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police-5-1572837-1024x768It’s common sense that self defense class instructors should teach the students how to defend themselves and not inflict pain or broken bones while instructing. However some instructors can go overboard while trying to “teach” these skills. The following case out of Lafourche Parish highlights what can go wrong when simulations in a self defense course get a bit too real for one participant causing her a broken arm and other damages.

In 2010, plaintiff participated in a 3-day Rape Aggression Defense (RAD) self-defense course being taught by the Lafourche Parish Sheriff’s Office. During the course, plaintiff and other participants received instructions for two days and on the third day, participants engaged in a series of exercises simulating attacks upon them by “aggressors”, at this time they were instructed to deploy the defensive techniques they had learned. During one of these simulated attacks, in which a Lafourche Parish Sheriff’s Deputy played an “assailant”, plaintiff’s arm was broken. Plaintiff had to undergo surgery to repair the comminuted fracture, requiring two plates and 21 screws to be inserted into plaintiff’s arm.

At the initial bench trial, the recorded RAD simulations were played on video, showing the RAD instructor was close to plaintiff during the exercise and was constantly giving instructions to the plaintiff on how to properly perform defensive techniques. In the video, the Sheriff Deputy playing the “aggressor” pushes and hugs the plaintiff while the instructor tells the plaintiff how to defend herself. The trial court concluded after watching the video, it did not find the Sheriff’s Office or the Sheriff’s Deputy negligent, as the only way they could have prevented the plaintiff’s injury would have been to not engage physically with the participants, which would have defeated the purpose of the exercising teaching them to defend themselves against aggressive criminals. The trial court subsequently dismissed the defendants with prejudice, and plaintiff appealed.

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hospital-s-corridor-1631146-1-1024x765Class action lawsuit certification is one of the most complex areas of the law to explain. The question of whether a lawsuit would be best as a class action or as individual lawsuits often comes down to a determination of what is the best method for fair and efficient adjudication for both the plaintiffs and the defendant.

Across the state of Louisiana, people are filing lawsuits against health care providers under the Health Care Consumer Billing and Disclosure Protection Act, hereafter referred to as the Balance Billing Act.  See La. Rev. Stat. § 22:1871 et seq. As a result of these lawsuits,  the Louisiana Second Circuit had denied class certification for a group of plaintiffs while the Louisiana Third Circuit had approved a class certification in their jurisdiction. Thus a split of the circuits existed and therefore it was time for the Louisiana Supreme Court to weigh in.

Certain Plaintiffs filed a class action lawsuit in 2011 claiming the Defendant, Minden Medical Center, “engaged in unlawful billing practices by billing them in an amount in excess of the agreed upon rate negotiated between the hospital and plaintiffs’ respective insurers.”  As a result of that lawsuit a question was presented for review to the Supreme Court of the State of Louisiana whether these types of lawsuits (balance bill violations) would be better handled as class action or on an individual basis.

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Picture-1854-e1467899109216-765x1024Sometimes you have a run of bad luck.  If your injured on the job then not long after you get into a car wreck it can be hard to pinpoint which incident caused your injuries.  If you are unfortunate enough to be involved in this scenario make sure you have the best workers compensation lawyer you can get to help the court understand your work related injuries.  The following case out of Metairie, Louisiana shows how one recent appeals court dealt with just such a factual scenario.

Leslie Nichols was a cosmetologist at the Elizabeth Arden counter at Dillard’s Metairie, Louisiana store. During her lunch break she slipped on the floor and fell. Rather than return to work after her fall she went home. The next day she went to an urgent care center and eventually was treated by her workers’ compensation doctor. She returned to work without restrictions, but a little over a week later she rode in the Orpheus Parade and attended the Orpheus Ball. She continued to treat for her injuries and on her way to a follow-up visit she was involved in a car accident.  The accident further aggravated her injuries and rendered her disabled. Ms. Nichols sought compensation from  for her injuries, including those aggravated by the car accident. Dillard’s argued that the car accident was an unforeseeable event causing aggravation of her pre-existing work place injuries, therefore, Dillards should not be responsible for those injuries as well.

At the original trial, the workers’ compensation court found there was no causal connection between her work injury and her disability, as it was a result of her car accident. Ms. Nichols filed for a new trial, and a second workers’ compensation court judge awarded Ms. Nichols damages by ruling the car accident and her original injury were causally connection. Dillard’s appealed the new judgment to the Louisiana Fifth Circuit Court of Appeal, seeking for reinstatement of the original judgment.

