Wrongful Death

November 3, 2011

Baton Rouge Pedestrian Strike Reminds Drivers of Duty to Keep a Lookout

It is well settled in Louisiana law that automobile drivers are required to exercise care to avoid colliding with pedestrians. Motorists are charged with the duty to see what an “ordinarily prudent” driver should see to prevent striking pedestrians in the roadway. In fact, La. R.S. 32:214 requires drivers to

“exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway.”

A driver’s liability for injury to a pedestrian is based on ordinary negligence principles. The traditional duty/risk analysis is used to compare the driver’s behavior to “how a reasonably prudent person [would] have acted or what precautions [he would] have taken if faced with similar circumstances and conditions; the degree of care required is dependent upon the foreseeable dangers facing the driver. It can be particularly challenging for a court to conduct the duty/risk analysis when a victim dies as a result of his injuries and there are no eyewitnesses to the accident other than the defendant himself. The “trier of fact is free to believe in whole or part the testimony of any witness,” which means that the a judge or jury may disregard a defendant’s own testimony about whether he saw–or should have seen–the victim. Scoggins v. Frederick. However, under Louisiana civil procedure, “a court cannot make [such] credibility determinations in ruling on a motion for summary judgment.” This rule of procedure led to the First Circuit Court of Appeals’ reversal of the trial court in Woodward v. Hartford Insurance Co.

October 29, 2011

Geismar Wrongful Death Action Focuses on Choice of Litigation Forum

by Berniard Law Firm

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

October 27, 2011

Bossier City House Fire Tragedy Prompts Court’s Review of Landlord’s Duty to Tenants

by Berniard Law Firm

Louisiana law reflects the state legislature’s interest in protecting the health and safety of residents of rental property. For instance, landlords are required to warrant that a house is “suitable for the purpose for which it was leased” and that it is “free of vices or defects that prevent its use for that purpose.” La. C.C. art. 2696. The warranty extends even to problems that are not personally known to the landlord, though there is an obligation on the part of tenants to report any unsafe conditions. La. C.C. art. 2697. Some limited waivers of this warranty are permitted, but only by “clear and unambiguous language that is brought to the

attention of the lessee.” La. C.C. art. 2699. So strong is the state’s intent to protect tenants that the law imposes strict liability on a landlord for damages that arise from defects to the property. To prevail against a landlord, the tenant must only prove that the landlord had control over the thing that caused injury; the thing that caused injury suffered from a condition that created an “unreasonable risk of harm”; and that the condition caused the tenant’s injury. In fact, the landlord’s liability is based entirely on his status as the landlord, not his personal fault. Thus, a landlord’s “lack of knowledge regarding a [particular] defect is inconsequential.”

A case that recently came before the Second Circuit Court of Appeal demonstrates the operation of this statutory warranty. In 2000, Antonio Wells, Sr. signed a lease to rent a house on Julia Avenue in Bossier City from William Norris. Wells’s family, who lived with him in the house, included his wife, Amanda, and three children: Amber, Antinio Jr., and Arquisia. When the family moved in, several electrical outlets were not working. Wells and his wife got into the habit of using extension cords to power lights and other appliances in the home that were not located near working outlets. Discovered later was the fact that many of the 20-amp fuses in the home’s fuse panel had been replaced with 30-amp fuses to prevent overloads; this caused excessive heat to build up in the circuits. Around lunch time on July 1, 2001, the house caught fire when an air conditioner overloaded a circuit with an altered fuse and ignited. The Bossier City Fire Department responded and extinguished the fire, but, tragically, not before Arquisia was killed and both Amber Antonio Jr. were severely injured. Wells filed suit against the landlord, Norris, in June of 2002. Wells alleged that Norris was strictly liable for the damages sustained by him and his family in the fire. A trial was held in March, 2010 in which the trial judge, without oral or written reasoning, ruled in favor of Wells and awarded $207,572.79 in damages. Norris appealed.

October 25, 2011

Medical Malpractice Case in Louisiana Shows Importance of Panels

by Berniard Law Firm

Is the Failure to Observe a “Do-Not-Resuscitate” Order Medical Malpractice?

A common element in medical malpractice cases we have previously examined on this blog is the role of Louisiana’s medical review panel. As a brief review, claims brought against healthcare providers under Louisiana’s Medical Malpractice Act (“MMA”) must be reviewed by a medical review panel before proceeding to court. The panel’s purpose is limited to determining whether the evidence supports the plaintiff’s allegation that the healthcare provider failed to observe the appropriate standard of care. If the board determines the standard was not met, it must then decide whether that failure contributed to the plaintiff’s injury. The panel’s report, though not conclusive, is admissible in any subsequent litigation.

