Louisiana Personal Injury Lawyer Blog

July 27, 2016

Speculation Not Enough to Find Electrical Shock from Taser as the Cause-In-Fact for a Subsequent Heart Attack In Shreveport Lawsuit

electric-shock-hazard-1310056-1024x683 On the afternoon of April 13, 2011, Officer J.M. Bassett of the Shreveport Police Department heard loud music coming from a motorcycle parked at 251 E. 72nd in Shreveport Louisiana. When Officer Bassett attempted to make contact with the man, Jessie Scott, Scott became hostile. As the situation escalated, Officer Bassett employed his Taser stun gun and handcuffed Mr. Scott, placing him into custody and transporting Mr. Scott to the police station. At the station, Mr. Scott complained of chest pain and Mr. Scott was taken to the Louisiana State University Health Sciences Center, where it was determined that Mr. Scott was having a heart attack.

Mr. Scott and his wife later filed a lawsuit against the City of Shreveport for the tasing and subsequent heart attack which they alleged was directly caused by the tasing event. After receiving the lawsuit the City of Shreveport filed a motion for summary judgment in which they argued the Scotts failed to produce any medical evidence showing a causal link between Mr. Scott being tased and his heart attack later that day. The district court agreed with the City of Shreveport and dismissed the Scott’s case. They then appealed that ruling to the Second Circuit Appellate Court of Louisiana.

The Appellate Court agreed with the District Court of Caddo that summary judgment in favor of the City dismissing the allegations brought by the Scotts was correct. Summary judgment is proper when there is no genuine issue of material fact for all or part of the relief sought by a litigant. See Samaha v. Rau, 2007-1726 (La. 02/26/08), 977 So. 2d 880. Here, the Scotts are required to provide proof that there is a causal link between the tasing and Mr. Scott’s heart attack, but the Scotts failed to produce such evidence.

July 26, 2016

Cleaning Grandma’s Roof Turns from Chore to Lawsuit as Ouachita Resident Falls from Ladder

by Berniard Law Firm

old-rusty-ladder-1426340-770x1024 In a recent personal injury case, the plaintiff, Angela Lawrence, from Ouachita, Louisiana, sued her 76 year old grandmother Dorothy Dell Sanders and Allstate Insurance Company, for injuries sustained when Ms. Lawrence fell from the top of a ladder after cleaning her grandmother’s roof. Ms. Lawrence was no stranger to the task her grandmother asked her to complete. From the age of 15 until the time of the accident, Ms. Lawrence had performed the task of going up a ladder and cleaning her grandmother’s roof approximately 20-24 times. Although on the day of the accident, the circumstances changed. The usual ladder that Ms. Lawrence normally used was stolen, so Ms. Lawrence elected to use an older, shorter ladder than usual. Ms. Lawrence did not tell her grandmother that she did not want to use this replacement ladder and elected to clean the roof even though her grandmother, Ms. Sanders, was not insistent that the job be completed immediately.

After her fall Ms. Lawrence filed a lawsuit against her grandmother and her homeowners’s insurance company. In that lawsuit Ms. Lawrence claimed that the ladder was defective and that her grandmother, Ms. Sanders, was negligent in letting Ms. Lawrence use a defective ladder. As the claimant in the lawsuit, Ms. Lawrence not only needed to allege the injuries caused to her by the defendants, she must also prove her injuries were the fault of the defendants. Ms. Lawrence’s only evidence was her own deposition, her statement to the court about what happened.

Ms. Lawrence alleged that she was injured due to the dangerous and defective condition of the ladder, which caused her to fall and sustain injuries to her wrist, neck and back. Ms. Lawrence testified that she thought the ladder fell by “someone not holding it” but did not ask for her aunt or grandmother to hold the ladder for her. After the accident, AllState conducted an investigation and determined that the ladder was not damaged. As it stood, it was Ms. Lawrence’s word that the ladder was defective against AllState’s investigation, and Ms. Lawrence’s words alone were not enough for the case to withstand a filing for a summary judgment by the Defendants.

