by

hospital-02-1505482-1-1024x768When we think of the practice of law, we may think of flashy lawyers in the courtroom arguing against one another with impassioned rhetoric. In reality, the law practice is not that glamorous. In many cases, there are no trials, and a judge simply hands down a judgment without any theatrics. Summary judgment is an example. Summary judgments occur when there are no factual disputes between parties, thus forgoing the need for a trial. However, to obtain summary judgment, a party must file a motion for summary judgment. In the case below, we will see how a Louisiana Appellate Court decided that the District Court erred in granting a motion for summary judgment.

Carolyn C. Harris had terrible stomach pains and went to Our Lady of the Lake Regional Medical Center to receive treatment. Her first doctor, Dr. B, examined her on December 29, 2008, and scheduled a colonoscopy the next day. However, due to unanticipated conflicts, the colonoscopy was rescheduled for January 5. In the meanwhile, Harris began to suffer from a respiratory illness and was moved to the ICU. On January 5, 2009, her second doctor, Dr. C, performed the delayed colonoscopy. During the colonoscopy, Harris’s colon was perforated. She began to vomit, and soon after, she went into cardiac arrest and died. Harris’s representatives sued the doctors for medical malpractice, but the doctors responded with a motion for summary judgment, which the District Court granted. Harris’s representatives appealed.

In Louisiana, summary judgment is applicable only when there are no factual disputes between the parties according to the evidence submitted. Also, the person filing the motion for summary judgment must be able to obtain a judgment under the applicable law. La. C.C.P. art. 966(B)(2). The applicable law, in this case, is the list of requirements for a plaintiff to file a claim for medical malpractice. A plaintiff suing for medical malpractice must show by a preponderance of the evidence that there was a standard of care applicable to the defendant, that the defendant failed to meet that care, and the failure to meet that care led to the injury or death. La. R.S. 9:2794. For a defendant to succeed in a summary judgment motion in a medical malpractice case, the defendant has to show that the plaintiff cannot show at trial at least one of the above through the preponderance of evidence.

Continue reading

by

hospital-bc-laboratory-form-with-syringe-2-1315572-1024x768Time governs our lives. It also governs the law. If you have been injured and decide to file a claim, there is generally a time limit to do so. If you do not file within this time, you may never get your claim heard. The case below is an example.

Anthony Williams arrived at Christus Schumpert Hospital (“Hospital”) with complaints of nausea, vomiting, and abdominal pain. He also had a history of schizophrenia. Though Williams was supposedly watched closely by nursing staff, Williams managed to leave the hospital. An alert was issued. Unfortunately, Williams was found less than an hour later without a pulse. He died on November 1, 2011. His mother, the plaintiff, filed a medical malpractice complaint only against the Hospital on November 1, 2012. Because Louisiana law requires a medical review panel to review a medical malpractice claim, she waited to file a claim in the District Court. Once the panel’s decision was released on April 23, 2014, the plaintiff filed a claim in the District Court on July 9, 2014. In this claim, however, the plaintiff added one of the doctors of the Hospital, Dr. Davis, as a defendant. Dr. Davis responded to the claim by arguing that too much time had passed since Williams’s death, and therefore, under the legal doctrine of prescription, he could not be named as a defendant. Prescription simply means that a legal claim must be brought within a certain amount of time to be valid. The District Court agreed with Dr. Davis that he was prescribed from being a defendant.

Louisiana law states that a medical malpractice claim must be filed within a year from the alleged malpractice or within a year from the date of discovery of the alleged malpractice. La. R.S.9:5628(A). For a claim under the latter, it must still be filed within three years from the date of the alleged malpractice. However, the time to file can be extended under certain situations. For instance, if a plaintiff could not have filed a claim because of reasonable ignorance of relevant facts, the time to file begins when the plaintiff discovers or should have discovered the relevant facts to file a claim. Davis v. Johnson, 36 So.3d 439, 442 (La. Ct. App. 2010). Louisiana courts determine that a plaintiff should have discovered the relevant facts if he or she had sufficient information to seek inquiry. Abbott v. Louisiana State University Medical Center-Shreveport, 811 So. 2d 1107.

Continue reading

by

45-Email-03-13-19-1024x772When someone files a civil lawsuit in the Parish of Jefferson in Louisiana, or anywhere else in the state, it can often leave a defendant wondering how long the case will take to wrap up. In cases where neither party has a strong desire to settle, discovery procedures may take years to complete. Capitalizing on this concern, a stubborn plaintiff or defendant may use stalling tactics to leverage the other party into a settlement. How can the opposing party fight this stalling tactic? The following case discusses the rules governing what constitutes an “abandoment” of a lawsuit in Louisiana.

