Litigation

Underlying Medical Conditions, Can You Claim Res Ipsa Loquitur in a Lawsuit?

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

vcc_broadway_hi_res-scaled You think that when you’re being taken care of by hospital personnel, you are in safe hands and do not have to fear for your safety. However, if you are injured when being moved from a hospital cart to your bed, can you claim negligence based on res ipsa loquitur? The Fifth Circuit Court of Appeals addresses this question and the difficulties in recovering damages if you have an underlying preexisting condition.

Joshua Rice was a patient at Cornerstone Hospital for over a year before passing away in May 2012. Joshua’s father, Tommy Rice, brought a negligence suit against Cornerstone, claiming the staff entangled Joshua’s leg and arm when they moved him from a hospital cart to his bed. He suffered a fracture in his hip and shoulder as a result.

Believing they were not liable for Rice’s injuries, Cornerstone filed a motion for summary judgment. Under Rule 56(a) of the Federal Rules of Civil Procedure, a court should grant summary judgment when there is no genuine dispute of any material fact. If a plaintiff such as Rice cannot prove his case at trial, then a court will dismiss it.

Leaking Hole in Jail Cell, Can you File a Lawsuit for Cruel and Unusual Punishment?

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

prison_prison_window_window-scaled When prison officials do nothing to fix a large hole that leaks onto the floor in a jail cell, could the inmate have a claim for cruel and unusual punishment? The Fifth Circuit Court of Appeals case answers no. Many instances of inmates complaining about mistreatment are not uncommon to hear about, but when do we draw the line from complaints to unusual punishment? The subsequent lawsuit helps us answer this question of Eighth Amendment rights violations.

Ceasar Shannon was a Dixon Correctional Institute prisoner for over three years. The cell he was in had a large hole in the ceiling that would leak water when it rained. Shannon, along with other inmates, had made many complaints to maintenance requesting it to be fixed. Many times the guards just put buckets to catch the water dripping. One of these times, Shannon woke up at night to use the bathroom and slipped and fell on the puddle from the leak. Shannon suffered injuries to his back, shoulder, and hip.

Shannon filed a lawsuit against the Louisiana prison official under 42 U.S.C § 1983 action in federal district court. Under 42 U.S.C § 1983 a person can seek remedies against others who violated their constitutional rights. Shannon claimed the prison guards were aware of the hole in the wall and did nothing to fix the problem, thus showing deliberate indifference to Shannon’s health and safety, violating his Eight Amendment right to be free of cruel and unusual punishment. In response, the State filed a motion to dismiss. The State claimed slip-and-fall cases are negligence claims, not actionable under § 1983. The district court held in favor of the State. Unhappy with the district court’s ruling, Shannon appealed to the Fifth Circuit Court of Appeals.

Cancer Patient Prevails on Workers’ Compensation Claim Against Exxon

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

exxon_valdez_cleanup-scaled We have all read headlines about lawsuits filed against gas and energy companies by workers who have developed health problems at their facilities. But what happens when a plaintiff files a lawsuit which could be barred by a workers’ compensation act? Will the claim be able to withstand a peremptory exception? How does the plaintiff fight against such a motion?

Susan Mulkey appealed a trial court judgment sustaining a peremptory exception dismissing her claims against Exxon Mobil Corporation for damages. Her case arose from the death of her husband, Michael Mulkey Sr., who was exposed to toxic chemicals during his time at Exxon. Mulkey Sr. worked at Exxon for thirty-five years, during which he was exposed to benzene. He was subsequently diagnosed with acute myelogenous leukemia.

Mulkey Sr. claimed forty-one employees of Exxon were liable for his damages because of their negligence in properly safeguarding the work environment. When Mulkey Sr. died from leukemia, his wife and children filed a lawsuit for damages. Exxon filed a peremptory exception, claiming Mulkey failed to state a cause of action, which the trial court sustained. Exxon was eventually dismissed from the lawsuit, which Mulkey appealed.

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.

What Happens When There is More Than One Claim to a Deceased’s Property?

