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pregnant-1-1431161-683x1024While having a child and starting a family is something that many couples look forward to in their lives, pregnancy can be very painful and burdensome on the mother. There are many drugs that can help prevent the negative side effects of pregnancy, like nausea and morning sickness, however, those drugs can sometimes do more harm than good. Nothing is worse than going through a difficult pregnancy, and then having a child born prematurely with birth defects because of drugs that were supposed to help.

One case on appeal from the Eastern District of Louisiana involves such a situation. Lindsey Whitener (“Ms. Whitener”) had a son who was born both prematurely and with birth defects after she was prescribed metoclopramide in order to treat her nausea and morning sickness that she frequently experienced during her nine months of pregnancy. Ms. Whitener and her husband filed a lawsuit against a number of different pharmaceutical companies, and their main argument was that these companies had promoted the use of the drug to treat morning sickness, which was an “off-label” use. An off-label use means that a drug is prescribed for uses that are not approved by the FDA. The District Court dismissed the claims brought forth by the Whiteners because they failed to show that the defendants promoted these off-label activities. The Whiteners appealed the decision of the District Court, and the case went before the United States Court of Appeals for the Fifth Circuit.

Ms. Whitener began experiencing morning sickness very early on in her pregnancy and was prescribed the metoclopramide shortly after she began to complain of the sickness to her doctor. Metoclopramide is a generic version of the drug Reglan, and Reglan does not list morning sickness as an FDA approved the use. In 2010, the Whiteners sued PLIVA, Inc., Barr Laboratories, Inc., Teva Pharmaceutical Industries, Ltd., Alaven Pharmaceutical L.L.C., Meda Pharmaceuticals, Inc., and Schwarz Pharma, Inc. PLIVA, Barr, and Teva manufactured metoclopramide; and Alaven, Meda, and Schwarz manufactured Reglan. The Whiteners first claimed that the defendants had failed to warn them about the dangers of using metoclopramide during a pregnancy. Some of the defendants however relied on the Supreme Court decision from PLIVA, Inc. v. Mensing which held that, “because federal law requires generic drug labels to be the same at all times as corresponding brand-name drug labels, state-law inadequate warning claims based on a generic drug manufacturer’s failure to provide a more adequate label are preempted.” HPLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2577-78 (2011). Essentially, this means that when the state and federal drug laws conflict, the federal drug laws will preempt or replace the state law. Ms. Whitener’s state law claim that the defendants had failed to warn them about the dangers of the drug conflicted with the federal law and the District Court thus held that the state law claim was preempted.

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bus-wreck-1390308-1024x768In Louisiana, a party is responsible for the full extent of injuries he or she causes to another. Lawsuits stemming from these incidents usually arise over which party is more at fault or if any of the injuries were actually caused by the event at issue. Whether the party at fault has to pay the undisputed medical expenses is rarely at the center of these disputes, however, the following case from St. Bernard Parish, details why an injured party had to bring that very issue to appeal.

In 2010, Alfred Ronsonette, who was disabled and used a wheelchair, boarded a St. Bernard Urban Rapid Transit bus. Mr. Ronsonette placed himself in an open space on the bus, but the bus driver, Edith Cantrell, did not tie down his wheelchair, as is standard. The bus made a right turn, and the wheelchair fell over and took Mr. Ronsonette with it. He was immediately taken to the emergency room.

Mr. Ronsonette, and his wife, Darrall Ronsonette, filed a lawsuit against the St. Bernard Parish Government (St. Bernard). The trial court found St. Bernard 100 percent at fault for the accident, but only awarded Mr. Ronsonette $10,155.76 in general damages and medical expenses. The court did not award Mrs. Ronsonette anything in loss of consortium damages. The Ronsonettes appealed this decision based on all three of these awards.

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supreme-court-new-york-1206406-1-1024x681Car accidents have become so commonplace in our society that many states require automobile and accident insurance. If and when you find yourself in the unfortunate situation of being in a car accident, you expect the party at fault to foot the bill. That’s where insurance steps in. As insurance claims are one of the most litigated issues nationwide, the interpretation of insurance laws is not always so clear. The following case examines two specific issues that ultimately needed to be settled in the highest court in Louisiana.

