Louisiana Personal Injury Lawyer Blog

September 27, 2019

Award for Cost Denied After Counsel Fails to Properly Introduce Costs into Evidence

When a lawsuit fails, there are certain situations where the party who brought the failed lawsuit is responsible for the costs to the other party. Where that line is drawn is generally based on a judge’s discretion and views on the reasonability of those costs. Without excellent attorney work, procedural and legal roadblocks may make it impossible for a court to award the fees that a party should be entitled to. That was the case for three dentists after winning a lawsuit against a Baton Rouge plaintiff.

Tara Lorraine lost a lawsuit against three dentists she accused of malpractice. The jury found that she did not prove that her treatment breached dental treatment standards and her claim was dismissed with prejudice. When a claim is dismissed with prejudice, the dismissal was based on the merits and the facts of the case and it cannot be brought again by that plaintiff.

In response to their favorable verdict, the three dentists then asked the court to award them with the costs of the defense, totaling $9,555.14. This was asked to cover the costs of various things to prepare for trial, such as jury panels and expert witnesses. The Trial Court held a hearing and determined that Ms. Lorraine was liable to the dentists for the full amount requested. Ms. Lorraine then appealed.

September 26, 2019

Trial Court Decision Overturned Due to Prescription Period Expiring

by Berniard Law Firm

adult-chores-flora-1453499-1024x683 If you get hurt due to someone else’s negligence and they agree to cover the costs, how much time do you have to sue for damages? According to Louisiana’s Second Circuit Court of Appeal, you have one year from when the injury occurred or when prescription is interrupted. Typically, prescription refers to land rights, but in Mr. Bethley’s case, it concerns the defendant’s agreement to pay his medical bills.

In July 2012, Mr. Bethley and his father were cutting tree limbs when Ms. Simmons came over and asked to use the saw. Bethley allowed Simmons to try the saw for about fifteen minutes, and then asked him to stop. With the saw in hand, Simmons turned towards Bethley and cut his ankle, which began to bleed to the point where Bethley needed medical attention. On the way to the hospital, Simmons said he would pay for the medical bills as long as Bethley did not tell his wife about it. Simmons paid $180 directly to the hospital, but then stopped making the payments about a year later

In April 2015, Bethley filed suit against Simmons requesting damages for medical bills, lost wages, court costs and pain and suffering. In court, Bethley’s father testified about incident and told the court that Simmons agreed to “take care of it” and asked that his wife not be told. Simmons testified that he didn’t intend to cut Bethley, but Bethley got in the way. He denied promising the pay the medical bills but said he would help if he could. He agreed that he was at fault for the incident, but also contended that the statute of limitation had run out. He also filed an answer stating that over a year had passed since the injury, so the Bethley lost the right to sue. The trial court ruled in favor of Bethley, awarding him damages for pain and suffering, medical bills plus interest, and lost wages. Thereafter, Simmons appealed.

September 25, 2019

Second Circuit Louisiana Court of Appeals Affirms Summary Judgment for Lowe’s in Shreveport

by Berniard Law Firm

garden-gardening-grass-589-1024x680 Can a store, like Lowe’s or Home Depot, be held liable for injuries resulting from the sale of the wrong part or product? In Ms. Johnson’s case, the answer was no. Sharon Johnson’s lawn mower needed a new spark plug, so she went to the Lowe’s in Shreveport to find one. Because Ms. Johnson was unsure about the type of spark plug she needed, she asked a sales associate to help her. The sales associate researched the spark plug that she needed, she purchased it, and returned home to install the part.

When Ms. Johnson arrived home, she installed the part on the mower even though she thought the spark plug was ‘funny looking’. When she started the mower, the cable jerked violently, and she was struck by the crank handle. She claimed to experience pain that shot through her back and neck and spread down the right side of her body. Her hands eventually became numb. She went to a doctor for the numbness. The doctor stated that her injury made her preexisted carpal tunnel syndrome systematic.

She sued Lowe’s for negligence. Lowe’s answered the petition, denying all allegations. They moved for summary judgment, asserting that Johnson failed to produce any evidence to establish liability by failing to prove cause-in-fact. The trial court agreed with Lowe’s and granted summary judgement. Johnson appealed the grant of summary judgment. In Johnson’s appeal, she emphasized that a genuine issue of material fact existed as to whether she was sold the wrong spark plug that led to her injuries.

September 24, 2019

Falling Tree Victim Entitled to Increase of General Damages

by Berniard Law Firm

clearing-desolation-destruction-4451-1024x683 Accidents can come from the most unexpected of circumstances and result in life altering consequences. Here, a man suffered severe injuries while driving to the local convenience store to purchase a cup of coffee, when a rotten tree from a resident’s yard fell and struck his vehicle.

The victim, 52-year-old Rodney Caldwell, filed a lawsuit against property owner Michael Jones and ANPAC Insurance Company, Jones’ insurance provider. The lawsuit was filed in Lincoln Parish. Caldwell was awarded special and general damages totaling $12,186. However, after being awarded damages for his claim, Caldwell appealed the amount he received in general damages, which totaled $4,000, claiming that the amount was not sufficient compensation for his injuries. On appeal, the Second Circuit Court of Appeals agreed to increase Caldwell’s amount in general damages to $15,000.