A plaintiff who believes he has been a victim of medical malpractice must first determine whether a particular claim is even subject to the MMA, and therefore whether it must be submitted to a medical review panel prior to litigation. This is an important matter, because a medical malpractice claim against a health care provider is “subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel.” The Louisiana Supreme Court, in the case of Coleman v. Deno, identified six factors which are to be considered when determining whether a claim falls under the medical malpractice umbrella. But even with these factors as a guide, the decision may not necessarily be straightforward. A recent case that demonstrates the “grey area” of medical malpractice claims involved a hospital’s ignoring a patient’s Do-Not-Resuscitate Order (“DNR”). Agnes Liles was admitted to the Northern Louisiana Medical Center (“NLMC”) in Ruston on July 10, 2009. A few days later, he went into cardiac arrest. Despite NLMC’s knowledge of Liles’s DNR, hospital employees resuscitated Liles. The process left him with physical disabilities until his death two months later. Liles’s two daughters filed suit against NLMC for recovery of the medical expenses attributable to Liles’s post-resuscitation care as well as physical and mental pain and suffering, loss of enjoyment of life, and cognitive decline. They also asserted a claim for bystander recovery. NLMC filed an exception of prematurity in the trial court arguing that the plaintiffs’ claims must be reviewed by a medical review panel prior to litigation. The trial judge overruled the exception after a hearing and NMLC filed for supervisory review of the judgment with the Second Circuit Court of Appeal. The court relied primarily on two cases to ultimately conclude that “the actions by the nursing personnel in failing to honor the DNR order were not covered under the MMA as medical malpractice, but instead should be governed by Louisiana negligence principles of law.” The first case contained the Louisiana Supreme Court’s pronouncement that

October 19, 2011

Tractor-Trailer Accident on I-20 Leads to Court’s Consideration of Request for Remittitur

by Berniard Law Firm

A defendant who wishes to challenge a jury’s damages award can petition the court for a new trial. As this is often an undesirable path for both the defendant and the plaintiff, Louisiana law offers an alternative approach: when the trial court believes that the verdict is “so excessive … that a new trial should be granted for that reason only,” La. Code Civ. Proc. art. 1814, it can order remittitur. This option is available only if the plaintiff agrees to it, under the assumption that accepting a lower amount of damages may prove preferable to another trial. The trial court is permitted to order remittitur “only if the issue of quantum is clearly and fairly separable from other issues in the case.” The recent case of Great West Casualty Co. v. AAA Cooper Transport offers an instructive example of Louisiana’s remittitur statute as applied by the Court of Appeals for the Fifth Circuit. On November 27, 2006, a tractor-trailer which operated by Juan Rodriguez-Salas was struck by another tractor-trailer; the second truck was being driven by Ray Johnson and was owned by AAA Cooper Transportation. Rodriguez-Salas’s truck rolled over, and he suffered injuries to his right shoulder as a result. Rodriguez-Salas sued Johnson and AAA Cooper in the U.S. District Court for the Middle District of Louisiana. He sought to recover for his medical expenses and damages for pain and suffering and lost wages. After a trial, the jury awarded Rodriguez-Salas $38,000 for lost wages; $120,000 for pain, suffering, and mental anguish; and $10,000 for loss of enjoyment of life. AAA Cooper, objecting to the damages award, filed a motion for a new trial. The district court entered judgment on the verdict and denied AAA Cooper’s motion. AAA Cooper appealed, seeking a reduction in Rodriguez-Salas’s $130,000 general damages award on the theory that Rodriguez-Salas’s injuries were to only one shoulder and only required treatment for eight months; in AAA Cooper’s view, $40,000 was an appropriate amount.

The Fifth Circuit, in applying Louisiana law, first reviewed the district court’s finding that a new trial was unnecessary. The district court determined that sufficient evidence of Rodriguez-Salas’s “injuries, medical treatment and recovery, and the effect of both on his work and daily activities” had been presented at trial “to reach a fair determination of his general damages and lost wages.” The Fifth Circuit agreed, noting that the record included such evidence as Rodriguez-Salas’s testimony about his injuries, testimony from doctors about Rodriguez-Salas’s condition, and Rodriguez-Salas’s medical records. Accordingly, in affirming the trial court’s judgment, the Fifth Circuit concluded that “the district court did not abuse its discretion” and that “the award [was] not against the great weight of the evidence.”

Although remittitur offers the parties in litigation a more efficient means by which to resolve a dispute over a damages award, it is still subject to many of the same limitations that apply to appeals in general — that is, that great deference must be afforded a jury’s award of damages. Only through a showing of abuse of discretion by the trial court can a defendant prevail on a remittitur action.