July 25, 2016

Louisiana First Circuit Court of Appeal Tackles Questions of Amended Pleadings and Federal Jurisdiction

by Berniard Law Firm

house-fire-3-1519596-1024x771 In bringing or defending against a lawsuit, an important question is which court should hear the merits of the dispute, a state court or a federal court. Any court hearing the lawsuit must have “jurisdiction”; the power to hear a particular dispute. Under 28 U.S.C. § 1332, titled “diversity jurisdiction”, federal courts have original jurisdiction over all civil actions between citizens of different states and the amount in controversy (damages sought) exceed $75,000, exclusive of interest and costs. 28 U.S.C. § 1441 allows the defendants to remove civil actions from state courts to federal courts when a case becomes “removable,” i.e. when federal courts would have proper jurisdiction over the case. Skilled lawyers know that jurisdictional issues can have significant effect on the outcome of the case and understand the nuances of procedural posturing. A 2015 case from the Louisiana First Circuit Court of Appeal discusses how amendments or supplements to pleadings such as a Petition can raise important jurisdictional questions.

On April 3, 2011, Jerry and Elnora Harris’s home in Springfield, Louisiana burned to ashes. A year later, the Harrises filed a lawsuit against Union National Fire Insurance Company for the payment of their policy limits, penalties, and attorney fees. In their petition against Union National, the Harrises asserted that the total amount of damages did not exceed $75,000.00 including attorney fees, penalties, and interest. On April 9, 2012, the Harrises amended their petition, adding as defendants Bank of New York Melon, successor-in-interest to J.P. Morgan Chase Bank. The Harrises’ Amended Petition alleged that the Defendants engaged in predatory lending and fraudulent practices and sought additional damages for mental anguish, damage to their credit, and attorney fees. The Amended Petition stated that the total amount of damages sought by the plaintiffs against all named defendants would not exceed $75,000.00 including attorney fees, penalties, and interest.

On November 15, 2013, after the Defendants filed exceptions and answered the Petition and Amended Petition, the Harrises filed a Second Amended Petition, asserting that the total amount of damages against all defendants would exceed $75,000.00. The Defendants countered by filing a motion to strike the Second Amended Petition from the record, or alternatively, set for a hearing. The Trial Court granted the Defendants’ motion and ordered that the Second Amended Petition be struck from the record. The Harrises then filed a motion to vacate that order and requested that the Trail Court reinstate their Second Amended petition. After a hearing, the Trial Court vacated the order dismissing the Harrises’ Second Amended Petition and imposed sanctions of the Defendants for filing a frivolous motion to strike.

July 24, 2016

Louisiana Fourth Circuit Denies an Exception of Prescription Based on Procedural Nuances.

by Berniard Law Firm

hour-glass-1307106-1-1024x768 In legal matters, there is generally always a time frame in which certain actions must be taken. Failing to bring an action in the allotted time may bar a person from filing a lawsuit. Once the specified time period has passed, the plaintiff is no longer able to file a lawsuit or claim. In other states this time limitation is called the statute of limitations; however, in Louisiana, it is called Prescription. Usually, the prescriptive period for filing a lawsuit is one year. La. C.C. art. 3492. Additionally, if a lawsuit is filed but is not filed according to certain procedural guidelines, the plaintiff may also be barred from going forward with their lawsuit, irrespective of whether it was filed within the one year prescriptive period. In either instance, opposing council may file an Exception of Prescription.

An Exception of Prescription is a motion which asks the court to dismiss the lawsuit due to not bringing the lawsuit timely or failing to abide by procedural rules. The failure to follow procedural guidelines, became the center of the controversy in the Fourth Circuit case of Richard Lewis v. Robert Constigan Flowers and Nationwide Mutual Insurance Company. Lewis v. Costigan, et al. 2015.

In this Orleans Parish case, the initial controversy arose from a vehicle collision between Robert Lewis and Robert Costigan Flowers. Mr. Lewis filed a Petition for Damages on April 21, 2014 via facsimile. According to Mr. Lewis’ counsel, the documents were sent to the Clerk of Court on April 25, 2014. However, on May 1, 2014, ten days after the facsimile transmission, the Clerk of Court stamped the original documents when they processed the filing fees.

July 23, 2016

5 Things You Need to Know About Prilosec and Nexium Lawsuit Claims

by Berniard Law Firm

Prilosec and Nexium Lawsuit Claims
As medications known as PPIs become more and more common and readily available on the open market, the number of medication related injuries, complications and side effects also increase. Nexium and Prilosec have been known to cause serious medical conditions such as heart attack, kidney failure, and bone fractures, and prolonged use can increase the risk for these injuries dramatically. Currently, the number of law suits against the manufacturer of Prilosec and Nexium, AstraZeneca, continues to rise each day as more and more individuals are negatively affected by the drugs the company produces. Here are five things you need to know about these lawsuits against AstraZeneca and Prilosec/Nexium claims.

