Summary Judgment

When Do I Need Expert Testimony for a Medical Malpractice Lawsuit?

Published on: June 4, 2023 | By Berniard Law Firm

child_children_doctor_bags-scaled In the event that you find yourself in the challenging position of pursuing a medical malpractice lawsuit against your doctor, the presence of an expert witness becomes paramount. Such a witness is instrumental in establishing the negligence of your treating physician. A recent case originating from the Parish of East Baton Rouge sheds light on the specific qualifications required for expert witnesses in medical malpractice cases and the circumstances in which their testimony may be deemed unnecessary. Join us as we delve into this notable court ruling, which clarifies the vital role of experts and the instances where their expertise may be exempted.

Landon Lee, a 13-month-old, was taken to Our Lady of the Lake Regional Medical Center (OLOL) for respiratory distress and vomiting. He was evaluated in the emergency room and admitted into Pediatric Intensive Care Unit. Unfortunately, his condition worsened even with incubation and life-saving interventions. He was transferred to Ochsner Medical Center via helicopter to be admitted to the Extracorporeal Membrane Oxygenation unit. He was given CPR during transfer but pronounced dead 44 minutes after arriving at Ochsner.

Landon’s mother, Anjel Lee, then filed suit on her and Landon’s behalf against OLOL and Dr. Shannon Boudreaux, the pediatrician and emergency room physician at OLOL, who treated Landon. Lee argued that OLOL and Boudreaux failed to properly care for and treat Landon. OLOL denied the allegations, arguing it was a qualified healthcare provider under the Louisiana Medical Malpractice Act, La. R.S. 40:123.1 provides that qualified healthcare providers have limited liability for malpractice claims. The hospital also denied that any action or inaction on their part was the cause of Landon’s death. Boudreaux also argued that he was a qualified healthcare provider under Louisiana law and was entitled to limited liability.

Shielding Retaliation: Exploring Title VII Protection and Causal Links in Employment Lawsuits

Published on: May 28, 2023 | By Berniard Law Firm

prison_jail_cell_cell_0-scaled Bringing a lawsuit against one’s employer can be a daunting prospect, particularly when fears of retaliation loom large. However, it is essential to recognize that federal law offers safeguards to employees who pursue legal action under Title VII, including cases involving claims of sexual harassment. By delving into the provisions outlined in 42 U.S.C. § 2000–3(a), we gain insight into the protective measures afforded to individuals in such circumstances. It is important to note, however, that having previously filed a lawsuit related to sexual harassment does not automatically shield an employee from potential adverse employment consequences.

In the case of Jennifer Paul, a correctional officer at the Elayn Hunt Correctional Center, her experience sheds light on the intricate interplay between prior lawsuits, retaliation, and the burden of proof required to establish a causal link. As we examine the complexities of her situation, we delve into the multifaceted nature of employment law and the need for legal counsel to navigate potential claims against employers.

Jennifer Paul was a correctional officer at the Elayn Hunt Correctional Center (“Hunt”) in St. Gabriel, Louisiana. While working there, she filed a lawsuit against Hunt, claiming that other correctional officers had sexually harassed her. She received a confidential settlement and returned to her position.

What is Res Ipsa Loquitor?

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

chair_garden_green_hedge-scaled Personal injury lawsuits can be complicated, especially when they involve injuries sustained while shopping. Mary Mason found herself in this situation at a Burlington store in Lafayette, Louisiana, when a chair collapsed as she sat on it, causing her to fall and sustain injuries. Despite suing Burlington and claiming negligence, her case was dismissed due to a lack of evidence. This case highlights the importance of having experienced legal counsel to guide you through the lawsuit process. It also answers the question, what is Res Ipsa Loquitor?

Mrs. Mason and her husband visited the Burlington store in Lafayette on Ambassador Caffery Parkway. While Mrs. Mason waited in the car, her husband entered the store. After waiting for some time, Mrs. Mason entered the store to find her husband. As she walked by a chair display, she decided to test out one of the chairs on the platform. Unfortunately, as Mrs. Mason sat down, the chair collapsed, and she fell and hit the platform. She was on the phone with her husband at the time.

A store manager and Mr. Mason entered the area where Mrs. Mason fell. They determined Mrs. Mason’s fall was due to no screws in the chair’s back legs. The store manager removed the faulty chair, so the Masons took photos of it. Mrs. Mason also signed an incident report before leaving the store.