October 15, 2011

Second Circuit Second Guesses Trial Court’s Apportionment of Fault in Caddo Parish Car Wreck

by Berniard Law Firm

When apportioning fault between two or more parties in a negligence action, the finder of fact is given great deference on review. An appellate court may not set aside a trial court’s finding unless there is “manifest error” or it is “clearly wrong.” Cole v. Dept. of Public Safety & Corrections. In order

to reverse the trial court’s apportionment of fault, the appellate court must “find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong.” The Louisiana Supreme Court has provided extensive guidance on the trial court’s responsibility for allocating fault. The court is “bound to consider the nature of each party’s wrongful conduct and the extent of the causal relationship between that conduct and the damages claimed.” Watson v. State Farm. Furthermore, in assessing fault, the trial court can consider several factors related to a party’s conduct, including:

“(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.”Watson

October 11, 2011

Court of Appeals Upholds Trial Court Ruling Granting Longshoreman’s Workers Compensation Claim

by Berniard Law Firm

The United States Court of Appeals for the Fifth Circuit recently affirmed in principal part, the trial court’s ruling granting a longshoreman damages for a workers’ compensation claim. Benjamin McCuller and his wife, Miranda McCuller, sued Nautical Ventures, L.L.C., under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 905(b), after Benjamin, who was working as a longshoreman, was injured when he fell while descending a ladder on a ship owned by Nautical. Mr. McCuller was working for Halliburton Energy Services at a marine terminal in Fourchon, Louisiana when he was injured after one of the ladder rungs broke during his descent.

The bulk of the appeals court opinion discussed whether Halliburton, Nautical, or Mr. McCuller was at fault for the injuries suffered by Mr. McCuller. First, the appeals court agreed with the trial court that Nautical had breached its “turnover duty” when it deployed a defective ladder, which had been damaged during a sea deployment several weeks before Mr. McCuller’s fall. “The ‘turnover duty’ relates to the condition of the ship upon the commencement of stevedoring operations” and “requires a vessel to exercise ordinary care under the circumstances to turn over the ship and its equipment in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter will be able by the exercise of ordinary care to carry on cargo operations with reasonable safety to persons and property.” This specific duty is the statutory basis for the McCullers’ claim as codified in the Longshore and Harbor Workers’ Compensation Act. In other words, this tort statute places upon the ship owner the duty to discover and fix potentially dangerous ship defects after a ship returns from sea. In the case at hand, the court found that an expert inspecting the ship should have discovered the crack in the ladder. Therefore, the appeals court affirmed the trial court’s ruling that Nautical was at fault for Mr. McCuller’s injuries because it was negligent in breaching its turnover duty by providing a faulty ladder for his use. However, it should be pointed out that the damages were reduced because Mr. McCuller was found to be 30% at fault for carrying a clipboard down the ladder when he was injured. But, the appeals court made clear that Mr. McCuller in no way had a duty to discover and fix the defective ladder.

However, the appeals court also made clear that there are certain circumstances when Mr. McCuller and/or Halliburton (his employer) would have a duty to discover potentially dangerous ship defects. In other words, there is one significant exception to the “turnover duty.” That is, if the defect causing the injury is or should be “open and obvious” to a reasonable longshoreman or stevedore-employer, than the ship owner cannot be held liable for the resulting damages. However, in the instant case the trial court found, and the appeals court agreed, that the crack in the ladder was not, and should not have been “open and obvious” to a reasonable stevedore and/or longshoreman.

October 9, 2011

Second Circuit Appeals Court Upholds Caddo Parish Wrongful Death Ruling

by Berniard Law Firm

The Louisiana Second Circuit Court of Appeals recently affirmed a $550,840 jury-verdict award based on a medical malpractice claim. The verdict accounted for both wrongful death and survival damages, all of which were awarded for the benefit of the decedents 8 surviving children.

In order to prevail in a medical malpractice lawsuit, the plaintiffs must show by a preponderance of the evidence that the hospital, their doctors, nurses and/or staff breached the applicable “standard of care,” and that this breach of care was a substantial factor in contributing to the patients injury or death. The applicable standard of care is “the degree of skill ordinarily employed, under similar circumstances, by members of the health care profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case.” The standard of care for medical malpractice claims is a comparative one; that is, a member of the medical profession is required to conduct themselves with the same amount of care as would a professional of equal status, under equal circumstances, and within the same community. For example, a nurse practicing medicine in a state-of-the art hospital in New Orleans would be subjected to the standard of care used by similarly situated nurses in similar hospitals, and a doctor would be held to the standard of a similarly situated doctor, etc., etc. Moreover, hindsight or subsequent events cannot be considered when determining whether the standard of care was breached. Instead, the judgment and conduct of medical professionals must be evaluated under the then existing circumstances.