Ordinarily, when assessing damages, the judge or jury have discretion to determine what is a sufficient amount to award the victim. La C.C. art. 2324.1. When determining general damages, the court takes into account the victim’s pain and suffering, loss of physical enjoyment, and other losses of life or lifestyle which cannot be definitively measured in monetary value. McGee v. A C and S, Inc., 933 So. 2d 770 (La. 2006).

September 23, 2019

Meritless Claim for Legal Malpractice Highlights Plaintiff’s Own Negligence

by Berniard Law Firm

When representing clients, attorneys walk a fine line between providing adequate services for their clients and being potentially sued by their clients for legal malpractice. While there are legitimate cases of malpractice among attorneys, there are also allegations of malpractice that simply lack merit and are based upon anger from a dissatisfied client.

Such was the case for Carlos Hardison, who filed a legal malpractice lawsuit in the New Orleans Parish against George W. Byrne Jr., an attorney at Ungar & Byrne, A Professional Law Corporation (“Byrne”). Hardison, a seaman who sustained injuries to his foot while on the job and had to undergo a partial leg amputation, filed a maritime personal injury lawsuit against his employer, Abdon Callais Offshore (“ACO”) because of injuries sustained while at sea. After receiving a $90,000 settlement and what he felt to be an adverse judgment, Hardison filed his lawsuit against Byrne for malpractice.

Hardin alleged that as a result of Byrne’s malpractice, he was given a settlement option of $90,000 as opposed to an amount as high as $10 million. Hardin also alleged that he did not give valid consent to the proposed settlement by the court and that he was also under duress at the time of giving consent.

September 22, 2019

Woman Prevails Against Store in Slip and Fall Case

by Berniard Law Firm

64-Picutre-05-22-2019 We have a reasonable expectation that public shopping areas will be free from dangerous hazards. Most stores even have policies regarding safety procedures. However, these safety procedures are not allows followed and injuries often result. Unfortunately, this is exactly what happened to Michelle Gauthier while shopping at a Dollar Tree Store.

Ms. Gauthier was shopping in a Dollar Tree Store located on Airline Drive in Bossier City, Louisiana. While walking through the store, she noticed boxes left on the floor throughout each aisle for restocking purposes. Ms. Gauthier walked down one of the isles, reached for a product on the shelf, and then took a step back. As she did so, her foot got caught on one of the box corners causing her to slip and hit her neck on the shelf in front of her.

Ms. Gauthier filed for damages against Dollar Tree Store. Dollar Tree responded by filing a motion for summary judgment, a motion to dismiss the case, on the grounds that the box was plainly visible and did not create an unreasonably dangerous condition. The trial court ultimately found for Dollar Tree because Ms. Gauthier had seen the other boxes. Therefore, the trial court found it was reasonable to assume that Ms. Gauthier had seen the box which she tripped on. On appeal, the appellate court reversed the trial court’s finding and remanded the case for further proceedings.

September 21, 2019

Police Know Their Rights, Do You?

by Berniard Law Firm

auto-automobile-blur-532001-1024x683 When you think of an interrogation, you may think of a cold, plain room. You can imagine the two-way mirror and the rough metal chairs. You’re probably picturing some menacing looking criminal across from a police officer. It’s likely a high-pressure situation, and one party clearly holds most of the power. The police officer is calling the shots, asking all of the right questions, and knows all of the protocols. But what if it was another officer sitting across from them in the interrogation room?

On August 8th, 2013, Davin Miller was arrested by the Ascension Parish police for counts of simple battery and domestic violence. It was alleged that Miller, an officer for the City of Gonzales, had an altercation with his wife leaving her with injuries and had also threatened his father-in-law while in uniform. Following an investigation and citing ten possible violations of the Department’s standard operating procedures, the Chief of the Gonzales Police Department fired Miller. Miller appealed this decision, citing errors including not being able to record interrogations and not having assistance of counsel during interrogations.

Mr. Miller alleges that he requested that the questioning be recorded and to have counsel present but was denied twice. He was then made to sign two waivers or else be terminated. The first waiver, a “Warning of Rights and Consent to Speak,” stated that Mr. Miller could speak to counsel and have them present when being questioned. The second waiver was consent to a polygraph test. During the questioning, Mr. Miller was asked by the Chief of the Gonzales Police Department multiple times if he was lying.

September 20, 2019

Car Accident Victim Prevails after 18-Wheeler Truck Snaps Old Wire onto her Car

by Berniard Law Firm

45-Picutre-05-22-2019-1024x512 Most people are extra cautious when driving near an 18-wheeler truck, but accidents can happen in ways a person cannot always anticipate. That is what happened to Evelyn J. Menard in Baton Rouge in May of 2004, when an 18-wheeler in front of her snagged a wire above the road, which snapped and hit her car. Evelyn’s car went into a spin, and the truck did not stop. As a result, Evelyn had serious injuries to her lower back

Because neither the owner nor the operator of the truck were identified, Evelyn filed a lawsuit against several defendants associated with the wire, including the Parish of East Baton Rouge, communications companies, contracting companies, her insurance company, and the Louisiana Department of Transportation and Development. This is a strategy that is often used in personal injury cases, because in many cases, the fault for an accident cannot be attributed to a single party, and multiple parties can be liable for an injury. In these situations, plaintiffs join multiple defendants in a single suit, and the court will decide whether, based on the facts, the lawsuit should proceed or whether some of these defendants should be dismissed. In this case, the other defendants were dismissed, except for the Louisiana Department of Transportation and Development (“The Department”).