On September 23, 2010, a medical corporation (Claiborne Medical Corporation) and Dr. Fiaz Afzal (“Plaintiffs”) filed suit against Ellen Mullins and ABC Insurance Company (“Defendants”) for legal malpractice. On January 6, 2012, Plaintiffs took Defendant Mullins’ deposition, and the parties had a deposition for Dr. Afzal scheduled for January 31, 2012. On January 30th, at Defendant Mullins’ request, Dr. Afzal’s deposition was postponed. Three years after her own deposition, with Dr. Afzal’s deposition never taking place, Defendant Mullins filed a motion for a dismissal on grounds of abandonment. The argument was that the Plaintiffs had not taken any action in the case since January 6, 2012 (the date of her own deposition). On January 15, 2012, Plaintiffs served Defendant Mullins with discovery requests, and on February 11, 2015, they filed a motion to set aside the trial court’s dismissal.

In an effort to protect both sides of a lawsuit, Louisiana law rules a case automatically abandoned “when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years…” La. C.C.P. art. 561. The Louisiana Supreme Court has recognized that this rule is not to create dismissals on a technicality, but instead to provide a resolution when a party has clearly given up on the case. La. DOT & Dev. v. Oilfield Heavy Haulers, L.L.C., 79 So.3d 978 (La. 2011). In Oilfield, a defendant’s letter to reschedule a discovery conference was considered a “step” by the defendant when the plaintiff responded to the letter and complied with the defendant’s request.

Continue reading

by

drag-line-equipment-taking-a-swim-1219894-1-1024x659Buying property in “as is” condition can pose a substantial risk to the purchaser of the property. An “as is” sale means that once the sale is closed, the buyer has extremely limited recourse against the seller for any problems that might be later discovered with the property. Remorseful buyers may attempt to rescind a sale by claiming that the sellers failed to disclose defects with the property prior to the sale. But this strategy by no means ensures a favorable outcome for the buyer, as a case involving a house purchase in the City of Rosepine demonstrates.

In July, 2012, Reese Martin purchased a home in Rosepine, Louisiana from Raymond and Joanna DesJardins in an “as is” condition sale. Just over a year later, Martin filed a lawsuit against the DesJardinses and their real estate agent in the transaction, Steve Delia, seeking to rescind the sale. Martin’s lawsuit alleged that the DesJardinses and Delia had knowledge of and failed to disclose the previous flooding in the home. Martin claimed that he and his three children began to suffer from respiratory problems after moving in. Martin, looking for the cause of the respiratory problems, retained Air Marshals Environmental Consultants to inspect the home. Martin provided in his pleadings that the accredited mold-inspection company’s report revealed an unacceptably high humidity and moisture content in the home, and high or moderately high levels of surface mold. After Martin and his three children removed themselves from the home, Martin discovered that the home had a history of rainwater and sewage backups.

Both the DesJardinses and Delia filed motions for summary judgment. Delia asserted that he informed Martin of the prior sewage problems and the potential for flooding and argued that, regardless, Martin could not establish that the mold was caused by flooding or sewer problems. Delia provided affidavits and a deposition to support his motion. In their motion, the DesJardinses claimed that they had no communication with Martin pre-sale, but rather provided all of the information in their possession to Delia. They also argued that they had no responsibility because the sale was “as is,” and — echoing Delia’s point — that Martin could not establish that the mold resulted from the flooding events. The DesJardinses attached affidavits and a deposition in support of their motion. In response to the summary judgment motions, Martin filed a memorandum in opposition but included no evidence.

Continue reading

by

welding-1414385-1024x683Disputes over injuries that occur on the job can be difficult to resolve for both employer and employee. Louisiana’s Third Circuit Court of Appeal addressed a common source of dispute — whether an employee’s medical condition was actually caused by his employment — in a case involving a welder who developed compartment syndrome.