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law-education-series-3-1467430-1024x769In litigation, “discovery” is the legal procedure by which parties obtain evidence from other parties or non-parties. Examples of common discovery tools include depositions (a witness’s out-of-court testimony) or requests to produce documents or other things. In Louisiana, attorneys must sign discovery requests, responses, and objections to discovery requests. This certifies that the request, response, or objection is consistent with the rules of discovery and is warranted by existing law or a good faith argument for extension, modification, or reversal of existing law. ( See La. C.C.P. art. 1420.) It also certifies that the request, response, or objection is reasonable and not issued for an improper purpose such as to harass a party or to cause increases in litigation expenses. If a court determines that an attorney’s certification violates the rules of discovery, it will impose sanctions upon the attorney who made the certification and/or the represented party. A 2015 case from the Louisiana Fifth Circuit Court of Appeal discusses discovery sanctions, holding that non-parties to lawsuits cannot bring actions for sanctions against a party or attorney for violating discovery rules.

In 2011, Deadre Thiel and Germaine Dyer were involved in a motor vehicle accident and sought treatment from Dr. David Wyatt. Dr. Wyatt’s practice is conducted through a medical entity, Orthopedic Care Center of Louisiana (“OCCL”).  OCCL was not a party to the initial lawsuit brought by Mr. Theil and Dyre against State Farm, David Podewell and Banu Gibson. After conducting initial discovery, State Farm became aware of evidence suggesting that Dr. Wyatt may have been improperly influenced by bias and financial motive in treating Mr. Thiel and Mr. Dyer.  It then deposed Dr. Wyatt and determined that OCCL – a non-party to the lawsuit – was the only source of discovery concerning OCCL’s billing processes and any contingency fee relationship with the Womac Law Firm.

State Farm then issued a notice of deposition to OCCL and a subpoena duces tecum (a court order requiring the recipient to appear before court and produce documents or other evidence). In response, OCCL filed a motion to quash (void) the subpoena duces tecum. It also sought to have to have the Trial Court issue a protective order and award sanctions. The Trial Court granted OCCL’s motion to quash and awarded sanctions in favor of OCCL and against State Farm. State Farm then filed an application for a supervisory writ, seeking to have to the Court of Appeal reverse the Trial Court’s ruling.

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the-bank-1469518-682x1024Countless lawsuits are decided under the legal standard of summary judgment. Summary judgment occurs when lawyers request a court to decide  whether there are enough facts in dispute to even proceed with a lawsuit. The party requesting summary judgment must show that there is simply no dispute of any material fact and that the person requesting summary judgment is entitled to judgment as a matter of law. In answering this question, judges determine whether there is enough evidence in a case that a jury would be able to side with the person not requesting summary judgment.  As a tactical matter, good lawyers often request summary judgment to dispense with certain claims early on in a lawsuit thus saving their clients time and money.

A recent decision by the United States Court of the Appeals for the Fifth Circuit, demonstrates the principles of summary judgment within the context of an employment discrimination lawsuit. See Fed. R. Civ. P. 56(a). The Western District of Louisiana (the lower court) determined that summary judgment was appropriate for all causes of action and thus dismissed the entire case. The Court of Appeals however only agreed with the lower court on certain claims thus providing guidance on surviving summary judgment in age discrimination, retaliation, disability,  and defamation claims.

The case involves a lawsuit between Lloyd Flanner and his former employer JP Morgan Securities, L.L.C (JP Morgan). Mr. Flanner worked at JP Morgan at their branches in Monroe Louisiana from August 2003 to August 2010. In April 2010, Mr. Flanner underwent surgery and was granted medical leave under the  Family Medical Leave Act (FMLA). Shortly after returning to work, Mr. Flanner was involved in an incident wherein he withdrew $25 from his personal  bank account, purchased a money order, and gave it to his attorney’s assistant. Learning about the incident, JP Morgan investigated and subsequently  fired Mr. Flanner. Mr. Flanner was replaced by two employees, aged 53 and 32. Mr. Flanner was 59 at the time of his termination.

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parking-space-1441053-1-1-1024x768Not all slip and fall cases are successful as the burden of proof on the victim can be high in Louisiana.  In a recent opinion out of the Louisiana Fifth Circuit Court of Appeals the trial court’s decision to award $20,000 to Carolyn Bennette, who slipped and fell at the Brother’s convenience store and gas station in Avondale, Louisiana was reversed.  As discussed below, the appellate court stated that the defendants were correct in arguing that the trial court held the defendants to an improper burden of proof. In order to prove a slip and fall claim, a victim (here, the Plaintiff Ms. Bennette) has the burden to produce direct evidence supporting her claim, and the Appellate Court found that Ms. Bennette failed to prove three aspects of the claim.

