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architect-architecture-blueprint-build-271667-1024x678Sometimes, whether your case takes place in federal court or state court may be out of your hands entirely. Other times, it may be possible for the case to take place in either court. In such situations, it is important to understand possible differences and advantages between state and federal court. When one party wants the case in federal court and the other wants it in state court, things can get tricky, as a 2017 case from the United States Court of Appeals for the Fifth Circuit shows.

Plaintiff Howard Zeringue claimed he was exposed to asbestos in 1952 when he was deployed with the United States Navy. Though he did not provide a time period, he also alleged that he was exposed to asbestos when he worked a job selling insurance in Avondale Shipyard. He filed a lawsuit against Crane Company (“Crane”) and twenty others in state court in Louisiana. Zeringue alleged all were liable for asbestos-causing injuries based on claims of strict liability, negligence, and failure to warn; but specifically stated that Crane and twelve out of the twenty-one defendants were responsible for handling and sending the asbestos-containing products to the places he was exposed.

Crane removed the case to the Eastern District of Louisiana in accordance with the federal-officer removal statute, 28 U.S.C. § 1442(a)(1). Crane claimed that the products it provided for or made for the Navy were subject to the Navy’s requirements and federal officers had discretion about whether the product had asbestos and if it needed a warning label. With its removal petition, Crane supplied affidavits and sample military specifications to show that all asbestos-containing products could not be used in Navy ships without the Navy Machinery Inspectors determining they met the specifications.

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sign-slippery-wet-caution-4341-1024x683Slip and fall cases can have a bad reputation. You know the scenario: Person A slips while on Person B’s floor and sues Person B for everything he has. Oftentimes in this scenario, Person A barely got hurt and may have been able to take steps to have helped prevent the injury. While there are some cases like this that make us ask why people are even allowed to sue in this scenario, there are also cases where people get seriously injured and need to be made whole again. These cases also show that those who allow others onto their property or premises have different responsibilities to ensure that the conditions are reasonably safe. Maintaining these responsibilities is essential so that people can go to these places with the expectation that they can enjoy the premises without worrying if the conditions are hazardous. One example is a slip and fall case that was filed in the 22nd Judicial District Court in Washington Parish, Louisiana.

Grady Wayne Bryant was in a Popeye’s parking lot when he slipped on grease while stepping off the curb. He and his wife filed a lawsuit against the restaurant’s company, Premium Food Concepts, Inc. and its insurer, State Farm Fire and Casualty Company. The company denied the Bryant’s allegations and filed a motion for summary judgment, claiming that the Bryants could not show that Popeye’s created the grease that caused the accident or that Popeye’s had constructive knowledge of the grease. The District Court decided that the Bryants could not meet their burden of proof under the Louisiana Merchant Liability Statute and granted the motion for summary judgment. The Bryants appealed to the Court of Appeal for the First Circuit.

What is a motion for summary judgment? When a party files a motion for summary judgment, they are asking for the case to be decided as a matter of law, rather than on the merits. La. C.C.P. art. 966. The party that files the motion—called the mover—does not have to disprove all the elements of the other party’s claim. Instead, the mover just has to show that at least one element is factually weak. Then the non-moving party has the burden to show that the element actually has factual support. If the non-moving party cannot meet this burden, then there is no genuine issue of material fact and summary judgment is granted.

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blur-car-caution-dash-163945-1024x683When a loved one is injured or dies at the hands of another, the fictitious reality that exists in movies and television often shows the protagonists immediately going to court to ensure justice is served. In real life, however, not everyone makes it to court, even when it seems like justice demands it. Sometimes parties settle, other times the case is dropped, and many times, it is decided that there just isn’t enough there to require a trial.  This was the case for a 2015 medical malpractice lawsuit filed in the 19th Judicial District Court for the Parish of East Baton Rouge. 

In May of 2010, MH—while pregnant with twins—was in a severe motor vehicle accident. She was first taken to a hospital from the scene of the accident. Tragically, MH died at the hospital on August 25, 2010. She was survived by her three minor children, RH, Jr., AH, and DH. On behalf of these three, their tutor, SS, filed a malpractice lawsuit on March 2, 2015 against the State of Louisiana, through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, doing business as Earl K. Long Medical Center.

The plaintiff claimed that Ms. MH died of an overdose of meperidine while at Earl K. Long Medical Center. On December 16, 2015, the defendant filed a motion for summary judgment—a motion for judgment as a matter of law rather than on the merits—and the District Court granted the motion and dismissed the case. The plaintiff appealed the ruling by the trial court.

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close-up-photo-of-vehicle-engine-1409999-731x1024When a party to a lawsuit waits too long to respond to a lawsuit or flat out declines to respond, courts have the ability to resolve the case with a default judgment. This default judgment resolves the case and the non-responding party must live with the court’s decision. While not ideal, it is a needed mechanism for times when a party does not comply with the rules. With the help of an excellent attorney an injured driver won his lawsuit when a Leesville vehicle repair shop failed to properly respond to his lawsuit.

