Litigation

Angola Prisoner Denied Requested Shoulder Surgery After Review of Medical Records

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

rodeo_cowboy_bull_riding Rick Sheppard, an inmate in the custody of the Louisiana Department of Public Safety and Corrections, injured his left shoulder two separate times while participating in the Angola Prison Rodeo. After seeing two specialists, Sheppard maintained that the medication and physical therapy regimen he had been following was ineffective. When Sheppard filed an administrative petition, he requested reparative surgery, treatment by a chiropractor, injections into the shoulder, blood testing to determine the effects of his medication, related medical records, and reimbursement of all costs.

In a two-step response, DPSC first stated that Sheppard’s request for proper medical attention had been granted since he had improved after receiving injections and physical therapy for his shoulder. In the second response, they asserted that Sheppard’s past treatment and ongoing care plan were adequate, and no further investigation into his claim would occur.

Under Louisiana law, all civil and criminal actions arising out of the incarceration of state prisoners are heard by a commissioner. This commissioner makes recommendations for the disposition of a case, which are submitted to a district judge. The district judge then accepts, modifies, or rejects the recommendation. La. R.S. l3:713(C)(l), (2), & (5)

Medical Malpractice Lawsuit Tossed Due to Louisiana’s Prescriptive Period

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

hourglass_time_hours_sand-scaled A man is in the hands of a facility tasked with providing sufficient medical care. Instead of meeting this standard of care and due diligence, the facility fails to adjust the man’s diet, and he chokes on solid food that he should not eat, leading to his death. When his parents and children bring multiple complaints of medical malpractice, his children’s claim gets dismissed despite the apparent negligence of the facility. Why did that happen?

Joseph Triggs was this very man. While in the care of the Audubon Health and Rehabilitation Center (“Audubon”), Mr. Triggs choked on solid food and died in January 2013. A medical malpractice claim naming Mr. Triggs as the plaintiff was brought eight months after his death, alleging that the facility’s failure to adjust Mr. Triggs’s diet led to his death. Aubudon did not adjust his diet despite difficulty chewing and swallowing solid food.

As is the process for medical malpractice in Louisiana, the complaint requested that a medical review panel assess the situation. Nearly twenty-two months after Mr. Triggs passed, a request was made to amend the complaint, adding Mr. Triggs’s children as claimants, along with the decedent’s Estate. Finally, over two-and-a-half years after Mr. Triggs died, the medical review panel unanimously decided that Audubon had been negligent in caring for Mr. Triggs, and Mr. Triggs’s children and Estate filed a lawsuit in the trial court on a claim of medical malpractice.

Louisiana Engineering Company Not Liable for Trampled Worker in Geismar Plant Explosion

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

fire_explosion_danger_hot-scaled A chemical plant explosion, sudden and dangerous, causes chaos when the workers try to escape. During that exodus, a worker is trampled by his colleagues as they attempt to flee. Who then bears responsibility for the injuries caused by this trampling? Is it the other workers? Is it their managing company? Is it the owner of the chemical plant?

Just outside Geismar, Louisiana, multiple injuries resulted from a chemical explosion at the William Olefins plant. As a result, the numerous injured parties filed lawsuits against several defendants for those injuries. The defending parties included the Chicago Bridge and Iron Company collective (“CB&I”). One of the plaintiffs was Ken Haydel, whom CB&I had hired to work in the Olefins plant. Haydel alleged that he was pushed down and trampled by other CB&I workers following the explosion and that CB&I is responsible for the “intentional acts” committed by their employees within the scope of their employment.

A hearing occurred at the trial court on CB&I’s motion for summary judgment. CB&I sought to evade specific legal claims Haydel made before trial. The trial court granted CB&I’s motion for summary judgment, and Haydel appealed the trial court decision.

Where There’s Smoke, There’s a Lawsuit: Determining Liability for a Car Accident Resulting from a Marsh Fire

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

camillo_fire_2015_06_25-scaled
The phrase, “where there’s smoke, there’s fire,” is often used to describe situations where one thing almost certainly indicates the presence of another. However, establishing a contributing factor to a car accident and liability for negligence does not always follow so direct a relationship.

Shortly before Tropical Storm Lee reached the marshlands of Oak Island just outside of New Orleans in September 2011, an employee of the LPC (“Little Pine”), the entity that owns Oak Island, saw traces of smoke and reported it to the Fire Department (NOFD). NOFD investigated the scene and found a fire, but the area from which the smoke was coming was not accessible to fire crews. The onset of Tropical Storm Lee made it even more difficult for NOFD, which had called in the Louisiana Army National Guard — to reach the source of the smoke. Helicopter water drops were used to treat the fire, but access by boat or other means remained impossible. The fire continued to burn for months under the daily monitoring of NOFD.