In 2005, Danny Kelly and Henry Thomas were driving in opposite directions when Mr. Thomas turned left, crashing into Mr. Kelly. Mr. Kelly suffered injuries that put him in the hospital for nearly a week. Shortly after the accident, Mr. Kelly’s attorney contacted Mr. Thomas’s insurance company, State Farm, requesting payment.  The letter included copies of Mr. Kelly’s medical bills, totaling $26,803.17.  State Farm did not respond to the letter nor did the company inform Mr. Thomas of the amount of Mr. Kelly’s medical bills.  After rejecting an offer from State Farm, Mr. Kelly filed a lawsuit against Mr. Thomas. Mr. Thomas was found to be at fault for the accident and the Trial Court entered a judgment against Mr. Thomas for $176,464.07.  Mr. Thomas’s policy limit was only $25,000. Mr. Thomas and Mr. Kelly soon entered into an agreement where Mr. Kelly would receive Mr. Thomas’s right to file a lawsuit against State Farm in exchange for Mr. Kelly’s promise not to go after Mr. Thomas’s assets.  Mr. Kelly filed a lawsuit against State Farm because Mr. Kelly thought State Farm acted in bad faith by failing to notify Mr. Thomas of Mr. Kelly’s initial letter containing the total amount of medical bills as well as for failing to respond to the request to pay those bills.

The parties spent years in litigation. Much confusion revolved around the proper interpretation of La. R.S. 22:1973. Eventually, the case made its way up to the Louisiana Supreme Court to determine whether State Farm could be found liable for a bad-faith failure-to-settle claim under Louisiana law when the insurer never received a firm settlement offer.  In other words, must an insurer receive a firm settlement offer to be found liable under the statute? The statute requires the insurer to affirmatively adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant or both. Secondly, the Louisiana Supreme Court was asked to determine whether an insurer can be found liable for misrepresenting or failing to disclose facts not related to policy coverage.

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abandoned-hospital-1-1227909-1024x683The average person experiences a great deal of emotion after a serious injury. The injured person is rushed to the hospital and places a great deal of faith in doctors to treat and diagnose injuries. Sometimes a medical professional fails to accurately diagnose a patient’s injuries, which can lead to a potential lawsuit against the doctor, hospital, or usually both.

In a civil trial against a medical professional, the party bringing the lawsuit must inform the court of their legal complaint within a specific period of time. For medical malpractice claims in Louisiana, that time period is one year. La. R.S. 9:5628. If the claim against the medical professional is not brought within one year, the injured party is foreclosed from recovering on that claim and ever bringing it in court again. In these situations, a related issue arises: when does that one year period begin? A recent Louisiana case answered this question.

Donna Hickman brought a lawsuit against Christus St. Frances Cabrini Hospital (Cabrini) and various doctors after she sustained injuries in a car accident. On the night of the car accident, January 21, 2012, Ms. Hickman was rushed to the hospital and given a CT scan. The doctors found the results of the scan concerning and recommended that Ms. Hickman visits her regular physician for additional attention.

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rock-climbing-1-1357430-683x1024Lest anyone think college is all about classrooms and books, many universities today offer a panoply of extra curricular amenities for students to enjoy. One of the main attractions is student recreation centers. At Louisiana State University (LSU), the University Student Recreation Center (UREC) is a place where students can go with friends and guests to exercise and participate in recreational activities such as indoor rock wall climbing.

On the evening of December 3, 2008, LSU Senior Brandy Fecke and a fellow classmate visited the indoor rock climbing facility at the UREC to complete a required assignment for an Outdoor Living Skills Activity course. Ms. Fecke signed a Rock Climbing Wall Participation Agreement and stated that she had previous rock wall climbing experience. Ms. Fecke indicated that she wanted to climb the easiest wall, which was a wall that did not require her to wear a harness or ropes. Ms. Fecke’s classmate was required to stand behind her and act as a spotter in case Ms. Fecke needed assistance.

After Ms. Fecke and her classmate received instructions and a climbing demonstration, Ms. Fecke began climbing up the wall. Upon reaching the top of the wall, Ms. Fecke fell thirteen feet to the ground where she sustained multiple fractures to her left ankle. Ms. Fecke’s injury was so severe that she underwent three major surgeries and required additional surgeries at the time of the lawsuit, including either a permanent ankle fusion or an ankle replacement. Ms. Fecke and her parents, Stephen and Karen Fecke, sued the LSU Board of Supervisors (Board) for damages Ms. Fecke sustained as a result of the accident. A jury returned a verdict in favor of Ms. Fecke and her parents and the Trial Court adjusted the award amount to $1.4 million. The Board appealed the Trial Court’s judgment and award to the Fecke family.

