Litigation

Considering a Lawsuit? Don’t Discard Evidence Critical to Your Case

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

detective_crime_scene_dagger-scaled An important safeguard in the law is the requirement for an accusing party to support its allegations with facts and, ultimately, evidence. There are multiple reasons to have this protection in place. Proceeding with a claim that makes a wrong conclusion against another party would not be particularly fair or just, nor would it be an effective use of court resources.

Louisiana courts entitle a party to move for summary judgment to press the opposing side to demonstrate there is a genuine dispute to resolve. La. Code Civ. P art. 966. If, for example, a plaintiff makes a claim that requires the support of physical evidence that they cannot produce, summary judgment will be granted. The following case out of Washington Parish, Louisiana, shows why, if you are considering a lawsuit, you should never discard evidence critical to your case.

Robert D. Byrd used a home-based oxygen machine provided by Pulmonary Care Specialists, Inc. (PCS). He was hospitalized for respiratory failure after being found unconscious by his mother, who reported that the machine was running at the time. Byrd’s machine did not undergo maintenance or repair before the incident. However, his mother did request service one day earlier. Byrd’s mother subsequently set the oxygen machine out with the trash, preventing follow-up testing or inspection.

Louisiana Medical Malpractice Lawsuit by Dental Patient Fails at Appeals Court

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

dentist_dental_dentistry_teeth-scaled Appeals from trial court decisions can be costly, especially if the result is again not decided in your favor. Tara Lorraine (“Ms. Lorraine”), a dental patient at Bluebonnet Dental Care, L.L.C., learned this the hard way after appealing a jury verdict decided against her. The Louisiana Court of Appeals for the First Circuit (“First Circuit”) affirmed that jury verdict and assigned costs of the appeal to be paid by Ms. Lorraine. The following case shows the difficulty in proceeding with a medical malpractice lawsuit in Louisiana based on alleged substandard dental procedures.

Ms. Lorraine alleged that her injuries occurred during several dental treatments over several months. First, on January 21, 2010, Ms. Lorraine accused Dr. Ross Quartano (“Dr. Quartano”) of spilling etchant on her throat, which left her with a permanent scar. Then, on April 30, 2010, she accused Dr. Louis Lamendola (“Dr. Lamendola”) of extracting one of her teeth without her consent. Finally, Ms. Lorraine claimed that Dr. Andre Bruni (“Dr. Bruni”) and Dr. Quartano failed to remove substantial underlying decay before they filled some of her teeth, causing her such extreme pain that eventually, she had to seek additional help from a different dentist.

Subsequently, Ms. Lorraine filed a complaint with Louisiana’s Patient Compensation Fund, asking for a medical review panel of each of the three doctors. Upon reviewing Ms. Lorraine’s complaint, the medical review panel found that there was no evidence to support a breach of the standard of care as it related to Dr. Quartano and Dr. Bruni and that a material fact existed regarding Ms. Lorraine’s informed consent with Dr. Lamendola’s removal of her tooth. Thus it did not necessitate an opinion from the medical review panel. However, despite these findings, Ms. Lorraine filed a lawsuit against the same three doctors in the 19th Judicial District Court. Like the medical review panel, the jury found that Ms. Lorraine failed to prove the breach of standards of care. Therefore, the court entered a judgment in favor of the doctors, dismissing Ms. Lorraine’s claims and denying her request for a new trial.

How the Louisiana Code of Civil Procedure Article 971, The “anti-SLAPP” Statute Used in Court

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

bear_wildpark_poing_play Rights, even those granted under federal and state constitutions, are not without limitations. As Yaroslav Lozovyy (“Lozovyy”), a former research assistant at Louisiana State University (“LSU”), discovered in an appeal of his lawsuit against an interim director, Richard L. Kurtz (“Kurtz”), and a vice chancellor, Thomas R. Klei (“Klei”), courts take allegations of making false statements seriously. The following case shows how the Louisiana Code of Civil Procedure Article 971, The “anti-SLAPP” Statute is used in Court.

While most statements are protected under the United States Constitution’s First Amendment Freedom of Speech Clause, courts have since deemed certain limited categories of speech unprotectable such as (but not limited to) fighting words, incitement, and obscenity. In addition, defamation, which is the communication of a false statement that harms the reputation of another, is another category of speech that is not protected under the U.S. Constitution nor Louisiana state law.