On the morning of December 29, 2011, drivers traveling on Interstate 10 past the Oak Island marshlands suddenly encountered thick, dense fog and smoke clouds, resulting in nearly zero visibility. Scott Lowe, a passenger in one of the vehicles traveling on I-10, was involved in a multi-car accident caused by poor visibility conditions. Lowe filed a lawsuit against Little Pine, arguing that it acted negligently by allowing the marsh fire to burn for months after it began, allowing smoke to obstruct visibility along a major roadway, and failing to exercise due care regarding the safety of others. Little Pine filed a motion for summary judgment, arguing that there was no genuine issue of material fact about whether Little Pine was liable for an “unavoidable Act of God/force majeure.” In addition, Little Pine asserted it owed no duty to Lowe to extinguish the marsh fire. The trial court granted Little Pine’s motion for summary judgment, and Lowe appealed.

Houma Residents Injured by Termite Treatment Shut Out of Court for Failure to Offer Qualified Expert Witnesses

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

termite_tracks_tree_damage Expert testimony is one tool litigants can use to prove their arguments in a court of law. Expert witnesses are highly credible individuals with advanced knowledge in a particular field in a lawsuit. The testimony of experts is meant to assist the court in understanding the evidence in matters of fact. But not just anyone claiming to be an expert can testify on behalf of a litigant. As homeowners Blake and Courtney Freeman learned in a painful way, the testimony of six expert witnesses they offered was denied admissibility because it failed to meet Louisiana’s standards for expert testimony evidence.

The Freeman family purchased a home in Houma, Louisiana, which at the time contained prior termite damage previously treated by Fon’s Pest Management. In 2010, the Freemans began renovating their kitchen and discovered additional termite damage in the kitchen cabinets. As a result, Fon’s Pest Management again treated the Freemans’ home on two separate occasions by drilling holes in the floor, injecting termiticide into the soil beneath the floor, and using spot treatments of termiticide around the house. The spot treatment chemical contained fipronil, a colorless, odorless neurotoxin. Following Fon’s Pest Management’s treatments, the Freemans began to experience health problems that they believed were caused by the termiticide used in their home. As a result, the Freemans moved out of their house and filed an action against Fon’s Pest Management for damages due to injuries caused by the exposure to fipronil.

In support of their theory of recovery, the Freemans relied on the expert testimony of three toxicologists, an engineer, an industrial hygienist, and a professional counselor. Fon’s Pest Management filed motions in limine, arguing that none of the expert’s testimony should be admitted into evidence because they failed to meet the required legal standard for experts. A motion in limine is filed by a party who seeks to have the court limit or prevent certain evidence from being presented by the opposing party at trial. These motions, usually filed before the commencement of a trial, are handled outside of the jury’s hearing. The trial court granted Fon’s Pest Management’s motions to exclude the Freemans’ expert testimony and subsequently granted Fon’s Pest Management’s motion for summary judgment.

No Pay, No Play, No Problem? Uninsured Motorist Injured in Car Accident Obtains Jury Award

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

harry_potter_car_1176447-scaled Car accidents are traumatic experiences that occur every day across Louisiana. An accident can cause initial damage upon impact, but many accident victims also spend months and sometimes years coping with accident-related injuries.

On June 27, 2014, Jasmine Raymond, a twenty-four-year-old driver who did not have auto insurance as required by Louisiana law, was heading eastbound on Interstate 10. Her car was rear-ended by Lance Cook, a truck driver for Rubber & Specialties, Inc. when he took his eyes off the road to check the GPS on his phone. Over the next two years following the accident, Raymond required numerous surgeries and procedures to address injuries she sustained in the crash.

Raymond filed a lawsuit against Cook and his employer, seeking damages for injuries arising from the accident. Before trial, Cook, his employer, and his insurance company filed an affirmative defense to Raymond’s claims under the “no pay, no play statute.” This law states that the victim of a car accident without proper insurance may not recover the first $15,000 of bodily injury damages and the first $25,000 of property damages in any claim related to the accident. La. R.S. 32:866. The rule does not apply when the accident is caused by a drunk driver, a driver who flees the scene, or a driver who otherwise intentionally causes the accident. According to a 2012 report by the Insurance Research Council, the no pay, no play rule intends to provide relief for at-fault drivers who nevertheless complied with state insurance requirements. Raymond filed a motion to dismiss the defendant’s affirmative defense. However, the trial court deferred the issue and proceeded to trial.

Iberia Parish Educator Learns Expensive Lesson in Pro-Se Lawsuit Against Former Attorney

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

school_teacher_pupil_649390-scaled Aleashia Clarkston’s employment with the Iberia Parish School Board was terminated in April 2013 after she was accused of abusing the school’s Leave of Absence policy. She had been on medical leave since September 2012. Clarkston objected to what she believed was a wrongful termination. In addition, she claimed she was denied due process rights as a tenured employee.

The Louisiana Association of Educators (LAE) assigned Ike Funderburk to represent Clarkston in her lawsuit against the school board. Fast forward a year and two months—Funderburk no longer works for LAE and informed Clarkston that he no longer represented her. A second LAE attorney was assigned to her case, and she soon learned that nothing had ever been filed against the school board and that her claim had not been established until April 2014.