On October 7, 2010, Ms. Bennette, after buying lottery tickets, walked through the parking lot towards her car and slipped on a piece of wood that was protruding from an expansion joint in the concrete at the Brother’s Avondale convenience store. The piece of wood lodged into her shoe causing her to fall and break her elbow, among other injuries. Ms. Bennette alleged that Brother’s was negligent in failing to maintain its property in a reasonably safe condition, failing to warn customers about the allegedly dangerous condition, and allowed an unsafe and dangerous condition to exist after proper notice and/or constructive notice of same. The jury at the trial, where Ms. Bennette was the only witness, rendered judgment in Ms. Bennette’s favor to the tune of $20,000.

A store owner is not liable for every accident that occurs on the premises. See Harrison v. Horseshoe Entertainment, 36 (La. App. 2 Cir. 8/14/02); 823 So.2d 1124. Slip and fall claims are governed, in Louisiana, by La. R.S. 9:2800.6, the statute explaining liability of merchants for “slip and fall” claims by customers on store premises.  Importantly, while Louisiana law requires merchants to exercise reasonable care to protect persons who enter the establishment, to keep the premises safe from unreasonable risks of harm, and to warn of known dangers, the merchant need not prove anything to win the case. It is up to the injured person who is bringing the suit to produce evidence in support of the claim. The victim must prove the elements of their case, specifically: 1) that the merchant gave a reasonable effort to keep the premises free of any hazardous condition which may reasonably give rise to damage, 2) that there was an unreasonable risk of harm that was reasonably foreseeable, 3) that the merchant either created or had actual or constructive notice of the condition prior to the accident, and 4) that the merchant failed to exercise reasonable care. Proving all of these elements can be challenging for slip and fall victims, as we saw in this case.

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writing-hand-1553215
Most people have heard the saying “A Deal’s a Deal.”  That’s what the plaintiffs thought in a case that arose from Rapides Parish that involved eight people in one vehicle and one person in the other.  The plaintiffs were the driver and passengers in the eight-person vehicle, and they were suing for damages that were caused by the defendant in the car accident.  However, the only applicable insurance coverage to the plaintiffs was the uninsured motorist coverage issued by Safeway Insurance Company of Louisiana.  The plaintiffs eventually reached a settlement agreement with Safeway, in which Safeway agreed to pay the agreed amount of the insurance policy.  

However, the plaintiffs alleged that Safeway failed to remit the settlement fund within thirty days of the date that the settlement agreement was put into writing, as mandated by state law.   Pursuant to state law under La. R.S. 22:1973, the trial court found the agreement was put into writing on March 18, 2013, while the settlement was paid off by Safeway on the thirty-fourth day after the agreement.  Safeways appealed when the trial court ruled in favor of the plaintiffs.  The Court of Appeals disagreed with trial court’s finding and determined the day the agreement was put into writing was March 28, 2013.  The payment made by Safeway on April 22, 2013, was within the thirty-day period.

The appellate court emphasized that the thirty-day requirement is penal in nature and, therefore, the court should construe its application strictly and narrowly.  The Court consequently concluded that when a party seeks penalties for an insurer’s failure to pay a settlement in time, the party is not required to prove that the insurer was “arbitrary, capricious, or without probable cause” in failing to pay. Rather, the party is required to show that the insurer “knowingly” failed to pay.  See Sultana Corp. v. Jewelers Mut. Ins. Co, 03-360, p. 9 (La. 12/3/03), 860 So.2d 1112, 1119.  

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plataforma-1339356Being an employee aboard a ship in the Gulf of Mexico can be hard work, and it can also be dangerous work.  For Mark Baldwin, who worked as a sandblaster and painter for Cleanblast, LLC, danger presented itself when he was assigned to the vessel Brody Paul and serviced oil platforms located in the Gulf of Mexico.  Baldwin allegedly suffered severe injuries to his back and neck when he fell while working on a Tennessee Oil and Gas Company platform.  In a personal injury lawsuit, Baldwin claimed that Cleanblast failed to provide the proper equipment to complete the task.  However, the trial court dismissed the case, granting Cleanblast’s motion for summary judgment because it found that there was no genuine issue of material fact as to whether Baldwin, the plaintiff, was a seaman for Jones Act purposes.  Baldwin appealed and the Third Circuit reversed, finding that a jury should decide whether the plaintiff’s work duties qualified him for seaman status under the Jones Act.  See  46 U.S.C. § 688.

