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Category: Workplace Accidents

  • Probationary Employees Beware: Employer Takes Issue with Louisiana Workers’ Compensation Judge Decision on Appeal

    Employment law disputes are very fact-specific inquiries. Judges, especially workers’ compensation judges, are typically well-equipped to handle these cases. But when a judge mishandles the facts or misinterprets the law having an excellent attorney in your corner helps in the appeal process. For the Sewerage & Water Board of New Orleans (“SWBNO”), the appeal detailed below involves several issues that SWBNO argues were in error based on the workers’ compensation judge’s decision.

    To provide important background information, this case involved a former employee, Catherine Johnson (“Johnson”), who was hired by SWBNO in April 2013 as a probationary employee, meaning she was not considered a full-time employee during the six months after she started the job. However, while Johnson was still in this designated probationary period, she was injured on the job during her employment with SWBNO. About a month before Johnson’s probationary period was set to end, SWBNO held a pre-termination hearing that determined Johnson displayed a poor work performance unrelated to her injury, which caused her employment to be terminated.

    Johnson subsequently filed a disputed claim for compensation against SWBNO with the Office of Workers’ Compensation that included a request regarding penalties for failure to timely reimburse mileage expenses, among other payments for wages and benefits. SWBNO denied the claims, and a hearing ensued before the workers’ compensation judge.

    At the hearing, the judge heard the testimony of several witnesses and admitted evidence for the record, including the presentation of Johnson’s personnel file with a notice for the pre-termination hearing based on poor work performance and a pre-disciplinary hearing form recommending Johnson’s termination. The form left the employee response blank and unsigned, and the supervisor’s response indicated that Johnson failed to perform her required duties. 

    According to Johnson, she did not have a pre-termination hearing; instead, her employers merely called a meeting, and afterward, she refused to resign, so she was fired. Johnson also attested that she was not made aware that her work was unsatisfactory by any of her supervisors. One of her supervisors conceded that she did not tell Johnson that she was in danger of losing her job based on her mistakes on the job.

    Following the hearing, the workers’ compensation judge awarded Johnson compensation benefits and imposed her requested penalties, costs, and attorney’s fees against SWBNO. When SWBNO asked the workers’ compensation judge for findings of fact to support the judgment, the judge issued a “Reasons for Judgement” posttrial memorandum that stated in part that this case “is a classic case of the employer’s attempt to circumvent its duties under the Louisiana Workers’ Compensation statutes by terminating its injured worker under the guise of a ‘for cause,’ while adding that SWBNO “failed to prove that [Johnson’s] work performance, not her injury, was the cause of her termination.”

    But on appeal, the Fourth Circuit Court of Appeal for the State of Louisiana (“Appeals Court”) was not as convinced that this was a “classic” example of an employer circumventing the Louisiana Workers’ Compensation statutes. At the outset, the Appeals Court made clear that it was “totally irrelevant” whether or not Johnson was terminated for cause because, at the time she was fired, Johnson was still a probationary employee. Therefore she did not have the same protections as a permanent civil service employee would have.

    The Appeals Court emphasized the rule of law established in Dept. of Public Safety & Corr. v. Thornton that a probationary employee may be terminated at any time and for any reason. In contrast, civil service employees with permanent status cannot be released without lawful cause, citing Moore v. New Orleans Police Dept. in the judgment. Therefore, the Appeals Court determined that Johnson was, for all intents and purposes, an “at-will employee who could be terminated without cause.” The relevant law at issue, in this case, was La. Civ. Code. art. 2747, which states that a person is “at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing” and “the [hired] servant is also free to depart without assigning any cause.”

    Upon review of the workers’ compensation judge’s decision, the Appeals Court found that the judge’s decision regarding whether Johnson was fired “for cause” is a non sequitur, meaning it is irrelevant because the determination is conclusory rather than instructive for the current case at issue. Furthermore, the Appeals Court reasoned that the workers’ compensation judge’s emphasis on the “for cause” nature of Johnson’s termination “misapprehends critical distinctions” between a probationary employee and a permanent one as identified by the Louisiana Workers’ Compensation statute and applicable case law.

    Ultimately, while other issues and merits were addressed in the Appeals Court’s opinion, the conclusion was to affirm the workers’ compensation judge’s decision that SWBNO must pay Johnson’s medical expenses, including those related to her travel and medication related to her on-the-job injury but reversed the other portions of the judge’s decision such as SWBNO’s payment of the other penalties, costs and attorney’s fees previously awarded to Johnson. In reaching this conclusion, this case is not necessarily a “classic” example like initially portrayed by the workers’ compensation judge—still, an important one to know for both employees, probationary and permanent, and employers.