Frustrated, Clarkston filed a lawsuit representing herself—as a pro se plaintiff—against Funderburk for failing to file her wrongful termination lawsuit. Funderburk then responded with an answer accompanied by a motion to set a security bond for his litigation costs. He sought $10,000—a price he thought reasonable for the three expert witnesses he would have to obtain to establish the legal standard of care, offer an opinion on teacher tenure law and wrongful discharge, and evaluate Clarkston’s loss of earnings.

Baton Rouge Car Dealer Escapes Vicarious Liability Claim in Accident Involving Motorcyclist

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

crash_test_collision_60_2-scaled It’s a common scenario: a potential buyer visits a car lot, finds a vehicle he’d like to test drive, and heads out onto the road with the salesperson in the passenger seat. What happens, though, if an accident occurs during the test drive? Suppose the potential buyer loses control of the vehicle while driving — who is responsible for injuries and property damage that result?

On October 27, 2007, Ronald Branstetter was riding his motorcycle on Airline Highway in Baton Rouge when he was allegedly forced off the highway. Branstetter states that defendants Beal and Rives were test-driving a 1988 Ford Bronco when Beal lost control of the truck. To avoid a collision, Branstetter swerved off of the highway, causing him to suffer injuries. Branstetter brought a lawsuit against Beal and Rives to recover damages from his injuries, alleging that the injuries were caused by Beal’s and Rives’s negligence. Branstetter also named Millenium Auto Sales (“Millenium”) as a defendant in the case, alleging that Millenium owned the Ford Bronco and that the company employed Rives, giving rise to a vicarious liability claim.

Under Louisiana law, employers are generally responsible for the damage caused by their employees, but only if the employee is acting within the course and scope of his employment. La. C.C. art. 2320. A “servant,” or employee, is considered to be a person under the control of another employed to perform services. On the other hand, a non-servant agent may contribute to the employer’s business but is not under the employer’s control. In determining if there is a master-servant relationship, courts often look to factors including compensation, the status of the employee, performance of a specific mission, the intensity of the relationship, control, the role of the employer in exercising control, and the direct benefit to the company. See Cason v. Saniford, 148 So. 3d 8 (La. Ct. App. 2014).

Monroe Car Accident Shows Importance of Proper Strategy in the Trial Court

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

intersection-scaled Lawsuits resulting from car accidents can raise many difficult questions. Determining the precise events that led to an accident can be complicated and require courts to make close calls about witnesses’ credibility. Furthermore, parties may question whether they are entitled to certain damages if they prevail in their lawsuit. These questions arose in a lawsuit involving a car accident in Monroe, Louisiana.

On January 4, 2015, Bernice Amos and her daughter were driving Amos’s car on Ruffin Drive. They were involved in an accident with Dorothy Taylor, who was driving her car on Highway 165, which crossed Ruffin Drive at an intersection regulated by a traffic signal. Amos claimed that Taylor entered the intersection while the traffic light was red, and Taylor alleged that Amos had the red light. A sheriff’s deputy who happened to be nearby reported that he was uncertain whether Taylor or Amos had the right-of-way when the collision occurred. Given this uncertainty, the police officer who responded to the scene could not determine who was at fault and did not issue a citation. Amos and her daughter suffered severe personal injuries to their backs, necks, and shoulders due to the accident.

After a bench trial, the trial court ruled that Taylor was 100% at fault for the accident because she entered the intersection against a red traffic signal. The trial court, therefore, awarded Amos damages for medical expenses, general damages, and attorney’s fees. Taylor appealed to Louisiana’s Second Circuit Court of Appeal based on two issues: whether the trial court correctly allocated fault and whether the trial court adequately awarded Amos’ attorney’s fees.

Injured Driver Wins Favorable Jury Verdict and Still Appeals in Ouachita Parish Car Accident Case

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

no_passing_zone_sign-scaled Car accidents are unfortunate but commonplace occurrences in modern life. The resulting lawsuits can involve complicated arguments over the allocation of fault between the drivers involved and the appropriate amount of damages awarded by the Court. Such questions arose in a lawsuit involving a car accident in Ouachita Parish, Louisiana.

In November 2013, Terany Goldsby drove her niece to a U.S. Navy recruitment office on Perryville Highway 554. The highway is a two-lane road with “no passing” lane markings at the point that Goldsby pulled up behind a Louisiana Department of Transportation and Development (“DOTD”) dump truck that was stopped in her lane. The truck was being driven by David Blocker, a DOTD employee. Goldsby waited for the truck to advance, but the truck backed up, colliding with Goldsby’s vehicle. This collision crushed Goldsby’s car’s front end, injuring Goldsby.

The DOTD truck was stopped on the highway because Blocker had overshot the pothole he and two other DOTD employees were sent to patch; Blocker reversed the truck to better position it relative to the pothole. Blocker admitted that neither of the other DOTD employees presented “spotted” for Blocker before he reversed the truck, as is required by the DOTD. The police officer who responded to the accident cited Blocker as “at fault.” Blocker’s manager also reprimanded him for not following the DOTD truck reversing the policy.