Can a Train be Held Liable for the Delay in Emergency Services?

Published on: May 3, 2023 | By Berniard Law Firm

new_train_station_at-scaled When tragedy strikes, seconds matter. Any delay to the emergency response network can cost lives and livelihoods. When a train runs through an intersection, all activity has to yield to that train. What follows is the calamitous story of how a train may have prevented EMS from responding to a fatal accident. It also helps answer the question; Can a train be held liable for the delay in emergency services?

Wilson Battley Jr. was driving down the road when he ran into a turning tractor-trailer. Fire and police crews swarmed the area to get Mr. Battley out from under the tractor-trailer. Unfortunately, while this accident unfolded, a KCS train entered and blocked the western side of the intersection where Mr. Battley was stuck. Wilson died under that truck before emergency services could get him out.

Wilson’s surviving family sued KCS, the train company, for knowingly blocking the intersection and delaying emergency services. Wilson claimed the train conductors knew about the accident and decided to block the intersection anyway, thus delaying emergency services which quickened Wilson’s death. In the 19th judicial district, the court awarded summary judgment to KCS because the court found Wilson had failed to present evidence that any emergency services were delayed due to the train. On appeal in the First Circuit Court of Louisiana, the court considered the testimony presented from both sides to determine if anyone was delayed by the train.

Louisiana Court excludes coverage for a woman severely injured by an elderly caregiver’s negligent loading of her wheelchair.

Published on: April 29, 2023 | By Berniard Law Firm

wheelchair_pattern_black_background_23-scaled Most adults fear the day that they will need to rely on the care of another to function. Unfortunately, the rampant negligence and mistreatment only exasperate this fear throughout the nursing home and hospice industry. Small mistakes by caregivers are normal and almost expected, yet, Shirley Marzell faced severe injuries after her caregivers improperly secured her to a wheelchair lift.

Marzell was a resident at Charlyn Rehabilitation Center in Tallulah, Louisiana, at the time of her accident. In 2010, Marzell was loaded onto a wheelchair lift for the lift van operated by Charlyn. During this process, Marzell and her wheelchair rolled off the platform. This mistake caused Marzell to strike her head on the pavement, causing severe injuries. This case reached the Second Circuit Court of Appeals after Marzell and her daughters appealed the summary judgment ruling of the trial court.

During the trial, the Marzells argued that Charlyn’s insurance carrier should pay for Shirley’s injuries. The insurance policy held by Charlyn, however, included an automobile exclusion. This provision shielded the insurance company from liability whenever Charlyn owned or operated an automobile. Operation was defined to include “loading and unloading”. The summary judgment ruling made by the trial court hinged on whether or not “loading or unloading” encompassed the loading of human cargo. The trial court held that it did, dismissing the case in favor of Charlyn and their insurance company.

Can I Recover under the Jones Act if Rough Seas Cause a Back Injury

Published on: April 21, 2023 | By Berniard Law Firm

giant_wave_rough_sea-scaled Large waves and rough seas make boat travel a harrowing experience. But what happens if you are at work and fall out of bed during those stormy seas? Is the captain or company you work for liable under the Jones Act? The following case out of Louisiana helps answer the question; can I recover under the Jones Act if rough seas cause my back injury?

Richard Bosarge sued Cheramie Marine LLC (“Cheramie”) under the Jones Act after he allegedly suffered injuries aboard one of its utility vessels. See 46 U.S.C. § 30101. Before starting work, he had to complete a physical. During the physical, Bosarge responded he did not have any prior back pain or injuries, even though he had previously received medical care for his back pain. Nonetheless, Cheramie hired Bosarge to work as a relief captain.

Bosarge claimed he was injured due to the captain’s decision to travel through rough seas. He alleged the captain’s path caused him to come out of bed and get slammed down. Cheramie argued the waves were not that big, and Bosarge had not reported having an accident. The jury found Bosarge had not suffered an accident. Further, the jury also found Bosarge misrepresented or concealed facts during his pre-employment physical.