    Additional Sources: CATHERINE JOHNSON VERSES SEWERAGE & WATER BOARD NEW ORLEANS

    Written by Berniard Law Firm Blog Writer: Gina McKlveen

    Other Berniard Law Firm Articles on Workers’ Compensation: What happens when a Workers’ Compensation Judge orders your claim to be paid and your employer appeals?

  • Louisiana Employment Discrimination Case Fails Due to Summary Judgment

    People may be fired for a variety of reasons. Often a dismissed employee feels the termination was unjust or racially based. Bringing a lawsuit under Title VII of the Civil Rights Act of 1964 is difficult. A plaintiff must present evidence for a prima facie case of discrimination to survive summary judgment. The following case out of Baton Rouge, Louisiana, demonstrates the difficulty of doing so.

    David Williams, an African-American man, worked for Franciscan Missionaries of Our Lady Health Systems, Inc., before being terminated in November 2012. Williams felt the firing was unfair and that he had claims to bring against the hospital. Williams’ lawsuit asserted racial discrimination and retaliation claims under Title VII and U.S.C. § 1981. 42 U.S.C. § 1981. The Federal District Court granted summary judgment for Our Lady Health on both claims. That ruling caused Williams’s case to be dismissed, so he appealed the ruling to the United States Court of Appeals for the Fifth Circuit.

    On appeal, the court must examine the district court’s granting of summary judgment and if the non-moving party has met their prima facie burden. Summary judgment is appropriate when there are no disputes of material fact, and the movant is entitled to judgment in their favor as a matter of law.

    In Title VII matters, an employee must provide evidence that they (1) are a member of a protected class, (2) are qualified for the position they had, (3) were subjected to an adverse employment action, and (4) were treated less favorably than others similarly situated who are not members of their protected class. Additionally, without direct evidence, “[a] plaintiff establishes a prima facie case of retaliation by showing: (1) that she engaged in activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that there was a causal connection between the participation in the protected activity and the adverse employment decision.” Shackelford v. Delotte & Touche, LLP, 

    The appeals court noted Williams had multiple ways to introduce evidence that would have established his prima facie case of discrimination. However, Williams presented no evidence in his complaint, amended complaint, nor his opposition to summary judgment that would establish similarly situated employees outside Williams’ protected class experienced more favorable treatment. The court also ruled Williams did not provide evidence that showed a similarly situated employee who was “treated more favorably under nearly identical circumstances.” Therefore, his discrimination claims based on that issue failed. Willis v. Cleco Corp., 749 F.3d 314, 320 (5th Cir. 2014).

    Concerning his claims of retaliation, the appeals court noted that Williams needed to prove he had complained that he felt he was being disciplined at work due to his race. The court found Williams failed to prove those who decided to terminate Williams were aware of such claims. Accordingly, the court of appeals decided the district court did not err in granting summary judgment in either the Title VII discrimination or the retaliation claim. 

    To have an employment discrimination lawsuit held in court, a plaintiff must produce evidence to prove each element of the claims alleged sufficiently. With adequate evidence, a case will make it past a motion for summary judgment. Unfortunately for Williams, the court felt he did not provide such proof. 

    Additional Sources: Williams v. Franciscan Missionaries of Our Lady Health Sys., Inc., 190 F. Supp. 3d 561 (M.D. La. 2016)

    Written by Berniard Law Firm Blog Writer: Abigail Varney

    Additional Berniard Law Firm Articles on Employment Discrimination: Employment Discrimination in New Orleans: The Difficulty is in the Proof

    Louisiana Employment Discrimination Case Fails Due to Lack of Evidence 

  • What is Wrongful Termination Back Pay and Exceptional Pay in Louisiana Civil Service Matter?

    If you were wrongfully terminated from a civil service position within your local government, you might be eligible to receive some compensation for your trouble. For example, say you are placed on suspension and are on track to be terminated. However, you later appeal that decision, and your suspension and termination are lifted. As a result, you may be allowed to reclaim back pay and exceptional pay for the time you were prohibited from working. The following case out of Plaquemines parish discusses the issues of back pay and exceptional pay and how they apply within a court proceeding. 

    Loukisha A. Daisy applied for the position of Chief Internal Auditor at the Plaquemines Parish Government (PPG). Daisy was accepted on the condition that she complete all required courses and possess a CPA within one year of her hire date. Daisy worked for PPG for one year but did not obtain her CPA certification within that timeline. PPG moved to terminate her employment for this failure as well as two other non-critical mistakes on her part. Daisy was suspended until she had a predetermination hearing. After the suspension, Daisy was terminated. 