In the instant case, the 75-year-old decedent underwent a colectomy and was recovering in the intensive care unit. She was recovering “fairly well” until December 2, 2003, at which point her condition began to deteriorate. She reportedly was having trouble breathing throughout the day and was pronounced dead at 6:28 P.M. The direct cause of her death and whether or not the hospital was at fault was an issue decided by the jury. The jury returned a 9-3 verdict in favor of plaintiffs, finding that Christus Schumpert Medical Center breached the standard of care in its treatment of the decedent, and the breach in the standard of care was a substantial factor in contributing to the death of the decedent. In reaching this verdict the jury heard testimony that the patient was having significant difficulty breathing throughout the day, and that the children of the decedent had brought this to the attention of the medical staff on several occasions. Moreover, that the attending physician ordered a number of medical tests to better assess the decedent’s breathing troubles, and that these tests were not administered by the attending nurse. To be sure, there was some testimony that the attending nurse maintained the standard of care, and that the decedent may have died from a pulmonary embolism, which would have been sudden and unexpected, relieving the hospital of any fault. However, in the end the jurors weighed the volumes of testimony and 9 of the 12 jurors sided with the plaintiffs.

October 7, 2011

U.S. 5th Circuit Court of Appeals Clarifies Theriot Exception to Prescriptive Period Defense

by Berniard Law Firm

One of the first things that must be determined in any potential tort claim is whether the statute of limitations bars the claim. An otherwise legitimate lawsuit may be invalid simply because the injured party waited too long to file the claim. In the State of Louisiana, the statutory period in which a claim must be filed is referred to as the “prescriptive period.” If a case is “prescribed”, it is beyond the statutory period. Louisiana has a one-year prescription period for tort claims, which “commences to run from the day injury or damage is sustained.” La. Civ. Code art. 3492.

However, there are some exceptions to this strict prescriptive period. One such exception is referred to as the “Theriot test,” which originated in the 1979 Louisiana Supreme Court case Allstate Ins. Co. v. Theriot. In Theriot, the Louisiana Supreme Court stated that where a “subsequent claimant is a different person than the original plaintiff then to interrupt prescription (1) the first suit must … be based upon the same factual occurrence as is the subsequent claim by amended petition or intervention;” and “(2) the subsequent claimant must also be closely connected in relationship and identity of interest with the original plaintiff.”

In the recent Fifth Circuit United States Court of Appeals case Southern Pain & Anesthesia, et al v. RF Medical, the court further clarified what is necessary to stop prescription under the Theriot test. In RF Medical the trial court granted summary judgment in favor of the defendants on the grounds that the prescriptive period had run, and the Court of Appeals recently affirmed by refusing to allow the Theriot exception. The facts of the case are rather simple; Dr. Paul Hubbell unsuccessfully performed an annuloplasty procedure on Toni Peavy in February 2004. The procedure used the defendants’ medical product “discTRODE” and resulted in significant injury to Mr. Peavy. Mr. Peavy subsequently filed a lawsuit against Dr. Hubbell and the product manufacturer defendants. While Mr. Peavy’s suit was pending, Dr. Hubbell filed a separate lawsuit against the product manufacturers.

October 5, 2011

Iberville Parish Backhoe Accident Sheds Light on DOTD Duty of Care

by Berniard Law Firm

When an accident occurs as a result of poor road conditions the question arises whether or not those responsible for the road’s upkeep can be held liable. This was the issue at hand when Jesse Brooks was killed after the backhoe he was driving on Highway 30 in Iberville Parish hit a depression in the shoulder and rolled on top of him. The appellate court held that the Louisiana Department of Transportation and Development owed a duty of care to all motorized vehicle operators on state highways and that that duty was breached by a failure to maintain the highway in a safe operating condition. The Supreme Court of Louisiana, on the other hand, reversed the ruling and laid out an outline of when and to whom the DOTD owes a duty of care.

In deciding these types of negligence cases, the court invokes an unreasonable risk of harm criterion in an attempt to balance possible harm with social utility, including costs to the defendant of avoiding the harm. Thus, the risk of injury or death, which was high in the Brooks case, will be weighed against factors such as the legality of the vehicle being driven on the highway, the social good that was coming from the highway’s use, and the cost of highway maintenance.

Since state funding is limited, it is almost fiscally impossible to require the DOTD to maintain highways in such a state as to be safe for all vehicles, even those not designed for highway use. Thus, the court will first determine if the vehicle involved in the accident was designed for highway travel. In the Brooks case, the backhoe he was driving was not designed for the highway. This fact, along with his excessive speed for such an unbalanced vehicle, outweighed his social good, which was simply moving a backhoe from one business to another. In addition, the cost to fix such minimal highway shoulder defects would burden the DOTD in an unacceptable manner when the risk could have been minimized by Brooks himself through his speed and choice to drive an unsuitable vehicle on the highway. Essentially, the court reasoned that Brooks was taking a more unreasonable risk than the DOTD, and thus ruled the DOTD is not liable for Brooks’ death.