Published on: May 2, 2023 | By Berniard Law Firm

courthouse_court_law_justice_0-scaled Losing a loved one is hard enough. What happens, however, when multiple people claim they have a right to the same property the decedent owns at the time of their death? Cases involving multiple parties and claimants can get tricky, especially when one claimant was the decedent’s spouse and the other was their descendant, as was the case in the following lawsuit.

After being killed in an accident in New Orleans, Tommie Varnado’s widow, Patricia Varnado, filed a wrongful death and survival action lawsuit against the Louisiana Department of Transportation and Development (DOTD). Although Patricia agreed to settle with DOTD, she died before the trial court signed a consent judgment memorizing the settlement. The trial court then signed a consent judgment ten days after Patricia’s death. Months later, Kenneth John Gaunichaux filed a motion to substitute himself as the plaintiff in place of Patricia, alleging the two were married at the time of her death and that he was entitled to recover the settlement proceeds. The trial court permitted the substitution, although, before the settlement distribution, the DOTD questioned the validity of the consent judgment, as it was signed after Patricia’s death.

Melvin J. Owens Jr. then filed a motion to vacate and set aside Kenneth’s motion for party substitution, instead alleging he should be substituted as the plaintiff in place of Patricia. In his motion to substitute party plaintiff, Melvin argued he was the sole heir of Patricia and was the proper party to represent her and to receive the damage award.

Louisiana Court Finds Interdiction Inappropriate for Acadia Parish Mother, Despite Son’s Objections

Published on: May 1, 2023 | By Berniard Law Firm

louisiana_park_stream_pond If an individual is unable to care for themself or manage their financial or business affairs, legal intervention in the form of interdiction may be appropriate. If a court finds interdiction to be warranted, it may assign another person to make decisions for the disabled. The following case demonstrates when a court may deny an interdiction assertion.

John Dupuis filed a petition for interdiction in Acadia Parish, asserting that his mother, Linda Dupuis, was incapable of being employed, driving, balancing her checkbook, or paying her bills. In his petition, John also noted that his father, Kenneth Dupuis, had recently passed away, that Kenneth had always taken care of Linda, and that John should be appointed curator of Linda. Although Linda filed a motion denying John’s allegations, she also sought the appointment of her daughter, June Dupuis, as curator if the court found interdiction appropriate. John then responded with additional grounds for interdiction: that Linda had mental illness and epilepsy.

The 15th Judicial District Court for the Parish of Acadia then appointed Dr. Eddie Johnson as an examiner to provide his opinion on whether Linda suffered from the infirmities alleged by John, the appropriateness of the interdiction, and if a less restrictive means of intervention was available. Dr. Johnson indicated in his report that Linda showed no signs of cognitive impairment, could make competent major life decisions and that interdiction would not be necessary.

St. John the Baptist Parish Car Accident Lawsuit Fails for Lack of Evidence

Published on: April 30, 2023 | By Berniard Law Firm

car_damage_auto_exterior-scaled Winning a lawsuit against an employer can be challenging. Employees are often transient, while the employer is an anchor in their community. Employer responsibility for an employee’s negligent action requires significant factual evidence. In a recent case out of St. John the Baptist Parish, a missing former employee and a lack of facts prevented the injured party from winning.

Herbert Collins was driving his car early one morning when Fredrick Davis struck him from behind. Kelly Construction employed Davis, and he was operating one of their vehicles at the time of the accident. Collins suffered many injuries, including spinal and muscle injuries. Collins filed a lawsuit against Davis and his employer Kelly Construction and Kelly’s insurance company Cincinnati Insurance. Collins alleged that Kelly Construction was vicariously liable for Davis’ actions because Kelly negligently allowed its vehicle to be operated by a careless, untrained driver. Davis was served with the lawsuit however was unable to be found and properly served. As a result, the lawsuit against Davis was dismissed. Even more detrimental was that without Davis, little evidence of his negligence and relationship with Kelly Construction could be gathered.