    Daisy appealed her termination to the Plaquemines Parish Civil Service Commission.  The Commission reinstated her to her previous position but failed to award all of the back pay she sought in her initial appeal. Therefore, she appealed the Commission’s decision to the Louisiana Fourth Circuit court of appeals.

    Back Pay for the Rescheduling Period:

    Usually, if a wrongfully terminated civil servant reschedules their termination hearing without the consent of the government, that period between the original hearing date and the rescheduled date is exempt from the award of back pay. Willis v. Dept. of Health & Human Resources, 434 So.2d 1164 (La. App. 1st Cir. 1983)

    However, in the Daisy case, the fact that Daisy and the government agreed to reschedule the hearing was a critical issue to the Fourth Circuit court of appeals. The agreement was construed as consent on the part of the government to extend the timeline, and as such, the appeals court required them to pay the back pay for the rescheduling period. 

    Exceptional Pay:

    Exceptional pay is pay applied for work and qualifications that are out of the ordinary for a given position; it is then approved or denied based on the discretion of the local parish government. Daisy had applied for exceptional pay and was approved, but she never received the payments before the termination proceedings. Daisy asked for exceptional pay in her appeal to the Commission, which was denied.

    Under the Civil Service Rules, “[r]egular employees in the classified service shall have the right to appeal to the Commission from suspension, fine, dismissal, layoff, reduction in pay, or demotion to test the reasonableness of such action.” The appeals court construed this rule to include an appeal on the award of exceptional pay. The commission’s findings were reversed and exceptional pay was included in her back pay calculation after the appeal. 

     If your local Parish government wrongfully terminates you from your civil service position, do not lose all hope. A skilled legal team could get your job back and fight for the money you would have otherwise earned in the period of your wrongful termination. 

    Other Sources: LOUKISHA A. DAISY VERSUS PLAQUEMINES PARISH GOVERNMENT

    By Berniard Law Firm Writer: Ethan W. Seitz

    Other Berniard Law Firm Article on Wrongful Termination: Terminated Plaquemines Parish Employee Denied Attorney’s Fees After Successful Appeal for Job Reinstatement

  • When Can I File a Tort Lawsuit against my Employer if I am Hurt at Work in Louisiana?

    Workers’ compensation is a financial support system that may be available to injured employees. It aims to ensure employees are compensated for their injuries and do not bear the entire expenses of medical bills. Workers’ compensation laws differ from state to state. Still, the general idea is that employees can get benefits regardless of who was at fault for the injury so long as the injury arose from an act during employment. 

    While workers’ compensation provides employees a safety net, not all claims fall under the statutory regime. Sometimes plaintiffs, like David Lindsay,  believe that their injury might result from an intentional act by their employer, which could allow for a more significant damage award. Those workers will try to file their workplace accidents as intentional tort claims. The following case from the First Circuit in Louisiana discusses how employees try to recover damages outside of Workers’ Compensation benefits for their injuries on the job. It also helps answer the question, when can I file a tort claim against my employer if I am hurt at work in Louisiana?

    David Lindsay was an employee at Packaging Corporation of America (PCA), where he operated forklifts as part of his duties. He suffered severe injuries when the forklift he was driving slipped and fell off a loading dock. This accident lodged his left forearm between a railcar and the safety cage on the forklift. 

    Lindsay filed a lawsuit against PCA Pennington as a result of the accident. He claimed PCA was responsible for his injuries due to the water buildup on the warehouse floor that caused the forklift to fall. If Lindsay could prove that PCA knew of this dangerous condition, he may be eligible to recover in tort against PCA. 

    PCA disagreed with Lindsay’s assertion that they knew of the dangerous condition. As a result, PCA filed a motion for summary judgment stating that Lindsay could not prove PCA intentionally hurt him. Therefore, his sole remedy was to receive Workers’ Compensation benefits. The district court ruled in favor of PCA’s summary judgment motion, and Lindsay appealed that decision.

    To recover damages under LSA-R.S. 23:1032(B), a plaintiff has to prove that the employer either wanted the actual result of its act (in this case, Lindsay becoming injured from the water buildup) or knew that the result was reasonably sure to happen from its behavior (a sort of negligence argument) see LSA-R.S. 23:1032(B). In this case, Lindsay alleges that PCA knew his injury was bound to happen because they had known of the wet floor issue for years without doing anything about it.