First, it is important to know that there are many different claims that an individual could have as a result of the use of Nexium or Prilosec. The claims against AstraZeneca have ranged from production of dangerous or defective medications, to insufficient labels warning of the dangers of the drugs, to even illegal marketing strategies which include hiding side effects and dangers from the public. If a loved one or family friend has died after complications arising from the use of Prilosec or Nexium, then a wrongful death claim could also be brought against the company.

Second, as Nexium is available over the counter and without a prescription now, the number of users, and therefore lawsuits, will continue to rise. This also means that a greater number of side effects and a greater variety of complications will also start to emerge. Thus, it is important to seek legal and medical advice if you are experiencing any sort of side effects from either Prilosec or Nexium, and not just the hallmark issues of kidney failure, heart attack and bone fractures. As more studies are being done, more and more side effects are being discovered and attributed to the medications. Be sure to consult a physician as well as a lawyer when preparing to file a lawsuit.

July 22, 2016

Limited Liability Protects Company Member in Allen Parish Products Liability Case

by Berniard Law Firm

build-4-1213636-768x1024 Some forms of business entities protect their members from certain liabilities and legal actions that might be taken against them. One of these forms is a limited liability company. The Louisiana Third Circuit Court of Appeals recently decided that the protection afforded under this form of company was enough to protect the defendant from going forward to full trial.

In a case out of Allen Parish, the Louisiana Court of Appeals for the Third Circuit affirmed the District Court’s order for summary judgment. Granting summary judgment is a decision by the court “designed to secure the just, speedy, and inexpensive determination of every action” allowed under the Code (La.Code Civ.P. art. 966). If a party to a case makes a motion for summary judgment the court can decide whether the case should go forward for a full trial on the merits of the case. If, given the material facts of the case, the court can determine that there is no genuine issue and the party moving for summary judgment is entitled to the judgement as a matter of law, the motion should be granted.

The plaintiffs, filed their action against Strong Built International, LLC, Ken Killen who was sole member/manager of Strong Built, and various other entities. The Plaintiffs claim that their father died from injuries resulting from a deer stand falling when the straps failed and they are seeking damages under the Louisiana Products Liability Act.

July 21, 2016

Jefferson Parish Case Explains Who is an Employee Under Worker’s Compensation Law

by Berniard Law Firm

new-york-taxis-1447254-1024x768 Usually, an employee’s sole remedy against his employer for an on-the-job injury is worker’s compensation. Louisiana law creates a statutory presumption of employment status, meaning that any worker injured while providing work for a trade, business, or occupation is assumed to be a person who is covered by the Worker’s Compensation Act.

This presumption is rebuttable however, and the alleged employer bears the burden of proving that the worker was not his employee as defined by the Worker’s Compensation Act. An alleged employer can do this by either showing that the work involved was not pursuant to any trade, business, or occupation or establishing that although the individual was carrying out a service, he was really an independent contractor at that time. See La. R.S. 23:1021

On December 16, 2013, Joseph Wilfred was robbed and murdered while working a shift as a cab driver. His daughter, Ms. Emilia Wilfred of Jefferson Parish, filed a lawsuit against A Service Cab Co. Inc. (hereinafter “A Service”) in order to collect on her late father’s worker’s compensation death benefits. The trial court found that Mr. Wilfred was not an employee as defined by the Worker’s Compensation Act and denied Ms. Wilfred’s claim for death benefits, dismissing the case with prejudice.

July 20, 2016

Defendant in Superdome Personal Injury Case Not Let Off the Hook So Easily

by Berniard Law Firm

IMG_1314-1024x768 When a Louisiana resident is injured, she should consider filing a lawsuit against the person, group, or organization whose negligent or intentional acts were a proximate cause of the injury. However many potential plaintiffs do not realize that there may be several other persons and entities, not readily perceptible to the layman, who could be added as defendants and help ensure the plaintiff’s just compensation. Additional defendants can be extremely helpful when a plaintiff is going after substantial compensation because there will be more individuals to help pay out the sum should one or more parties be unable to pay a judgment due to bankruptcy or some other issue. Accordingly when Kenneth Truxillo was injured while attending pre-game festivities at Champions Square, the outdoor entertainment area bordering the Mercedes Benz Superdome, he did not just seek compensation from the owners of the Superdome but added several other defendants that he believed shared responsibility for his injuries.