Dexton Bryant purchased the services of Xtreme Machines to install a lift kit on his pickup truck. Shortly after the lift kit was installed, Mr. Bryant was driving when the front left wheel of his truck completely came off. The lack of wheel caused Mr. Bryant’s truck to swerve off of the road and into a group of trees. Mr. Bryant blamed Xtreme for cutting off the lug bolts on the wheel and brought a negligence lawsuit to recover the damages he sustained to his body and vehicle.

Mr. Bryant won the lawsuit by a default judgment in the Trial Court. The default judgment win was because Xtreme did not respond to the lawsuit in time. In total, he was awarded $11,857.50 for his medical costs, $7,900 for the damage to his vehicle, and $50,000 for his injuries, pain, and suffering. Xtreme responded to the loss at trial with an appeal. In the appeal, Xtreme claimed the Trial Court made an error by determining that Xtreme was negligent. This claim was based on the argument that improper evidence of negligence as well as the costs was admitted by the Trial Court.

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close-up-photo-of-man-wearing-black-suit-jacket-doing-thumbs-684385-1024x678Being allowed to use an employer owned vehicle is a nice benefit to have. When there is an accident there may be questions of who pays for the damage or injuries.  In this case, any accident and insurance policy questions were completely in favor of the insurance company and backed up by both state statutes and case law guidance. But, poor customer service by the insurance company turned a complete legal victory into costly litigation. 

Naddia Melder was employed by Grimes Industrial Supply. One of the benefits of her employment was the use of a pickup truck owned by Grimes. In March 2007, Mrs. Melder was involved in an accident with one other vehicle. It turned out that the other vehicle was underinsured and Mrs. Melder’s uninsured motorist insurance claim against her personal insurer was denied. Mrs. Melder brought a lawsuit against her personal insurance carrier, Louisiana Farm Bureau Casualty Insurance Company, in order to find a way for insurance to cover the accident.

Farm Bureau asked the Trial Court to grant summary judgment in favor of denying coverage for the accident and the Trial Court agreed. Mrs. Melder then appealed. Mrs. Medler’s appeal was based on her view that the Trial Court incorrectly determined that she was driving a vehicle that was owned or furnished by someone else and that her insurance policy did not extend to cover this vehicle. There was an exclusion in her policy which stated that coverage would not be extended to vehicles furnished to her, but she believed it should not apply because it conflicted with a Louisiana law. She also argued that the insurance payments she received were received late.

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close-up-court-courthouse-hammer-534204-1024x569After a hard fought jury trial, an appeal can be expected. But, what cannot be anticipated is a transcribing error by the court that renders the judgment as invalid and makes any appeal impossible. Excellent attorneys can catch errors by other parties and avoid multiple extra steps before a lawsuit can be resolved. That was the case here as mismatching damage award classification labels extended a lawsuit well beyond its anticipated end.

Willie Brown, Jr., was a customer at the Silver’s Casino in Breaux Bridge. After a power outage at the casino and at the direction of an employee of the Casino, Mr. Brown tripped over a sidewalk while he was entering the premises. Mr. Brown suffered injuries to his right knee, left shoulder, and also his head.

Mr. Brown saw a doctor for his injuries and was diagnosed with a cervical disc issue. The doctor recommended surgery to repair the injuries and estimated that the surgery would cost $85,000. Mr. Brown also saw a doctor at the request of Silver’s Casino and received a much lower medical cost estimate. Silver’s doctor suggested that Mr. Brown did not need surgery and instead only needed an injection for pain that would cost $1,000.

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gasoline-station-during-night-time-92077-1024x489The five factor Daubert test is used in federal courts to determine if the methodology used by medical and other experts is reliable. The five factors that may be considered under the Daubert standard to determine whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. See Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

In this case, Natalie Konrick (“Ms. Konrick”) worked as a security guard at a refinery in Louisiana that was owned by Chalmette Refinery, L.L.C. (“Chalmette”) and operated by Exxon Mobil Corporation (“Exxon”). She, unfortunately, had a stillborn baby, allegedly as a result of the toxins to which she was exposed to while working at Chalmette. Ms. Konrick obtained experts Dr. Robert Harrison, Dr. Cynthia Bearer, and Dr. Lauren Waters to testify regarding the general causation of her having a stillborn baby.

The District Court granted Chalmette’s motion to exclude the three expert’s testimony because it found that their opinions were based on unreliable methodologies. As a result of the grant of the motion to exclude expert testimony, summary judgment was granted in favor of Chalmette because there was no evidence of general causation as to the stillborn baby.