    According to Lindsay’s documents, PCA employed the Hazard ID and Safety Observation Achieve Results (SOAR) reporting programs to allow employees to report different hazards in the workplace. For example, staff members had used SOAR to report wet floor issues to PCA multiple times in the three years before Lindsay’s injury. However, PCA rebutted this by offering evidence that the company knew the water buildup on the floor but had remedial procedures. In addition, PCA claimed there was no evidence of any other PCA employee getting hurt from a forklift sliding on the floor.

    Regardless, the appeals court reasoned the substantial certainty requirement requires more than just a mere chance of harm. Danos v. Boh Bros. Constr. Co., LLC, 13-2605 (La. 2/7/14), 132 So.3d 958, 959. The injury must be unavoidable. Even if the employer’s behavior exceeds simple carelessness, their actions in knowingly allowing a dangerous work situation to remain must show that the employer wanted the incident to occur or was so negligent that they allowed it to happen.

    In addition, there is no serious dispute as to whether PCA knew Lindsay’s accident would occur despite one witness’ evidence that forklifts had “countless” slips and falls. This was because Lindsay did not provide proof that the slippery floor conditions contributed to the other forklift accidents.

    The appeals court upheld the district court’s decision to award summary judgment to PCA based on the criteria for determining a “substantial certainty” and the evidence offered in this case. Lindsay’s only option for relief was via workers’ compensation because the evidence did not prove that PCA’s conduct was intentional.

    Workers’ compensation claims have the potential to end up being a long, confusing process. This can be frustrating, especially when employees need the money to support themselves or their families immediately. An experienced attorney can ensure this process runs smoothly and hopefully leaves you with some compensation.

    Additional Sources: DAVID PAUL LINDSAY VERSUS PACKAGING CORPORATION OF AMERICA, KENNETH PENNINGTON, ANDREW SHEETS, AND ACE USA, INC.

    Written by Berniard Law Firm Writer: T.J. Reinhardt

    Other Berniard Law Firm Articles on Workers Compensation: How To Determine If Someone Is Faking Symptoms In A Workers Compensation Case

  • Angola Prisoner Denied Requested Shoulder Surgery After Review of Medical Records

    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)

    When the commissioner reviewed the claim, he found that DPSC had addressed Sheppard’s need to see a medical doctor but had not investigated his request for surgery. The commissioner remanded the matter back to DPSC to reconsider this claim. In their response, DPSC detailed Sheppard’s care thus far, including steroid injections, chiropractic care, oral medications, and physical therapy exercises. DPSC again asserted that this medical care was adequate. DPSC, Sheppard, and the commissioner had several more conferences regarding the claim over the next two years. Finally, Sheppard filed a motion requesting a ruling on the merits, asking that he receive surgery. 

    The commissioner subsequently issued a recommendation stating that DPSC’s decision was “arbitrary and capricious” and ordering that DPSC obtain treatment with an orthopedist who could perform surgery within 30 days if indicated. However, the commissioner amended the recommendation months later to include stronger language, stating that the surgery should be “performed as expeditiously as possible” if necessary.

    In response to this recommendation, DPSC presented the commissioner with several exhibits consisting of notes from physicians who saw Sheppard for his injury, all of which noted that surgery was not recommended in his case. Despite this, the district court adopted the commissioner’s recommendation and ruled that surgery should be performed within 15 days. 

    DPSC appealed the district court’s judgment, alleging they erred in ruling (1) That surgery was necessary, (2) That DPSC’s administrative decision was “arbitrary and capricious,” and (3) That DPSC should pay all costs of the surgery. The Court of Appeals is not required to defer to the district court’s ruling under La. R. S. 15: 1177. After reviewing the record, they disagreed with the district court’s ruling.

    The Court of Appeals held Physician’s notes from visits between 2011 and 2016 indicated that surgery was not required and Sheppard had improved enough with physical therapy to be discharged from the program. In addition, the Court reasoned notes on a 2014 MRI performed by a neurosurgeon also stated, “NOT SURGICAL CASE.” The Court of Appeals then reversed the previous ruling. Instead, it remanded the case to the district court, instructing them to have Sheppard seen by another orthopedist to determine his treatment plan. 

    In this case, the appeals court held the content of Sheppard’s medical records did not support his claim that surgery was necessary to treat his shoulder injuries. Although DPSC underwent many years of litigation in this matter, its efforts were vindicated by the legal process. 

    Other Sources: RICK SHEPPARD # 108703 VERSUS LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS

    Article Written by a Berniard Law Firm Writer

    Other Berniard Law Firm Articles on Injured Prisoners Rights: Is a Sheriff Liable for a Prisoner Injured During a Work Release?

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

    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. 