Isiah Loucious began working as a welder apprentice for Crest Industries in February of 2014.  In September 2014, he filed a lawsuit against Crest alleging that beginning in April 2014, he developed an occupational disease of compartment syndrome as a result of his work activities. An occupational disease is any disease or illness that occurs due to the actions and conditions of a job. La. R.S. 23:1031.1(B). Loucious alleged that after he started working for Crest, he began to experience cramping and swelling in his right arm and hand. Crest filed a motion for summary judgment, asserting that Loucious had complained of having a weak hand grip, numbness, and tingling in both hands a number of years before the alleged the onset of compartment syndrome. A motion for summary judgment is made when a party believes that the adverse party has failed to provide evidence to show that there is a genuine issue of material fact in dispute. Loucious opposed Crest’s summary judgment motion, relying on a medical record wherein the physician, Dr. Raymond Beurlot, checked “yes” next to the statement:  “the compartment syndrome in the right hand/arm developed, more probably than not, during the course and scope of employment with Crest Industries, LLC.” The Workers’ Compensation Judge (WCJ) granted Crest’s summary judgment motion, explaining that nothing in the record showed that Dr. Beurlot knew the specific job functions and duties of Loucious when signing the medical record. Therefore, the record did not support Loucious’s contention that his medical condition was the result of his employment with Crest. Loucious appealed the WCJ’s ruling.

The issue for the Court of Appeal was whether the WCJ was correct in holding that the medical record signed by Dr. Beurlot did not create a genuine issue of material fact that should have precluded summary judgment. Under Louisiana law, an alleged occupational disease is presumed not to have occurred during the course of employment when the employee has performed the particular job duties for less than twelve months. La. R.S.23:1031.1(D). In order for the employee to controvert this presumption, he must provide evidence that contradicts the presumed fact. La. C.E. art. 305. That evidence should pertain to the employee’s work and life activities before the time of employment. See Davies v. Johnson Controls, Inc. A certified medical record can serve as this evidence, so long as it is prepared by the health care provider in his or her usual course of business. La. R.S.13:3715.1(E)(2).

Continue reading

by

business-law-1238207-1024x683Attorneys are known for being way too expensive to the general public. Most people think that attorney’s charge an obscene amount for every little task that they do pertaining to a case, such as talking on the phone with their client or sending an email. However, unknown to most people attorneys are not allowed to charge fees that are excessive. The courts have a system in place to assure that clients are not being taking advantage of when it comes to paying legal fees.

Recently, in the City of New Orleans the Louisiana Fourth Circuit Courts of Appeals affirmed a decision by the trial judge on a reasonable legal fee, to be paid to attorney Carolyn Gill-Jefferson. Ms. Gill-Jefferson was paid the legal fee For her expedited services rendered on behalf of the class counsel in connection with the court authorization of hundreds of minors’ settlements necessary to the disbursement of settlement funds. See Billieson v. City of New Orleans, unpub., 14-752 (La. App. 4 Cir. 2015).

This case central issue is whether the award of $457,500 to Ms. Gill-Jefferson was excessive. There are several requirements that must be satisfied in determining a fee is reasonableness as stated in  Rule 1.5(a), Rules of Professional Conduct (emphasis added); See State, Dept. of Transp. and Development v. Williamson, 597 So. 2d 439, 442 (La. 1992).

Continue reading

by

caravan-1214115-1024x686Land within subdivisions is often subject to various restrictions. It is important to know and follow these restrictions to avoid potential legal action. The following case in Desoto parish discusses some of the legal implications of neighborhood subdivision restrictions in Louisiana.

The plaintiffs, Roy L. Flippo and Robert C. Treadway were landowners in Ranchland Acres Subdivision in DeSoto Parish, the same subdivision as Natosha L. Mann. They claimed that Mann lived in a mobile home that violated the subdivision restrictions. Despite being given written notice to remove her mobile home in order to comply with the restrictions, Mann failed to comply with the restrictions. Therefore, the plaintiffs argued they were entitled to a mandatory injunction ordering Mann to remove the mobile home within 30 days in order to comply with the restrictions.

Mann responded, arguing that R.H. Lending, who had a mortgage and security interest in the property, should have been joined as a party so that it could protect its interest. Plaintiffs responded that R.H. Lending’s interest was personal between it and Mann and therefore should not be a party in the action. R.H. Lending subsequently assigned the mortgage to First Guaranty, so Mann filed a motion to make First Guaranty a party so that it could protect its financial and security interest in the Property.

Continue reading

by

foot-bridge-1364767-1024x685Selling a home can be a stressful time with many issues to consider. You want to make sure you are getting a fair price and that the home appeals to potential buyers. One aspect you might overlook is potential liability for injuries that occur when potential buyers tour your home.

While touring a home in Bossier City’s Oak Alley neighborhood, Plaintiff’s Tammy Todd and Terr Michael Todd were shown an unfinished space above a garage. While walking down the steps, Mrs. Todd twisted her ankle at the landing, forcing her to have foot and ankle surgery and follow-up physical therapy. Mrs. Todd decided to file a lawsuit because she felt because the landing threshold was unsafe it created an unreasonably dangerous condition in the home.