Utility Ground Hole Fall Lawsuit Fails on Lack of “Constructive Notice”

Published on: April 18, 2023 | By Berniard Law Firm

manhole_manhole_cover_cable-scaled If you fall into a utility box with no cover, one would likely think they can recover for the damages they endured. However, in Louisiana, lawsuits aren’t as easy as you think. For example, is a company responsible for the utility box if it didn’t have “constructive notice” the ground hole cover was defective? The following lawsuit out of New Orleans shows the difficulties encountered when suing a utility company for a ground hole cover fall.

Antoine Perrier fell into a utility ground hole near the intersection of Press Drive and Haynes Boulevard. Perrier filed a lawsuit against Bellsouth Communications in which he alleged a failure to maintain the protective cover over the utility box. Perrier also noted that Bellsouth was liable due to the lack of adequate warnings of the dangerous condition of the utility hole near the busy Boulevard.

Believing they were not liable, Bellsouth filed a motion for summary judgment. Under La. C.C.P. art. 966(B)(2) a court should grant summary judgment when there is no genuine dispute of any material fact. If a plaintiff such as Perrier won’t be able to prove his case at trial then a court will dismiss it. This procedure allows for the efficient use of the court’s time. The summary judgment filed by Bellsouth, in this case, focused on constructive notice.

A Warning Cone and a Wet Floor, Who Wins in a Slip and Fall Lawsuit?

Published on: April 17, 2023 | By Berniard Law Firm

caution_cone_orange_traffic-scaled We have all seen warning cones and signs in front of a wet floor at a business. But what happens when you fall in front of the warning cone? Can the company still be held accountable for your injuries? The subsequent lawsuit, Kenner, Louisiana, shows how courts review slip and fall lawsuits on wet floors with warning signs in plain sight.

Marion Bertaut was a patron of the Golden Corral Restaurant, where she allegedly slipped in a puddle of water and sustained injuries. She filed a lawsuit against the restaurant, seeking damages for her fall and injuries.

Corral filed a motion for summary judgment, arguing Bertaut could not prove there was an unreasonable risk of harm at the restaurant. Under Louisiana law, wet or slick floors marked by warning signage are not unreasonably dangerous. La. R.S. 9:2800.6. Corral provided a surveillance video showing a yellow warning cone placed in the area, and Bertaut passed it multiple times.

Can a School be Held Liable for a Visitor’s Injuries on its Campus?

Published on: April 16, 2023 | By Berniard Law Firm

school_primary_school_east-scaled Schools are institutions for learning and public meeting spots for numerous events. People come and go daily and the safety of all visitors is paramount. But what happens when a visitor to a school is injured on the premise? Can a school be held liable for a visitor’s injuries on its campus? The following case out of Kentwood, Louisiana, shows the need for adequate proof when pursuing a trip and fall lawsuit against a school.

John Williams went to pick up his grandson at Kentwood High School when he fell on what he described as a hole in front of the gym’s entrance. He filed a lawsuit seeking damages from the Tangipahoa Parish School Board (TPSB). TPSB filed for summary judgment, arguing the case should be dismissed because Williams could not show proof of unreasonable risk of harm at the school. The trial court granted the motion. The judgment was then appealed to the Louisiana Court of Appeal First Circuit.

In reviewing the matter, the appeals court noted TPSB is a public entity and, under the Louisiana Civil Code, a public entity is responsible for damages caused by the condition of buildings within its care and custody. La.R.S. 9:2800A. This legal concept is vicarious liability, in which a person or company is held liable for acts committed by a third party.

Baton Rouge Recreation and Park Commission Found Not at Fault for Child’s Injuries

Published on: April 15, 2023 | By Berniard Law Firm

louisiana_baton_rouge_state-scaled When someone is injured in an accident, the question often arises, who is at fault? Certain factors must be met to find fault in an injury case. The following case outlines the elements which must be proven to file a personal injury lawsuit against a public park in East Baton Rouge.

While climbing spectator bleachers at a park, two-year-old Derrick Albert Jr. (DJ) fell and landed on a concrete surface. DJ’s parents, Brittany Hasbert and Derrick Albert, Sr., brought a claim against the Baton Rouge Recreation and Park Commission (BREC) for the Parish of East Baton Rouge, pursuing damages for the injuries DJ sustained from his fall.

After receiving the lawsuit, BREC filed a motion for summary judgment to dismiss their claims. BREC argued DJ would be unable to prove the bleachers were defective and the bleachers were the cause of his injuries. BREC also argued that it didn’t have actual or constructive notice of a defect in the bleachers.