    A motion for summary judgment can be granted after sufficient discovery so long as the party moving for the motion can show no factual dispute for the court to assess. See LSA-C.C.P. art. 966(A)(3). If the moving party can show that they are entitled to judgment as a matter of law, the court’s grant of summary judgment is appropriate. See Smith v. Our Lady of the Lake Hospital, Inc. 93-2512 (La. 7/5/94), 639 So. 2d. 730, 750. 

    In Louisiana, workers’ compensation is usually the sole remedy for an on-the-job injury unless an intentional act is involved. See LSA-R.S. 23:1032(B). The Louisiana courts have previously determined that employers are only liable for such intentional acts done by employees, even if at the worksite during business hours if the act was done according to the employee’s job. See Boudreaux v. Papa Bear’s Pizza, LLC, 2016-1173 (La. App. 1st Cir. 4/26/17), 220 So. 3d. 84,89. Courts consider various factors to analyze the extent of the connection between the act and the job.

    In focusing on whether CB&I was liable for the allegedly intentional harm to Haydel, the court of appeals upheld the dismissal of Haydel’s claims and affirmed summary judgment for CB&I. The primary basis of this decision was that Haydel did not prove with enough specificity that the CB&I employees acted under their CB&I employment when they injured the plaintiff. The court of appeals agreed with both the trial court and CB&I that the mere fact that the trampling occurred on the business premises during working hours is not sufficient to cast vicarious liability on CB&I for the acts of its employees. Additionally, as the trial court found, the facts do not show that CB&I had any part in causing the explosion at the root of this accident. 

    Haydel did not present any arguments against the trial court’s factual findings. The court of appeals affirmed the trial court’s determination that CB&I employees attempting to flee a dangerous explosion was motivated by personal safety concerns rather than CB&I business interests, thus not rising to the level of connection required between intentional act and job. CB&I sufficiently showed that there is no factual dispute as to the claim of vicarious liability–Haydel did not present facts showing CB&I’s responsibility for his injuries, so the motion for summary judgment was appropriately awarded. 

    Haydel’s insufficient factual evidence led to the dismissal of his claims. The casting of vicarious liability on the employer for the acts committed by its employees has particular requirements; it is not enough that the conduct occurred at work, during work. It must be clear on the record that the behavior was done in accordance with the employment, in furtherance of the employer’s interests. Haydel did not show any connection between his injuries and his colleagues’ CB&I employment, a necessary aspect of CB&I’s alleged liability.

    This case demonstrates the complexity of presenting claims to a court. One must choose their attorney wisely and ensure they have the experience to go to trial. 

    Additional Sources: Higgins v. Williams Energy Partners, L.P.

    Written by Berniard Law Firm Blog Writer: Callie Ericksen

    Additional Berniard Law Firm Article on Vicarious Liability of Employers: Bienville Parish Auto Accident Raises Questions of Vicarious Liability

  • Lawsuit Over Car Accident Involving Louisiana State Employee Dismissed After Three Years of Inactivity by Plaintiff

    Anyone involved in a lawsuit knows that litigation can take months or even years to resolve. Though courts try to expedite the process, the parties involved are also responsible for moving the case forward expediently. If the plaintiff in a lawsuit files a complaint and fails to take further action for a certain amount of time, the defendant may file a motion to dismiss on the grounds of abandonment. The case below is an example of how the abandonment of a lawsuit by the plaintiff resulted in the dismissal of the action. 

    Deborah Allen was an employee of the Louisiana Department of Social Services (“LADSS”). On February 2, 2007, she was riding as a passenger in a LADSS vehicle struck from behind by a car driven by Matthew Humphrey. Allen filed a lawsuit against Humprey and his automobile insurer, Imperial Fire and Casualty Insurance Company, seeking compensation for the injuries she received in the crash. Shortly after that, Louisiana’s Division of Administration, Office of Risk Management (“ORM”) filed a petition of intervention, seeking reimbursement from the defendants for workers’ compensation payments made to Allen. You can think of an intervenor as being a replacement or substitute plaintiff in an action who has a related claim against the defendants. 

    Because Humphrey was underinsured, Allen filed a lawsuit against LADSS. However, LADSS claimed that it had no underinsured motorist coverage and that Allen was only entitled to workers’ compensation from LADSS. LADSS was successful in securing a dismissal of Allen’s lawsuit. In early 2013, Allen and LADSS settled Allen’s workers’ compensation claims. On February 8, 2013, Humphrey and Imperial Fire filed a motion to reduce the jury bond, which is money to procure a jury. In 2014, Humphrey and Imperial Fire sent a settlement letter to Allen, but neither Allen nor the ORM responded to the letter. In 2016, Humphrey and Imperial Fire filed a motion to dismiss Allen’s lawsuit on the grounds of abandonment. After the trial court granted the defendants’ motion, ORM appealed. 