According to Mr. Truxillo, while he was attending pre-game festivities at Champions Square before a home football game he was struck in the head by a large stucco column that had fallen over. He sustained several injuries and sought damages from several defendants, claiming that the stucco column that struck him created an unreasonably dangerous condition. The defendants included: The Louisiana Stadium and Exposition District, owners of the Superdome; SMG, the company that operates the Superdome and the property on which it is located; Mardi Gras Productions, the company that owned the stucco column that allegedly fell onto Mr. Truxillo; and Centerplate, a food and beverage service provider with whom Mardi Gras Productions contracted and provided the stucco column on the day of the alleged event.

In trial court, Mardi Gras Productions filed a motion for summary judgment, arguing that it was not liable for Mr. Truxillo’s injuries because it neither had custody, control, or garde over the area in which the stucco column struck Mr. Truxillo, nor over the column itself. Summary judgment is a ruling made by a judge in a court of law, and is granted only if the pleadings, depositions, answers to interrogatories, and admissions together with affidavits, if any, admitted for the purposes of the motion for summary judgment show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law.

July 19, 2016

Quachita Parish Medical Malpractice Lawsuit Discusses Prescription and Whether Amended Complaints “Relate Back”

by Berniard Law Firm

surgeon-3-1504757-1024x906 Prescription is a legal doctrine that serves to prevent people from filing lawsuits after a specified lapse of time has passed. The public policy behind the idea of prescription is not to prevent people who have been harmed from receiving relief. Instead, prescription is meant to allow someone who has caused harm piece of mind knowing that they cannot be sued after the passage of a certain period of time. Prescription allows lawsuits to be brought up to a certain time after the events leading to a lawsuit have occurred. These time limits are commonly specified in the specific texts of the laws they serve.

Prescription is a doctrine that often comes into conflict between parties to a lawsuit when one side amends their original complaint after the designated time for prescription has already lapsed. These amendments often include either new parties or claims. The question that courts must decide is whether these amended complaints “relate back” to the original complaints in order for the amended complaint to move forward. This question was central to the conflict in the case of Correro v. Caldwell, a medical malpractice lawsuit arising out of the Fourth Judicial District Court for the Parish of Ouachita.

The facts of this case revolve around the plaintiff, Carolyn Correro. On April 22, 2011, Correro fractured her left hip after a fall. She was taken by ambulance to IASIS Glenwood Regional Medical Center, L.P. (“Glenwood”). At the hospital, the fracture of her left hip was verified and she was scheduled for surgery to repair the fracture two days later. During preparation for the surgery, her right hip was misidentified as the injured hip. Correro was positioned on the wrong side when she was brought into the operating room. As a result, a doctor began surgery on Correro’s right hip. A few minutes into the surgery, after the doctor had made his incision, the surgical team realized they made a mistake. The surgical team closed the incorrect incision and flipped Ms. Correro over onto her left side and the surgery continued on the injured left hip without further incident.

July 18, 2016

Local Man’s Lawsuit Against Hammond Police Alleging Beating Is Dismissed After Two Day Trial

by Berniard Law Firm

ready-to-roll-1315121-1024x768 When a person files a lawsuit, they generally have the right to be heard on their complaint. However, depending on when the lawsuit is brought, the action may be barred due to the lapse of time between the events leading to the lawsuit and the date the lawsuit is filed. This rule is known as prescription and the problems that can arise for plaintiffs from this rule can be seen in a lawsuit arising out of of Hammond, Louisiana.

The plaintiff, Robert DeVance, brought a lawsuit in April of 2007 alleging that he was falsely arrested and beaten while handcuffed by two Hammond police officers. Later, on March 5, 2009, Mr. DeVance filed an amended complaint naming three new Hammond police officers as defendants. In his amended complaint, Mr. DeVance alleged that he was “hogtied” by the three new defendants while being held at the local jail. This treatment, claims Mr. DeVance, caused him to receive severe injuries due to tightly placed handcuffs on his wrists.

The new defendants filed an exception of prescription, which may release a defendant from responsibility by a lapse of time between the action and the time a lawsuit may legally be brought. These periods are usually laid out in the text of the laws themselves. The rule of prescription has its origins in public policy. This policy is not to deny relief for those who have been harmed, but to provide the liable individual with some assurance that if a lawsuit is not filed against them in a timely manner they do not have to remain constantly worried that they will be sued at anytime in the future.