After being employed for over ten years as a research assistant on an annual contract-term basis at LSU’s J. Bennett Johnston Sr. Center for Advanced Microstructures & Devices (“CAMD”) in 2012, Lozovyy’s contract was not renewed, and his employment ended. Lozovyy subsequently emailed a fellow research collaborator, Peter Dowben (“Dowben”), a physics and astronomy professor at the University of Nebraska-Lincoln, stating that he heard a rumor that he was fired because he stole research data and Kurtz was therefore forced to fire him.

New Orleans police officer’s disciplinary violation is reversed

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

fbi_police_ford_interceptor-scaled Police officers are trained to enforce the law and are obligated to follow the law. However, when a police officer violates the rules of policing, the officer has a right to written notice and then the right to an appeal if he feels the punishment is unfair. The following case out of New Orleans shows how a police officer’s appeal of disciplinary action can overturn the department’s actions.

Officer Jones (Jones) and Officer Smith were sent to Canal Street due to a disruption at a bar. The officers were notified that Ms. Dana Earles broke another patron’s sunglasses while under the influence. The officers arrested Ms. Earles. While in the police vehicle, Ms. Earles recounted an unidentified officer had raped her at an unspecified time. The officers informed their superior of the arrest and Ms. Earles’s allegation.

An investigation was launched against Jones by the New Orleans Police Department (NOPD) and the Public Integrity Bureau (PIB) for his failure to abide by Rule 4, Performance of Duty clause of the Civil Service Commission (CSC). Jones was later reprimanded. Jones petitioned the reprimand.

Louisiana Court holds that tutors are not considered a “parent” entitled to bring a claim for loss of consortium

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

child_musical_instruments_1065633-scaled Car accidents are extremely traumatic events that can impact the lives of anyone involved. The legal issues arising after a car accident can be complex and affect everyone involved. For example, what are the rights of a tutor when bringing claims on behalf of the children they are responsible for? Will they be considered “parents” under the law and be allowed to bring a claim for loss of consortium? The following case out of Baton Rouge discusses those issues in relation to a car accident.

Geneva Marie Fils, an infant at the time, suffered severe personal injuries after being in a car accident. After the accident, Geneva’s maternal aunt and tutor, Calverna Reed, filed a lawsuit related to the car accident. In it, she sought damages on behalf of herself and Geneva for their loss of consortium. A loss of consortium claim is brought when someone has been deprived of their family relationship benefits (ex: love and affection) due to injuries caused by the defendant.

The trial court dismissed Reed’s claim for loss of consortium. Afterward, the First Circuit Court of Appeals took the case to determine whether Reed’s loss of consortium claim could stand, considering that she was not a parent or guardian of Fils at the time of the accident.

What If You’re Unable to Pay a Bond Required by Law?

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

hospital_corridor_operating_room-scaled Filing a medical malpractice lawsuit in Louisiana requires the plaintiff to pay a bond before the medical review panel is conducted. But what do you do when you cannot pay the bond? Is there a way to still proceed with your case? The following medical malpractice lawsuit out of Jefferson Parish shows that if you are granted pauper status under La. C.C.P. art. 5181, you could be relieved of the bond requirement.

Delores and Elvorn Tate filed a medical malpractice lawsuit against Ochsner Clinic Foundation for personal injuries and other damages. The Tates alleged the negligent placement of an IV into Delores’s left hand during her hospitalization at Ochsner Hospital caused her injuries. Following the submission of Tate’s lawsuit, Ochsner filed a motion for the Tates to post a bond for all the costs of the medical review panel.

Louisiana law requires those filing a medical malpractice lawsuit to post a cash or surety bond. The amount of the bond must be approved by the court. After the lawsuit, the bond will be forfeited to the defendant’s healthcare provider for reimbursement of the costs of the medical review panel if the Defendant wins. However, if the defendant is found liable, they will be required to reimburse the claimant an amount equal to the bond. La. R.S. 40:1299.47(I)(2)(c).

Fax Filing A Lawsuit, Make Sure You Follow the Rules Precisely

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

office_fax_phone_1645312-scaled After a workplace accident, an employee may be flustered, but it is essential that the employee promptly becomes knowledgeable about court requirements and deadlines. If a claim is not filed within an allocated timeline, the claimant may be barred from bringing the claim forward. The following case out of Jefferson Parish shows why, if you’re fax filing a lawsuit, you must follow the rules precisely.