    In Louisiana, a lawsuit is considered abandoned if the parties fail to take any action in furtherance of prosecution or defense in the trial court for three years. La. C.C.P. art. 561(A)(1). A trial court will not automatically file a formal order deeming a lawsuit abandoned. Only when one of the interested parties files a motion asking for abandonment will the trial court issued the formal order. La. C.C.P. art. 561(A)(3). To prevent abandonment, a party must take some steps toward resolving the lawsuit, which is recorded with the clerk of court, and that step must be taken within three years of the last action taken in the case by either party. Clark v. State Farm Mut. Auto. Ins. Co., 785 So. 2d 779 (La. Ct. App. 2001). However, abandonment exceptions exist even if the plaintiff has not fulfilled the above requirements. One way is if the plaintiff could not prosecute the case because of circumstances beyond his or her control. The second way is if the defendant waived the right for the lawsuit to be abandoned by taking action incompatible with the intent of abandonment. 

    In this case, Louisiana’s Court of Appeal for the Second Circuit concluded that Allen’s lawsuit was abandoned because the last motion was filed by the defendants on February 8, 2013; neither Allen nor the ORM as intervenor has filed any motion since then. Though ORM stated that the letter it received from the defendants in 2014 showed that the defendants did not intend to abandon the lawsuit, the Appellate Court ruled that the letter was informal and nothing tangible, like the exchange of money, transpired due to the letter. Thus, the letter did not show that the defendants waived their right to request dismissal due to abandonment. 

    Allen’s original lawsuit was resolved more than ten years after it was initially filed. Though Allen received workers’ compensation payments, the ORM as the intervenor, likely regretted its inaction. Anyone involved in a lawsuit should retain experienced, competent counsel who can keep careful track of the case’s timeline to ensure that it is not dismissed due to inadvertent latency.  

    Additional Source:  ALLEN v. HUMPHREY 

    Written by Berniard Law Firm Blog Writer:  Peter Lee

    Other Berniard Law Firm Articles on Lawsuit Abandonment:  Louisiana Fourth Circuit Court of Appeal Considers Lawsuit Abandonment

  • Petroleum Corporation Releases Millions of Gallons of Toxins Harming Many in Calcasieu Parish

    What happens when the same wrongdoer injures several people? Typically, in cases like this, the court may consolidate the actions to promote the efficient use of judicial resources. However, these cases may be complex and lengthy and require expert testimony, as exemplified by the following lawsuit out of Lake Charles, Louisiana.    

    CITGO Petroleum Corporation’s (“CITGO”) Calcasieu Parish Refinery released millions of gallons of slop oil and wastewater into the Calcasieu River, subsequently contaminating over 100 miles of coastline and taking six months to clean. Slop oil is extremely flammable, poisonous, and listed on the Toxic Substances Control Act inventory. On the same day as the spill, CITGO’s steam lines became submerged and released hydrogen sulfide and sulfur dioxide from several stacks in illegal concentrations for approximately twelve hours. The wind allowed those toxic emissions to reach the surrounding community. 

    The plaintiffs, in this case, assert various injuries as a result of their exposure to the toxic chemicals and emissions released by CITGO. The Louisiana Fourteenth Judicial District Court found in favor of thirty-four plaintiffs. CITGO then appealed the judgment awarding damages to twenty-two plaintiffs based on causation and duration of damages. 

    The first of several issues brought to the Court of Appeal in this case involved causation. In toxic tort cases, the plaintiff must establish both general and specific causation. See Berzas v. Oxy USA, Inc., 699 So.2d 1149 (La. Ct. App.1997). General causation asks whether a substance can cause a particular injury or condition to the public. Specific causation asks whether a substance caused the individual’s injury. See Knight v. Kirby Inland Marine, Inc., 482 F.3d 347 (5th Cir. 2007). 

    CITGO asserted that expert testimony was necessary to prove both types of causation in toxic tort cases. The Court of Appeal found that the plaintiffs did provide expert testimony that established both general and specific causation. The plaintiffs did so through the testimony of an occupational and environmental health physician and epidemiologist, a certified industrial hygienist, a physician of general medicine and occupational and environmental medicine, and a board-certified physician in family practice. 

    The next issue presented in this case involved exposure to slop oil. CITGO’s Material Safety Data Sheet stated that breathing the gas or vapor from slop oil may impact health, causing significant nose, throat, respiratory tract, and lung irritation, respiratory paralysis, nervous system depression, or even death. Additionally, it may cause eye irritation, skin irritation, lung damage, or intestinal upset if ingested. One of the plaintiffs’ expert witnesses demonstrated that even short periods of exposure led to detrimental health effects. 