Multiple summary judgments, were filed by the Defendants, in this case, each concerning the question of whether the landing was maintained in an unreasonably dangerous condition. In the first summary judgment, between the Plaintiffs and the Home Builders Association of Northwestern Louisiana (“HBA”), the court found that the condition was not maintained in an unreasonable way and granted summary judgment in favor of HBA. The second summary judgment, between Plaintiff’s and Mr. Angel (the homeowner), also found that the landing was not maintained in an unreasonable condition. Finally, HBA and their insurer, Ohio Casualty, filed a second summary judgment and used the trial court’s reasoning from Mr. Angel’s case to make a showing that the landing was not maintained in an unreasonable condition. Plaintiffs appealed the second summary judgment between HBA and Plaintiffs.

Continue reading

by

architecture-building-fire-exit-ladders-213976-1024x683Compensation for work-related injuries can be an area of concern for both employees and employer. But what happens when the employee provides inconsistent stories that refute the injury alleged to have been suffered? The Second Circuit Court of Appeal for Louisiana recently addressed the issue.

In August 2013, Kevin Tingle (“Tingle”) began to work at Page Boiler in Louisiana. Tingle was performing job duties at when he claimed to have fallen 20 feet off a scaffold into the boiler he was cleaning while working. Tingle was then airlifted from one hospital to another because of the seriousness of his injuries. Nurses in the emergency room recorded that Tingle had fallen t and that Tingle was complaining various pains. However, the scan of Tingle’s back showed a lack of evidence that he was injured. Tingle was discharged that same day and was instructed to seeek medical treatment with another doctor.

On September 27th, 2013, Tingle visited his primary physician complaining of terrible back pain. Tingle’s mother informed the physician that Tingle was unable to feed himself due to the pain. After Tingle’s X-rays came back negative, his primary physician referred him to another set of doctors who specialize in neck and back injuries. Tingle retained a lawyer, and the lawyer then notified Page Boiler’s insurance company, Argonaut, that Tingle had selected a doctor for the physician to deal with his neck and back complaints.

Continue reading

by

trucking-pics-1619675-1024x765You never know when a leisurely drive can turn into a lengthy lawsuit. Larry Dragna was on a drive in November, 2011, when his vehicle was hit by a driver for A&Z Transportation. KLLM Logistics hired A&Z to transport a freight load from Louisiana to Michigan. Before hiring A&Z, KLLM followed its internal selection policy by reviewing A&Z on a transportation industry review website, which showed that three of A&Z’s scores were at a point that indicated problems in certain categories. Although the indicators showed instances of unsafe driving, fatigued driving, and maintenance issues, there were no federal regulations that advised KLLM not to hire companies with scores like A&Z. KLLM, however, had an internal policy to not hire carriers with three troublesome scores until it had discussed the scores internally or with the carrier. There is no evidence if whether KLLM followed this policy when they hired A&Z.

The Dragnas sued KLLM, claiming that KLLM was liable under the theories of joint venture, vicarious liability, and negligent hiring of an independent contractor. The district court for the Middle District of Louisiana entered summary judgment in favor of KLLM on all three claims and the Dragnas appealed. The United States Court of Appeals for the Fifth Circuit decided this case.

Summary judgment is proper when there is no genuine dispute to any material fact in the case, under Fed. R. Civ. P. 56(a). The court in this case first applied this requirement to the issue of joint venture liability, finding that the Dragnas’ evidence did not create a genuine dispute of material fact about a joint venture between KLLM and A&Z. Under Louisiana law, there are certain requirements that must be met in order for there to be a joint venture. There must be contributions between two or more persons in determinate proportions, a joint effort between the parties, a sharing of profits, and a mutual risk of losses. See Cajun Elec. Power Coop., Inc. v. McNamara, 452 So. 2d 212, 215 (La. Ct. App. 1984). Those requirements were not met, as A&Z used its own resources in transporting the load, KLLM placed all of the risk of loss on A&Z, A&Z did not share in any profits made, but was paid upon completion of performance, and A&Z alone determined how to move the load. Summary judgment, was, therefore proper in regards to the first issue of joint venture liability.

Continue reading
Contact Information
1140 St Charles Ave
New Orleans, LA 70130
Phone: (504) 521-6000
Fax: (504) 617-6300

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2025, Berniard Law Firm
JUSTIA Law Firm Blog Design