The Fortieth Judicial District Court for the Parish of St. John the Baptist dismissed the lawsuit after the trial finding there was a lack of evidence to prove vicarious liability against Kelly Construction. Even after a request for a new trial, the District Court denied the request. However, it upheld the dismissal citing a lack of evidence of an employer/employee relationship and a lack of evidence that the employee was acting in the scope of his employment. Collins appealed to the Louisiana Fifth Circuit Court of Appeal.

What kind of Evidence is Needed to Prove Future Medical Benefits in a Medical Malpractice Lawsuit?

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

medical_instruments_examination_424729-scaled After a medical malpractice-induced injury, patients may need significant awards of damages to cover the expenses of a resulting disability. A case in Shreveport shows how to present substantial evidence of an ongoing need for care. It also helps answer the question; What kind of Evidence is Needed to Prove Future Medical Benefits in a Medical Malpractice Lawsuit?

In 2007, Dr. Anil Nanda operated on Barbara Wise to address weakness in her right shoulder. Unfortunately, during the surgery, Dr. Nanda accidentally made a small tear in the membrane covering the spinal cord. Although Dr. Nanda attempted to seal the tear, Barbara experienced ongoing post-surgical weakness in her upper and lower extremities. When Wise and her husband brought up her symptoms to Dr. Nanda at follow-up appointments, he told them that these complications were normal and would eventually go away. However, when the weakness persisted, Dr. Nanda ordered an MRI, which showed a spinal fluid leak putting pressure on Wise’s spinal cord. Although Dr. Nanda corrected the tear in a second surgery, Wise continued to suffer severe weakness in her extremities that required aggressive rehabilitation.

Wise filed a medical malpractice lawsuit against Dr. Nanda and Louisiana State University Health Sciences Center to recover the costs incurred due to her condition. She was awarded $1,355,740 for medical expenses and benefits between the injury and verdict, 2) $1,054,776 for future medical expenses 3) $517,000 for lost wages, and $250,000 for pain and suffering. LSU appealed the award of costs between the injury and verdict and lost wages.

When Can a Client Sue Their Former Lawyer?

Published on: April 27, 2023 | By Berniard Law Firm

statue_romagnosi_courthouse_rome-scaled
Negligent lawyers can get themselves into hot water by retaining confidential client documents. Often, this violation of professional responsibility will result in a malpractice suit.

The more egregious behavior, the more intensely the lawyer may find themselves being litigated against. For example, in the following appeal, a lawyer is sued from all angles as his former firm and his former client sue him to regain client files retained post-employment.

Thomas Glynn Blazier was fired from his job as an associate at a law firm in Lake Charles. The firm sued Blazier for damages, during which it became aware Blazier had kept confidential files, including those relating to client Elaine Marshall. When Marshall learned of Blazier’s actions, she intervened as both an individual and as the Estate to which the files related and fought to regain possession of the files. Blazier motioned against this intervention to no avail.

Can a Litigant Exclude Evidence in a Car Accident Lawsuit?

Published on: April 26, 2023 | By Berniard Law Firm

law_justice_court_judge-scaled Imagine being on a jury – everything you hear has gone through a process of admittance to be used as evidence during the trial. What the jury is told often plays a role in what the jury thinks of the parties and how it assigns blame amongst them. The following lawsuit explores what happens when a defendant challenges the admittance of a piece of evidence it believes unfairly swayed the jury against it. It also helps answer the question; can a litigant exclude evidence in a car accident lawsuit?

Elsie Boudreaux and her mother, Thelma Bizette, passed away due to a car accident in Addis, Louisiana. The surviving family members brought a lawsuit against the Louisiana State Department of Transportation and Development (DOTD). A jury found the accident to be 60% the fault of Boudreaux and 40% the fault of the DOTD.

The DOTD appealed the trial court’s ruling, alleging it erred in denying their motion to exclude evidence of how the department collected crash reports at the accident site. They claimed evidence on crash report procedures was irrelevant to how the accident occurred. They also claimed they were unduly prejudiced because the evidence misled the jury.