    The Court of Appeal found that the District Court was provided with significant circumstantial evidence that linked the plaintiffs’ exposure to CITGO’s spills. The District Court judge also took into consideration the plaintiffs’ pre-existing conditions exacerbated by their exposures. The Court of Appeal found no manifest error on the part of the District Court in finding that the plaintiffs did establish causation between their exposure to slop oil and their subsequent symptoms.

    The third issue was related to the exposure to hydrogen sulfide and sulfur dioxide air release. According to a CITGO chemical engineer and investigator, hydrogen sulfide was released by both the slop oil spill and the submerged stacks. The District Court heard further testimony that these chemicals resulted in serious health concerns for those exposed to a certain concentration. The Court of Appeal found that the plaintiffs who claimed exposure to the chemical releases were all within a few miles of one another. Therefore, each of the plaintiffs were successful in proving a causal link between their injuries and their exposure to the two chemicals.

    Next, CITGO asserted the District Court erred in awarding damages to the plaintiffs for symptoms lasting longer than the durations to which their medical experts testified. Under Louisiana law, however, it was within the District Court’s discretion to consider the testimony of each plaintiff when assessing general damages, as the relevant injuries do not have common denominators and must be considered on a case-by-case basis. See Glasper v. Henry, 589 So.2d 1173  (La. Ct. App. 1991). The Court of Appeal emphasized the law that the trier of fact can accept or reject an expert’s findings or conclusions. La. C.E. art. 702. 

    This case involved many complicated concerns and assertions involving dangerous chemicals and several plaintiffs. With such lawsuits, it is crucial to hire an experienced lawyer to help find trusted experts and strategize the best course of action. 

    Additional Sources: EMMA BRADFORD, ET AL. VERSUS CITGO PETROLEUM CORPORATION, ET AL. 

    Written by Berniard Law Firm Blog Writer: Samantha Calhoun

    Additional Berniard Law Firm Articles on the CITGO disaster: Workers Injured During a 2006 Calcasieu Parish Oil Spill Finally Compensated

  • Canton Woman’s Lawsuit Dismissed For Failure to Disclose Claim In Bankruptcy Proceeding

    It is always difficult when you lose a job. But it can be even more difficult if you feel you were unfairly fired. If you find yourself in this situation, consider what legal options are available. This is the situation Christine Simpson found herself in after being fired from her job as a production technician in Canton, Mississippi.

    Before she was terminated, Simpson allegedly injured her ankle on the job and pursued a claim under Mississippi’s workers’ compensation laws. Her employee, Kelly Services Inc., claimed she was fired for not calling in and for missing work after her doctor released her to return to work. Simpson, however, claimed that her absences were all excused due to her injury. She claimed that the real reason Kelly fired her was disability discrimination. 

    Approximately two weeks after being terminated, Simpson filed a Petition for Chapter 13 Bankruptcy in the United States Bankruptcy Court for the Southern District of Mississippi. As part of the bankruptcy proceeding, Simpson was required to submit a Statement of Financial Affairs. One of the questions on the form asked her to list all lawsuits to which she was a party within one year immediately before filing for bankruptcy. Simpson checked the box labeled “none” next to that question. 

    A few months after filing for bankruptcy, Simpson filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). A few months later, after receiving a “right to sue” from the EEOC, Simpson sued Kelly in the United States District Court for the Southern District of Mississippi. Simpson claimed that her termination violated the Americans with Disabilities Act and the Family Medical Leave Act. Still, Simpson did not disclose this case to the bankruptcy court. 

    Kelly moved for summary judgment, arguing there were no genuine issues of material fact. The district court granted Kelly’s motion for summary judgment based on judicial estoppel because Simpson had not disclosed her claim against Kelly in her bankruptcy proceedings. Simpson then appealed to the United States Court of Appeals for the Fifth Circuit.

    Judicial estoppel is intended to prevent plaintiffs such as Simpson from taking a legal position in one proceeding and having a contrary position in a different proceeding. The Fifth Circuit uses the following criteria to determine whether judicial estoppel applies: “(1) the party against whom judicial estoppel is sought has asserted a legal position which is plainly inconsistent with a prior position; (2) a court accepted the prior position, and (3) the party did not act inadvertently.” See Love v. Tyson Foods, Inc., 677 F.3d 258, 261 (5th Cir. 2012).

