can have been filed against any of the defendants.
Geismar Wrongful Death Action Focuses on Choice of Litigation Forum
A common litigation strategy employed by savvy plaintiffs is choosing the most favorable jurisdiction in which to file a complaint. Favorability can turn on a number of factors including geographical convenience, the perception that a “local” jury may be more sympathetic, or that certain judges are more welcoming to the plaintiff’s particular cause of action than others. The choice of forum is governed by a series of procedural rules, but in many instances a plaintiff’s case may be properly filed in more than one parish. Or, in a case involving multiple defendants, there may be a need to decide between filing in state or federal court. Generally, state court is preferred by plaintiffs in tort actions, but federal court may be the only available forum when one or more defendants is not a resident of Louisiana. Accordingly, a critical part of the forum selection strategy is deciding whom to name as a defendant. Federal civil procedure rules seek to limit the parties’ unfair manipulation of defendants to affect forum choice.
The term “complete diversity” refers to the situation where none of the plaintiffs in a case is from the same state as any of the defendants; this results in jurisdiction by the federal court. A plaintiff who prefers to have his case heard in state court may attempt to name a defendant who resides in his own state in order to destroy complete diversity. The concept of “improper joinder,” however, can be employed by a defendant who favors federal court to challenge the plaintiff’s inclusion of the in-state, or “non-diverse,” defendant. To do so, the objecting defendant must demonstrate either
(1) actual fraud in the pleading of jurisdictional facts, or