The most important aspect of this case is the Third Circuit’s interpretation of the Supreme Court’s ruling in Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172 (1995), which discussed the requirements for seaman status under the Jones Act.  In Mark Baldwin’s case in Louisiana, he alleged that he suffered injury because Cleanblast failed to provide the proper equipment to blast the risers on the rig they were instructed to service.  The plaintiff argued that as an employee covered by the Jones Act, Cleanblast “violated its non-delegable duty to provide him with a safe work environment.”  In order to be covered by the Jones Act, an employee must qualify as a “seaman.”  Cleanblast argued that the plaintiff was not a seaman and presented testimony by the plaintiff in a deposition wherein he admitted that he spent less than 30% of his time at work in service of the vessel to which he was assigned.  In fact, Cleanblast calculated that he spent “at most 28.65 percent” of his time at work in service of a vessel and posited that he spent most of his time working on oil platforms.  This percentage is important because in Chandris the Supreme Court held that there are two requirements for seaman status under the Jones Act.  First, the employee must “contribute to the function of the vessel or to the accomplishment of its missions.”  Second, the employee must have a link to a vessel or vessels in navigable waters that is “substantial in terms of both duration and nature.”

Cleanblast focused its motion for summary judgment on the durational requirement and pointed to the Supreme Court’s statement in Chandris that it is a “rule of thumb” that “a worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.”  Based on Baldwin’s admission to spending less than 30 percent of his time in service of the vessel, Cleanblast argued that it was entitled to summary judgment and the trial court agreed, essentially holding that the 30 percent figure mentioned by the Supreme Court was a dispositive rule.

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flood-1399662A redhibitory defect is a problem with an article that renders it useless to the buyer. In Louisiana, although a seller owes no warranty for defects that are known to or should have been discovered by the buyer at the time of the sale, a seller does, by operation of law, warrant the buyer against redhibitory defects (La. C.C. art. 2520.) Therefore, a buyer is permitted to rescind the sale of an item or piece of property if that item has a redhibitory defect.

In November, 2012, Courtney and Elizabeth Hancock purchased a 100-year-old home in the Historic Highland District of Shreveport. On the property disclosure form, the sellers, Bryan Lauzon and Akram Abdalla, indicated that there was no history of flooding on the property. However, the sellers, who themselves had bought the property in 2011, experienced flooding on the property that prompted them to install an outdoor sump pump in the backyard to mitigate future water intrusion. The Hancocks obtained a professional inspection of the property prior to closing, but the inspection report made no mention of evidence of flooding or even the existence of the sump pump. The Multiple Listing Service report, which the buyers inspected prior to the purchase, did note that a sump pump had been installed.

Shortly after the Hancocks moved into the house, their entire backyard flooded after a thunderstorm. Over the next several months, the flooding repeated eight times. In March, 2013, the Hancocks hired a contractor to build a garage at the rear of the property. During excavation, the contractor found an 8-inch French drain and concrete drainage pipe that had not been visible before digging. This discovery led the Hancocks to file a lawsuit against the sellers seeking a rescission of sale. Both parties filed motions for summary judgment in the trial court. The court granted the sellers’ motion, and the Hancocks appealed to the Second Circuit Court of Appeal.

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skeleton
The possibility of a error during surgery is frightening for any medical patient.  But unexpected occurrences during surgery don’t always rise to the level of medical malpractice.  The best medical malpractice attorneys know that to pursue claims of negligence expert testimony is mandated. The following case involving a gynecologist based in Alexandria, Louisiana, demonstrates why experts are required in most cases involving claims of medical malpractice.

The Alexandria doctor was being sued by a former patient, Kacey Ryder, for damages she claimed to have suffered during a surgical procedure. She had become his patient due to chronic pelvic pain. The doctor recommended a “diagnostic laparoscopy,” a procedure that determines whether someone has endometriosis, a disease he suspected was the source of her pelvic pain.

Ryder filled out the informed consent form and underwent the surgery. During the surgery, one or more of her blood vessels was punctured. The Doctor sutured the blood vessels and switched to another surgical method known as a “laparotomy,” which is similar but requires larger incisions. After being sent to the recovery room, her condition worsened and, upon another laparotomy, the doctor discovered a large amount of blood in her peritoneal cavity.

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