Legal Definitions

Faulty Foundations: Battling the Dark Side of Medical Innovation – The Defective Medical Device Lawsuit Saga

Published on: August 14, 2023 | By Berniard Law Firm

old_medical_device-scaled Medical professionals are expected to uphold a standard of care in their practice. Unfortunately, life can present us with unfortunate circumstances where this standard is not met. When we experience injuries or worse due to the actions of those responsible for our treatment, healing, or diagnosis, medical malpractice claims can serve as a means to seek compensation and justice.

In a recent legal battle that captured attention, a lawsuit between Randy A. Roberts, Sr., Johnson & Johnson, Inc., and its subsidiary Ethicon, Inc., took an intriguing turn. Roberts alleges that he suffered injuries caused by a defective medical device manufactured by J&J, leading him to file a product liability lawsuit. However, a district court granted summary judgment in favor of the defendants, prompting an appeal.

Roberts claims that during a hernia repair surgery in 2006, a Prolene Hernia System (PHS) produced by J&J was implanted in his body. Subsequently, he experienced debilitating pain, requiring three surgeries in 2015 to remove the PHS due to an infection. Dissatisfied with the outcome, Roberts initiated legal action against J&J, seeking damages under Louisiana law.

Could the Foreseeable Have Been Unforeseen? Deciphering Liability in Accidents

Published on: August 13, 2023 | By Berniard Law Firm

tourists_driver_couple_mini-scaled Some accidents are unpredictable, while others appear to be accidents waiting to happen. Having reliable witnesses, qualified experts, and an excellent attorney in either unpredictable or predictable cases could be the dividing line in determining your liability when an accident arises. For Larry Jeane, Sr. (“Mr. Jeane”), the deceased party in a two-car accident along Louisiana Highway 107, whose vehicle crossed the centerline and collided with another car carrying six adults and one minor, the courts were positioned to consider his liability after the accident.

Mr. Jeane was transported by ambulance to Rapides Regional Medical Center (“RRMC”) after the accident. He reportedly had no recollection of the accident. Mr. Jeane had a history of heart disease and type-II diabetes, but it was likely his injuries from the accident that resulted in his death less than a week later. While at RRMC, his attending physician, Dr. Jeremy Timmer (“Dr. Timmer”), noted that Mr. Jeane had been on the phone with a friend and started talking “funny,” possibly due to low blood sugar when he collided with the other vehicle. The seven passengers of that other vehicle, namely Sarah Barber, Jamie Turner, Racheal Spivey, Elizabeth Spivey, Dana Spivey, Wallace Spivey, Racheal Spivey, and Jamie Turner on behalf of the minor, Abigail Turner (collectively “the plaintiffs”) eventually sued Mr. Jeane’s estate and his insurance company for damages resulting from the accident.

Throughout the litigation, the plaintiffs then moved for partial summary judgment solely on the issue of liability. To support the motion, the plaintiffs submitted three supporting documents: (1) an affidavit from Sandra Shannon (“Ms. Shannon”), who was driving the vehicle directly in front of the plaintiffs and witnessed the accident; (2) an affidavit from Sarah Barber (“Ms. Barber”), who was driving the other vehicle involved in the accident; and (3) a record of the deposition taken of Pineville City Marshal, Sarah A. Smith (“Ms. Smith”), who responded to the scene after the accident occurred. Ms. Shannon’s affidavit stated that she saw “[Mr. Jeane] was slumped over” at the wheel as his vehicle “veered gently.” Ms. Barber testified in her affidavit that she saw Ms. Shannon’s vehicle swerve off the road “suddenly, without any prior warning” before she saw Mr. Jeane’s vehicle approaching her, but she could not avoid the collision. Finally, Ms. Smith noted that she did not witness the accident but rode with Mr. Jeane to the hospital when he told her he did not know what happened.

How Are Liability and Damages Allocated In A Complex Car Accident?

Published on: August 12, 2023 | By Berniard Law Firm

tyre_burst_karoo_flat-scaled Allocating fault in a car accident is especially difficult when involving multiple individuals. This case illustrates how the allocation of fault affects how damages are awarded and illustrates what type of expenses are compensable.

While driving on Highway 28 East in Louisiana, Erin Wright rear-ended Christina Dauzat. Before they reached the intersection where the accident occurred, an unrelated accident occurred involving Joanne Marlow and Darrell Paulk. Paulk refused to move his car, which resulted in one of the lanes of traffic being blocked. Before the accident, a truck driven by an unknown driver drove towards Dauzat as it tried to go around the Marlow/Paulk accident.

Dauzat filed a lawsuit against Wright and her insurer, State Farm. At a trial, the court allocated 80% fault to Wright, 10% to the unnamed truck driver, and 10% to Paulk. The trial court awarded general damages of $8,000 (after the 20% reduction from the fault of the unnamed truck driver and Paulk, neither of whom Dauzat filed a lawsuit against) and $9,741.51 in special damages. These damages did not include the $1,440.86 cost of transporting Dauzat via ambulance following the accident. Both Dauzat and Wright appealed.