On January 9, 2014, Mr. Palazola fell from a raised platform while in the course and scope of his maintenance job. About a year later, on January 6, 2015, he filed a facsimile petition for damages with the 24th Judicial District Court for Jefferson Parish. On January 23, 2015, the clerk’s office received a copy of Mr. Palazola’s petition with formatting differences from the previously filed facsimile petition.

The defendants, IMC Consulting, Landry Construction, and Cali & LaPlace Engineers, responded by filing an exception of prescription because Mr. Palazola’s facsimile did not meet the requirements outlined in La. R.S. 13:850. According to Louisiana Revised Statute 13:850, facsimile transmission provides that:

FMLA Retaliation and Title VII Hostile Work Environment Claims Fail on Lack of Evidence

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

building_hospital_within_931281-scaled Some consider the workplace as their second home. It is a place where one can thrive intellectually and network simultaneously. However, when a workplace becomes hostile or sexually charged, it can make an employee’s life unbearable. Therefore, to bring a successful claim against FMLA and a hostile workplace, a plaintiff must prove all elements under FMLA and show proof the hostile environment affected their well-being.

Amy Smith (Smith) worked for Touro Infirmary (Touro) from 2008 to 2014 as a respiratory therapist. Smith claimed during her employment, her direct supervisor Larry Anderson (Anderson), sexually harassed her and created a sexually charged workplace. According to Smith, the female respiratory therapists who participated in Anderson’s advances were favored over those who did not comply.

Smith took medical leave under the Family Medical Leave Act (FMLA) while pregnant and was later terminated. Smith alleged her termination was due to her noncompliance with Anderson’s sexual advances. She claimed this because she believed she abided by Touro’s leave policy of reporting while gone and provided additional medical documentation when needed. In addition, Smith filed a discrimination claim with the Equal Employment Opportunity Commission (EEOC) and referenced her discriminatory workplace. The district court dismissed Smith’s case on summary judgment, and she appealed.

Damages Awarded by Jury “Shocked the Conscience,” Louisiana Appellate Court Increases Award by $18,500

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

money_pay_money_making_0-scaled Although a car accident may result in minor damage to your vehicle, it can cause greater damage to your life. By seeking medical treatments and altering your lifestyle due to accident-related injuries, you deserve to be adequately compensated. The following lawsuit, out of Jefferson Parish, Louisiana, shows how courts deal with damage awards and the request to increase the same.

Gregory Nichols rear-ended Sheila Joseph’s vehicle in 2012. This accident caused Joseph’s pre-existing arthritic spine condition to worsen. As a result, she had to undergo sixteen months of conservative care to manage the pain. A frequent runner before the accident, it also limited her participation in activities she previously enjoyed, such as running 5K races.

Joseph then filed a lawsuit against Nichols, and in 2015, it went to a jury trial. Joseph moved for both a directed verdict related to liability and special damages. The court granted her motion in part, ruling that Nichols was 100% at fault. As to the special damages, the trial court took it under advisement. The jury ultimately awarded Joseph the full amount of her medical expenses ($20,118) as well as general damages ($10,500), specifically $10,000 for pain and suffering and $500 for loss of enjoyment of life.

Choice in Pharmacy For a Work-Related Injury Belongs to the Employer

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

pills_medication_tablets_bottle-scaled Getting treatment and medication can be challenging when recovering from an on-the-job injury. If you are injured at work, you may want to pick up prescriptions at the local pharmacy closest to you. While you may have interpreted Louisiana’s Workers’ Compensation statutes to allow for “choice of pharmacy” in the past, the rule is clear. The following case out of the Louisiana Supreme Court shows why the choice in pharmacy for a work-related injury belongs to the employer.

In October 2008, Darvel Burgess sustained an injury while on the job. As a result of that injury, Burgess filled his prescriptions at the pharmacy of his choice. Unfortunately, his employer, the Sewerage & Water Board of New Orleans (S&WB), failed to reimburse him for those prescription costs. Therefore, Burgess filed a Disputed Claim for Compensation against S&WB seeking to recover money for medical bills and an outstanding $13,110.02 for Injured Workers Pharmacy (“IWP”) for prescription medications prescribed by his doctor.

S&WB argued it was not responsible for the outstanding prescription medications bill, according to La. R.S. 23:1142(B) because it notified all injured workers of their pharmacy, Covel Caremark Pharmacy. S&WB stated this was the approved provider for prescription services, and if an employee failed to use this provider, they might not pay for prescriptions. S&WB also notified IWP that it was not an approved pharmacy for workers’ compensation purposes.