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close-up-court-courthouse-534204-1024x569The jury trial is an infamously complicated process. From the trials of OJ Simpson to Paul Manafort, the jury’s role is to determine the truth behind the legal jargon, and to serve and protect justice. Juries rely on the information presented to them by experienced lawyers and judges to navigate the complexities of the courtroom. However, sometimes there are mistakes made. Despite some inaccurately presented technicalities, the Fifth Circuit Court has ruled to uphold the sanctity of the juror’s role as a fact-finder. 

On the afternoon of November 11, 2012, Mr. Vince, an operator at an aluminum plant in Gramercy, was travelling home on U.S. Highway 61 after his work shift. The road, known by locals as “Airline Highway,” stretched over a bridge which merged with an entrance ramp from a boat club in St. James Parish, Louisiana. Mr. Koontz, owner of a Denali and its attached yacht, stopped for several minutes at the ramp and decided to merge only when he felt that Mr. Vince’s car was at such a distance that it had not yet reached the bridge. He proceeded to merge onto the highway as Mr. Vince’s truck approached. As Mr. Vince drove onto the bridge, he looked down to check a fantasy football score on his phone. When he looked up, he was immediately confronted with the sight of a 27-foot yacht attached to a GMC Yukon XL Denali. The car collided with the boat, and Mr. Vince was knocked unconscious. 

Although the crash caused merely aesthetic damage to the car, Mr. Vince filed a lawsuit against State Farm Automobile Insurance Company (“State Farm”) claiming a loss of consortium. 

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photography-of-police-car-during-night-time-1098663-1024x683High speed police chases are sometimes dangerous, even for those not involved.  The Louisiana Emergency Vehicles Statute essentially excuses emergency vehicle drivers, such as police vehicles, from obeying certain traffic laws while responding to a call or pursuing a suspect.  This applies unless the emergency response driver endangers life or property with “reckless disregard”. La. R.S.32:24. Of course, the question remains of what  types of behavior would make the difference.  The Louisiana Third Circuit Court of Appeal recently answered this question in an unpublished opinion.

In April 2012, Gwendolyn Martin was a passenger in a car driven by her son at about 1:00 AM in the town of Eunice, Louisiana.  When their car proceeded under a green light into an intersection, a police car driven by Officer Jacob Hanks collided with them. The officer had been responding to an emergency call that then developed into a high speed chase. The suspect, with officers in pursuit, had been driving over 90 miles per hour.  As a result of the collision, Ms. Martin was injured. She thus sued the city and Officer Hanks. In 2016, the trial court found in favor of the defendants pursuant to the Louisiana Emergency Vehicles Statute. Ms. Martin appealed.

In order to determine whether or not the trial court had ruled correctly in this case, the Third Circuit considered the facts in accordance with the statute’s requirements.  The statute specifically allows for emergency vehicles to proceed through red lights or stop signs, to exceed speed limits, and to disregard regulations regarding proper movement direction.  These exceptions only apply when the emergency vehicle uses signals to warn others, such as lights or sirens. The statute also requires that the driver of the emergency vehicle drive in a relatively safe manner.  La. R.S.32:24.  The court considered testimony from other police officers that had responded to the emergency call.  These statements showed both that the call had been legitimate and that all the responding officers, including Officer Hanks, used sirens and lights during the high speed chase.  Officer Hanks also testified that he had attempted to stop at the red light in question, and he had ultimately slowed to about 10 miles per hour when the accident occurred. Officer Hanks stated that he had attempted an evasive maneuver when he saw the other vehicle driven by Ms. Martin’s son.   In its decision, the Third Circuit considered other cases with similar situations including Lemonia v. Lafayette Parish Consolidated Government, 893 So.2d 925 (La. Ct. App. 2005).  Based on facts similar to the ones in Ms. Martin’s case, the Third Circuit held that the exceptions in the statute had been satisfied.

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accounting-black-budget-53621-1024x603If you and the opposing party in your lawsuit reach a settlement agreement, it might seem like your legal battle is over. However, trouble can arise if the other party does not do what they promised to do. This is the situation Cheri Gardner found herself in following a car wreck and the resulting settlement with State Farm.  

In July 2009, Gardner was involved in a car wreck. Just under a year later, she filed a lawsuit against State Farm, Lisa Haefner, and AllState Insurance for her injuries. Gardner had to have spinal cord surgery and amassed medical bills exceeding $70,000. 

In May 2011, Gardner and State Farm underwent mediation and entered a “10-Day Option to Settle” contract that State Farm’s attorney drafted and provided to Gardner. The settlement stated that any liens for medical expenses that State Farm would agree to pay as part of the settlement had to be presented before July 13, 2013. After the parties signed the settlement agreement, Gardner’s attorney provided State Farm with a letter for a medical lien from BlueCross BlueShield of Louisiana from May 28, 2010 for a lien of $7,143.10. 

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