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graves-1-1504523-1024x686Facts are one of the foundations of a successful lawsuit. In an effort to thwart a plaintiff’s chance at relief, a defendant may file an exception of no cause of action in response to a plaintiff’s complaint. An exception of no cause of action alleges that the plaintiff’s lawsuit has no legal validity, and therefore, the plaintiff has no claim. The following case out of Orleans Parish illustrates such an objection and the importance of facts, especially when those facts validate a claim that could be barred by immunity.

In 2013, Patrick and Crystal Simmons’ children were placed in foster care. In April of that same year, the State of Louisiana notified Mr. and Mrs. Simmons (Plaintiffs) that their son Eli had been transported to a Hospital in New Orleans. Eli died shortly after being admitted, prompting Plaintiffs to file a lawsuit asserting gross and/or intentional negligence by the coroner’s office and intentional infliction of emotional distress. See Hanks v. Entergy Corp., 944 So.2d 564 (La. 2006). Plaintiffs alleged that the coroner’s office received Eli’s body, but failed to perform an autopsy to determine the child’s cause of death. Furthermore, in an amendment to their initial complaint, Plaintiffs averred that their son’s body was misplaced by the coroner’s office because the coroner’s office could not find the body of the child until many months after the child passed. When the child’s body was finally recovered, the coroner’s office, without notifying the family, disposed of the body by cremation and buried the remains in an undisclosed burial location.

In response to Plaintiffs’ cause of action, the coroner filed motions with the court seeking to dismiss the case. The Trial Court granted Defendant’s motions, reasoning that statutory duties imposed on Defendant are for the benefit of the public, not for the private individual. As such, the Trial Court held that Plaintiffs did not have a private cause of action and that the coroner’s office was entitled to statutorily limited immunity from Plaintiffs’ claims.

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hospital-02-1505482-1024x768Discrimination has always been a controversial topic in America and especially salient in the workplace context. The following case arises out of a situation where an employee felt that she was discriminated against based on her race and disability. She sued in federal court based on federal and state discrimination laws.

Ms. Shawlean Lee, a former employee of Tulane Hospital, filed the federal lawsuit without an attorney, known as proceeding “pro se.”  The controversy in question was the termination of her employment in November 2011. Soon after the termination of her employment, Ms. Lee followed the proper procedure by filing a Charge of Discrimination with the Equal Employment Opportunity Commission, also known as the EEOC.  About a year and a half later, in April 2013, the EEOC issued what is known as a “Right to Sue” letter, which stated that Ms. Lee had 90 days to file a legal action against her former employer for violations of federal discrimination laws.

Ms. Lee filed the federal lawsuit in September 2013, more than 90 days after receiving the “Right to Sue” letter from the EEOC.  As a result, Tulane Hospital moved to dismiss the complaint because it was untimely. In what would later be seen as a crucial oversight by Tulane Hospital, the motion to dismiss only mentioned the federal claims brought by Ms. Lee and not the state law claims. The Trial Court granted the hospital’s motion to dismiss and again Ms. Lee’s state law claims were overlooked. After the Trial Court dismissed Ms. Lee’s case, she appealed to the United States Fifth Circuit Court of Appeal. The Court of Appeal has analyzed the case and issued a brief five-page opinion.

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police-car-1414442-1024x683Law enforcement agencies throughout the country have been under intense scrutiny over the past few years because of controversial policies and procedures. However, one agency in Louisiana, the Sheriff’s Office of St. John the Baptist Parish, faced another type of scrutiny surrounding the termination of a high-ranking official. The termination resulted in a lawsuit based on federal and state law.

The controversy dates back to 2013 when the Plaintiff, Tregg Wilson, was employed by the Sheriff’s Office as Chief Deputy. In May of that year, Mr. Wilson discovered that there was automatic and constant video and audio surveillance in the office interrogation rooms. Mr. Wilson believed that this might present some legal problems for the Sheriff’s Office, so he reported the issue to the Sheriff, Mike Tregre. Mr. Wilson also reported the issue to Internal Affairs, as well as the District Attorney. In turn, the District Attorney asked the Louisiana State Police to investigate the issue. The State Police ultimately determined that there were no legal issues with regard to the surveillance in the interrogation rooms. Shortly thereafter, Mr. Wilson was terminated from his employment with the Sheriff’s Office.