Res Judicata Does Not Apply To Dismissal Without Prejudice

Published on: August 11, 2023 | By Berniard Law Firm

court_civil_ceremony_legal-scaled In law, there is a saying that you do not get two bites from the same apple. This means if a court issues a final judgment on the merits of your claim, you cannot file another lawsuit against the same parties involving the same claim. Does a dismissal without prejudice bar you from filing another lawsuit?

Robert Palermo and his wife filed a personal injury lawsuit against CanadianOxy and its insurers, including Certain Underwriters, for the injuries Palermo allegedly suffered from his on-the-job exposure to asbestos-containing materials. In response, Certain Underwriters filed an answer, raising various affirmative defenses and seeking contributions from several entities. Some of the third parties from whom Certain Underwriters sought contribution filed exceptions based on procedural issues, including improper service and lack of jurisdiction. The trial court granted these exceptions.

Certain Underwriters did not re-serve the third parties to remedy the improper service within the time specified in the trial court order, so the court dismissed the Certain Underwriters’ claims against the third parties without prejudice under La. C.C.P. art. 932(B). Certain Underwriters were granted leave to file a supplemental demand. Certain third parties then filed various exceptions, including an exception of res judicata.

What happens if you are involved in a car accident where your damages exceed the auto insurance policy limits of the person responsible?

Published on: August 10, 2023 | By Berniard Law Firm

auto_defect_car_wreck-scaled What happens if you are involved in a car accident where your damages exceed the auto insurance policy limits of the person responsible? One possible option is seeking coverage under your uninsured motorist insurance policy. However, questions can arise about what, if any, coverage you are entitled to if it appears the accident did not cause your injuries. Determining the scope of injuries caused by the at-issue accident can be especially complicated if you have previously been involved in other car accidents that injured you or if you have other preexisting conditions. The following case helps shed some light on these issues.

Jacqueline Gaspard was rear-ended while she was stopped at a red light. She filed a lawsuit against the drivers and insurers of the cars that were also involved in the accident and Allstate Insurance Company, her uninsured motorist insurer. She claimed the damages exceeded the liability coverage of the other individuals involved in the accident.

The second vehicle’s driver behind Gaspard was found to be 100% at fault for the accident. She settled the claims against that driver and his insurer for $50,000, the limits of that driver’s liability policy. She then dismissed her claims against the vehicle’s driver and insurer.

Final Judgment Required For Appellate Court To Consider Merits Of Case

Published on: August 9, 2023 | By Berniard Law Firm

district_court_input_court-scaled Words matter, especially when it comes to trial court orders. Without the proper language, a judgment is not an appealable, valid final judgment, so an appellate court cannot consider the merits of an appeal.

McKinley Taylor filed a lawsuit against Cajun Constructors, his former employer. He claimed Cajun Constructors owed him unpaid wages for his work as a carpenter. He claimed they had decided upon a daily per diem rate during his first week on the job. The trial court issued an untitled document, which appeared to be written reasons for a ruling, not a final judgment. The trial court found Taylor was not paid the agreed-upon per diem. The trial court also awarded Taylor penalty wages and attorneys fees under La. R.S. 23:632 because Cajun Constructors’ failure to pay him the per diem was not in good faith. Cajun Constructor appealed.

Cajun Constructors was ordered to show why its appeal should not be dismissed because there was no valid final judgment. In its response, Cajun Constructor acknowledged the trial court’s ruling did not contain the required language “ordered, adjudged and decreed.” See GBB Props. Two, LLC v. Stirling Props. LLC. Additionally, there was not a separate document from the trial court other than the written reasons for its ruling, as contemplated under La. C.C.P. art. 1918. Therefore, Cajun Contractors agreed the trial court’s ruling did not appear to be a final appealable judgment. The trial court also had not yet determined the amount of attorney fees to award to Taylor. Despite agreeing the trial court’s document was not an appealable valid judgment, Cajun Constructors explained it had filed the appeal to preserve its right to appeal. Cajun Constructors then requested the appellate court dismiss the appeal without prejudice and send the case back to the trial court to enter a valid, appealable final judgment.

Who Has a Right to Keep a Deposit in Failed Home Sale if the Financing Contingency Fails?

Published on: August 8, 2023 | By Berniard Law Firm

home_villa_building_dream Buying a house can often lead to significant stress, particularly due to the substantial financial commitments involved. A prevalent feature in real estate contracts is known as a “contingency.” One notable example is the financing contingency, which stipulates that the sale of a property is dependent on the buyer successfully obtaining a fitting mortgage. However, an intriguing scenario emerges: What transpires if a contract with a financing contingency unravels after the buyer has already submitted a deposit? The ensuing question arises – who rightfully lays claim to this deposited amount? The forthcoming legal case delves into this intricate web of uncertainties, providing insights that shed light on the matter.