    Simpson failed to disclose her lawsuit against Kelly in her bankruptcy proceeding. Simpson argued that her failure to disclose the lawsuit was inadvertent, and she did not understand her duty to report the lawsuit against Kelly. However, failure to disclose a lawsuit is only inadvertent if the individual lacks knowledge of the undisclosed claims or has no motive to conceal them. See In re Coastal Plains, Inc., 179 F. 3d 197 (5th Cir. 1999). Here, neither condition was met to establish an inadvertent failure to disclose because Simpson knew about this lawsuit. Further, she had the motivation not to reveal it, given the potential financial benefit resulting from the non-disclosure. As a result, the Fifth Circuit held that the district court had correctly applied these criteria for judicial estoppel to the facts in the case and affirmed the dismissal. 

    Suppose you find yourself in the difficult position of navigating a bankruptcy or another legal proceeding at the same time you are pursuing another claim, such as for discriminatory termination. In that case, you must consult with a good lawyer to make sure you do not take any positions in one proceeding that might adversely affect your rights in another proceeding. 

    Additional Sources: Simpson v. Kelly Services, Inc.

    Additional Berniard Law Firm Article on Judicial Estoppel: Prior Bankruptcy Nearly Prevents Shreveport Man from Filing Personal Injury Case

  • Louisiana’s Act 312 and its Impact on the Environment and Oil Exploration

    La. R.S. 30:29 (“Act 312”) was in enacted in 2006 and became effective in June of that year. Act 312 provides a procedure for the remediation of oil field sites as well as oil exploration and production sites. Generally, remediation is “the action of remedying something, in particular of reversing or stopping environmental change.” Before the Louisiana legislature enacted Act 312, most remediation requirements were through private party contracts; therefore, Act 312 did not change the normal trial procedures established by the Louisiana Code of Civil Procedure.

    The Louisiana Supreme Court recently discussed Act 312 at length, explaining what it did change, in a case involving the Vermilion Parish School Board. The Court explained that Act 312 was enacted because of serious concerns with the state of the land and ground water after an area was used for oil exploration and production. Parties would use the land and ground water under a mineral lease for several years, and leave the property in terrible shape by the time that they were done. Mineral leases allow the parties to contract for only the minerals or the potential oil that is located on that property. The party with the mineral lease, then, does not rent the entire property, but just the ability to find minerals or oil within or upon that property.

    Before Act 312, parties could still sue if one party left the land in terrible shape. Occasionally, however, it does not make sense economically to force a party to fix the land they damaged. Instead, the renting party would have to give the “landlord” the difference between the value of the land when they received it and the value of the land when it was returned after the lease, under a tort law theory. However, the person who owned the land, the “landlord,” was not required to use the funds to fix damage done to the land. As a result, property that had serious environmental problems often went without remediation because the landlord was not required to fix it. This creates health and safety concerns for the general public.

    When parties file under Act 312, a notice is sent to the Louisiana Department of Natural Resources, Commissioner of Conservation (“DNR”) and the attorney general. The court cannot issue a judgment unless this notice is filed. After the notice is filed, the DNR and the attorney general can intervene in the case if they so choose; they also retain the ability to bring an independent action through civil or administrative means. Then, the matter proceeds to trial as any normal case would.

    At the trial, the fact finder will determine if there actually is any environmental damage and whether the defendant or defendants were responsible for that damage. If the fact finder finds that there is environmental damage and the defendant is responsible, then the defendant is required to form a “remediation plan.” The remediation plan is submitted to the court for approval; the plaintiff is allowed to submit a suggested remediation plan to the court as well.

    Then, the DNR will hold a public hearing on the submitted remediation plans. The DNR will then determine the most feasible plan to accomplish the remediation of the environmental damage, keeping the health, safety, and welfare of the public at large in mind. After they approve the plan, the plan is sent to the court for further review. Within a certain time frame, parties can submit alternations, comments, or new plans to the court during this time as well. Unless the parties prove that another plan is more feasible, the court will allow the plan approved by the DNR to move forward. In addition, the court will determine how much of the damages amount will be required to be used exclusively for remediation. Then, the legally responsible parties will deposit funds into the court’s registry for remediation purposes.

    One of the many issues in the case involving the Vermilion Parish School Board was whether private parties could seek additional damages apart from the required remediation funds. The Court determined that Act 312 specifically provided that private parties would not be limited by the remediation plan. That is, if they wanted to seek damages beyond what would be required to correct the environmental damages, such as punitive damages (damages that are meant to punish the offending party), then Act 312 did not limit them from doing that.

    The Berniard Law Firm specializes in oil claims, including their effects on the environment. If you have questions about Act 312 or think your mineral lease has been violated, contact The Berniard Law Firm today.