The case went to trial in 2015. The jury found the Louisiana Department of Transportation and Development 100% liable for Evelyn’s injuries. The jury awarded Evelyn a total of $1,642,000, including $500,000 for past and future physical pain and suffering, $150,000 for past and future mental pain and suffering, $327,000 for past medical expenses, $100,000 for future medical expenses, $165,000 for lost wages, $330,000 for future loss of wages, and $70,000 for loss of enjoyment of life. The court signed a final judgment on March 12, 2015 and awarded Evelyn a total of $1,322,000 in damages, including the full $500,000 for general damages. The defendant made a timely filing of judgement notwithstanding the verdict (“JNOV”), which allows a judge to overrule a jury’s decision. However, the court did not grant it.

September 19, 2019

Shreveport Dentist’s Oral Consent to Patient Determined to be Proper

by Berniard Law Firm

check-up-dentist-doctors-1170979-1024x683 Informed consent in medical situations ensures that a patient is aware of the risks associated with their upcoming medical procedure. This information is disclosed beforehand to serve two purposes: First, it gives the patient the information to make an educated decision on whether to go through with the procedure. Second, it gives the doctor legal protection against lawsuits from patients when those complications or issues the patient was warned could happen actually happen. This was the case for a Shreveport dentist who needed an excellent attorney after complications arose after a patient received a dental implant.

Wanda Magee sought treatment from dentist Dr. Charles Williams for a number of abscesses in 2008. In response, Dr. Williams removed two molars and advised Ms. Magee that in the future she may need up to three dental implants. In 2010, Ms. Magee returned with a request to receive the dental implants because she was having trouble eating. Dr. Williams discussed the implant procedure. Then, Ms. Magee underwent a CT scan to determine the proper place for implantation. Ms. Magee signed the treatment plan, which informed her she may need up to three implants and possibly a bone graft. The procedure was performed in February 2010, and only one implant was required.

Later that month, Ms. Magee returned with pain and nausea. Dr. Williams proposed “exposing” the implant to get a better sense of how the implant was doing. Prior to the procedure, Dr. Williams warned her of the risks with the procedure and Ms. Magee gave him oral consent to proceed but did not give her consent in writing. In regards to consent, Ms. Magee later testified that she wanted to keep the implant and wanted Dr. Williams to fix “whatever was wrong.” Dr. Williams cut the area and found that everything was holding up well. A CT scan confirmed that the implant was stable and Dr. Williams ordered Ms. Magee to take antibiotics and come back in one week. Ms. Magee did not return until June 2010, with complaints of an abscess in the affected area.

September 18, 2019

Louisiana Court Rules that Abandonment is Automatic After Three Years If No Action is Taken in a Lawsuit

by Berniard Law Firm

bill-oxford-r2ESY7RXB4M-unsplash-1024x517 Litigation must come to an end so that parties to a lawsuit can go on with their normal lives. The court system also needs to move on to assist others in settling their disputes. This is a fundamental concept of our justice system. This also encourages courts to deal with cases in an efficient manner so that cases should not drag on unnecessarily. There are several ways in which cases can come to an end. One way is through abandonment. If you file a lawsuit and do nothing about it until three years, that lawsuit will be considered abandoned. In this case, the Fifth Court of Appeal of Louisiana considered a situation where this rule applies.

On May 10, 2011, the plaintiff, Mr. Felo, filed a lawsuit in which he named Ochsner Medical Center as the defendant. In the lawsuit, he alleged that he was injured after falling following a right hip arthroplasty. Ochsner Medical Center answered the petition on July 22, 2011, and on July 28, 2011, filed a request for a jury trial. The July deposit order was signed by the trial court on July 29,2011 and mailed to both parties on August 10, 2011. From this date, the plaintiff took no further action until August 6, 2014, when the plaintiff made applications and requests for production of documents. The defendant filed a motion to dismiss the lawsuit for abandonment. The court granted this request. On appeal, the court considered whether the mailing of the jury deposit order by the clerk of the court was a step in the prosecution of the action to an extent that it had changed the running of abandonment to start from August 10, 2011, and not July 28, 2011.

According to La. C.C.P art. 561(A)(1), an action is deemed abandoned when the parties fail to take any steps in either prosecution or defense for a period of three years. Under this provision, the rule does apply even without a formal order as it is an automatic so long as the period is three years. See Clark v. State Farm Mut. Auto. Ins. Co., 785 So. 2d 779 (La. 2001). Under this rule, if a party disputes abandonment, it must prove that (1) it took a formal action which was intended to continue with the case, (2) the steps must appear on the court record and (3) the steps must have been taken within the prescribed time period.