Andrea Saltau-Talbot wanted to buy a residential property in Alexandria, Louisiana. She entered an Agreement to buy the property and extended the closing date twice, but the sale never went through. Talbot and the sellers claimed they were entitled to the $30,000 deposit she had provided under the Agreement. The Agreement contained a financing contingency, but the blanks for the specific conditions included a “TBD.” Talbot claimed she had been unable to secure suitable financing, so she was entitled to have the deposit returned to her.

A lawsuit followed to determine who was owed the deposit. After a hearing, the trial court ruled the Seller was entitled to the deposit because Talbot had not proved she had made a good faith effort to obtain financing. Talbot appealed.

Sufficient Evidence Essential To Establish Damages From Car Accident Lawsuits

Published on: August 7, 2023 | By Berniard Law Firm

car_racing_crash_accident-scaled In the aftermath of a car accident, the quest for justice often extends beyond determining fault, delving into the intricate realm of calculating damages. Even when the liability is undisputed, securing compensation can be laden with legal complexities. The following case unveils the story of Shelley Cooley, a collision victim navigating the labyrinth of litigation to ascertain the rightful compensation for her injuries. The journey sheds light on the indispensable role of compelling evidence, from medical testimony to personal accounts, in establishing the magnitude of damages in the aftermath of an accident.

Shelley Cooley was involved in a car accident where her car was hit from behind by a car driven by Timothy Adgate, who worked for the City of Shreveport. Cooley had to obtain medical treatment after the accident for pain in her knee, back, and neck. Cooley filed a lawsuit against Adgate and the City of Shreveport. The parties agreed the City of Shreveport was liable because Adgate was completely responsible for the accident while working as a police officer. The only issue at trial was the amount of damages owed to Cooley.

Cooley was the only witness to testify at trial. Medical evidence was presented through the deposition transcripts of various doctors. The trial court ruled the accident had exacerbated Cooley’s pre-existing medical issues but declined to award any damages for future medical expenses because the evidence about future medical expenses was speculative. The trial court awarded Cooley $50,000 in general damages and $79,508.66 for past medical expenses. Cooley filed an appeal.

Attack Of The Campaign Ads: What Constitutes Defamation In Political Ads?

Published on: August 6, 2023 | By Berniard Law Firm

united_states_capitol_politics_1-scaled Personal attacks often take center stage in the tumultuous arena of modern political campaigns, leaving no stone unturned and no reputation untouched. Yet, amidst this well-trodden path of character assaults, a unique legal battle emerges, where the crosshairs were not directed at a political rival but rather a candidate’s ex-spouse. In a case that blurs the lines between public discourse and private matters, the spotlight falls on the intersection of defamation claims and the exercise of free speech. Can a campaign ad’s accusations against an ex-spouse be enough to launch a successful legal battle?

Nicholas Schittone filed a lawsuit against Brooke Stoma, Candyce Perret, and Perret for Judge Campaign, LLC for defamation related to a commercial advertisement that ran on television and radio related to Perret’s candidacy in an election for an open judgeship position on the Third Circuit Court of Appeal in Louisiana. Schittone claimed the advertisements included defamatory statements that accused him of being abusive to his child and ex-wife, Stoma. He admitted his name was not used in the advertisement but claimed the content made it obvious to those who knew him that the accusations related to him.

The defendants filed a special motion to strike under La. C.C.P. art. 971 and claimed Schittone’s lawsuit should be dismissed because he could not meet his burden that he was likely to succeed in his claim on the merits. The trial court denied the defendant’s special motion to strike, finding Schittone was not running for office, so the issues in the campaign were not of public interest or concern, so the commercial did not relate to their exercise of free speech. The trial court also awarded Schittone attorneys’ fees. The defendants filed an appeal.

The Consequences of Ignoring Court Notices in Louisiana

Published on: August 5, 2023 | By Berniard Law Firm

prison_prison_window_window-1-scaled If you receive notice of a court hearing, you must pay attention to it. The following case shows the potential adverse consequences if you ignore a court hearing notice. These can include a warrant being issued for your arrest or having your lawsuit dismissed. However, the case also unveils a glimmer of hope for those entangled in such legal dilemmas, offering a glimpse into the avenues available to those who believe justice has been denied.

Rita and Summer Brown were arrested for outstanding warrants from their failure to appear at a judgment debtor rule hearing. After their arrest, they filed lawsuits against the Terrebonne Parish Sheriff’s Office, Sheriff Jerry Larpenter, and an unnamed insurance company, seeking damages for false arrest. The claims against the Terrebonne Parish Sheriff’s Office were dismissed. The lawsuit against Larpenter went to trial. The court ruled in favor of Larpenter. The Browns then appealed.

The Browns argued they had never been served the notice for the judgment debtor rule court hearing, so they were unaware they were required to appear in court. They also claimed they were unaware of the subsequent warrants for their arrest after they failed to appear at the hearing.