In the subsequent lawsuit filed in federal court, Mr. Wilson claimed that his termination from employment was a First Amendment retaliation violation under federal law, as well as a violation of various provisions of state law. See Nixon v. City of Houston, 511 F.3d 494 (5th Cir. 2007). The Sheriff, as the defendant, moved for summary judgment, a legal process whereby a party asks a trial court to make a legal determination because there are no disputes with regards to the facts of the case. The Trial Court granted summary judgment in favor of the Sheriff and Mr. Wilson appealed.

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chairs-2-1489343-1024x768In Louisiana, the law allows a person to seek financial compensation against another person who has caused his or her injuries or failed to prevent the injuries if such a duty existed. A person has a responsibility not to harm others by their actions or with things in their possession. A Louisiana landlord has a special duty to his or her tenants to provide a safe building and will be held responsible if a tenant is injured as a result of the Landlord’s failure to repair a defect in the building that he or she knew about or should have known about. The following case illustrates some of these issues.

Jennifer Hooper was injured on the porch of her rented apartment when her crutches got stuck in a small, preexisting hole. As it turns out, the floorboards were rotten and Ms. Hooper fell right through the porch, fracturing her right femoral neck. Ms. Hooper sued her landlords, Val and Mary Brown, and their insurance company, Encompass Property and Casualty Company. The Browns attempted to terminate the case before it started by filing what is called a Motion for Summary Judgment. By filing this motion, the Browns asked the Trial Court to decide the case in their favor, without going through the formal development of the case. This would have ended the case before a jury had the opportunity to hear it. The Trial Court denied the motion, however, because there was a dispute as to whether the hole that Ms. Hooper stepped in was “open and obvious to all.” The Browns appealed the denial of the motion to the Louisiana Fourth Circuit Court of Appeal.

Ms. Hooper signed an apartment lease with the Browns in January 2011 and renewed the lease in 2012. Upon moving into the apartment, the Browns alerted Ms. Hooper to the hole in one of the porch floor boards. Several times over the course of her tenancy, the Browns promised to fix the hole but never did. Ms. Hooper argued that the Browns were responsible for her injuries by failing to adequately inspect and maintain the premises and warn her of the unreasonably dangerous condition. The Browns averred that the hole in the porch floor was open and obvious to all and thus, they had no duty to warn Ms. Hooper of the hole. Effectively, the Browns argued that Ms. Hooper should have seen the hole and avoided it all on her own.

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tree-1494188-768x1024When the government takes privately owned property to be used for the benefit of the public, it is called an expropriation. Federal and state law prohibit the government from taking private property without compensating the owner. The Louisiana Constitution provides that property shall not be taken or damaged by the State except for a public purpose and with just compensation paid to the owner of the private property. A landowner whose property is expropriated by the State is to be compensated so that he remains in the equivalent financial position he enjoyed before the taking. The following case provides a concrete example of such a situation.

Knoll & Dufour Lands and Glenn and Barbara Dauzert (Plaintiffs) brought a consolidated action against the Louisiana Department of Transportation (“DOTD”) alleging the amount paid for the expropriation of their properties was insufficient to cover the value of said property. The Trial Court awarded compensation and damages to each of the property owners and the DOTD appealed the decision. The Court of Appeal affirmed the Trial Court’s award of damages, improvements on the land expropriated, and additional damages. However, it also found that the Trial Court erred in its valuation of the property expropriated from Plaintiffs. Importantly, the Trial Court erred by relying on expert testimony as to the total value of the land, which simply added the value of the trees to the fair market value of the property. This form of valuation is an improper basis for determining the value of the property. Since the Trial Court record did not contain enough evidence to determine the value of the trees added to Plaintiff’s property, the Court of Appeal remanded the case to the Trial Court to allow the parties to present evidence as to how much the trees contributed to the total value of the land taken.

After a second trial, the Trial Court awarded Knoll & Dufour Lands $164,720.00, including $158,000.00 for the trees taken from a 0.533 acre tract of land that the DOTD expropriated for the construction of a new route for Highway 105 in Avoyelles Parish. In addition, the Trial Court awarded the Dauzerts $33,051.00, including $30,000.00 for trees taken from a 0.639 acre tract of land also expropriated by the government in rerouting the highway. In determining the compensation owed to the landowners for the added value of the trees the Trial Court heard from four expert witnesses: the real estate appraiser who did the original appraisal for the DOTD, a landscape horticulturist, an arborist and real estate agent, and Plaintiff’s real estate appraiser. Again, the DOTD appealed the decision of the Trial Court arguing that none of the expert testimony should have been admitted, except for the expert testimony offered by the DOTD, because it was irrelevant to the question before the Court.

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